Gujarat High Court
Abdullamiya Jafarali Saiyed vs Sukhvindrsing Harbanssing on 21 June, 2021
Bench: J.B.Pardiwala
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1289 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ABDULLAMIYA JAFARALI SAIYED
Versus
SUKHVINDRSING HARBANSSING
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 21/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
1. The present appeal under Section 173 of the Motor
Vehicles Act,1988 is at the instance of the appellant-original
claimant and is directed against the judgment and award
dated 23.04.2018 passed by the Motor Accident Claims
Tribunal (Auxi.), Panchmahals at Godhara in M.A.C.P. No. 1203
of 2013 by which the learned 8 th (Ad-hoc) Additional District
Judge partly allowed the claim petition filed by the appellant
herein (original claimant). The appellant is before this Court
being agrieved by the quantum compensation awarded by the
tribunal.
2. This Court vide order dated 11.03.2020 issued notice to
the respondents and called for the record and proceedings
from the tribunal. The present first appeal has been listed
today for further hearing. It was submitted by the learned
counsel appearing for the parties that as the appeal is on the
issue of quantum only, the matter may be taken up for final
hearing.
3. The brief facts giving rise to the present appeal are that
on 20-08-2013, at about 2:30 a.m., the claimant was driving
the truck, bearing registration No. GJ-17-Z-7519. He was
heading towards Valsad after loading sand. He was engaged as
a driver by the owner of the said Truck i.e. Opponent no.4. He
parked the said truck on the left side of the road as one tyre
got punctured. The parking lights of the said truck were on.
The opponent no.1 - driver of the truck, bearing registration
No.PB-06-Q-9018, came from Vadodara side driving his truck in
rash and negligent manner with excessive speed and dashed
with the said stationery truck due to which the driver of truck
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
i.e. the present claimant sustained grievous bodily injuries with
fractures. He suffered crush injuries on his right leg and his
right leg had to be amputated. It is stated that he has become
incapable to drive any vehicle as he has suffered 100%
functional disability. He can no longer work as a driver of any
type of vehicles. He filed the claim petition under section 166
of the Act for compensation of Rs.30,00,000/-. The tribunal by
order dated 23.04.2018 awarded compensation of
Rs.11,65,000/- and passed the following award:
"1. Present claim petition is hereby partly allowed against the
opponents No.1 to 3. The claim petition against the opponents No.4 &
5 is hereby rejected.
2. The applicant is entitled to get Rs.11,65,000/- (Rupees Eleven
Lacs Sixty Five Thousand only) from the opponents No.1 to 3, jointly
and severally, towards the compensation with proportionate costs and
9% p.a. interest from the date of filing of the claim petition till
realization. The opponents No.1 to 3 are directed to deposit the said
amount of compensation before this Tribunal within one month from
the date of this order.
3. The amount of interim compensation, if any, paid to the
applicants shall be adjusted with the amount of compensation. The
amount of court fees shall be calculated by the office and shall be
deducted first out of the amount of compensation deposited with this
Tribunal.
4. Out of the remaining amount, 30% amount be paid to the
applicant in cash by A/c. Payee Cheque and remaining 70% amount be
invested in any Nationalized Bank as per the choice of the applicant in
her name in Fixed Deposit Receipt for period of FIVE YEARS. The
applicant shall be entitled to receive the periodical interest thereon.
5. It is further ordered that the applicant will not be entitled to
withdraw the said F.D.R. before its maturity date or to have loan
therein without prior permission of this Tribunal. Further, the
concerned Bank will be under obligation to release the said F.D.R. on
the date of its maturity without requiring release order from the
Tribunal.
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
6. The opponents to bear their own costs.
7. Award to be drawn accordingly."
3.1. The appellant-claimant produced the relevant documents
before the tribunal. The tribunal framed the issues at Exh.23
which are produced as under:
"1. Whether it is proved that the claimant sustained injuries on
account of rashness or negligence in driving on the part of the
driver/s of the vehicle/s involved in the accident?
2. What amount, if any, the claimant is entitled to by way of
compensation and from which of the opponents?
3. What order?"
3.2. The appellant - claimant filed his affidavit at Exh.25. He
was cross examined by the Ld. Advocates of the opponent nos.
3 and 5. The police had also filed charge sheet against the
opponent no.1. The opponent no.1 did not step into the
witness box to explain the accident details. The tribunal has
drawn adverse inference against the opponent no.1. The
tribunal held that the opponent no.1 - driver of the truck,
bearing registration no. PB-06-Q-9018 was solely negligent in
causing the accident.
3.3. It was not disputed before the tribunal that the appellant-
claimant was driving the truck, bearing registration no.GJ-17-Z-
7519 under the instructions of his owner opponent no.4 and
the truck was registered as a heavy vehicle as per its RC book
produced at Exh.53. It was also not denied that the right leg of
the claimant had to be amputed due serious crush injuries
sufferred in the accident. The claimant, however was unable to
adduce any cogent documentary evidence before the tribunal
to prove that his salary was Rs.15,000/- per month at the time
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
of accident. The tribunal has assessed his monthly salary at
Rs.4,000/-.
3.4. The appellant-claimant produced the disability certificate
issued by Dr. Dilip Solanki at Mark 27/13 along with the
affidavit of Dr. Dilip Solanki at Exh.40. The said doctor certified
the permenant disability @75% as a whole. The tribunal
assessed the permanent disability as the @75% only. The
appellant-claimant was aged about 33 years at the time of the
accident. The tribunal adopted the multiplier of 16. The
tribunal also considered the future medical expenses of the
claimant for replacement of prosthetic leg from time to time.
3.5. The tribunal awarded Rs.11,65,000/- towards the
compensation with proportionate costs and simple interest at
the rate of 9% p.a. from the date of filing of the claim petition
till the realization. The tribunal has rendered the award against
the opponent nos.1, 2 and 3 of the claim petition and rejected
the petition against the opponent nos. 4 and 5. Therefore, the
claimant has filed the present appeal for additional
compensation of Rs.10,00,000/- with the interest rate of 9%
p.a. and costs.
4. We have heard Mr. Hiren M. Modi, the learned counsel
appearing for the appellant - original claimant, Mr. Vibhuti
Nanavati, the learned counsel appearing for the respondent
no.3 and Mr. Alkesh N. Shah, the learned counsel appearing for
the respondent No.5. Although, the respondents nos.1, 2 and 4
are duly served with the notice, yet they have chosen not to
appear before this Court either in person or through their
advocate.
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
5. Mr. Hiren M. Modi, the learned counsel appearing for the
appellant - original claimant submitted that the tribunal
committed serious error while considering permanent disability
to the extent of 75% only though there was amputation of right
leg above the knee. He further submitted that the tribunal
ought to have considered 100% functional disability looking to
the nature of the vocation of the claimant. The claimant was
employed by the opponent no.4 to drive the heavy vehicle and
was holding the driving license produced at Exh.38/52 to drive
the truck, bearing registration no. GJ-17-Z-7519, which was
registered as per the RC book produced at Exh.53. He also
submitted that the claimant suffered injuries during the course
of his employment thus, the tribunal ought to have considered
100% functional disability since the claimant is incapable to
drive any type vehicle in future. He submitted that the tribunal
ought to have considered the minimum wages of the skilled
labour in absence of the proof of income of the claimant in
view of the Supreme Court judgment in the case of Sanjay
Kumar V/s Ashok Kumar reported in 2014 (5) SCC 330 and the
Judgment of the Gujarat High Court in the case of Kamlaben
Virabhai Solanki V/s Ajaykumar Manilal Patel reported in 2021
ACJ 652 (Guj). It is the contention of Mr. Modi that the tribunal
has not considered the future prospects on the actual income
of the claimant though it was established that the claimant has
suffered amputation of his right leg above the knee and
incapable of driving any type of vehicle in future. He relied
upon the judgment of the Supreme Court in the case of Pappu
Deo Yadav Versus Naresh Kumar reported in AIR 2020 SC
4424. He submitted that the compensation awarded on the
other heads also are on the lower side and has prayed that the
compensation may be enhanced to Rs.10,00,000/- .
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
6. Mr. Vibhuti Nanavati, the learned counsel appearing for
the opponent no.3, insurance company of the truck, bearing
registration no.PB-06-Q-9018 vehemently submitted that the
tribunal has not committed any error while awarding the
compensation and therefore, there is no further scope of
enhancing the compensation. He further submitted that the
tribunal has committed an error while awarding interest @9%
on the future medical expenses and treatment in view of the
Supreme Court Judgment in the case of R.D.Hattangadi V/s
Pest Control India Pvt Ltd reported in 1995 (1) SCC 551. He
therefore, submitted that tribunal has awarded just and
reasonable compensation.
7. Mr. Alkesh N Shah, the learned counsel appearing for the
oppoent no.5, submits that the opponent no.5 has been
absolved from the liability to satisfy the impugned award. The
opponent no.3 has not challenged the impugned award by way
of the first appeal before the high court. The opponent no.3
has satisfied the award.
8. Having heard the learned counsel appearing for the
respective parties and having gone through the materials on
record, the only question that falls for our consideration is
whether the compensation should be enhanced? Undisputedly,
the claimant suffered injuries during the course of his
employment serving as a driver of the truck, bearing
registration no. GJ-17-Z-7519. The said truck was stationary at
the place of the accident as one of the tyres had got
punctured. When the claimant was replacing the tyre of his
truck, at that time, the driver of the truck, bearing registration
no.PB-06-Q-9018 came from behind driving in a rash and
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
negligent manner and dashed with the stationary truck, as a
result, the claimant sufferred grievous injuries on his body
whereby his right leg had to be amputated due to serious
crush injuries in the accident.
9. We are of the view that the tribunal ought to have
considered the Minimum wages prevailing on the date of the
accident as the claimant was admittedly the driver of the
truck. The tribunal ought to have considered the prospective
income of the claimant while awarding the future loss of
Income considering that the claimant has become incapable to
drive any type of vehicle in future on account of amputation of
the right leg above knee.
10. The prevailing minimum wage as per the Government
record was Rs.5,470/- per month. The claimant was aged about
33 years at the time of the accident. We are inclined to
consider 40% prospective income in view of the ratio laid lown
by the Supreme Court in the case of National Insurance Co. Ltd
V/s Pranay Sethi reported in 2017 (16) SCC 680.
"61(iii) While determining the income, an addition of 50% of
actual salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and was
below the age of 40 years, should be made. The addition should
be 30%, if the age of the deceased was 48 between 40 to 50
years. In case the deceased was between the age of 50 to 60
years, the addition should be 15%. Actual salary should be read
as actual salary less tax.
61(iv) In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should be
the warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age of
40 to 50 years and 10% where the deceased was between the
age of 50 to 60 years should be regarded as the necessary
method of computation. The established income means the
income minus the tax component."
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
11. Thus, if Rs.5,470/- per month is considered as the
income, the prospective income would be at to Rs.7,658/- per
month (Rs.5,470 + Rs.2,188). In our view, the claimant is
entitled to Rs.14,70,336/- (Rs.7,658 p.m. X 12 months =
Rs.91,896/- per annum X multiplier of 16 years) towards
compensation for the future loss of income against the award
of the tribunal of Rs.5,76,000/-. The table showing the
claculation of enhanced amount of compensation is produced
as under:
Sr.no. Heads of As per award Enhanced amount
Compensation amounts of
in Rs.
Compensation in
Rs.
1 Loss of future income/ 5,76,000/- 14,70,336/-
earning capacity
2 Loss Of Actual Income 24,000/- -
3 Pain, Shock and 75,000/- 75,000/-
Sufferings
4 Medical expenses and 1,75,000/- 1,75,000/-
treatments
5 Future Medical 2,65,000/- 2,65,000/-
treatment & expenses
6 Attendant Charges, 50,000/- 50,000/-
Special Diet and
Transportation
Total 11,65,000/- 20,35,336/-
12. The claimant is not entitled to actual loss of Income of
Rs.24,000/- since this court has considered and awarded
Compensation on the head of future loss of income considering
100% functional disability as a whole believing the claimant as
the skill driver.
13. We do not propose to enhance any amount of
compensation on any other heads. It is also an undisputed fact
C/FA/1289/2020 JUDGMENT DATED: 21/06/2021
that the opponent no.3 has satisfied the award with interest
even on the amount of compensation of future medical
expenses.
14. In view of the above, the present appeal is hereby partly
allowed. The award of compensation is enhanced to
Rs.20,35,336/- against the award of the tribunal of
Rs.11,65,000/-. Thus, the appellant-claimant is entitled to the
enhanced compensation of Rs.8,70,336/- (Rs.20,35,336 -
Rs.11,65,000). The respondent no.3-Shriram General Insurance
Company Limited - insurance company is directed to deposit
Rs.8,70,336/- with interest at the rate of 9% p.a. from the date
of filing of the claim petition till the realization with the tribunal
within a period of eight weeks from the date of receipt of this
order. There shall be no order as to costs.
15. The tribunal shall render orders for disbursement of the
enhanced amount of award with interest after due verification
of the claimant and shall order to transmit the amount to the
Bank account of the claimant by electronic mode.
16. Registry is directed to return the Record and Proceedings
to the concerned tribunal forthwith.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
NEHA
