Gujarat High Court

Jitendrabhai Maganbhai Patel vs Ramprakash Ramcharan on 19 March, 2021

Bench: Vaibhavi D. Nanavati

              C/FA/1091/2020                                  JUDGMENT



                  IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                               R/FIRSTAPPEALNO. 1091of 2020

FORAPPROVALANDSIGNATURE:

HONOURABLEMS. JUSTICEVAIBHAVID. NANAVATI                            Sd/-
==============================================================================

1    Whether Reporters of Local Papers may be allowed to
     see the judgment ?                                                       NO

2    To be referred to the Reporter or not ?
                                                                              NO
3    Whether their Lordships wish to see the fair copy of the
     judgment ?                                                               NO

4    Whether this case involves a substantial question of
     law as to the interpretation of the Constitution of India
                                                                              NO
     or any order made thereunder ?

================================================================
                          JITENDRABHAIMAGANBHAIPATEL
                                         Versus
                             RAMPRAKASHRAMCHARAN
================================================================
Appearance:
MRMOHSINM HAKIM(5396)for the Appellant(s)No. 1
MRMAULIKJ SHELAT(2500)for the Defendant(s)No. 3
MRRATHINP RAVAL(5013)for the Defendant(s)No. 6
NOTICESERVED(4)for the Defendant(s)No. 4,5
NOTICEUNSERVED(8)for the Defendant(s)No. 1,2
================================================================
  CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                     Date: 19/03/2021
                                     ORALJUDGMENT

Admit. Learned advocates appearing for the respective opponents waive service of notice of admission.

1. The present appeal is filed under the provisions of Section 173 of

the Motor Vehicles Act, 1988 (for short "the MV Act") challenging the

impugned judgment and award dated 06.03.2019 passed by the Motor

Accident Claims Tribunal (Auxi) & 2nd Additional District Judge, District

C/FA/1091/2020 JUDGMENT

Vadodara in Motor Accident Claim Petition No.268 of 2004.

2. Brief facts of the case as stated in the present appeal are as under:-

2.1. It is the case of the claimants that on 08.11.2003, the applicant of

MACP No.11 of 2004 namely Amit Shashikantbhai Patel and the

applicant of MACP No.268 of 2004 namely Jitendrabhai Maganbhai

Patel (present appellant herein), had gone for Darhan at Dakor Temple

and after having Darshan, they were returning back to the Vadodara on

motorcycle, which is driven by Amit Shashikantbhai Patel and the

appellant Jitendrabhai Maganbhai Patel was riding as a pillion rider and

the said motorcycle was being driven at moderate speed and on the

correct side of the road, at that time, the opponent no.1 came driving the

truck bearing registration No.MP-06-E-1745 at full speed and in rash and

negligent manner on wrong side and dashed it against the front portion of

the motorcycle, as a result of which, both the appellants fell down on the

road and both the appellants had sustained serious injuries. That, the FIR

was lodged against the driver of the truck i.e. opponent no.1.

2.2. At the time of accident, the appellant namely Jitendrabhai

Maganbhai Patel was working in Axar Engineering Company and earning

Rs.4,000/- p.m. and also earning Rs.4,000/- p.m. by giving tuition. The

appellant was earing total income is Rs.8,000/- p.m. at the time of

accident.

C/FA/1091/2020 JUDGMENT

3. Heard learned advocate Mr.Mohsin Hakim for the appellant,

learned advocate Mr.Maulik Shelat for the opponent no.3-Insurance

Company and learned advocate Mr.Rathin Raval for the opponent no.6-

Insurance Company.

4. Learned advocate Mr.Mohsin Hakim appearing for the appellant

has submitted that the tribunal has passed the judgment and award is

diametrically against the evidence on record. He has submitted that the

tribunal has erred in awarding Rs.8,09,750/- as against the claim of

Rs.20,00,000/-. He has submitted that the tribunal has erred in

considering the income of the deceased Rs.4,000/- p.m. only whereas the

tribunal ought to have appreciated and considered that the claimant was

working with Axar Engineering Company and by giving tuition. He has

submitted that as per the evidence on record the tribunal ought to have

considered the income of the claimant Rs.8,000/-.

5. Learned advocate Mr.Mohsin Hakim for the appellant has

submitted that the tribunal ought to have appreciated and considered that

the claimant has become completely disabled to pursue any vocation or

earn his livelihood. He has submitted that the tribunal ought to have

computed compensation under the head of future loss of income

considering 50% future prospective rise in income. He has submitted that

the tribunal ought to have appreciated and considered that original

C/FA/1091/2020 JUDGMENT

claimant had sustained grievous injuries over head, waist, hands, legs and

other parts of the body and hence, the claimant had undergone extensive

treatment for such injuries and even thereafter, the claimant has suffered

70% disability body as a whole, as per the report of Dr.Sandeep Shah and

psychological evolution report of clinical psychologist, Muskaan

Research Center at Exh.34. He therefore submitted that the tribunal ought

to have computed compensation under the head of future loss of income

considering 100% functional disability suffered by the claimant, as the

claimant has become completely disabled to pursue any vocation

involving implementation of logical faculties and sound mind.

6. Learned advocate Mr.Mohsin Hakim for the appellant has

submitted that the tribunal has erred in awarding loss of income for

period of 5 months only and considering income Rs.4,000/- p.m. whereas

the tribunal considering the injuries suffered by the claimant and duration

of treatment ought to have awarded actual loss of income for a period of

24 months and considering income of the claimant Rs.8,000/- p.m. He

has submitted that the tribunal has erred in awarding Rs.50,000/- only

towards pain, shock and suffering. He has submitted that whereas

considering the injuries sustained by the claimant and resultant disability,

the tribunal ought to have awarded at least Rs.2,00,000/-. He has

submitted that the tribunal has erred in not awarding any amount towards

C/FA/1091/2020 JUDGMENT

loss of amenities of life. He has submitted that whereas considering the

injuries sustained by the claimant and resultant disability, the tribunal

ought to have awarded Rs.2,00,000/-.

7. Learned advocate Mr.Mohsin Hakim for the appellant has

submitted that the tribunal has erred in not awarding any future attendant

charges. He has submitted that the tribunal has erred in not awarding any

amount towards loss of marriage prospects as claimant has become

completely disable. He has submitted that the learned tribunal erred in

awarding Rs.10,000/- only towards special diet, attendant charges and

transportation charges. He has submitted that whereas considering the

injuries sustained by the claimant, treatment undergone and resultant

disability, the tribunal ought to have awarded at least Rs.25,000/- towards

special diet Rs.10,000/- towards transportation expenses and Rs.72,000/-

towards attendant charges considering Rs.3000/- p.m. expenses and for a

period of 24 months. He has submitted that the tribunal has erred in

awarding Rs.1,58,550/- only towards medical expenses. He has submitted

that the tribunal has considered multiplier of 17 only. He has also

submitted that the tribunal has erred in awarding interest at the rate of 9%

only. Thus, he has submitted that the judgment and award passed by the

tribunal is illegal, improper, invalid, unjust, unreasonable and contrary to

the facts and circumstances and evidences on record.

C/FA/1091/2020 JUDGMENT

8. It is submitted that as per ratio laid down by the Apex Court in the

case of National Insurance Company Ltd., vs. Pranay Sethi and Ors.,

reported in (2017) 16 SCC 680 only 40% rise of income could have been

considered by the learned Tribunal as the deceased was not in permanent

job. In support of his submission, he has placed reliance on the

judgment of the Apex Court in the case of Syed Sadiq etc. V/s. United

India Insurance Co. Ltd., 2014 (2) SCC 735.

9. Mr.Maulik Shelat, learned advocate for the respondent No.3 -

Insurance Company has submitted that the judgment and award passed by

the learned Motor Accident Claims Tribunal (Auxi) & 2nd Additional

District Judge, District Vadodara in Motor Accident Claim Petition

No.268 of 2004 is just and proper and does not require any interference.

He submitted that the Tribunal has correctly considered the income as

also applied the correct multiplier and the same requires no interference.

10. Learned advocate Mr.Rathin Raval for the respondent no.6-

Insurance Company has adopted the submission advanced by the learned

advocate Mr.Maulik Shelat for the respondent no.3.

11. In view of the judgment of the Apex Court in the case of Pranay

Shethi (Surpra) 40% rise of income could have been considered by the

learned Tribunal as the deceased was not in permanent job and the

C/FA/1091/2020 JUDGMENT

judgment of the Apex Court in the case of Pappu Deo Yadav V/s. Naresh

Kumar & Ors., AIR 2020 SC 4424, wherein disability assessed 65%.

Future loss of income per annum (as per the calculation of the tribunal):

Rs.5,71,200/-

Plus 40% rise

Rs.7,99,680/- (Future loss of income per annum)

+ Rs.2,25,000/- (pain, shock, and suffering, loss of amenities of life and loss of marriage prospect/loss of enjoyment of life)

+ Rs.20,000/- (Actual loss of income) + Rs.1,58,550/-(medical expenses) + Rs.10,000/-(special diet, transportation expenses and attendant charges)

-----------------------------------------------------------------------------------------

Rs.12,13,230/- Total compensation

- Rs.8,09,750/- deducting amount already awarded by the tribunal

-----------------------------------------------------------------------------------------

Rs.4,03,480/- Additional amount of compensation.

The additional amount of compensation is required to be awarded

with interest at the rate of 7.5% from the date of filing of claim petition

till realization. Therefore, the award requires to be modified as prayed for

and total compensation be considered from Rs.8,09,750/-(awarded by the

Tribunal) to Rs.12,13,230/-increasing Rs.4,03,480/-.

12. Considering the facts of the case judgment and award dated

06.03.2019 passed by the learned Motor Accident Claims Tribunal (Auxi)

& 2nd Additional District Judge, District Vadodara in Motor Accident

Claim Petition No.268 of 2004 is modified to the extent that the

C/FA/1091/2020 JUDGMENT

prospective income be 40% of the income. Table is produced

hereinbelow for sake of convenience. Hence, the award comes to ;

Compensation As per the award under Calculation in challenge First Appeal 1 Future loss of income Rs.5,71,200/- Rs.5,71,200/-+ 40% rise= Rs.7,99,680/-

2     Actual loss of income            Rs.20,000/-             Rs.20,000/-
3     Medical expenses                 Rs.1,58,550/-           Rs.1,58,550/-
4     Pain, Shock and suffering        Rs.50,000/-             Rs.2,25,000/-
5     Special diet, attendant charges Rs.10,000/-              Rs.10,000/-
      and transportation
      Total amount of compensation Rs.8,09,750/-               Rs.12,13,230/-
      Deducting amount already                                 Rs.8,09,750/-
      awarded by the tribunal
      Additional   amount         of                           Rs.4,03,480/-
      compensation

Total amount of the award comes to Rs.12,13,230/-. The learned

Tribunal has passed the award of Rs.08,09,750/-, which remains

unchanged. The present appellants are therefore entitled to Rs.4,03,480/-

as amount of additional compensation along with 7.5% from the date of

application filed before the Tribunal. Respondent no.3 is directed to

deposit the amount of additional compensation alongwith interest within

a period of six weeks from the date of receipt of copy of this judgment.

13. In the result, the appeal is partly allowed. The judgment and award

dated 06.03.2019 passed by the Motor Accident Claims Tribunal (Auxi)

& 2nd Additional District Judge, District Vadodara in Motor Accident

C/FA/1091/2020 JUDGMENT

Claim Petition No.268 of 2004 is modified to the aforesaid extent. After