Kankuben Purshottamdas Patel vs Lilabhai Karsanbhai Patel ...
2021 Latest Caselaw 4580 Guj

         C/FA/1337/2011                                 JUDGMENT



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 1337 of 2011
                                 With
                    R/FIRST APPEAL NO. 1338 of 2011

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA                      sd/­

==========================================================

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

2     To be referred to the Reporter or not ?                      NO

3     Whether their Lordships wish to see the                      NO
      fair copy of the judgment ?

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

==========================================================
           KANKUBEN PURSHOTTAMDAS PATEL & 3 other(s)
                             Versus
       LILABHAI KARSANBHAI PATEL (DELETED) & 2 other(s)
==========================================================
Appearance:
MR ANKIT SHAH(6371) for the Appellant(s) No. 1,2,3,4
DELETED(20) for the Defendant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
SERVED BY AFFIX(N)(7) for the Defendant(s) No. 2
==========================================================

    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                           Date : 23/03/2021

                             ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the common judgment and award dated 27.12.2007, passed by the Motor Accident Claims Tribunal (Aux),

C/FA/1337/2011 JUDGMENT

Gandhinagar, in MACP Nos. 1781 and 1782 of 1993, the claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. Both these appeals relate to the same accident and same set of evidence have been adduced before the Tribunal and hence, both the appeals were heard together and are disposed of by this common judgment and order.

3. The facts and evidence in MACP No. 1781 of 1993 is made the basis of this common judgment and order.

3.1 The record indicates that the accident took place on 13.06.1993. It is the case of the claimants that one Ishwarbhai Bhagwanbhai Patel, Purshottambhai Patel and Lilachand Patel were travelling from Ahmedabad to Sipddhpur in Maruti Car bearing No. GJ­1K­ 6830, which was driven by Lilachandbhai. The record indicates that when the car reached Setha­Adalaj road, Lilachandbhai who was driving the Maruti car, lost control over the steering and Maruti car dashed with one tree. The record indicates that the impact of the said accident was such that Purshottambhai Patel sustained serious injuries and ultimately succumbed to the same during the treatment. Whereas the Respondents­original claimants of First

C/FA/1337/2011 JUDGMENT

Appeal No. 1338 of 2013 sustained injuries resulting into permanent partial disablement. The FIR was lodged with the jurisdictional police station at exhibit 31 and the original claimants, the widow, sons and daughters of deceased Purshottambhai Patel filed claim petition being MACP No. 1781/93 under Section 166 of the Act and claimed compensation of Rs. 10,00,000/­. Whereas the appellant­original claimant who was injured in the accident Shri Ishwarbhai Bhagabhai Patel filed MACP No. 1782/93 under Section 166 of the Act and claimed compensation of Rs. 5,00,000/­. It was the case of the claimants that the deceased Purshottamdas Shankerdas Patel was 55 years old on the date of the accident and was engaged in the business of construction in the name and style of Kinkar Construction and earned Rs. 10,000/­ per month.

Similarly, it was the case of the appellant­original claimant of First Appeal No. 1338 of 2011 that he was aged 40 years on the date of the accident and was earning Rs. 5,000/­ per month on the date of the accident. The claimants relied upon documentary evidence such as FIR at exhibit 31, Panchnama of the place of accident at exhibit 32, PM Report of the deceased Purshottambhai at exhibit 33, mar­sheet of SSC examination of deceased at exhibit 34,

C/FA/1337/2011 JUDGMENT

mark­sheet of diploma civil engineer examination of deceased at exhibit 35, revenue record of Gorad Gram Panchayat at exhibit 36, domicile certificate of deceased at exhibit 37, birth certificate of Kankuben, w/o deceased parshottambhai at exhibit 38, bills of agriculture produce at exhibit 39, case paper of VS Hospital at exhibit 40, case paper of Dr. P.M. Vekaria at exhibit 41, letter of Dr. Bipin Patel at exhibit 42, case paper of Dr. P.M. Vekaria at exhibit 43, letter of Dr. P.M. Vekaria at exhibit 44, case papers of Dr. P.M. Vekaria at exhibit 45, laboratory report at exhibit 46, x­ray report at exhibit 47, prescriptions at exhibit 48, medical bills at exhibit 49, bills of medical charges at exhibit 50, Certificate issued by Tejendranagar Cooperative Society at exhibit 51, Certificate of birth date at exhibit 52, disability certificate issued by Dr. Kalpan Desai at exhibit 55 and insurance policy of Maruti Car at mark 26/1.

3.2 The claimant of MACP No. 1782 of 1993 was examined at exhibit 29 and Kankuben, one of the claimants was also examined in MACP No. 1781 of 1993. The learned Tribunal after appreciating the evidence on record, determined the income of the deceased at

C/FA/1337/2011 JUDGMENT

Rs. 3,000/­ per month and after deducting 1/3rd towards personal expenses, applied multiplier of 10 and awarded a sum of Rs. 2,40,000/­ as compensation under the head of loss of dependency and also further awarded a sum of Rs. 15,000/­ under the head of loss of estate, Rs. 10,000/­ under the head of loss of consortium and Rs. 5,000/­ as funeral expenses and thus, awarded a total compensation of Rs. 2,70,000/­ with interest at the rate of 9% from the date of filing of the claim petition till its realization.

3.3 In MACP No. 1782 of 1993, which is relatable to First Appeal No. 1338 of 2011, after considering the injury certificate at exhibit 41, as well as disability certificate at exhibit 55, and ultimately on the basis of the purshis at exhibit 54, determined the disability of the body as a whole at 12%. The Tribunal was further pleased to determine the income of the insured claimant at Rs. 1,500/­ per month and thus, awarded a sum of Rs. 7,500/­ under the head of pain, shock and suffering and further awarded a sum of Rs. 15,000/­ under the head of medical expenses, Rs. 6,000/­ for transportation, special diet, attendance charges, etc., Rs. 4,500/­ towards actual loss of income and

C/FA/1337/2011 JUDGMENT

after applying multiplier of 14, was pleased to award a sum of Rs. 30,240/­ as compensation under the head of Future Loss of Income and permanent physical disability and thus, the Tribunal was pleased to award a total compensation of Rs. 63,240/­ with 9% interest from the date of filing of the claim petition till its realization. In both the claim petitions, the original claimants have preferred these appeals for enhancement.

4. Heard Mr. Ramanuj, learned advocate for Mr. Ankit Shah, learned advocate for the appellants in both the appeals and Mr. Sunil Parikh, learned advocate for the insurance­respondent no.3 in both the appeals. Though served, no one appears for other respondents. I have perused the original record and proceedings.

5. Mr. Ramanuj, learned advocate appearing for the appellant has contended that in First Appeal No. 1337 of 2011, the Tribunal has committed an error in determining the income of the deceased at Rs.3,000/­. It was also further contended that the Tribunal has committed an error in not granting any prospective income. Mr. Ramanuj also further contended that the Tribunal has also committed an error in granting meagre amount under different conventional heads, which deserves to be enhanced. Mr. Ramanuj, relying

C/FA/1337/2011 JUDGMENT

upon the medical papers, at exhibits 41 to 51, contended that in First Appeal No. 1338 of 2011, the Tribunal has erred in considering the income of the deceased at Rs. 1,500/­ per month. It was further contended by Mr. Ramanuj that the Tribunal has awarded a meagre amount of Rs. 7,500/­ as compensation under the head of pain, shock and suffering. Mr. Ramanuj contended that the medical papers on record establishes the fact that the original claimant had to undergo extensive treatment and hand to pass through pain and agony. On the aforesaid grounds Mr. Ramanuj therefore contended that the impugned common judgement and award deserves to be modified and both the appeals deserves to be allowed as prayed for and the award be modified accordingly.

6. Per contra, Mr. Sunil Parikh, learned advocate appearing for the insurance company has supported the common judgment and award and has contended that both the appeals are misconceived and both the appeals deserve to be dismissed. Mr. Sunil Parikh contended that the Tribunal has rightly assessed the income of the deceased in MACP No. 1781 of 1993 at Rs 3,000/­. Mr. Parikh further contended that the respondents­original claimants have not adduced any evidence to even remotely show that the income of the deceased was Rs. 10,000/­ per month. Mr. Parikh contended that considering the date of accident

C/FA/1337/2011 JUDGMENT

and in absence of any evidence, the income of the deceased determined at Rs. 3,000/­ is proper. Mr. Parikh however contended that the appellants would be entitled to benefit of increase in income by way of prospective income to the tune of 10%. Mr. Parikh contended that except the said modification, no other modification is required and the First Appeal No. 1337 of 2011 deserves to be dismissed.

7. Mr. Parikh also contended that similarly in First Appeal No. 1338 of 2011, arising out of MACP NO. 1782 of 1993, the Tribunal has rightly appreciated the evidence on record and award appropriate amount of Rs. 7,500/­ under the head of pain, shock and suffering. Mr. Parikh further contended that even if this Court comes to the conclusion that the impugned judgment and award in either of the appeals requires to be modified, this Court may award interest at the rate of 6% only. Mr. Parikh contended that as such, both the appeals deserves to be dismissed.

8. No other or further submissions have been made by the learned advocates appearing for the parties.

9. Upon considering the submissions made and upon re­appreciation of the evidence on record, it clearly transpires that in both the appeals, the original claimants have not produced any evidence to even remotely prove their income.

  C/FA/1337/2011                                                  JUDGMENT



Considering           the        date          of     accident            to        be

13.06.1993, the Tribunal has therefore rightly resorted to guesswork and determined the income of the deceased at Rs. 3,000/­ per month and Rs. 1,500/­ per month as far as the respondent insured is concerned. Upon re­appreciation of the evidence as a whole, the income does not deserve to be modified. Following the ratio laid down by the Apex Court in the case of Sarla Verma vs. Delhi Road Transport Corporation reported in (2009) 6 SCC 121 and in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, the appellants­orig. claimants in First Appeal No. 1337 of 2011 would be entitled to increase in income to the extent of 10% by way of prospective income. Over and above the same, the appropriate multiplier would be 10 and 1/3rd of the amount is required to be deducted towards personal expenses. Over and above the same, following the judgment of the Apex Court in the case of Pranay Sethi (supra), the appellants would be entitled to additional amount of Rs.70,000/­ as compensation under the different conventional heads including funeral expenses. Having come to the aforesaid conclusion therefore, the appellants of First Appeal No. 1337 of 2011 would be entitled to compensation as under ­

C/FA/1337/2011 JUDGMENT

Rs.3,000/­ (income) + Rs. 300/­ (10% prospective income = Rs.3,300/­ ­ Rs.1,100/­ (1/3 towards personal expenses) rd

= Rs.2,200/­ X 10 (multiplier) X 12= Rs.2,64,000/­ (Dependency Benefit)

Rs.2,64,000/­ ­ Dependency Benefit Rs. 15,000/­ ­ Loss of Estate Rs. 40,000/­ ­ Consortium Rs. 15,000/­ ­ Funeral Expenses ­­­­­­­­­­­­­­ Rs.3,34,000/­ Total Rs.2,70,000/­ Amount awarded by Tribunal ­­­­­­­­­­­­­­ Rs. 64,000/­ Additional amount ==============

As far as the contention as regards reduction in interest is concerned, it is found that the Tribunal has on facts of the case, exercised its jurisdiction and has awarded 9% interest, which does not require to be interfered with and/or modified.

10. In First Appeal No. 1338 of 2011, the evidence on record and more particularly the medical papers on record indicate that the respondent­original claimant had to undergo extensive treatment because of the injuries and he had to stay as indoor patient and had to undergo much pain and suffering. Upon re­ appreciation of the evidence on record, this Court is of the opinion that the original claimant would be entitled to additional amount of Rs. 7,500/­ under the head of pain, shock and suffering and thus, it is held that the

C/FA/1337/2011 JUDGMENT

compensation under the head of pain, shock and suffering should be Rs.15,000/­ instead of Rs. 7,500/­. As observed hereinabove, the appellant would be entitled to interest at the rate of 9% on the enhanced amount in this appeal also.

11. Consequently, both the appeals are partly allowed. The appellants of First Appeal No. 1337/11 would be entitled to an additional amount of Rs. 64,000/­ with 9% interest from the date of filing of the claim petition till its realisation and more particularly in First Appeal No.1338 of 2011, the appellant would be entitled to a further amount of Rs. 7,500/­ with 9% interest from the date of filing of the claim petition till its realisation. The impugned judgment and award stands modified respectively. The respondent insurance company in both the appeals shall deposit the additional amount as determined by this Court to the claimants within a period of 8 weeks from the date of receipt of this judgment and order. However, there shall be no order as to costs. The Record and Proceedings be transmitted to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) BIJOY B. PILLAI