Dhaneshwarsinh Laxmansinh ... vs Jitendrakumar Karshanbhai ...
2021 Latest Caselaw 4671 Guj

          C/FA/228/2012                                       JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 228 of 2012

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                           sd/­
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1     Whether Reporters of Local Papers may be allowed to see             NO
      the judgment ?

2     To be referred to the Reporter or not ?                             NO

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

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

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               DHANESHWARSINH LAXMANSINH VAGHELA
                             Versus
           JITENDRAKUMAR KARSHANBHAI PARMAR & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR HITESH N ACHARYA(2302) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 24/03/2021
                       ORAL JUDGMENT

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 21.10.2011 passed by the Motor Accident Claims Tribunal (Auxi), Sabarkantha camp at Idar in MACP No.709 of 2002, the appellant - original claimant has preferred present appeal.

2.0. Following facts emerge from the record of the appeal. 2.1 That the accident occurred on 13.6.2002 at about 9.30 am. The record indicates that while appellant was waiting for

C/FA/228/2012 JUDGMENT

vehicle, standing at the bus stand of Paroya village, scooter bearing registration no.GJ­9­D­9744 being driven by the respondent no.1 in rash and negligent manner came from other side and dashed with the appellant, because of which, appellant sustained serious injuries. An FIR was lodged with the jurisdictional police station and the present claim petition was filed under Section 166 of the Motor Vehicles Act and the appellant claimed compensation of Rs. 1 lakh. It was the case of the appellant before the Tribunal that he was working as a permanent employee with the Khedbrahma Taluka Sahkari Kharid Vechan Sangh and was also earning good amount by doing agricultural work and it was thus case of the appellant that his total monthly income was Rs.6000/­. The appellant examined himself at Exh.26 and also relied upon the documentary evidence such as FIR at Exh.33, Panchnama of place of accident at Exh.34, Panchnama of the vehicle involved in the accident at Exh.35, Injury Certificate at Exh.36, Primary Treatment Certificate issued by the local hospital at Exh.37, Charge­sheet at Exh.38 and disability certificate at Exh. 39. The Tribunal after appreciating the evidence on record, determined the income of the appellant at Rs. 3743/­ and 8% permanent disability of the body as a whole (as agreed between the parties) and applying multiplier 5 awarded a sum of Rs.17,965/­ as future loss of income. In addition to that, the Tribunal also awarded a sum of Rs.10,000/­ towards pain, shock and suffering and Rs.10,000/­ towards medical charges, attendance, transportation and special diet and thus awarded total compensation of Rs.37,965/­ with 9% interest from the date of application till its realization.

C/FA/228/2012 JUDGMENT

3.0. Heard Mr. Mausin Hakim, learned advocate for the appellant and Mr. Hitesh Acharya, learned advocate for the respondent no.3 and have also perused the original record and proceedings of the case. Though served, nobody appears on behalf of the respondent nos. 1 and 2.

4.0. Mr. Hakim, learned advocate for the appellant has contended that the Tribunal has wrongly applied multiplier of 5. Relying upon the evidence on record, Mr, Hakim contended that age of the appellant on the date of accident was 45 years and therefore, according to Mr. Hakim appropriate multiplier would be of 14.

4.1. Mr. Hakim further contended that because of the injuries sustained in the accident, the appellant had to undergo pain, shock and suffering and as the leg was fractured and had to in fact remained out of job at least for one month. Mr. Hakim therefore, contended that the Tribunal has committed an error in awarding meager amount of Rs.10,000/­ as compensation under the pain, shock and suffering. On the aforesaid two grounds, Mr. Hakim contended that the impugned judgment and award deserves to be modified by allowing the appeal.

5.0. Per contra, Mr. Hitesh Acharya, learned advocate for the respondent no.3 has supported the impugned judgment and award and has submitted that Tribunal has rightly assessed the income of the appellant and has also applied the appropriate multiplier. Mr. Acharya contended that no evidence was produced as regards

C/FA/228/2012 JUDGMENT

medical treatment or fracture on record and therefore, the Tribunal has rightly awarded Rs.10,000/­. According to Mr. Acharya, learned advocate for the respondent no.3 appeal being merit less and deserves to be dismissed.

5.0. No other and further submissions / contentions/ grounds have been raised by the learned advocates for the respective parties.

6.0. Upon re­appreciating the evidence on record, it appears that the age of the appellant on the date of accident was 45 years and hence even in case of injury, appropriate multiplier should be based on age of the victim and following the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 as well as in the case of Sarla Verma (Smt.) v. Delhi Transport Corporation ­reported in (2009) 6 SCC 121, appropriate multiplier would be 14. Similarly, upon re­appreciating the evidence on record, it is a matter of fact that appellant had to take extensive treatment for the injuries sustained in the accident and had to get appropriate treatment for his fractured leg. In opinion of this Court, therefore, the appellant wold be entitled to appropriate compensation under the head of pain, shock and suffering, which is quantified at Rs.25000/­ instead of Rs.10,000/­ as granted by the Tribunal. As the income and disability is not in dispute, the income as determined and calculated by the Tribunal deserves to be adopted by this Court also.

6.1. Having come to the aforesaid conclusion, the appellant

C/FA/228/2012 JUDGMENT

would be entitled to compensation as under:

"Rs.3593 x 14 (Multiplier)= 50302/­ (Future loss of income) Rs.25000/­ towards pain, shock and suffering. Rs.10,000/­ towards medical charges, attendance, transportation and special diet charges."

The appellant would be entitled to total compensation of Rs.85,302/. As the Tribunal has awarded Rs.37,965/,the appellant would be entitled to an additional amount of Rs.47,000/­ (rounded off). Insurance Company shall deposit the additional amount with 9% interest from the date of Claim Petition till its realization. Accordingly, the appeal is allowed to the aforesaid extent. The impugned judgment and order is modified to the aforesaid extent. The insurance Company shall deposit the additional amount as awarded within a period of three months from the date of receipt of this judgment and order. However, there shall be no order as to costs. Registry is directed to send the original record and proceedings back to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD