Harshit Kanubhai Mehta vs M/S. Darshi Resevor Consultancy ...
2021 Latest Caselaw 17824 Guj

      C/FA/620/2018                              JUDGMENT DATED: 29/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 620 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

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

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

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                     HARSHIT KANUBHAI MEHTA
                              Versus
     M/S. DARSHI RESEVOR CONSULTANCY SERVICE LTD., & 1 other(s)
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Appearance:
MR BHARAT B SHAH(739) for the Appellant(s) No. 1
MR NISHIT SONI(8943) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                     Date : 29/11/2021
                     ORAL JUDGMENT

1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short) for enhancement of compensation awarded by the Motor Accident Claims Tribunal (Auxiliary), Ahmedabad, vide judgment and award dated 09.08.2017 in Motor Accident Claim Petition No.422 of 2009.

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2. The factual matrix of the present case is as under:

2.1 It is the case of the appellant - claimant that on 15.05.2009, at about 7:00 PM, the appellant was driving motorcycle bearing registration No.GJ-1-JQ- 0479 near Sundervan cross roads at Satellite within the jurisdiction of Satellite Police Station. At that time, one Bolero car bearing registration No.GJ-1-HM- 5120 came from opposite direction at a high speed and came on wrong side in a rash and negligent manner and dashed with the motorcycle, which was being driven by the appellant from front side. As a result of which, the appellant sustained various injuries and motorcycle was badly damaged.

2.2 It is further the case of the appellant that due to the accident, the appellant had sustained fracture, head injury, facial injury, pain in right shoulder and other accidental injuries. The appellant sustained a fracture injury on neck of the right humerus and he suffered great mental pain, shock and suffering due to said accident. The appellant, therefore, filed Motor Accident Claim Petition No.422 of 2009 claiming Rs.10,00,000/- towards compensation, under various heads as enumerated in claim petition with interest and costs from the respondents.

2.3 The respondents were served and respondent No.1 appeared before the Tribunal and filed reply at Exh.14 whereas respondent No.2 Insurance Company

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filed written statement at Exh.24. The parties led documentary as well as oral evidence before the Tribunal and the Tribunal by way of judgment and award dated 09.08.2017 partly-allowed the claim petition and thereby awarded an amount of Rs.1,33,200/- to the appellant claimant together with interest at the rate of 8% per annum from the date of filing of the claim petition till its realization. The appellant - claimant therefore filed the present appeal for enhancement of the said amount of compensation.

3. Heard learned advocate Mr.Bharat B. Shah for the appellant and learned advocate Mr.Sunil B. Parikh for respondent No.2 - Insurance Company.

4. Learned advocate for the appellant has mainly contended that the Tribunal has committed error in computing the assessment so far as future loss of income of the appellant is concerned. The Tribunal has also not considered the loss of prospective income of the appellant. It is contended that the appellant was working in R.K. Cargo Movers and H.K. Cargo Movers. His salary income was Rs.1,38,000/- per year at the time of accident as per the documentary evidence in form of Income-tax Returns produced before the Tribunal. Thus, the Tribunal ought to have considered income of the appellant at Rs.10,000/- per month. Learned advocate further contended that the Tribunal has also committed an error while considering the income of the claimant as Rs.8,000/-

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per month and, thereafter, computing 1/4th of the said income for the loss of future income. In fact, the claimant was working in the private company and was not a Government servant. At the time of accident, the appellant - claimant was aged about 26 years. Thus, the Tribunal ought to have added 50% to the monthly income for the prospective income for computing the head of loss of future income. At this stage, learned advocate Mr.Shah has contended that the prospective income would come to Rs.12,000/- and because of the injuries sustained by the appellant - claimant to the extent of 15% (by consent) of the body as a whole and looking to the age of the appellant - claimant, if the multiplier of 17 is applied, his future loss of income would come to Rs.3,67,200/- (Rs.8,000/- monthly salary income, Rs.4,000/- loss of future income = Rs.12,000/- x 15% x 12 months x 17 multiplier = future loss of income). However, the Tribunal has committed an error by granting only Rs.61,200/- and, therefore, this Court may enhance the amount of compensation awarded by the Tribunal.

4.1 Learned advocate Mr.Shah further submits that the Tribunal has also committed an error while granting only Rs.15,000/- under the head of mental pain, shock and suffering. In fact, the appellant - claimant is entitled for Rs.55,000/- under the said head. Similarly, it is contended that the Tribunal has committed an error while awarding Rs.10,000/- under the head of medical expenses and treatment

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expenses. In fact, as per the evidence adduced before the Tribunal, the Tribunal ought to have awarded Rs.1,00,000/- under the said head. Further, the Tribunal has awarded Rs.15,000/- under the head of attendant charges, healthy diet and transportation. It is submitted that looking to the evidence produced before the Tribunal, the Tribunal ought to have awarded Rs.50,000/- under the said head. Thus, learned advocate for the appellant urged that instead of Rs.1,33,200/- awarded by the Tribunal, this Court may award total amount of compensation of Rs.6,48,155/- to the appellant - claimant. Learned advocate, therefore, urged that this appeal be allowed.

4.2 Learned advocate for the appellant has placed reliance upon following decisions:

(1) Sanjay Kumar Vs. Ashok Kumar and another reported in (2014) 5 SCC 330

(2) Rajesh and others vs. Rajbir Singh and others reported in 2013 ACJ 1403

(3) United India Insurance Co. Ltd. Vs. Udaysinh Chandansinh Thakor & Ors. reported in (2006) 2 GLR 1229

(4) Praful Vashrambhai V. Gujarat State Road Transport Corporation & Ors. reported in (2007) 3 GLR 2642

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4.3 On the other hand, learned advocate Mr.Sunil B.

Parikh appearing for the respondent Insurance Company has opposed this appeal and contended that the Tribunal has partly-allowed the claim petition and after considering the documentary as well as oral evidence in form of affidavit of the claimant produced before it rightly awarded Rs.1,33,200/- with 8% interest to the appellant - claimant and, thereby, no error is committed by the Tribunal. Learned advocate Mr.Parikh has referred the deposition given by the claimant which is recorded at Exh.42 and, thereafter, also referred the cross-examination. It is contended that in fact, the appellant - claimant has admitted that because of the accident, there is no loss of income of the claimant. Thus, when the income of the appellant - claimant was not reduced because of the accident, the Tribunal has rightly not awarded the compensation under the head of future loss of income. It is, therefore, urged that when the Tribunal has not committed any error while passing the impugned order, this Court may not interfere with the same by enhancing the amount of compensation as prayed for by the appellant.

4.4 Learned advocate Mr. Parikh has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and another reported in (2011) 1 SCC 343.

5. Having heard learned advocates appearing for the parties and having gone through the material placed

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on record including the oral as well as documentary evidence produced before the Tribunal, it has emerged that the present appellant - claimant filed claim petition before the Tribunal because of the injury which he had sustained in the accident which took place on 15.05.2009. In the present case, Policy is not in dispute. The respondent Insurance Company has not preferred any appeal. It is also not in dispute that in the accident, the appellant sustained injury and the age of the claimant was 26 years at the time of accident. The respondent Insurance Company has not challenged the impugned judgment and award passed by the Tribunal. In the present appeal, which is filed by the claimant for enhancement of the amount of compensation, this Court is required to consider whether the claimant is entitled to get any compensation under the head of future loss of income or not and whether the Tribunal has awarded just compensation to the appellant or not.

6. At this stage, this Court would like to refer the decision rendered by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and another (supra), it is observed in Paragraphs-12 to 14 as under:

"9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

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(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is

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amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."

7. Thus, while granting compensation in an injury case, the Court has to decide the aspects which are referred in the aforesaid guidelines. In the present case, this Court has considered the documentary as well as oral evidence produced before the Tribunal. The Tribunal, after considering the evidence, considered monthly income of the claimant as Rs.8,000/- and when the claimant has not sustained any functional disability, 1/4th (25%) amount of actual income of the claimant was taken into consideration. The Tribunal has also considered injury certificate which is produced at Exh.38 and considered disability certificate produced at Exh.45.

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Looking to the nature of injury, with the consent of the parties, 15% disability of body as a whole was considered.

8. The Tribunal after considering the decision rendered in Raj Kumar Vs. Ajay Kumar and another (supra) and after considering the injury certificate as well as disability certificate held that there is no functional disability on the part of the appellant. It is also pertinent to observe at this stage that from the income-tax return produced at Exhs.50 and 51, it is revealed that income of the claimant is not affected and the same was not reduced after the claimant sustained injuries. In fact, the claimant has admitted in cross-examination that his income is not changed after the accident. Thus, looking to the facts of the present case, this Court is of the view that the Tribunal has not committed any error in granting compensation under the head of prospective loss of income.

9. In the case of Rajesh and others vs. Rajbir Singh and others (supra), the Hon'ble Supreme Court has held that the claimant is entitled to get compensation, which is equitable, fair and reasonable.

10. In the case of Sanjay Kumar Vs. Ashok Kumar and another (supra), the Hon'ble Supreme Court has observed in Paragraph-12 as under:

"10. Further, in the case of Raj Kumar v. Ajay

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Kumar & Anr.[3], this Court has succinctly explained the guidelines and heads for awarding compensation in cases of disability due to a motor accident. The relevant paragraphs are extracted below:

6. The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses. Non- pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)

(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss

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of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expensesItem (iii)depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damagesItems (iv), (v) and

(vi)involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - Item (ii)(a)."

11. The Division Bench of this Court in the case of United India Insurance Co. Ltd. Vs. Udaysinh Chandansinh Thakor & Ors. (supra), has observed that the Motor Vehicle Act is a beneficial piece of Legislation and the procedure envisaged under it is a summary one. Strict rules of evidence are therefore not applicable to the proceedings under the Act.

12. Similar view has been taken by the learned Single Judge of this Court in the case of Praful Vashrambhai V. Gujarat State Road Transport Corporation & Ors. (supra).

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13. So far as the compensation awarded by the Tribunal under the head of mental pain, shock and suffering is concerned, it is revealed that the Tribunal has awarded only Rs.15,000/-. However, looking to the injury certificate and the disability certificate produced by the claimant before the Tribunal, it is revealed that the claimant sustained neck, humerus fracture and facial injuries and, therefore, this Court is of the view that the claimant is entitled to get compensation of Rs.50,000/- under said head. Claimant is also entitled to get compensation of Rs.25,000/- towards medical expenses instead of Rs.10,000/- and Rs.30,000/- towards attendant charges, healthy diet and transportation instead of Rs.15,000/-. In Aggregate, the claimant is entitled to get an additional compensation of Rs.65,000/- under the above-mentioned heads along with interest at the rate of 9% per annum from the date of application till its realization.

14. The present appeal is partly-allowed. The judgment and award dated 09.08.2017 in Motor Accident Claim Petition No.422 of 2009 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above. Decree be drawn accordingly. Rule is made absolute to the aforesaid extent. There shall be no orders as to costs.

15. The disbursement of the aforesaid additional amount of compensation shall be made after proper

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identification of the claimant and following procedure, by issuing the account payee cheque.

(VIPUL M. PANCHOLI, J) piyush