Gujarat High Court
Rameshbhai Manorbhai Patel vs Rayjibhai Chunthaji Bariya on 30 November, 2021
Bench: R.M.Chhaya
C/FA/4655/2019 JUDGMENT DATED: 30/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4655 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
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 ?
==========================================================
RAMESHBHAI MANORBHAI PATEL
Versus
RAYJIBHAI CHUNTHAJI BARIYA
==========================================================
Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 3
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 30/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
C/FA/4655/2019 JUDGMENT DATED: 30/11/2021
1. Feeling aggrieved and dissatisfied by the impugned judgement
and award dated 17.10.2018 passed by the Motor Accident Claims
Tribunal (Aux.), Modasa in MACP No.07/2015, the appellant -
original claimant has filed present appeal under Section 173 of the
Motor Vehicles Act, 1988 (Act for short).
2. Considering the issue involved and with the consent of the
parties, the present appeal is taken up for final hearing forthwith.
As the liability has not been denied by the Insurance Company, the
presence of Respondent Nos. 1 and 2 is not necessary for disposal
of this appeal.
3. The facts emerging from the record are as under:
3.1. On 27.7.2012, at about 9:00 a.m., the appellant and his
friend were travelling from Shathamba to Madhav Chowkdi Road on
themotorcycle bearing registration No. GJ-9-AL-3906. The
motorcycle was owned by the appellant and driven by his friend
Shri Sureshbhi Kodarbhai. The appellant was a pillion rider. When
they were waiting near Madhav Chowkdi, at that point, respondent
No.1, came driving his truck bearing registration No.GJ-9-Y-8989 in
excessive speed, in rash and negligent manner and dashed with
motorcycle from behind. This has resulted into serious injuries to
appellant-original claimant. He sustained fracture on both the legs
and other parts of body. The appellant was hospitalised, underwent
two surgeries and his left leg was amputated. The accident took
place on account of rash and negligent driving by respondent No.1.
The injuries sustained to the claimant resulted into permanent dis-
ability of 37% of whole body which was agreed upon by the parties
before the Tribunal. The dis-ability certificate has been exhibited at
Exh.30. Since the parties have agreed for permanent dis-ability of
C/FA/4655/2019 JUDGMENT DATED: 30/11/2021
37% of whole body, it is not necessary to examine the said issue.
4. The Tribunal upon appreciation of oral and documentary
evidence awarded compensation under different heads as under:
Future economic loss of income Rs.1,39,860/-
Pain, shock and suffering Rs.3500/-
Special diet, attendance, Rs.3500/-
transportation charges
Actual loss of income. (2 Rs.7000/-
months)
Medical Expenditure Rs.4,58,610/-
Total compensation Rs.6,12,470/-
5. We have heard Mr. Vaibhav Sheth, learned advocate for the
appellant and Mr. Tushar Mehta, learned advocate for respondent
No.3 - Insurance Company.
6. Mr. Vaibhav Sheth, learned advocate for the appellant
contended that the Tribunal has erred in taking the income of the
claimant at Rs.3,500/-p.m. He further contended that the claimant
was having an agricultural income which is evident from Form No.
7/12 extract and Village Form 8A at Exh.37. At Exh.39, the
manufacturing and selling of agricultural proceeds has been taken
on record. Over and above, the agriculture activity, the claimant
was also doing tailoring work and, therefore, the income assessed
at Rs.3,500/- p.m. is less. He further contended that the
compensation awarded under the head pain, shock and suffering as
also special diet, attendance, transportation charges is also less.
Relying upon the decision of the Hon'ble Supreme Court in the case
Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Ors.
C/FA/4655/2019 JUDGMENT DATED: 30/11/2021
reported in (2009) 6 SCC 121 and in the case of National Insurance
Company Limited v. Pranay Sethi & Ors. reported in (2017) 16 SCC
680 he submitted that the appeal may be accordingly allowed.
7. Per contra, Mr. Mehta, learned advocate for respondent No.3-
Insurance Company opposed the present appeal and submitted that
the judgement and award of the Tribunal is based on the evidence
on record. Accordingly, it was contended by the learned advocate
for the respondent - Insurance Company that appeal being
meritless, deserves to be dismissed.
8. No other and further submissions/contentions have been made
by the learned advocates for the respective parties.
9. We have considered the submissions made by learned
advocates for the respective parties and also considered the
photocopies of the relevant evidence produced by the appellant.
10. It is not in dispute that the claimant on account of accidental
injury underwent surgery twice and therefore, he could not attend
his work for a period more than two months. Along with
agricultural activity claimant was doing tailoring work. The
evidence which has been exhibited before the Tribunal in the form
of 7/12 extract and form 8A shows the agricultural income in the
hands of claimant. Considering the above evidence and the year of
accident, i.e. 2012, in our opinion the income determined at
Rs.3,500/- is less. Even in the case of house-wife, where no
income evidence is produced, the income of Rs.3000/- p.m. has
been considered proper to arrive at just compensation. Therefore,
upon re-appreciation of evidence particularly, the income earned by
the appellant in the year 2012 in our opinion the income of
C/FA/4655/2019 JUDGMENT DATED: 30/11/2021
Rs.6,000/- p.m. would be appropriate, to arrive at just
compensation.
11. As the appellant could not resume his work for a period of 2
months, loss of income would be of (Rs.6,000X2) = Rs.12,000/-.
Considering the period of hospitalisation, the number of surgeries
and the resultant disability, in our opinion compensation of
Rs.1,00,000/- would be appropriate under the head pain, shock and
sufferings. For special diet, attendance and transportation charges
Rs. 50,000/- compensation would be appropriate.
12. The appellant would also be entitled for future loss of
amenities and medical expenses as he will not be able to work
under normal circumstances as before. Therefore, Rs.1,00,000/- is
awarded for future loss of amenities.
The Future loss of income would be (Rs. 6,000/- p.m. x 12 (pa) =
Rs.72,000 x 37% (disability) = Rs.26,640/-
Total Future loss of income yearly (RS.72,000-Rs.26,640) =
Rs.45,360/- (Rs.45,500 round off)
Rs.45,500 x 9 multiplier (As the claimant was 58 years at the time
of accident) = Rs.4,09,500/-
13. Having come to the aforesaid conclusion, the appellant would
be entitled to compensation as under:
Particulars Amount (Rs.)
Future loss of income Rs.4,09,500/-
Actual loss of income Rs.12,000/-
C/FA/4655/2019 JUDGMENT DATED: 30/11/2021
Pain, shock and sufferings Rs.1,00,000/-
Special diet, attendance, Rs.50,000/-
transportation charges
Future loss of amenities and Rs.1,00,000/-
medical expenses
Actual Medical Expenditure Rs.4,58,610/-
Total Rs.11,30,110/-
14. Thus, the appellant - original claimant would be entitled to
total compensation of Rs.11,30,110. As the Tribunal has awarded
an amount of Rs.6,12,470/-, the respondent - Insurance Company
shall deposit the additional amount of (Rs.11,30,110/- -
Rs.6,12,470/-) = Rs.5,17,640/- with 9% interest and proportionate
costs from date of filing of the claim petition till its realisation with
the Tribunal within a period of 8 weeks from the receipt of the
order. The impugned judgement and award passed by the Tribunal
is modified to the aforesaid extent. Appeal is thus, partly allowed.
Registry is directed to transmit back the Record and Proceedings of
the case to the concerned Tribunal forthwith. However, there shall
be no order as to costs.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
