Gujarat High Court
Navshadbhai Abdulbhai Vasaya vs Sanjaysinh Ramshreshtha Yadav on 12 October, 2021
Bench: Biren Vaishnav
C/FA/5280/2019 ORDER DATED: 12/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5280 of 2019
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NAVSHADBHAI ABDULBHAI VASAYA
Versus
SANJAYSINH RAMSHRESHTHA YADAV
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Appearance:
MR.HIREN M MODI(3732) 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 SERVED(4) for the Defendant(s) No. 2
NOTICE UNSERVED(8) for the Defendant(s) No. 1
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 12/10/2021
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgment and award dated
29.5.2019 passed by the Motor Accident Claims Tribunal, Bhavna-
gar @ Mahuva in M.A.C.P. No.73 of 2016, the original claimants
have preferred this appeal under Section 173 of the Motor Vehicles
Act, 1988 (hereinafter referred to as "Act" for the sake of gravity).
2. The following facts emerge from the record of the appeal:
2.1. That on 24.8.2016 at about 6.30 am, when the appellant as Cleaner
was travelling in his own truck being DCM Eicher Truck bearing
registration No.GJ-4X-7250 which was being driven as per the
C/FA/5280/2019 ORDER DATED: 12/10/2021
traffic rules, a truck came from the other side being driven in a rash
and negligent manner and the said truck dashed with the DCM
truck of the appellant from the front side because of which the
DCM Eicher turned turtled and went into the culvert.
2.2. It is the case of the appellant that because of the said accident, he
received serious injuries. An FIR was lodged with the jurisdiction
police station and the appellant preferred the claim petition under
Section 166 of the Act before the Tribunal which was registered as
Motor Accidents Claim Petition No.73 of 2016 and claimed com-
pensation of Rs.25,00,000/-.
2.3. It was the case of the appellant that as an owner of the DCM Eicher
Truck, he used to earn Rs.40,000/- to Rs.45,000/- per month. It was
the case of the appellant that he was 40 years old on the date of the
accident and because of the accident, he had to undergo extensive
treatment three times before two different hospitals and had to un-
dergo pain, shock and suffering to a very grave extent. It was origi-
nally the case of the appellants that he has sustained permanent dis-
ability to the body as a whole to the extent of 60.1%. However, by a
Purshis vide Exh.21, the appellant declared before the Tribunal to
consider 30% disability of the body as a whole which has been ac-
cepted by the tribunal.
C/FA/5280/2019 ORDER DATED: 12/10/2021
2.4. It was the case of the appellant that he was admitted as indoor pa-
tient for many days and relied upon documentary evidence Exh.30
(Medical Bills). The tribunal after appreciating the evidence on
record determined the income of the appellant @ Rs.5,000/- and
upon appreciating the evidence of medical bills on record, while
partly allowing the claim petition awarded Rs.2,70,000/- under the
head of future loss of income, Rs.10,000/- as actual loss of income,
Rs.5,50,000/- as medical expenses, Rs.5,000/- as special diet, trans-
portation and attendant charges and Rs.15,000/- as pain shock and
suffering and tribunal, thus passed an award of Rs.8,50,000/- to-
gether with 9% interest from the date of the petition till its realiza-
tion with proportionate costs. Being aggrieved by the same, the ap-
pellants - original claimants have preferred this appeal.
3. Heard Mr. Hiren Modi, learned advocate for the appellant - original
claimant and Mr. Dakshesh Mehta, learned advocate for respondent
No.3. Though served, no-one appears for respondent No.2. As the
liability is not denied by the insurance company, presence of re-
spondent No.1 is not essential for deciding the present appeal.
4. With the consent of the learned advocates appearing for the respec-
tive parties, the appeal was taken up for its final disposal forthwith.
C/FA/5280/2019 ORDER DATED: 12/10/2021
5. Mr. Modi, learned advocate for the appellant has produced for pe-
rusal of this Court the certified copies of the relevant evidence
which were produced before the tribunal which have been appreci-
ated by the Court. Mr. Modi has contended as under:
5.1. That the tribunal has committed an error in determining the
income of the appellant @ Rs.5,000/- per month. He has relied on
the following documentary evidence.
Sr. No. Details Exhibit
1 Discharge Summaries 25 to 28
10 Copy of Authorization Certificate of Truck 42
Eicher
C/FA/5280/2019 ORDER DATED: 12/10/2021
5.2. Referring to the document at Exh.41, the RC Book as well as
Exh.42 Authorization Certificate of truck it was contended by Mr.
Modi that the appellant was the owner of the DCM Eicher Truck
and hence, income as determined by the tribunal is very low. Mr.
Modi further submitted that even though concrete evidence could
not be produced by the appellant as regards income, the appellant
being the owner of the truck which was given on hire basis by the
appellant and the income of the appellant was around Rs.40,000/-
per month as claimed before the tribunal.
5.3. Relying upon the evidence of hospitalization being Exh.38, it
was contended by Mr. Modi that the appellant had to remain as in-
door patient for almost two months and had to be operated at two
different Orthopaedic hospitals. Mr. Modi contended that the tri-
bunal has, therefore, committed an error in awarding a meager
amount of Rs.10,000/- as actual loss of income, Rs.5,000/- as spe-
cial diet, transpiration and attendant charges and Rs.15,000/- under
the head of pain, shock and suffering which deserve to be enhanced
appropriately.
C/FA/5280/2019 ORDER DATED: 12/10/2021
5.4. On the aforesaid grounds, Mr. Modi, learned counsel for the
appellant has contended that the appeal be allowed, as prayed for.
6. Per contra, Mr. Dakshesh Mehta, learned counsel appearing for the
insurance company has opposed this appeal.
6.1. Mr. Mehta contended that there is no evidence on
record to even prove that the income of the appellant was
Rs.5,000/- per month. Mr. Mehta has further contended that even
considering the minimum wages standard and as the appellant was a
cleaner, the tribunal has committed no error which requires any
modification. Mr. Modi contended that the tribunal has already
awarded a huge amount of Rs.5,50,000/- towards medical expenses
and after appreciating the evidence on record, the tribunal has cor-
rectly granted compensation as actual loss of income and compen-
sation under the head of special diet, transportation and attendant
charges as well as pain, shock and suffering which does not require
any modification.
6.2. Mr. Mehta, learned counsel for the insurance company con-
tended that the appeal being merit-less deserves to be dismissed.
C/FA/5280/2019 ORDER DATED: 12/10/2021
7. No other or further contentions have been raised by the learned
counsel for the respective parties.
8. We have perused the certified copies of the relevant evidence
recorded before the tribunal submitted by Mr. Modi and have also
considered the submissions made by both the sides.
9. The certificate of registration at Exh.46 clearly shows that the DCM
Eicher Truck bearing registration No.GJ-4X-7250 was of the own-
ership of the appellant. We find that there is no evidence on record
even to determine the income of the appellant was Rs.40,000/- per
month as contended by Mr. Modi before us. However, the fact re-
mains that though the appellant was working as a cleaner as the ap-
pellant himself was owner of the truck involved in the accident, the
minimum wages standard cannot be applied as canvassed by learned
counsel for the insurance company. While fixing the income of the
appellant notionally though the tribunal was conscious about the
fact that the appellant was the owner of the truck, only because he
was working as a cleaner, the tribunal has assessed the income @
Rs.5,000/- which in opinion of this Court is very low. A truck is a
transport carrier which is given on hire. The appellant as a owner
must have no licence to drive the vehicle and, therefore he hired
services of a driver. Only because he used to accompany the driver
C/FA/5280/2019 ORDER DATED: 12/10/2021
as a cleaner would not mean that he ceased to be the owner of the
truck and considering such circumstances, even while fixing the no-
tional income of the appellant, we deem it fit to quantify
Rs.10,000/- per month.
10. Considering the proposition of the appellant / claimant before the
tribunal, Exh.19 as well as discharge certificate at Exh.38 and the
evidence on record, it clearly appears that the appellant had to was
first treated at Government Sir T Hospital, Bhavnagar, then at
Vivekanand Multispeciality Hospital, Bhavnagar by Dr. Harshvard-
han R. Jadeja and also at Advance Orthopedic Fracture Care Hospi-
tal at Bhavnagar. The evidence on record indicates that he was also
treated at GCS Medical College, Hospital and Research Centre,
Ahmedabad for bone grafting and in addition thereto that he has
undergone surgery for fracture of right femur fracture. Considering
the degree of injuries which are shown in the medical papers before
us, it transpires that almost for two months, the appellant had to be
under hospitalization and has passed through pain, shock and suffer-
ing. Upon re-appreciating such evidence on record, this Court is of
the opinion that the tribunal has committed an error in quantifying
the compensation under the heads of special diet, transportation and
attendant charges, pain, shock and suffering as well.
C/FA/5280/2019 ORDER DATED: 12/10/2021
11. As far as permanent disability of the body as a whole is concerned,
there is a consent by the appellant and, therefore, the same does not
require any further discussion in this appeal.
12. In totality of facts upon re-appreciating the evidence on record, this
Court having come to the conclusion that the income of the appel-
lant should be @ Rs.10,000/- per month, and considering the multi-
plier of 15, the appellant would be entitled to compensation as un-
der for future loss of income:
Rs.10,000/- X 30% X 12 X 15 = Rs.5,40,000/-
13. Over and above, the appellant would be entitled to Rs.15,000/- as
special diet, transportation and attendant charges as he was hospital-
ized and was semi bed-ridden for almost two months, and consider-
ing the fact that he had to come to Ahmedabad for surgery of for
bone grafting, the appellant would be entitled to Rs.45,000/- under
the head of pain, shock and suffering.
14. Having come to the aforesaid conclusion, the appellant would be
entitled to total amount of compensation as under:
Future loss of income Rs.5,40,000/-
Actual loss of income Rs.20,000/-
C/FA/5280/2019 ORDER DATED: 12/10/2021
Medical Expenses as awarded by the tribunal Rs.5,50,000/-
Special diet etc. Rs.15,000/-
Pain, shock and suffering Rs.45,000/-
TOTAL ... Rs.11,70,000/-
15. As the tribunal has awarded a sum of Rs.8,50,000/-, the appellant
would be entitled to additional compensation of Rs.3,20,000/- to-
gether with interest thereon @ 9% p.a. from the date of the petition
till its realization with proportionate cost. The insurance company is
directed to deposit the said additional amount with interest and pro-
portionate cost with the tribunal within a period of 8 weeks from
the receipt of writ of this order.
16. The appeal is partly allowed in aforesaid terms. The impugned
judgment and award stands modified accordingly. No order as to
costs in this appeal.
[ THE ACTING CHIEF JUSTICE R.M.CHHAYA, J ]
[ BIREN VAISHNAV, J ]
*** VSK
