Gujarat High Court
Diparam Vishnaram Jatt vs Ganeshram Ishararam Jatt on 25 October, 2021
Bench: R.M.Chhaya, Samir J. Dave
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5585 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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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 ?
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DIPARAM VISHNARAM JATT
Versus
GANESHRAM ISHARARAM JATT
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 1,2,4
NOTICE UNSERVED(8) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 25/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
1. Feeling aggrieved and dissatisfied by the
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
judgment and award dated 19.03.2019 passed by the
Motor Accident Claims Tribunal (Aux), Gandhidham at
Kachchh in MACP No. 231 of 2015, the original
claimant has preferred this appeal under Section 173
of the Motor Vehicles Act, 1988 (hereinafter after
referred to as the "Act").
2. Heard Mr. Hiren Modi, learned advocate for the
appellant-original claimant and Mr. Yogi K. Gadhia,
learned advocate for respondent no.5, the insurance
company. Though served, no one appears for
respondents no. 1, 2 and 4. Presence of respondent
no.3 is not required to decide the present appeal as
liability is not denied by the insurance company.
3. Mr. Modi, learned advocate as well as Mr.Gadhia,
learned advocate have also produced for perusal of
this court the copies of the relevant evidence
adduced before the Tribunal. With the consent of the
learned advocates appearing for the parties, the
matter is taken up for its final disposal.
4. Following facts emerge from the record of the
present appeal -
4.1 The claimant was working as a Cleaner in the
Truck bearing registration No. GJ-12-AW-1501. On
01.09.2015, the claimant along with the driver of the
said truck were going to Jaipur from Gandhidham to
unload oil. When they reached near Mangadh ahead of
Bhachau, the driver of the truck bearing registration
no. GJ-12-AW-1501, in which the present appellant was
travelling as a Cleaner, being driven in rash and
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
negligent manner, in excessive speed, dashed with one
truck bearing registration no. RJ-32-GA-2752, which
was in stationary condition on the road from behind
and thereby the accident took place. The claimant
sustained serious and grievous injuries. FIR came to
be lodged with Adesar Police STation on 01.09.2015.
The claim petition came to be filed under Section 166
of the Act for getting compensation of
Rs.26,00,000/-. The claimant had deposed at exhibit
23. Oral as well as documentary evidence were relied
upon by the claimant such as FIR at exhibit 26,
panchnama of the place of accident at exhibit 27, RC
book of the truck GJ-12-AW-1501 at exhibit 28,
insurance policy of the truck at exhibit 29, RC book
of truck no. RJ-32-GA-2752 at exhibit 30, insurance
policy of truck no. RJ-32-GA-2752 at exhibit 31,
driving license of the driver of driver of both the
trucks at exhibit 32 and 33 respectively, medical
bills at exhibits 36 to 40, pan card of the claimant
at exhibit 41, medical treatment papers at exhibits
42,43,44,46,47 and disability certificate at exhibit
45. The insurance company also produced document
such as insurance policy of truck bearing
registration no. RJ-32-GA-2752 at exhibit 34 and
insurance police of truck no.GJ-12-AW-1501 at exhibit
35.
4.2 The Tribunal after appreciating the evidence on
record and assessing the age of the claimant to be 19
years on the date of the accident, monthly income of
the claimant at Rs.6,000/- and disability of the body
as a whole to the extent of 50%, awarded a sum of Rs.
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
6,79,010/- with interest at the rate of 7% from the
date of the claim petition till its realisation.
Being aggrieved by the same, the present claim
petition is filed by the appellant-claimant.
5. Mr. Modi, learned advocate appearing for the
appellant contended that the appellant was just 19
years old on the date of the accident and was
actually working as a cleaner and was earning
Rs.7,000/- per month. Mr. Modi, learned advocate
also contended that the Tribunal has committed an
error in considering the income of the appellant at
Rs. 6,000/-. Mr. Modi contended that even though
there was no evidence on record, the fact remains
that the minimum wages standard as applicable in the
State of Gujarat can be one of the yardstick to
determine the income and accordingly, the appellant
had urged before the Tribunal that the income of the
appellant was Rs.7,000/- per month. Mr. Modi
contended that serious injuries have been sustained
by the appellant and the appellant had to undergo
sever pain, shock and suffering and was hospitalised
for quite a long time and for two months, he was
bedridden. Mr. Modi contended that as a cleaner, the
appellant has to travel in a truck and do all
necessary work as cleaner. Mr. Modi contended that
the injuries were so severe that left leg of the
appellant was required to be amputated. According to
Mr. Modi, learned counsel for the appellant, the
Tribunal ought to have awarded prospective income as
the injury is serious. Mr. Modi however did not
dispute the extent of disability of the body as a
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
whole calculated by the to the extent of 50%. Mr.
Modi further contended that the Tribunal has awarded
a meagre amount of Rs.7,500/- under the head of pain,
shock and suffering and has also committed an error
in granting Rs. 12,000/- as actual loss of income for
2 months. Mr. Modi further contended that the
Tribunal has totally brushed aside the fact that the
appellant was just 19 years old when his left leg was
required to be amputated because of the serious
injuries sustained in the accident. It was contended
by Mr. Modi that the Tribunal has failed to grant any
compensation under the head of loss of amenities to
the appellant. On the aforesaid grounds, Mr. Modi
contended that the impugned judgment and award
deserves to be modified by allowing the appeal as
prayed for.
6. Per contra, Mr. Yogi Gadhia, learned advocate
has vehemently opposed the appeal. Mr. Gadhia
contended that there is no evidence on record to show
that even the income of the deceased was Rs. 6,000/-
per month and the Tribunal has merely by guesswork,
without apply any standard, determined the same as
Rs.6,000/- per month, which does not require any
alteration or modification. Mr. Gadhia further
contended that the injuries sustained by the
appellant are not serious that he has lost his job
for ever and therefore, the appellant is not entitled
to any prospective income. According to Mr. Gadhia,
there is nothing on record to show that the appellant
has suffered any loss of amenities of life and
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
therefore, according to Mr. Gadhia, the Tribunal has
rightly awarded a sum of Rs. 7,500/- as compensation
under the head of pain, shock and suffering by
correctly interpreting the evidence on record as
regards the medical treatment, which the appellant
was required to take. According to Mr. Gadhia, the
appeal being meritless, deserves to be dismissed in
toto.
7. No other or further contentions have been raised
by the learned advocates appearing for the respective
parties.
8. Upon perusing the necessary evidence on record,
indicates that the disability of the body as a whole
is determined by the Tribunal at 50%. As the same is
not disputed by the parties to the appeal, the same
does not require any further discussion. We find
that even in the claim petition, the assertion of the
appellant was that he has income of Rs. 7,000/- per
month. It is no doubt true that there is no evidence
whatsoever to even remotely prove that the income of
the deceased was Rs.7,000/- per month as averred by
the appellant. However, the fact remains that the
appellant has led the evidence to the effect that the
appellant was working as a Cleaner and in absence of
any evidence of income on record, the Tribunal ought
to have adopted some recognised yardstick inspite of
just going for a guesswork. One of the recognised
yardstick to determine the income in such fact
situation would be to refer to minimum wages standard
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
as applicable in State of Gujarat on the date of the
accident. Upon re-appreciation of such evidence and
considering the minimum wages standard as adopted in
the State of Gujarat on the date of the accident, the
income of the appellant as skilled worker would be
more than Rs.7,000/-, that is claimed by the
appellant. We therefore hold that the Tribunal has
committed an error in assessing the monthly income of
the appellant at Rs.6,000/- per month and we award
the same at Rs. 7,000/-. Medical papers indicate
that the injury sustained by the appellant were so
serious in nature that the left leg of the appellant
was required to be amputated. Even though while
considering the disability certificate at exhibit 45,
the said fact is noted by the Tribunal, the Tribunal
has not awarded any compensation under the head of
Loss of Amenities of life. Following the judgment of
the Apex Court in the case of Jagdish Vs. Mohan and
Ors. reported in 2018 ACJ 1011, in an injury case,
when the injury sustained is so serious in nature,
which almost disables the victim from resorting back
to the normalcy and normal work conditions, in such
an injury case, the appellant-claimant would be
entitled to prospective income as well. Following
the ratio laid down in the said judgment, we are of
the opinion that the appellant would be entitled to
prospective income as well. The medical history
papers and medical papers indicate that the appellant
had to undergo hospitalisation and had to pass
through pain, shock and suffering because of the
amputation of left leg below the knee and is now
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
disabled for life. In our opinion, upon re-
appreciating such piece of evidence, the Tribunal has
awarded very meagre amount as compensation under the
head of pain, shock and suffering.
9. Upon overall re-appreciation of the evidence on
record and considering the degree of permanent
injuries sustained by the appellant, the appellant
would be entitled to compensation towards Future Loss
of Income as under -
Rs.7,000/- (income) + Rs.2,800/- (40%
prospective income) = Rs. 9,800/- + Rs.4900/- (50%
disability) X 12 = Rs. 58,800/- X 18 (multiplier) =
Rs.10,58,400/-
Thus, the appellant would be entitled to total
compensation under different heads as under -
Future loss of income - Rs.10,58,400/-
Actual loss of income - Rs. 14,000/-
Medical Expenses - Rs. 6,510/-
Loss of Amenities - Rs. 50,000/-
Pain, shock and
suffering - Rs. 25,000/-
Sp. diet., Transportation,
Attendant - Rs. 5,000/-
_______________
Total Compensation Rs.11,58,910/-
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As the Tribunal has awarded Rs. 6,79,010/-, the
appellant would be entitled to additional
compensation of Rs. 4,79,900/-, which is rounded at
Rs. 4,80,000/- with 7% interest p.a. from the date of
the claim petition till its realization and
C/FA/5585/2019 JUDGMENT DATED: 25/10/2021
proportionate cost.
10. The appeal is thus partly allowed. The impugned
judgment and award is modified to the aforesaid
extent. The respondent insurance company shall
deposit the additional amount as awarded by this
Court along with proportionate interest and cost with
the Tribunal within a period of eight weeks from the
date of the receipt of this judgment and order.
However, there shall be no order as to costs.
(R.M.CHHAYA,J)
(SAMIR J. DAVE,J)
BIJOY B. PILLAI
