Gujarat High Court
Sukhdevsinh Ganeshsinh Rajput vs Arvind Nagnarayansinh Rajput on 26 October, 2021
Bench: Niral R. Mehta
C/FA/210/2009 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 210 of 2009
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SUKHDEVSINH GANESHSINH RAJPUT
Versus
ARVIND NAGNARAYANSINH RAJPUT & 2 other(s)
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Appearance:
MR HARSHAD K PATEL for the Appellant(s) No. 1
MR SUNIL B PARIKH for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 26/10/2021
ORAL ORDER
1. Being aggrieved and dissatisfied with the judgment and award
dated 13.06.2008 passed by the Motor Accident Claims Tribunal,
(Aux.), Gandhidham-Kachchh, passed in Motor Accident Claim
Petition No. 176 of 2003, the appellant-original claimant has
preferred this first appeal under Section 173 of the Motor Vehicles
Act, 1988 ( "the Act") for enhancement of compensation.
2. The appellant had filed a claim of Rs.9,50,000/- towards
compensation due to accident that took place on 27.11.2002,
wherein, both legs of the appellant were severely injured. However,
the Tribunal has awarded compensation as below;-
Sr. No. Particulars Rupees
1 Towards future loss of income Rs.1,83,600/-
2 Towards medical expenses Rs.1,40,000/-
3 Towards attendant expenditure Rs.7,500/-
4 Towards special food, rich,diet etc. Rs.7,500/-
5 Towards transportation expenditure Rs.7,500/-
6. Towards pain, shock and sufferings Rs.25,000/-
7 Towards actual loss of income. Rs.16,000/-
8 Total Rs.3,87,000/-
C/FA/210/2009 ORDER DATED: 26/10/2021
3. It is the case of the appellant that on 27.11.2002, when the
appellant was performing his labour work, the opponent No.1
respondent No. 1 herein had negligently started the hydraulic crane,
and therefore, as a result, ceiling detached and drooped on the
appellant. Thereby, the appellant sustained serious injuries on both
the legs, for which, eventually, three operations were performed. The
age of the appellant was of 24 years at the relevant point of time and
as per the say of appellant, he was earning Rs.4,000/- to Rs.5,000/-
per month by doing labour work. It is the say of the appellant that
the operator of the crane was the sole responsible for the said
accident. It is the say of the appellant that due to this incident, he
has sustained permanent disablement, and thereby, the claim
petition came to be filed claiming, inter alia, Rs.9,82,000/- as
compensation under all heads with 18% interest.
4. Though summons were served to the opponents no. 1 and 2,
they have chosen not to remain present before the Tribunal,
however, the opponent no. 3 has appeared before the Tribunal and
contested the claim by making general and usual denial.
5. The Tribunal has affirmatively held the driver of the vehicle as
rash and negligent, and thereby, responsible for the accident.
Pertinently, the opponent no.3-Insurance Company has not examined
the driver of the offending vehicle. Thus, in absence of any contrary
evidence, the Tribunal has drawn adverse inference, and thereby,
held the opponent no. 1 as sole responsible for the accident in
question.
6. The Tribunal, in absence of any evidence as to the income, held
Rs.2,000/- per month is just and proper, wherein considering the
probable income in future Rs.1,000/- came to be added. Thus, the
Tribunal has considered Rs.3,000/- per month. The Tribunal has also
C/FA/210/2009 ORDER DATED: 26/10/2021
held 30% disability considering the injury sustained on both the legs
of the appellant. Therefore, the annual future loss was considered at
Rs.10,800/- (Rs.3000/- X 30%=Rs.900X12). The Tribunal has adopted
multiplier of 17 years, considering the age of the appellant at 24
years, therefore, the future loss of income has been calculated at
Rs.1,83,600/- (Rs.10,800X17). Further, the Tribunal has awarded
Rs.1,40,000/- for the medical expenses as per the bills produced on
record. The Tribunal has further awarded Rs.25,000/- under the head
of pain, shock and sufferings against the claim of Rs.1,00,000/- to the
appellant. The Tribunal has awarded Rs.7,500/- towards attendant
charges, Rs.7,500/- towards transportation charges, Rs.7,500/- for
special food, rich and diet charges. The Tribunal has also awarded
Rs.16,000/- towards the actual loss of income. Thus, the Tribunal has
awarded Rs.3,87,100/- towards compensation under various heads
with 8% interest from the date of application till the date of
realization.
7. Feeling aggrieved and dissatisfied with the judgment and
award passed by the Tribunal, the original claimant has preferred
this first appeal for enhancement of compensation.
8. Heard Mr. H.K.Patel, the learned advocate appearing for the
appellant and Mr. Sunil B Parikh, the learned advocate appearing for
the defendant No.3-insurance company. The defendants No. 1 and 2
though served, have chosen not to appear in the proceedings.
9. The learned advocates appearing for the respective parties
have broadly agreed to the ratio laid down by the Hon'ble Supreme
Court in the case of Sarla Verma v. Delhi Transportation
Corporation, reported in 2009 (6) SCC 121.
C/FA/210/2009 ORDER DATED: 26/10/2021
10. It is pertinent to state that the respondent No.3-Insurance
Company has not disputed with regard to the age, injury and
negligence. However, it appears that the respondent No.3-Insurance
Company has not filed any appeal, and thereby, accepted the award
of the Tribunal.
11. In view of the aforesaid facts and circumstances, in my
considered opinion, the Tribunal should have considered the
scheduled of the daily-wages prevailing at the relevant point of time
so as to assess just and fair income of the appellant in absence of any
evidence produced to that effect.
12. I have verified the scheduled of the daily-wages prevailing at
the relevant point of time so as to satisfy my conscious about the
income of the appellant.
13. Having gone through the scheduled, it is found that at the
relevant point of time, the daily-wages prevailing was Rs.2200/- per
month. Therefore, in my view, the income of the appellant should be
considered at Rs.2,200/- per month by adding prospective income
loss at 40% would come to Rs.3,080/-(Rs.2,200X40%=Rs.880)
considering 30% disability body as a whole, an amount of Rs.924/-
per month would be just and proper. Thus, to award a just
compensation under the head of future loss of income, Rs.924/- X 12
X 18 considering the age of the appellant would be, in my view just
and fair, i.e. Rs.1,99,584/-. Thus, 15,984/- (Rs.1,99,584-Rs.1,83,600
(Tribunal has granted) has to be increased under the head of future
loss of income.
14. Looking to the injury sustained and hospitalization, in my view,
Rs.40,000/- should be just and proper towards the pain, shock and
sufferings. Thus, under the head of pain, shock and sufferings, the
C/FA/210/2009 ORDER DATED: 26/10/2021
appellant is entitled to additional amount of Rs.15,000/- (Rs.40,000-
Rs.25,000/-).
15. In view of the aforesaid, the appellant is entitled to additional
compensation of Rs.30,984/- (Rs.15,984+Rs.15,000) with 7.5%
interest from the date of application till the date of realization. Thus,
the present first appeal is partly allowed. The judgment and award
dated 13.06.2008 passed by the Additional District Judge,
Gandhidham-Kachchh, passed in Motor Accident Claim Petition No.
176 of 2003 is modified to the aforesaid extent. The respondent-
Insurance Company is directed to deposit an additional amount with
interest within the period of 8 weeks from the date of receipt of the
order of this Court before the Tribunal concerned.
16. The Tribunal concerned is directed to disburse the additional
income deposited to the original claimant by way of an account payee
cheque after due verification.
17. Record and proceedings be sent back to the Tribunal
concerned forthwith.
Sd/-
(NIRAL R. MEHTA,J)
VISHAL MISHRA
