Shail Piyushbhai Parikh vs Jagdish Chaudhary Shyokram
2021 Latest Caselaw 16803 Guj

     C/FA/5647/2019                                  JUDGMENT DATED: 26/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO.        5647 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 ?

==========================================================
                           SHAIL PIYUSHBHAI PARIKH
                                    Versus
                         JAGDISH CHAUDHARY SHYOKRAM
==========================================================
Appearance:
MR PRADEEP R MISHRA(10206) for the Appellant(s) No. 1
 for the Defendant(s) No. 1,2,3,4,5
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
MS MOXA G THAKKER(3063) for the Defendant(s) No. 5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SAMIR J. DAVE

                             Date : 26/10/2021

                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/5647/2019 JUDGMENT DATED: 26/10/2021

1. Feeling aggrieved and dissatisfied by the judgment and award dated 24.08.2018 passed by the Motor Accident Claims Tribunal (Aux), Vadodara in MACP No. 1603 of 2003, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

3.Heard Mr. Vishal Mehta, learned advocate for Mr. Pradeep R. Mishra, learned advocate for the appellant, Mr.Alkesh Shah, learned advocate for respondent no.3 and Ms. Moxa Thakkar, learned advocate with Mr. Kiran Thakkar, learned advocate for respondent no.5. The liability is not challenged by respondent no.3, insurance company of the truck involved in the accident and hence, the presence of driver and owner of the respective vehicle is not necessary.

4. As short issues arises in this appeal, with the consent of the learned advocate for the parties, the matter is taken up for its final disposal. The learned advocates for the parties have produced relevant evidence adduced before the Tribunal.

5. The following facts emerge from the record of the appeal -

5.1 It is the case of the claimant that on 30.04.2003, the appellant-claimant was travelling in Maruti Zen bearing registration No. GTW-1BA-5822 at about 9.30 AM along with his family from Shreenathji

C/FA/5647/2019 JUDGMENT DATED: 26/10/2021

to Jaipur. It is the case of the claimant that when the car reached near Javaja Police Station area on Ajmer-Jaipur road, a truck bearing registration no. RJ-14-G-6927, being driven in rash and negligent manner with excessive speed, came from other side and because of curve road, the driver of the truck lost control of the vehicle and the truck travelled on the side of the Maruti Car and dashed with the Maruti car in such a manner that the car was dragged 22 ft. on the road by the truck as a result of which, the appellant received injuries and had to undergo excessive medical treatment. The mother of the appellant Nilamben Piyushbhai Parikh was examined at exhibit 38 and the appellant-claimant relied upon documentary evidence such as FIR, School Leaving Certificate and also examined Dr. Samit Biniwale, MS, Mch, Neurosurgeon at exhibit 35 to prove the disability. The appellant also adduced evidence of medical expenses at exhibit 60. The Tribunal after appreciating the evidence on record, came to the conclusion that the appellant has studied upto 12th standard on the date of the accident with good marks and determined in the income of the appellant at Rs. 2,300/- per month. As far as disability is concerned, the Tribunal after appreciating the evidence on record, and more particularly the certificate of eye surgeon at exhibit 55 and oral testimony of Dr. Biniwale at exhibit 34, came to the conclusion that the appellant suffers from 100% functional disability. Ultimately, while partly allowing the claim petition, awarded compensation as

C/FA/5647/2019 JUDGMENT DATED: 26/10/2021

under -

Future loss of income - Rs.4,96,800/-

        Amount for P.S.S.                           -      Rs.1,00,000/-
        Medical expenses                            -      Rs.3,62,049/-
        Transportation, attendant
        and Sp. diet                                -      Rs.      50,000/-
        Loss of future attendant
        charges and towards loss of
        enjoyment of life and
        marriage prospect                           -      Rs.1,00,000/-
        Future medical supervision
        and future medical exp.                     -      Rs. 50,000/-
                                                           -------------
                                     Total                 Rs.11,58,849/-
                                                           ==============

Feeling aggrieved by the same, the appellant has filed the present appeal.

6. Mr. Vishal Mehta, learned advocate appearing for the appellant contended that even though the appellant was 17 years old and had studied upto 12th standard, the guesswork done by the Tribunal while determining the income of the appellant is erroneous. Mr. Vishal Mehta contended that considering the date of the accident, the income determined at Rs.2,300/- is very less and the same should be at least Rs.5,000/-. Mr. Vishal Mehta further contended that considering the fact that the injury sustained by the appellant are such serious in nature that the the Tribunal itself has determined the disability at 100%, the appellant would be entitled to increase in income by way of prospective income. On the aforesaid two grounds, it was contended by Mr. Mehta that the impugned award deserves to be modified by

C/FA/5647/2019 JUDGMENT DATED: 26/10/2021

partly allowing the appeal.

7. Mr. Alkesh Shah, learned advocate and Ms. Moxa Thakkar, learned advocates appearing for the respective insurance company have opposed this appeal and have contended that in absence of any proof and considering the fact that the appellant was just 17 years old, the income determined by the Tribunal at Rs.2,300/- is proper and the same is not required to be modified. Mr. Shah as well as Ms. Thakkar contended that in facts of this case, the appellant would not be entitled to any prospective income. It was contended by the learned advocates appearing for the respondents-insurance companies that the appeal being meritless, deserves to be dismissed.

8. No other or further submissions have been made by the learned advocates appearing for the parties.

9. Upon considering the submissions and on perusal of the relevant documents supplied by the learned advocates appearing for the parties and even considering the reasoning given by the learned Tribunal for determining the income of the appellant at Rs. 2,300/- per month, this Court is of the opinion that even considering the date of the accident and particularly considering the fact that the appellant had a very bright academic career and bright academic future, in facts of this case, the Tribunal has determined very less income. Upon re- appreciation of the evidence on record, the income of the appellant can safely be determined at Rs.3,500/-

C/FA/5647/2019 JUDGMENT DATED: 26/10/2021

per month. It is a matter of fact, which is not disputed, that the appellant suffers from 100% disability. Following the judgment of the Apex Court in the case of Jagdish Vs. Mohan and Ors. reported in 2018 ACJ 1011 and considering the fact that the injury sustained by the appellant are of such a serious nature that the appellant suffers from 100% disability, the appellant would be entitled to prospective income to the extent of 40%. Having come to the aforesaid conclusion, the appellant would be entitled to compensation as under -

Rs.3,500/- + Rs.1400/- (40% prospective income) = Rs. 4,900/- (100% disability) X 12 = Rs.58,800/- x 18 (multiplier) = Rs. 10,58,400/- (Future Loss of income)

Future Loss of Income - Rs.10,58,400/-

       Amount for P.S.S.                             -         Rs. 1,00,000/-
       Medical expenses                              -         Rs. 3,62,049/-
       Transportation, attendant
       and Sp. diet                                  -         Rs.     50,000/-
       Loss of future attendant
       charges and towards loss of
       enjoyment of life and
       marriage prospect                             -         Rs.1,00,000/-
       Future medical supervision
       and future medical exp.                       -         Rs. 50,000/-
                                                               -------------
                       Total compensation                      Rs.17,20,449/-
                                                               ==============

10. As the Tribunal has awarded an amount of Rs.

11,58,849/-, the appellant would be entitled to additional compensation of Rs. 5,61,600/- with 7.5% interest p.a. from the date of the claim petition

C/FA/5647/2019 JUDGMENT DATED: 26/10/2021

till its realization and 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 and upon deposit of the said amount, same shall be disbursed in favour of the claimant forthwith. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(SAMIR J. DAVE,J) BIJOY B. PILLAI