Gujarat High Court
Babuji Baldevji Chauhan vs Bharatsinh Narayansinh Chauhan on 13 April, 2022
Bench: Sandeep N. Bhatt
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4492 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BABUJI BALDEVJI CHAUHAN
Versus
BHARATSINH NARAYANSINH CHAUHAN & 1 other(s)
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Appearance:
MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 13/04/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of the
Motor Vehicles Act, 1988, is preferred by the appellant -
original claimant, being aggrieved and dissatisfied with the
judgment and award dated 31.08.2009 passed by the Motor
Accident Claims Tribunal (Aux.), at Mehsana in Motor
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
Accident Claim Petition No.940 of 2003, by which the
Tribunal has dismissed the claim petition of the claimant in
absence of evidence available on record.
2. Brief facts of the case are as under:
2.1 On 24.07.2003, the claimant was going on scooter of
his son bearing registration No.GJ-2N-2590 as a pillion
rider, which was driven by his son viz., Mahendra Babuji
Chauhan, and when the scooter reached near Ublakh
Village Patiya at about 12 o'clock in the noon, the scooter
was slipped as the driver has applied sudden break and due
to that, the claimant has received various injuries.
Therefore, the claimant has filed the claim petition to get
the compensation of Rs.2,00,000/- under Section 166 of the
Motor Vehicles Act, 1988. As the claimant was hospitalized
for four days and as per the medical certificate issued by
the doctors, the claimant is entitled to get the amount of
compensation.
2.2 The Tribunal has issued summons to all the opponents.
None of the opponents have filed their written statement.
2.3 The Tribunal has framed the issues at Exh.10. The
claimant has deposed himself at Exh.12 and pointed out
that he has produced the documentary evidence at Exh.14.
Further, son of claimant has filed criminal complaint.
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
Further, he has pointed out that in the letter written to the
Vasai Police Station, he has disclosed the details of his
driving licence. Further, he has pointed out that he has
initially taken treatment from Dr. Bankim Modi, who is
doctor at Kukarwada, the case paper of Dr. Bankim Modi is
also produced at Exh.17, Panchnama drawn on the place of
accident is also produced at Exh.15. Thereafter, the
claimant has also taken treatment in Ahmedabad,
Chandramani Hospital from Dr. R.M. Agarwal, who has
issued medical certificate at Exh.18 and 19, discharge card
is produced at Exh.19. Further, when the claimant was
discharged on 28.07.2003, he was advised to take rest for
15 days. The claimant had received serious injuries on right
eye and fracture of linear at hand. Thereafter, the claimant
has to undergo CT Scan of brain and the report of said CT
Scant is also produced at Exh.20, the Bills of medical
treatment of Rs.11,595/-, which is also produced on record
at Exh.23.
2.4 Further, the insurance company has not filed its
written statement. Dr. Nilesh Dixit, who is Neurosurgeon at
Mehsana, has given the permanent disability certificate,
which is produced at Exh.22 and the parties have agreed to
consider 9% permanent disability by making endorsement.
R.C. Book of Scooter is produced at Exh.24, Insurance
Police is produced at Exh.25, village form to show the
agricultural land of the claimant is also produced at Exh.26
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
and thereafter, the claimant has also cited various
judgments and after considering the judgments, the
Tribunal, without framing any issue about the involvement
of the vehicle, found that there is no documentary evidence
available on record to establish that the injury is caused due
to vehicular accident. Looking to the claim petition and
documentary evidence available on record, the claimant
was received injuries on 24.07.2003 and he was
hospitalized till 28.07.2003 and therefore, he has given the
complaint on 07.08.2003, the delay in lodging the complaint
is not explained in the claim petition by the claimant.
Therefore, the Tribunal has found that the claim petition is
required to be dismissed as no proper evidence is produced
by the claimant.
3.1 Learned advocate Mr. Jigar G. Gadhavi for the
claimant has submitted that the Tribunal has committed
gross error by not considering the aspect that the claimant
has produced various documents; like F.I.R. at Exh.14,
Panchnama at Exh.15, injury certificate at Exh.16 to 21
including case papers, discharge card, C.T. Scan and
Permanent Disability Certificate at Exh.22, to which, the
insurance company has also given consent to consider the
disability as 9%, Medical Bill of Rs.11,595/- at Ex.23, R.C.
Book of vehicle at Exh.24, Insurance Policy at Exh.25,
Revenue Record of the agricultural land of the claimant at
Exh.26 and deposition given by the claimant at Exh.13 is
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produced on record.
3.2 Further, he has submitted that looking to the entire
deposition and more particularly, the hospital record of Dr.
Bankim Modi reveals that the accident is caused due to
vehicular accident and more particularly, he has taken
further treatment at Chandramani Hospital, Ahmedebad
with Dr. R.M. Agarwal and his medical certificate at Exh.18
and 19 and discharge card at Exh.15 also indicate that the
claimant has received serious injuries and such injuries is
caused due to the vehicular accident.
3.3 The son of claimant has also filed complaint before the
Vasai Police Station at Exh.15, Panchnama is also drawn at
Exh.16, merely because there is delay of 10 days in the
facts and circumstances as the claimant was hospitalized till
28.07.2003 and thereafter, he was advised to take rest for
15 days so he could not have filed the complaint
immediately. As soon as he received some recovery in his
health, he has approached and has tried to lodge his
complaint. Therefore, it cannot be said that the claimant
has failed to prove his case by producing necessary
evidence regarding involvement of vehicle.
3.5 Learned advocate Mr. Gadhavi has also relied on the
judgment of the Hon'ble Apex Court in the case of Ravi Vs.
Badrinarayan & Ors. reported in (2011) 4 SCC 693,
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
where he has pointed out that the delay in lodging of F.I.R.
cannot be considered a sole ground to disbelieve the case of
the claimant for the compensation, which is arising out of
vehicular use. Further, he has submitted that there is ample
evidence available on record, which indicates that the
Tribunal has committed error that the claimant has not
produced any evidence to establish his case, and that the
injury is caused due the vehicular accident. He has also
relied on the judgment of this Court in the case of
Hansaben Pravinbhai Patel Vs. Arifbhai S. Vora
reported in 2016 (2) GLR 1796 and contented that the
income and the rate of interest should be considered to the
extent 9% p.a. He has submitted that since the Tribunal has
also committed error by not framing issues such as
involvement of vehicle in question or injury caused due to
the vehicular accident. Further, he has submitted that even
insurance company has not filed any written statement to
contest the claim petition and the Tribunal has committed
error in giving such finding, which is ipse dixit. He has
submitted that this appeal may be allowed by considering
the amount of compensation under various heads and
award just and proper compensation to the claimant.
4. Per contra, learned advocate Mr. Palak H. Thakkar for
the insurance company has submitted that the Tribunal has
rightly dismissed the claim petition of the claimant as there
is no believable evidence produced by the claimant on
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
record of the claim petition. He has also relied on the fact
that the claimant has received injury on 24.07.2003 and he
has lodged the compliant on 07.08.2003. Even, he is
discharged from the hospital on 28.07.2003 though there is
no justification of filing late after ten days. Moreover, he
has submitted that if we look at the Panchnama, which is
drawn by the police, there is no vehicle or no break marks
are found from the place of Panchnama. Further, he has
submitted that there is no charge-sheet is produced on the
record in the present case. Therefore, the Tribunal has
rightly disbelieved the case of the claimant. Learned
advocate Mr. Thakkar has submitted that since the Tribunal
has rightly dismissed the claim petition and there is no
evidence available on record and the injury is caused due to
vehicular accident, therefore, there is no question to
calculate any amount of compensation. Therefore, he prays
that this appeal may be dismissed as meritless.
5. It is noteworthy to mention that the provisions of the
Motor Vehicles Act, 1988 which gives paramount
importance to the concept of 'just and fair' compensation. It
is a beneficial legislation which has been framed with the
object of providing relief to the victims or their families.
Section 168 of the Motor Vehicles Act deals with the
concept of 'just compensation' which ought to be
determined on the foundation of fairness, reasonableness
and equitability.
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
Although such determination can never be arithmetically
exact or perfect, an endeavor should be made by the Court
to award just and fair compensation irrespective of the
amount claimed by the claimants.
6.1 I have heard rival submissions of the respective
parties. I have perused the record and proceedings. I have
also considered the submissions of the learned advocate for
the appellant - original claimant, Mr. Gadhavi that the
documentary evidence more particularly, the certificate
issued on 24.07.2003 by Dr. Bankim Modi, where the
claimant was first admitted but the history is shown that the
injury is received on the head due to slipping of scooter.
Therefore, the history of vehicular accident is given on the
same day of the accident i.e. on 24.07.2003 before the
doctor. Thereafter, if we look at the certificate issued by
Chandramani Hospital, Ahmedabad dated 28.07.2003,
where also the history is given by the doctor about the
claimant, who has received injury on head by slipping of
said scooter.
6.2 Further, if we look at the nature of injury, it clearly
reveals from the C.T. Scan report and disability certificate
issued by Dr. Nilesh Dixit, who is Neurosurgeon at
Mehsana that injury of linear fracture is found, which is
noted through lateral wall of right orbit and we have also
perused various bills issued by hospitals as medical stores
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
for the treatment issued given to claimant. Further, by
considering the complaint, which is produced at Exh.14 and
Panchnama at Exh.15, it is clearly established that the
claimant has received injuries due to slipping of scooter and
the Tribunal has committed gross error in absence of any
contention raised by the insurance company as the
insurance company has not filed any written statement and
also committed error by not framing specific issues about
the involvement of vehicle or injury caused due to vehicular
accident to the claimant and in absence of such issues, such
finding is not permissible under the law.
6.3 Moreover, as per the decision of the Hon'ble Apex
Court in the case of Ravi (supra), whereby other reliable
evidence is available on record, mere delay in lodging F.I.R.
does not fatal the claim and also is not a ground to dismiss
the claim petition. Therefore, the finding of the Tribunal
that "in absence of any believable evidence available on
record, the claim petition is required to be dismissed", is
found highly erroneous, ipse dixit. Therefore, I found that
the present appeal is required to be allowed by interfering
in the findings of the Tribunal.
6.4 Accordingly, the calculation of the amount of
compensation is required to be done as the claim petition of
the claimant is of the year 2003 and no fruitful purpose
would be served for this limited purpose, if the matter is
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
remanded back to the Tribunal, as it will further prolong
the litigation. Therefore, I deem it fit and proper to
calculate the amount of compensation under various heads.
6.5 Therefore, I consider the actual income of the claimant
is Rs.2300/- p.m. and considering 9% disability, the annual
future loss of income comes to Rs.2,484/- and by applying
multiplier of 11 looking to the age of the injured 52 years at
the time of accident, therefore, the amount under the head
of future loss of income comes to Rs.27,324/-. Towards the
medical expenses Rs.11,600/- is required to be awarded, as
the medical bills of Rs.11,595/- are produced on record at
Exh.23. Towards actual loss of income Rs.2,300/- is required
to be awarded. Looking to the injuries, more particularly
brain injury, and the various treatment taken at various
places, towards pain, shock and suffering, I found to award
Rs.25,000/- just and proper. Towards transportation and
special died, as the claimant had to get treatment at
Ahmedabad, I found Rs.15,000/- just and proper towards
transportation and special diet. Since the injured had
received injuries in the brain, he is required to be
accompanied of some attendant and therefore, towards the
attendant charges, I found Rs.10,000/- would be just and
proper to award, looking to the period of treatment.
Therefore, total amount of compensation comes to
Rs.91,224/- with 7.5% p.a. interest, which is required to be
awarded to the claimant from the date of claim petition till
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
the date of deposit, by holding respondent Nos.1 and 2
liable, jointly and severely. The calculation of the award is
as under:
Sr.No. Particulars Amount of
compensation
1. Loss of future income Rs.27,324/-
2. Loss of actual income Rs.2,300/-
3. Medical expenses Rs.11,600/-
4. Pain, shock and suffering Rs.25,000/-
5. Transportation charges & Rs.15,000/-
Special Diet
6. Attendant Charges Rs.10,000/-
Total amount of compensation = Rs.91,224/-
(with 7.5% p.a. interest)
7. In view of the above, the following order is passed:
7.1 The present appeal is allowed.
7.2 The impugned judgment and award of the Tribunal is
quashed and set aside and by allowing the claim petition of
the claimant filed at the Motor Accident Claims Tribunal
(Aux.), Mehsana in Motor Accident Claim Petition No.940 of
2003 by awarding Rs.91,224/- with 7.5% p.a. interest from
the date of claim petition till the date of deposit, by holding
respondent Nos.1 and 2 liable, jointly and severally.
C/FA/4492/2009 JUDGMENT DATED: 13/04/2022
7.2 The respondent Nos.1 and 2 are directed to deposit
the amount of Rs.91,224/- with 7.5% p.a. interest from the
date of claim petition till the date of deposit, within a period
of six weeks from the date of receipt of this order before the
concerned Tribunal.
7.3 On depositing of such amount, the concerned Tribunal
shall disburse the entire amount to the claimant, by
following due procedure, by way of account payee cheque,
after proper verification.
7.4 Record and Proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
