Gujarat High Court
Pithabhai Sadiyabhai Bhedi vs Kala Samsu Parmar on 20 April, 2022
Bench: Ashokkumar C. Joshi
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2817 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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PITHABHAI SADIYABHAI BHEDI
Versus
KALA SAMSU PARMAR & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR HAMESH C NAIDU(5335) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 20/04/2022
ORAL JUDGMENT
1. This is an appeal under Section 173 of the Motor Vehicles
Act, 1988 arising out of the judgment and award dated
05.04.2012 rendered by the learned Motor Accident Claims
Tribunal (Aux.), Dahod (the Tribunal) in Motor Accident Claim
Petition No. 2747 of 2004 (Old No. 1242 of 1999) (claim petition),
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
whereby, the Tribunal was pleased to award compensation of
Rs.1,24,400/- with interest at the rate of 7.5% per annum and
proportionate costs from the date of claim petition till realization
against claim of Rs.3 lakh made by the appellant - original
claimant. Accordingly, the appellant - original claimant has
preferred this appeal for enhancement of compensation.
2. Since the facts of the accident are not in dispute, the Court
deems it proper not to discuss the same.
3. Heard, learned advocate Mr. MTM Hakim for the appellant
and learned advocate Mr. V. H. Shah for learned advocate
Mr. Hamesh C. Naidu for the respondent No. 3 - insurance
company. Though served, nobody appears for the respondent
No. 1 and 2, who are the driver and the owner of the offending
vehicle. Since, the liability is not in dispute, the Court proceeded
with the matter.
4. The learned advocate for the appellants submitted that the
Tribunal has materially erred in awarding the compensation
inasmuch as, against the claim of Rs.3 lakh, the Tribunal has
awarded a meager amount of Rs.1,24,400/-. He submitted that
the Tribunal has materially erred in considering the income of the
injured claimant at Rs.2,000/- per month only. He submitted that
the appellant - claimant was doing agriculture labour work and
earning Rs.3,000/- per month. However, the Tribunal has failed
to appreciate the said aspect. The learned advocate for the
appellant further submitted that the Tribunal has erred in
assessing disability at 20% body as a whole. He submitted that
the from the deposition of doctor (Exh. 30), it is clear that the
claimant had suffered 61% disability and hence, the Tribunal
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
ought to have considered the disability at 61% body as a whole
or in the alternative, reduced to half i.e. 30.5%. It is further
submitted that the Tribunal has also erred in awarding
compensation under different heads viz. Rs.15,000/- towards
pain, shock and sufferings, Rs.5,000/- towards medical expenses,
Rs.10,000/- towards rich diet, attendant charges, and
transportation charges. Further, the rate of interest awarded is
also on the lower side.
4.1 Thus, making such submissions, the learned advocate for
the appellant has urged to enhance the compensation suitably
and thereby, allow this appeal.
5. Per contra, while opposing the present appeal, the learned
advocate for the respondent No. 3 - insurance company
submitted that in view of settled law laid down by the Apex Court
in decisions in Sarla Verma and Others v. Delhi Transport
Corporation and Others, MANU/SC/0606/2009 and National
Insurance Co. Ltd. v. Pranay Sethi and Others,
MANU/SC/1366/2017, the Tribunal has rightly awarded the
compensation considering the income of the deceased @
Rs.2,000/- per month and disability at 20% for want of any
evidence, and has rightly awarded amount under different heads.
Accordingly, it is submitted that this appeal being bereft of any
merits, deserves to be dismissed.
6. Regard being had to the submissions made and considering
the impugned judgment and award so also the material available
on record vis-a-vis the settled legal position on the subject, it
appears that for the injury sustained by the appellant - claimant,
the Tribunal has awarded compensation of Rs.1,24,400/- under
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
different heads. So far as the facts of the accident are
concerned, there is no dispute. However, the learned advocate
for the appellant - claimant has disputed the income of the
injured - claimant, as assessed by the Tribunal at Rs.2,000/-. The
learned advocate for the appellant has submitted that the
Tribunal has awarded a meager amount under different heads.
Further, it has been submitted that the Tribunal has wrongly
assessed disability and deducted the amount accordingly. In this
regard, if the compensation awarded by the Tribunal is referred
to, it can be summarized as under:
Head Amt. (Rs.)
Future economic loss (Rs.2,000 x 20% = 400 x 86,400/-
12 x Rs.4,800 x 18 (multiplier)
Loss of actual income (Rs.2,000 x 4 months) 8,000/-
Pain, shock and suffering 15,000/-
Medical Expenses 5,000/-
Special diet, Attendant charges, Transportation 10,000/-
Charges
Total 1,24,400/-
6.1 Referring to the impugned judgment and award, it appears
that the Tribunal has considered the income of the appellant -
claimant at Rs.2,000/- per month for want of any documentary
evidence. The appellant was possessing the agriculture land and
doing agriculture work. Accordingly, in the opinion of the Court,
the Tribunal has assessed the income of the injured on lower side
and ought to have accepted income of Rs.3,000/-. Further, the
Tribunal has not considered the future prospective income, which
ought to have been considered. Considering the decision in
Pranay Sethi and Others (supra) and Pappu Deo Yadav v.
Naresh Kumar and Ors., MANU/SC/0696/2020, 40% addition
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
is required to be made towards future prospective income for the
age group up to 40 years, for self-employed/fixed salary persons.
Further, referring to the award, it appears that the Tribunal has
not awarded any amount under the head of loss of amenities of
life, which is also required to be granted. So far as the multiplier
of 18, as adopted by the Tribunal, considering the decision of the
Apex Court in Sarla Verma (supra), for the age group of 26-30,
the same is 17. Indisputably, the claimant was aged 27 years at
the time of accident and accordingly, the multiplier of 17 is
required to be adopted.
6.2 So far as the disability aspect is concerned, as said earlier,
the Tribunal has considered 20% disability body as a whole. In
this regard, if the relevant observations of the Tribunal are
referred to, it is mentioned that, "(13)........this Tribunal also put
certain questions to this witness, but, this witness has not
specifically answered the questions of Tribunal, and so,
considering the real fact that the accident has taken place in the
year 1998 and this witness has issued the disability certificate in
the year 1998 and no any treatment has been taken by the
claimant from this doctor and on the same after examining the
claimant this doctor has issued the disability certificate and
assessed 61% disability of Rt. lower extremity, but, he has kept
silent regarding the whole body disability, and hence, the
evidence of this witness regarding the assessment of the
permanent disability of the claimant is not reliable or convincible,
and hence, in my view, for the calculation of compensation
amount of 20% disability body as a whole is required to be
considered, considering the above discussions and evidence on
record". Thus, in view of non-availability of any cogent and
convincing evidence, the Tribunal has assessed the disability at
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
20% for body as a whole, to which, this Court is in agreement
with the Tribunal.
6.3 Thus, in view of the above, present appeal requires to be
allowed and is accordingly, allowed in part. The appellants -
original claimants are entitled to following compensation under
the different heads as narrated herein below, and to that extent,
the impugned judgment and award stands modified:
Head Granted by Required to be
Tribunal (Rs.) granted (Rs.)
Income of the deceased 2,000/- 3,000/-
Future Prospective Income @ --- 1,200/-
40%
Monthly Future Loss of 400/- 840/-
Income taking disability @
20%
Yearly Future Loss of Income 4,800 10,080/-
Future Loss of Income 86,400/- 1,71,360/-
Actual loss of income (4 8,000/- 12,000/-
months)
Pain, shock and suffering 15,000/- 15,000/-
Medical Expenses 5,000/- 5,000/-
Special diet, Attendant 10,000/- 10,000/-
charges, Transportation
Charges
Loss of amenities of life --- 10,000/-
Total Compensation 1,24,400/- 2,23,360/-
Differential amount 98,960/-
6.4 Thus, the appellant - original claimant shall be entitled for
an enhanced amount of compensation to the tune of Rs.98,960/-
with interest at the rate of 6% per annum on such enhanced
C/FA/2817/2012 JUDGMENT DATED: 20/04/2022
amount of compensation, which shall be from the date of award
of the Tribunal. The rest of the judgment and award shall remain
intact. R&P, if received, be sent back forthwith.
[ A. C. Joshi, J. ]
hiren
