Gujarat High Court
Kamleshkumar Pranlal Pandya vs Parbatbhai Lakhabhai Garchat on 14 December, 2022
Bench: Nirzar S. Desai
C/FA/2612/2021 ORDER DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2612 of 2021
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KAMLESHKUMAR PRANLAL PANDYA
Versus
PARBATBHAI LAKHABHAI GARCHAT
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 14/12/2022
ORAL ORDER
1. By way of this appeal, the appellant has
challenged the judgment and award dated 28.2.2019
passed by the M.A.C.T. (Auxi.), Gondal in Motor
Accident Claims Petition No.492 of 2005 as against
the claim of the appellant for grant of compensation
of Rs.5,00,000/-, the Tribunal awarded only a
compensation of Rs.1,49,000/- to the appellant.
2. Heard Mr.Nishit Bhalodi, learned advocate
for the appellant, Mr.Darshil Parikh for Mr.Vibhuti
C/FA/2612/2021 ORDER DATED: 14/12/2022
Nanavati, learned advocate for respondent No.4 and
Mr.Yogi Gadhia, learned advocate for respondent No.2.
3. Mr.Bhalodi, learned advocate for the
appellant submitted that the Tribunal has not
appreciated the evidence on record in its true
perspective and the amount awarded by the Tribunal is
not based on the evidence on record and the Tribunal
has committed an error in calculating the amount of
actual loss of income, pain shock and suffering and
transportation, special diet and attendance. As far
as the rest of the heads are concerned, learned
advocate for the appellant has not pressed this
appeal in respect of quantum awarded to the appellant
and rest of the heads he confines for compensation
awarded to the appellant.
4. Mr.Bhalodi, learned advocate for the appellant
submitted that so far as actual loss of income is
concerned, the same is calculated on the basis of
monthly income of Rs.1,800/-, which is based on
minimum wages. However, according to him, the
C/FA/2612/2021 ORDER DATED: 14/12/2022
aforesaid period has been erroneously considered as 2
months by the Tribunal instead of 6 months as the
appellant could not work for 6 months which can be
seen from the record. Therefore, the aforesaid amount
is required to be suitably enhanced by taking into
consideration the period of actual loss of income of
6 months instead of 2 months and, therefore, the
amount awarded is required to be enhanced from
Rs.3,600/- to Rs.10,800/-.
5. As far as compensation awarded under the head of
pain, shock and suffering is concerned, learned
advocate for the appellant submitted that from catena
of decisions of this Court as well as Hon'ble Apex
Court, pain, shock and suffering has been calculated
on the basis of disability and hardship of the
appellant. Considering the fact that the appellant
has suffered 30% disability, pain, shock and
suffering is required to be enhanced to Rs.50,000/-
instead of Rs.10,000/- and compensation towards
transportation, special diet and attendance is also
required to be increased to Rs.25,000/- instead of
C/FA/2612/2021 ORDER DATED: 14/12/2022
Rs.10,000/- considering the disability, period of
treatment and inflation.
6. In view of the aforesaid submissions, learned
advocate for the appellant prayed to suitably enhance
the award by modifying the impugned award.
7. Learned advocates Mr.Gadhia and Mr.Parikh for
the respondent companies have vehemently opposed the
appeal and submitted that the appellant is not
entitled for enhancement and prayed to dismiss the
appeal.
8. Heard learned advocates for the parties and
perused the record of the case. As far as actual loss
of income is concerned, the record indicates that as
per the award, the present case is considered only
for loss of income for 2 months considering the fact
that 30% disability sustained by the petitioner
cannot be said to be negligible, and therefore, 6
months period if considered for the purpose of
calculating the loss of income, the compensation
C/FA/2612/2021 ORDER DATED: 14/12/2022
awarded to the appellant under the head of actual
loss of income is required to be calculated at
Rs.10,800/- instead of Rs.3,600/- considering the
income of the present appellant at Rs.1,800/- per
month.
9. So far as the compensation under the head of
pain, shock and suffering is concerned, the same is
required to be considered on the basis of disability
sustained by the appellant and on the basis of
hardship faced by him. Considering the cost of
living and inflation, it would be just and proper if
the amount under the head of pain, shock and
suffering is increased to Rs.50,000/- from
Rs.10,000/-. As far as the compensation awarded under
the head of transportation, special diet and
attendance is concerned, the same is also required to
be increased keeping in mind the fact that the amount
awarded is too meager and the appellant has
disability to the tune of 30% on account of the
accident, and therefore, the aforesaid amount is
increased from Rs.10,000/- to Rs.25,000/-.
C/FA/2612/2021 ORDER DATED: 14/12/2022
10. In view of the above, the appellant is entitled
for the compensation under these three heads by
enhancing the same as under:
Income per month Rs.1,800/-
30% Disability - Rs.540/-
Yearly X 12
Yearly income = Rs.6,480/-
Multipliar X 18
Future loss of income = Rs.1,16,640/-
Actual loss of income + Rs.10,800/-
Pain, shock and suffering + Rs.50,000/-
Transportation, special diet + Rs.25,000/-
and attendance charges
Medical expenses + Rs.8,500/-
Total compensation = Rs.2,10,940/-
11. Thus, the appellant - original claimant would be
entitled to total compensation of Rs.2,10,940/-. As
the Tribunal has awarded compensation of
Rs.1,49,000/-, the appellant - original claimant
would be entitled to additional amount of Rs.61,940/-
with interest at the rate of 6% per annum from the
date of petition till its realization from both the
insurance companies as proportioned by the Tribunal
C/FA/2612/2021 ORDER DATED: 14/12/2022
in the original award. The insurance companies shall
deposit the additional amount with interest as
provided in this order within a period of 12 weeks
from the date of receipt of this order.
12. With the aforesaid this appeal is partly
allowed. Record and proceedings received, if any, be
remitted back to the concerned Tribunal forthwith.
(NIRZAR S. DESAI,J)
P. SUBRAHMANYAM
