Legal Heirs Of Thakore Ajmalji ... vs Jebunben Saifuddinbhai Patel
2022 Latest Caselaw 10127 Guj

      C/FA/1841/2019                               JUDGMENT DATED: 15/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1841 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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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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                   LEGAL HEIRS OF THAKORE AJMALJI HARIJI
                                   Versus
                  JEBUNBEN SAIFUDDINBHAI PATEL & 1 other(s)
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Appearance:
for the Appellant(s) No. 1.5
MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR MAKBUL I MANSURI(2694) for the Defendant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
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     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 15/12/2022

                              ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxi. VII) at Ahmedabad (Rural) at Mirzapur in MACP No. 540 of 1995 dated 11.5.2017,

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by which the learned Tribunal has partly allowed the Claim Petition and directed the Opponents to pay jointly and severely a sum of Rs. 65,900/-/- to the the Appellant / Original Applicant along with simple interest @ 9% p.a. from 1.7.2014 till the date of making of payment of awarded amount, the Appellants being the legal heirs of deceased Thakore Ajmalji Hariji have preferred this Appeal under Section 173 of the Motor Vehicle Act, 1988 for enhancement of the award with interest and proportionate costs, on the ground that the judgment and award passed by the learned Tribunal is on lower side and the rate of interest applied is on lower side and therefore the judgment and award passed by the learned Tribunal is absolutely unjust, illegal and improper and contrary to law and facts of the case and evidence.

2. Heard learned Advocate Mr. Jigar G. Gadhvi for the Appellants, learned Advocate Mr. Makbul I. Mansuri for Respondent No.1 and learned Advocate Mr. Tanmay B. Karia for Opponent No.2 - Oriental Insurance Co. Ltd.

3. Learned Advocate for the Appellants submitted that the Appellants are the legal heirs of the original claimant who had filed the Claim Petition seeking total compensation of Rs.1,00,000/- against the Respondents. The present Appeal has been preferred through Legal heirs of the original claimant as the original claimant passed away during the pendency of the proceedings in the claim petition.

4. The learned Advocate for the Appellant has submitted that the learned Tribunal while passing the award committed serious error of law and judgment by awarding 9% interest from 1.7.2014 till payment of the awarded amount and in fact, just and proper rate of interest ought to have been applied from the date of filing of the claim petition till realization of the amount.

4.1 Learned Advocate for the Appellant has further submitted that the learned Tribunal has failed to consider that there was no negligence on part of

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the original claimant and hence the negligence determined qua the appellant is wrongly being determined. Further, the material on record clearly points out that the negligence was entirely on part of the offending vehicle i.e. driver and hence, no negligence could have been attributed to the original claimant and hence the award need to be enhanced. It is further submitted that the interest applied is on lower side considering the fact that the accident occurred in the year 1995 when the bank's interest rate were around 12% to 15% and therefore the rate of interest at 9% is on lower side.

4.2 Learned Advocate for the Appellant has submitted that the learned Tribunal has committed serious error by holding that the rate of interest which is required to be applied on the awarded amount is to be applied from 1.7.2014 on the ground that the process of the court was not served to the Insurance Company earlier and that it was served belatedly. It is submitted that it is well settled that the rate of interest which is applied on the award is applied from the date of filing of the claim petition till the date of realization of the award and therefore the impugned judgment and award is erroneous and illegal. It is further submitted by the learned Advocate for the Appellant that the observations as regards the deduction of tax at source is not just and proper and that the tax deduction at source is to be applied if the interest amount exceeds to Rs.50, 000/-.

4.3 The learned Advocate for the Appellant has further submitted that the award under the head of pain, shock and suffering i.e. Rs.7500/- is on lower side considering the injuries received by the original claimant. It is submitted that income considered by the learned Tribunal is on lower side and the disability of 20% as a whole is also on lower side and the same is therefore unjust and improper.

4.4 The learned Advocate for the Appellant has further contended that the multiplier 14 applied by t he learned Judge is on lower side. The said multiplier needs to be enhanced considering the age of the original claimant.

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The medical expenses granted by the learned Tribunal to the tune of Rs.2000/- is also on lower side ignoring the nature of injuries sustained by the original claimant. It is further submitted that the actual loss at Rs.3000/- awarded by the learned Tribunal is also on lower side ignoring the fact that the Appellant was bedridden for three months. The attendant charges at Rs.1000/- and Rs. 2000/- toward special diet is also on the lower side. It is submitted that the learned Tribunal ought to have awarded more amount under these two heads as the Appellant was hospitalized and bedridden for more than three months. In support of this submission, learned Advocate for the Appellant has placed reliance on different judgments passed by the Hon'ble Axpex Court as well as this Hon'ble Court and submitted the award passed the learned Tribunal is required to be enhanced accordingly.

5. On all such counts, the learned Advocate for the Appellant has submitted that the impugned judgment and awarded passed by the learned Tribunal deserves to be modified and the Appellant is entitled for enhanced compensation.

6. Learned Advocate for the Appellant has heavily contended that in the present case, the learned Tribunal has committed error by arriving at Rs.65,900/- only and he has urged that the income is required to be assessed at Rs.1500/- per month and the prospective income at 25% and therefore it arrives at Rs.1875/-. Further, the disability is 20%, therefore it should be assessed at Rs.4500/- yearly. The age is 40 years and therefore multiplier is

15. Therefore, 4500 x 15 arrives at Rs.67500/- and therefore in all the learned Advocate for the Appellant has urged this Court to enhance Rs.17,100/- and so longer as pain, shock and suffering is concerned, the awarded amount is Rs.7500/- and prayed for enhancement to the tune of Rs. 20,000/- and therefore Rs.12500/- may be enhanced. Special diet awarded is Rs.2000/- and against this, the learned Advocate for the Appellant has prayed for enhancement at Rs.10000/- and it is fairly submitted that the enhancement may be started from 11.5.2017 since, while allowing the condonation

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application, delay was of 349 days and therefore the claimant may not be entitled for interest for such number of delay.

7. Learned Advocate for the Appellant has heavily placed reliance upon the latest judgment of the Hon'ble Apex Court in the case of National Insurance Company Ltd. v. Pranay Sethi & Ors. reported in (2017) 16 SCC

680.

8. Per contra, learned Advocate for Respondent No.2 - Oriental Insurance Co. Ltd. has heavily contended that the learned Tribunal has rightly arrived at Rs.7500/- as pain, shock and suffering, Rs.20,000/- is much more on higher side. It is also contended that instead of 9% interest, 6% be awarded as per the judgment of the Hon'ble Apex Court.

9. On perusal of the judgment and award passed by the learned Tribunal, it appears that the prospective income is not counted. Upon Rs.1500/- per month, the income which is awarded by the learned Tribunal 25% as prospective income as per the settled law which arrives at Rs.1875/- and disability 20%, therefore it arrives at 4500 x 375 x 12. The age is 40 years and therefore 15 multiplier and therefore it arrives at Rs.67500/- and total Rs.17,100/- may be enhanced. So longer as pain, shock and suffering is concerned, the learned Advocate for the Appellants has prayed for Rs.20,000/- but in the opinion of this Court, Rs.12000/- is just and proper pursuant to the injury sustained by the claimant. Therefore, in all Rs.12,500/- be enhanced. So far as special diet is concerned, Rs.10,000/- is just and proper and therefore, Rs.8000/- be enhanced in t hat part. So far as attendant charges are concerned, Rs.9000/- be enhanced accordingly. In all it arrives at Rs.46,600/-. Therefore, in the interest of justice, without going into any merits of the case, if Rs.46,600/- is enhanced, it would serve the ends of justice and therefore, the awarded is to be modified accordingly. Further it is made clear that 6% interest would commence from 2017 so longer as 349 days is concerned for which earlier the coordinate bench has

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passed order to the effect that no interest would be entitled and therefore the learned Tribunal shall not award the interest for 349 days.

10. The present First Appeal is therefore allowed and the award is modified to the aforesaid extent. The award of the learned Tribunal is modified accordingly. The difference amount shall be deposited within a period of eight weeks. The rest of the impugned judgment and award is not disturbed. The R&P be sent back to the concerned Tribunal forthwith.

(A. C. JOSHI,J) J.N.W