Gujarat High Court
Lakhu Madeva Aayar vs Balvindersingh Gajjansinh on 23 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/2805/2017 JUDGMENT DATED: 23/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2805 of 2017
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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LAKHU MADEVA AAYAR
Versus
BALVINDERSINGH GAJJANSINH & 4 other(s)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 5
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 23/12/2022
ORAL JUDGMENT
1. This First Appeal is filed by the appellant - original claimants
under Section 173(1) of the Motor Vehicles Act, 1988, (for short 'M V
Act') against the judgment and award dated 29.04.2017 passed in
Motor Accident Claim Petition No. 912 of 1999 by the Motor Accident
C/FA/2805/2017 JUDGMENT DATED: 23/12/2022
Claims Tribunal, Bhuj - Kachchh, which was preferred under Section
166 of the MV Act, whereby, against a claim valued at Rs.2,00,000/-
for the injuries sustained in an accident that had occurred on
16.07.1999, the Tribunal has awarded a sum of Rs.1,03,800/- with
interest at the rate of 7.5% per annum from the date of claim
petition till realization, holding liable the opponents therein to pay
the compensation to the appellant - original claimant. Hence,
grieved claimant has filed this appeal on the point of quantum.
2. It was the case of the appellant - complainant that on
16.07.1999, the applicant was coming from Ahmedabad to Bhuj in
Truck No. GJ-12-U-8628 as a driver and driving the said Truck on the
left hand side of the road with moderate speed. That, at around
13:30 hrs, the said truck had reached near the place of accident, at
that time, opponent No.1 while in employment of opponent No. 2
had came from opposite side along with Truck No. GJ-01-X-7189,
driving rashly, recklessly, negligently, at an excessive speed,
without observing traffic rules and dashed with the truck driven by
the claimant. As a result, the claimant sustained injuries and
partially disabled in the said accident. Accordingly, the appellant -
complainant has filed this appeal for enhancement of compensation.
3. Rule is unserved upon the respondent Nos. 1 and 2. Though
served, none appears for the respondent No.4. Heard, learned
advocate Mr. Hemal Shah for the appellant and learned advocate
C/FA/2805/2017 JUDGMENT DATED: 23/12/2022
Mrs. Vasavdatta Bhatt for the respondent No.3 and learned
advocate Mr. Tanmay B. Karia for the respondent No. 5 - insurance
company at length.
4. The learned advocate Mr. Hemal Shah for the appellant has
heavily placed reliance upon the judgment of the co -ordinate Bench
of this Court passed judgment dated 20.10.2021 in First Appeal
No. 4649 of 2019 in case of Bhanuben Lalji Gorasiya W/o Late
Lalji Nanji Gorasiya vs. Sabir Bhachu Hajam, wherein, the
identical issue was dealt with, the claimant was doing mason work
and estate broker and his income was considered as Rs.5,000/- per
month without any certificate of income and it is also not proved. He
also submitted that in this case, the claimant was driver and
claimed Rs.5500/- as per month income but the learned Tribunal has
considered only Rs.1500/-. He further submitted that the learned
Tribunal ought to have assessed income of the claimant of Rs.3000/-
per month on the basis of the skilled worker.
5. As against this, the learned advocate Mrs. Vasavdatta Bhatt
for the respondent No. 3 heavily objected and submitted that since
certificate of income is not proved upon such premises, the learned
Tribunal has rightly calculated the income as Rs.1500/- per month
and while heavily opposing this appeal and supporting the
impugned judgment and award, submitted that the impugned
judgment and award being just and proper and therefore, no
C/FA/2805/2017 JUDGMENT DATED: 23/12/2022
interference is required at the hands of this Court and this appeal
deserves to be dismissed. Learned advocate Mr. Tanmay Karia for
the respondent No. 5 - insurance company also joined with these
arguments.
6. Regard being had to the submissions canvassed and perusal
of the record reveals that in the present case the learned Tribunal
has assessed income of the driver of Rs.1500/- per month and the
document for income was not exhibited, since, owner of the vehicle
in which the claimant was working as driver was not examined.
Further, the learned advocate for the appellant has heavily place
reliance in the case of Bhanuben Lalji Gorasiya W/o Late Lalji
Nanji Gorasiya vs. Sabir Bhachu Hajam (Supra), wherein, the
certificate of per month income of the deceased - claimant from
mason work and working as an estate broker was not proved but
considering the facts and circumstances of the case, the income of
Rs.5,000/- per month has been assessed instead of Rs.3,000/- per
month. Therefore, in the present case also, in the considered
opinion of this Court, the learned Tribunal has assessed per month
income of Rs.1500/- which is not just and proper. Hence, in view of
the judgment in the case of Bhanuben Lalji Gorasiya W/o Late
Lalji Nanji Gorasiya vs. Sabir Bhachu Hajam (Supra), per
month income of Rs.3000/- would be just and proper.
C/FA/2805/2017 JUDGMENT DATED: 23/12/2022
7. In the aforesaid backdrop, this appeal succeeds and is allowed
accordingly. The impugned judgment and award is modified to the
aforesaid extent and it is held that the appellant - claimant shall be
entitled for the following towards compensation:
Head Award of Tribunal Modified Amt. (Rs.)
(Rs.)
Pain, Shock & Suffering 5,000/- 15,000/-
Actual loss of income (1500 p.m. x 4) 6,000/- (3000 p.m. x4) 12,000/-
Future loss of income 64,800/- 1,29,600/-
Special Diet, attendant 5,000/- 15,000/-
and transportation
Medical Expenses 23,000/- 23,000/-
Total 1,03,800/- 1,94,600 -
(1,03,800/-)
Different Amt. 90,800/-
7.1 The difference amount shall be deposited within a period of 08
(eight) weeks.
7.2 The appellant - claimant shall be entitled to interest at the
rate of 6% per annum on such enhanced amount of compensation,
from the date of the claim petition till realization.
7.3 The rest of the impugned judgment and award is not
disturbed.
7.4 R&P, if received, be sent back forthwith.
(A. C. JOSHI,J)
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