Gujarat High Court
Vaghibhai Chandabhai Chauhan ... vs Deleted on 7 December, 2022
Bench: Niral R. Mehta
C/FA/532/2011 JUDGMENT DATED: 07/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 532 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VAGHIBHAI CHANDABHAI CHAUHAN (DECEASED)
Versus
DELETED & 3 other(s)
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Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1.1
MR BM MANGUKIYA(437) for the Defendant(s) No. 3
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4
MS BELA A PRAJAPATI(1946) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 07/12/2022
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied by the
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judgment and award dated 13.3.2009 passed in Motor
Accident Claims Petition No.1363 of 1999 by learned Motor
Accident Claims Tribunal (Aux.), 2 nd Additional District
Judge, Nadiad, the appellant - original claimant has
preferred the present appeal under section 173 of the Motor
Vehicles Act ("the Act" for short) seeking, inter alia,
enhancement of compensation.
2. The original claim of the claimant was for
Rs.20,00,000/-. However, learned Tribunal has awarded a
sum of Rs.6,13,280/- with 9% interest under the various
heads as under.
Future loss of income Rs.4,75,320/--
Pain, Shock and Suffering Rs.20,000/-
Medical expenses Rs.65,000/-
Attendant, Transportation, Rs.25,000/-
Special diet charges
Actual loss Rs.27,960/-
Total Rs.6,13,280/-
3. It is the case of the claimant that on 22.12.1998
he was driving ST Bus No.GJ 18 V 3006 from Jhalod to
Chandkheda, Ahmedabad. At the relevant time, driver of the
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truck bearing registration No.GQB 6390 was driving the
said truck in rash and negligent manner and thereby
dashed with the ST Bus driven by the claimant. As a result
thereof, the claimant sustained serious injuries and was
admitted in VS Hospital. The claimant had to undergo knee
operation. However, because of injuries, right leg below
knee came to be amputed. Thus, the claimant has
approached the learned Tribunal by way of an application
under section 166 of the Act seeking, inter alia,
compensation for the injuries so received arising from the
motor vehicular accident.
4. Learned Tribunal, after having considered the
evidence on record, held the driver of the offending vehicle
as sole responsible for the accident in question. Learned
Tribunal, thereafter, proceeded to award compensation by
considering the income of the claimant at Rs.2330/- per
month. The injury assessed by learned Tribunal is at 100%.
Learned Tribunal, having considered the age of the
claimant, adopted multiplier of 17. Accordingly, learned
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Tribunal awarded a sum of Rs.4,75,320/- under the head of
loss of future income. Learned Tribunal has awarded a sum
of Rs.20,000/- under the head of pain, shock and suffering.
Learned Tribunal awarded Rs.65,000/- under the head of
medical expenses, Rs.25,000/- under the head of
transportation and special diet charges, Rs.27,960/- under
the head of actual loss of income. Thus, in all, learned
Tribunal has awarded a sum of Rs.6,13,280/- by way of
compensation with 9% interest from the date of application
till realization.
5. Being aggrieved and dissatisfied by the aforesaid,
the appellant has approached this Court by way of this
appeal seeking enhancement of compensation.
6. I have heard learned advocate Mr.Mohsin Hakim
for the appellant and learned advocate for Mr.Daxesh
Mehta, learned advocate for the insurance company.
7. Learned advocate Mr.Hakim for the appellant
submits that the award passed by learned Tribunal is on
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lower side and cannot be said to be just and adequate in
nature. Learned advocate Mr.Hakim submitted that learned
Tribunal has committed serious error in considering income
of the claimant at Rs.2330/- per month, as against the
salary slip produced by the appellant that shows the income
at Rs.3200/- per month. Learned advocate Mr.Hakim,
therefore, submitted that learned Tribunal could not have
ignored such evidence. According to learned advocate
Mr.Hakim, learned Tribunal has also committed an error in
not considering future rise of income. To substantiate the
said contention, learned advocate Mr.Hakim has heavily
relied upon the judgment of the Honourable Apex Court in
the case of National Insurance Company Limited Vs
Pranay Sethi and others, reported in (2017) 16 SCC 680.
Thus, according to learned advocate Mr.Hakim, 40%
prospective rise has to be considered. Learned advocate
Mr.Hakim further submitted that considering injuries and
keeping in mind amputation of right leg under the knee, the
amount awarded under the head of pain, shock and
suffering is also on lower side and it has to be at least
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Rs.1,00,000/-. Learned advocate Mr.Hakim lastly submitted
that learned Tribunal has committed an error in not
awarding any amount under the head of loss of amenities of
life.
8. By making the above submissions, learned
advocate Mr.Hakim has prayed this Court to enhance the
compensation adequately.
9. Per contra, learned advocate Mr.Mehta for the
insurance company has vehemently opposed the present
appeal contending that judgment and award passed by
learned Tribunal is perfectly justified and compensation is
just and adequate in nature and thereby does not require
any interference. Mr.Mehta, learned advocate, however,
could not dispute the fact that income certificate shows the
income of the claimant at Rs.3200/- per month issued by
the ST Corporation. Mr.Mehta, learned advocate also could
not dispute the ratio laid down by the Honourable Apex
Court in the case of Pranay Shethi (supra).
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10. By making the above submissions, Mr.Mehta,
learned advocate for the insurance company has prayed this
Court to pass appropriate order in the interest of justice.
11. I have heard learned advocates for the respective
parties and have gone through the Record and Proceedings
of the concerned Tribunal. No other and further
submissions have been canvassed by learned advocates
appearing for the respective parties except what is stated
hereinabove.
12. Having considered the submissions of learned
advocates for the respective parties and having gone
through the material on record, the short question that falls
for consideration of this Court is whether the award passed
by learned Tribunal could be said as just and adequate ?
13. So as to decide the aforesaid question, first of all,
income of the claimant deserves to be ascertained
cautiously as the entire compensation is based on income of
the claimant. In the present case, the claimant was
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undisputedly working as driver with the ST Corporation and
salary slip to that effect was also produced on record at
Exh.53. Therefore, in my view, ignoring such salary
certificate when not disputed by the other-side, learned
Tribunal could not have arrived at the conclusion that
income of the claimant was Rs.2330/- per month.
According to me, learned Tribunal could have accepted the
said salary certificate as it is. In view of the aforesaid, I
propose to consider income of the claimant at Rs.3200/- per
month. Keeping in mind the ratio laid down by the
Honourable Apex Court in the case of Pranay Sethi (supra),
while computing income, prospective rise in income has to
be considered keeping in mind the age of the claimant. In
the instant case, the age of the claimant stated to be at 30
years. Thus, I propose to add 40% future rise in come. The
multiplier adopted by learned Tribunal at 17 appears to be
reasonable.
14. Considering the injuries, in my view, learned
Tribunal has awarded Rs.20,000/- under the head of pain,
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shock and suffering appears to be on very lower side. The
claimant stated to have undergone three operations and
thereafter amputation of right leg below knee. In such
circumstances, in my view, Rs.1,00,000/- would be just and
proper under the head of pain, shock and suffering.
15. Considering the age of the claimant at 30 years
and keeping in mind the amputation of right leg below the
knee, I propose to award Rs.50,000/- under the head of loss
of amenities of life.
16. Considering the nature of injuries and treatment
undergone, the claimant could not work for 12 months.
Thus, I propose to award a sum of Rs.38,400/- under the
head of actual lose of income.
17. Rest of the compensation awarded by learned
Tribunal under various heads appears to be reasonable and
thereby not disturbed.
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18. In view of the aforesaid discussion, the
compensation awarded by learned Tribunal is held to be not
just and adequate and thereby the same deserves to be
modified as under.
Future loss of income Rs.9,13,920/-
(Rs.3200 + 40% x 12 x 17)
Pain, Shock and Suffering Rs.1,00,000/-
Medical expenses Rs.65,000/-
Special diet, transporation Rs.25,000/-
and attendant charges
Loss of amenities. Rs.50,000/-
Actual loss of income Rs.38,400/-
Total Rs.11,92,320/-
19. Learned Tribunal has awarded the compensation
of Rs.6,13,280/-. Hence, the claimant shall be entitled for
additional amount of Rs.5,79,040/-.
20. Resultantly, the appeal is partly allowed. The
claimant shall be entitled to Rs.5,79,040/- by way of
additional amount with 6% interest from the date of
application till the realization. The respondent insurance
company is hereby directed to deposit a sum of
Rs.5,79,040/- with 6% interest within a period of 12 weeks
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after receipt of the copy of the order. Learned Tribunal, in
turn, shall disburse the same in favour of the claimant after
proper verification.
R & P be sent back forthwith.
(NIRAL R. MEHTA,J)
H.M. PATHAN
