Gujarat High Court
Bharatbhai Madhabhai Kachhadia vs Bhagu @ Bhagwanjibhai Jerambhai ... on 4 February, 2022
Bench: Mauna M. Bhatt
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3800 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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BHARATBHAI MADHABHAI KACHHADIA
Versus
BHAGU @ BHAGWANJIBHAI JERAMBHAI GAJERA & 1 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 04/02/2022
ORAL JUDGMENT
1. Feeling aggrieved and dissatisfied by the impugned
judgement and award dated 23.02.2012, passed by the Motor
Accident Claims Tribunal (Main), Junagadh in MACP No.757 of
2000, the appellant - original claimant has preferred present
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
appeal under Section 173 of the Motor Vehicles Act, 1988 (Act
for short).
2. The following facts emerge from the record of this
appeal:
2.1. This is an injury case. The appellant-original claimant
was going to Junagadh from Vadali for his work of Diamond
polishing on 8.5.2000 at 7:30 a.m. For going to his work to
Junagadh, the original claimant hired auto rickshaw bearing
registration No.GJ-11-U-3505. The rickshaw was owned and
driven by respondent No.1 (original Opponent No.1). The
appellant submits that the respondent No.1 was driving the
rickshaw with excessive speed and in rash and negligent
manner. On account of excessive speed, the respondent No.1
lost control over the rickshaw and the same turned turtle on
the road. Because of the said accident, the appellant (original
claimant) sustained serious fracture injuries on both his legs,
left hand and also sustained injuries on various parts of his
body, which ultimately resulted into the permanent disability.
For the said accident, he filed MACP No. 757 of 2000 under
Section 166 of the Act and claimed compensation of
Rs.4,00,000/- with cost and interest.
3. The Tribunal after hearing the parties and upon
consideration of oral and documentary evidence available on
record decided the issue as below:
(i) For negligence, the Tribunal considering the evidence on
record particularly the FIR, held that the driver and owner of
the auto rickshaw (Respondent No. 1) was solely negligent for
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
occurrence of the said accident.
(ii) For the quantum of compensation, the Tribunal awarded
a total compensation of Rs.2,00,796/- under different heads as
under with interest @ 7.5% p.a. from the date of the petition
till realization thereof along with proportionate costs.
Future loss of income Rs.1,57,896/-
Pain, Shock and Sufferings Rs.7,500/-
Medical expenses/Attendant Rs.30,000/-
Charges/Rich diet
Loss of Income (Rs.1800x3 Rs.5,400/-
months)
Total Rs. 2,00,796/-
4. Being aggrieved and dissatisfied with the quantum
awarded the appellant - original claimant has preferred present
appeal.
5. I have heard learned advocate Mr. Hiren Modi for
appellant (original claimant) and Mr. Maulik Shelat for
Respondent No.2 (original Opponent No.2). As the liability has
not been denied, the presence of other respondents is not
necessary.
6. Learned advocate Mr. Hiren Modi for the appellant
contended that the Tribunal has committed an error in
determining income at Rs.1800/- p.m. The claimant was doing
diamond polishing work and additionally was also having
agricultural income. He was earning Rs.6500/- p.m.
Therefore, the Tribunal is in error in determining income at
Rs.1800/-p.m. He further contended that the Tribunal has also
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
erred in considering the disability of the body as whole at 43%
only. The disability certificate issued by Dr. Kothari at Exh.36
shows the disability at 86% body as a whole and therefore,
also the award is erroneous. He further contended that the
amount awarded for pain, shock and suffering is also less
considering the injuries sustained by the claimant. Relying
upon decision of the Hon'ble Supreme Court in the case of
Sarla Verma (Smt) and Ors. v. Delhi Transport Corporation and
Anr. reported in (2009) 6 SCC 121 and National Insurance
Company Limited. v. Pranay Sethi and Ors. reported (2017) 16
SCC 680 he contended that the compensation under other
conventional heads was also not considered properly by the
Tribunal. He thus, submitted to enhance the award
accordingly and to allow the appeal.
7. Per contra, learned advocate Mr. Shelat appearing for
Respondent No.2 submitted that the income assessed by the
Tribunal at Rs.1800/- p.m. is correct as there being no proof
in relation to the income of the claimant. In relation to
disability, he submitted that the reliance placed by Mr. Modi
on certificate of disability is without any basis. Relying upon
the cross-examination of Dr. Kothari at Exh. 35, he submitted
that the Doctor admits in his statement during cross
examination that the disability at 86% was taken based on
lower limb injury only. For body as a whole, it is to be taken
half and therefore, the Tribunal has correctly assessed the
disability at 43% body as a whole. He further contended that
based on the evidence on record, the other conventional heads
were also appropriately considered by the Tribunal. Relying
upon the findings of the Tribunal, he submitted to dismiss the
appeal.
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
8. No other and further submissions/contentions have been
made by the learned advocates for the respective parties.
9. I have perused the evidence on record and also gone
through the records and proceedings. Upon re-appreciation of
the evidence on record, it is noticed that, it is true that there
is no direct evidence in relation to the income of the
appellant. However there is no denial of the fact that the
claimant was doing diamond polishing at the relevant time,
which is an artisanal job. For agricultural income, the claimant
has stated in cross-examination that, the land remained with
him and he continued to cultivate the same.
10. Considering the fact that the claimant was working as
diamond artisan, which is a skilled work, as also the economic
condition of the year 2000, in the facts and circumstances of
this case, it would be appropriate to consider income of the
claimant at Rs.2000/- p.m. Considering the peculiar facts of
this case, coupled with the permanent dis-ability sustained by
the appellant when he was 26 years old, 40% prospective
income would be applicable, which the Tribunal in my opinion
correctly considered. With regard to disability, I am not in
agreement with the contention of learned advocate Mr. Modi
that the same is to be assessed at 86% as referred in the
certificate, particularly when in the cross examination it is
stated by doctor that the certificate was given based on clinical
examination and X-ray, without completion of undergoing
treatment. Therefore, the disability in my view is assessed
correctly at 43% of the body as a whole by the Tribunal,
which is based on the cross examination of the doctor, that
when both limbs are involved, it is to be assessed as half.
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
The applicant was 26 years at the time of accident and thus
multiplier of 17 would be applicable as per the decision of
Hon'ble Supreme Court in the case of Sarla Verma and Ors.
(supra) and Pranay Sethi and Ors. Having come to the
aforesaid conclusion, the appellants would be entitled to
compensation under the head of future loss of income as
under:
"Rs.2000 p.m. + Rs.800/- (40% prospective income) =
Rs.2800/- x 43% (Disability) = Rs.1204 x 12(p.a.) = Rs.14,448/-
p.a. x 17 (multiplier of 17 as the age of the applicant was 26
years) = Rs.2,45,616/-"
11. The loss of monthly income would be for four months
and therefore it would be Rs.8000/-. Considering the injuries
and the period of hospitalization, in my opinion Rs.20,000/-
would be appropriate under the head Pain, Shock and
Sufferings. Towards the medical expenses/attendant charges and
special diet Rs.30, 000/- awarded by the Tribunal in my
opinion is just and proper.
Therefore, the final amount to be awarded works out as under:
Particulars Amount (Rs.)
Future loss of income Rs.2,45,616/-
Pain, Shock and Sufferings Rs.20,000/-
Medical expenses/Attendant Rs.30,000/-
Charges/Rich diet
Loss of Income (Rs.2000x4 Rs.8000/-
months)
Total Rs.3,03,616/-
C/FA/3800/2012 JUDGMENT DATED: 04/02/2022
12. Thus, the appellant - claimant would be entitled to total
compensation of Rs. 3,06,616/-. As the Tribunal has awarded
an amount of Rs. 2,00,796/-, the respondent - Insurance
Company shall deposit the balance additional amount of
compensation ( Rs. 3,06,616 - Rs. 2,00,796) = Rs.1,02,820/-
with 7.5% interest and proportionate costs with the Tribunal
within a period of 8 weeks from the receipt of the order. The
impugned judgment and award passed by the Tribunal is
modified to the aforesaid extent. Appeal is thus, partly
allowed. The rest of the judgment and award passed by the
learned Tribunal remains unaltered. Registry is directed to
transmit back the Record and Proceedings of the case to the
concerned Tribunal forthwith. However, there shall be no order
as to costs.
(MAUNA M. BHATT,J)
NAIR SMITA V.
