Oriental Insurance Company ... vs Aashif Islamuddin Chhipa
2022 Latest Caselaw 1722 Guj

     C/FA/3684/2010                               JUDGMENT DATED: 15/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3684 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. 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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      ORIENTAL INSURANCE COMPANY LIMITED, REGD. OFFICE AT
                            ORIENTAL
                             Versus
               AASHIF ISLAMUDDIN CHHIPA & 2 other(s)
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Appearance:
MS KARUNA V RAHEVAR(3818) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 15/02/2022

                             ORAL JUDGMENT

1. The present First Appeal is filed under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 29.06.2010 passed by the Motor Accident Claims Tribunal (Aux.), Surat, in Motor Accident Claim Petition No.

C/FA/3684/2010 JUDGMENT DATED: 15/02/2022

802 of 2005, by which, the claim petition of the claimant is partly allowed and thereby granted Rs.9,23,500/- as compensation with 9% interest per annum, by holding opponents i.e. driver, owner and the insurance company liable jointly and severally.

2. Brief facts of the present case are that, on 22.08.2005, claimant - Asifbhai was going on the motorcycle bearing registration No.GJ-5-DQ-6237 as pillion rider with his cousin brother viz., Jamilbhai at night to his home - Harinagar - Udhna from Shyam Market, one Truck bearing registration No.GJ-10-U-4971 has come with rash and negligent manner and dashed with the motorcycle from the back side. Due to that, Asifbhai had falled down from the motorcycle and therefore, the truck has run over the left hand of Asifbhai. He got injuries and shifted to the hospital. Ultimately, Asifbhai has amputated his left hand below the shoulder. He filed a claim petition before the Tribunal claiming compensation of Rs.10 lakhs. Notices were issued to the opponents - driver, owner and insurance company and the insurance company has filed its written statement before the Tribunal and denied the claim. The Tribunal has framed the issues. Oral as well as documentary evidence were led before the Tribunal. After considering the submissions made by the rival parties, the Tribunal has awarded compensation noted above. Hence, the present appeal is before this Court by the Insurance Company.

3. Learned advocate Ms. Karuna Rahevar for the appellant - insurance company has submitted that the Tribunal has awarded Rs.9,23,500/- with 9% per annum interest which is on higher side as the victim was aged about only 14 years old and was non-earning member, therefore notional income should be considered by the Tribunal. She has submitted that the Tribunal has considered

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Rs.3,000/- as income, which is on higher side. She has further submitted that under the head of future loss of income, the Tribunal has considered Rs.5,18,400/- where the disability to the extent 90% is considered and if we consider the notional yearly income of Rs.15,000/- of non-earning member, then the amount by applying multiplier of 16 would come to Rs.2,16,000/-. Therefore, she has submitted that the amount under the head of future loss of income which is awarded by the Tribunal is on higher side. She has submitted that the Tribunal has awarded Rs.25,000/- under the head of pain, shock and suffering and also awarded Rs.2 lakhs under the head of amputation of left hand, which is wrongly awarded. She has also submitted that at the best, the claimant could get Rs.3,88,700/- as compensation under all heads, against which, the Tribunal has awarded Rs.9,23,500/- which is extremely on higher side. During the course of argument, it was pointed out that as per the decision of Hon'ble Apex Court in the case of Master Mallikarjun versus National Insurance Co. Ltd., reported in (2014) 14 SCC 396, more particularly Para : 12 of the said judgment, where injury above 90%, the total compensation including pain, shock and suffering, loss of amenities should be Rs.6 lakhs plus medical expenses only. Therefore, she has submitted that at the best, Rs.6,92,000/- ought to have awarded by the Tribunal. Therefore, she has submitted that this appeal may be allowed on this count by reducing the amount of compensation.

4. Per contra, Mr. Hiren Modi, learned advocate for the respondent - claimant has submitted that the Tribunal has not committed any error in calculating the compensation. He has submitted that the Tribunal has awarded compensation after appreciating the evidence available on record. He has submitted that time and again, the claimant has to undergo various medical

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treatment of his left hand which was amputated due to this accident. He has submitted that even at the time of accident though he was minor, he was helping in the business to his family by selling 'pan- gutkha', etc., and was earning member. Therefore, he has submitted that the Tribunal can certainly consider the expenses occurred during the treatment. He has further submitted that it is not required in all cases where the minor is there and therefore, judgment in the case of Master Mallikarjun (supra) is required to be followed. Here, the disability is assessed to the extent 90%. Therefore, he has submitted that it should be considered as 100% body as a whole and it could have longer effect on the future of minor and therefore, he has submitted that in fact, we should consider the amount awarded by the Tribunal Rs.9,23,500/- is on lower side and is required to be enhanced by this Court, however since he has not filed any cross- objection in the appeal, he cannot pray for the enhancement. He has submitted that this appeal of the Insurance Company may be dismissed.

5. I have heard learned advocates for the respective parties. I have perused the record and proceedings. I have gone through the impugned judgment and award passed by the Tribunal as well as pleadings of the parties. While going through the impugned award, it is found that the claimant has deposed at Exh.34 where he has clearly stated that the accident has occurred due to negligent of the truck. It is also relevant to note that the Tribunal has discussed in the impugned judgment at length considering the judgment of Hon'ble Apex Court in the case of Pooja versus Rameshkumar reported in 2008 ACJ 2158, where left leg from knee of eight years old girl was amputated and therefore, permanent disability is assessed to the extent of 90%. In the present case, the left hand from the shoulder has been amputated and therefore, the same ratio is applied in the

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present case. Further, the medical bills which are produced at Exh.32 is also of Rs.92,698/-. Therefore, the Tribunal has also considered the judgment in the case of Laxmidevi versus Mohd. Tabbar reported in 2008 ACJ 1488, where it is held that in the year 2004, unskilled worker was getting per day income of Rs.100/-. Therefore, the Tribunal has rightly considered the monthly income of Rs.3,000/- of the claimant and after considering 90% disability, the Tribunal has considered Rs.32,400/- towards yearly loss of income and therefore, the Tribunal has also considered the loss of future income by applying 16 multiplier. In the present case, the actual monthly income of Rs.3,000/- which is considered by the Tribunal and considering 90% disability, would come to Rs.2,700/- x 12 months, would come to Rs.32,400/- as yearly loss of income and after applying 16 multiplier, it would come to Rs.5,18,400/- towards future loss of income. Further, the Tribunal has considered Rs.92,700/- towads medical expenses, Rs. 2 lakhs towards amputation of left hand from the shoulder. It is noted that under the special head, more amount is required to be awarded, more particularly, where the Tribunal has not added any amount towards loss of future prospects. Thereafter, the Tribunal has awarded Rs.25,000/- towards pain, shock and suffering which is also on conservative side, which is just and proper, Rs.10,000/- also awarded towards loss of marriage, Rs.15,000/- towards transportation and Rs.30,000/- towards loss of amenities, which is found reasonable and accordingly, the Tribunal has awarded Rs.9,23,500/- compensation with 9% per annum interest to the claimants which is found very just and reasonable and in view of the decisions of Hon'ble Apex Court considered by the Tribunal while awarding compensation and more particularly, the judgment in the case of Kishan Gopal and another versus Lala and others reported in (2014) 1 SCC 244, in such facts and circumstances. Therefore, I found no reason to interfere in the impugned judgment

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and award passed by the Tribunal, which is otherwise very conservative, just and proper and therefore, this appeal is required to be dismissed as it is meritless.

6. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

7. In view of above, the following order is passed.

7.1 The present appeal is dismissed with no order as to costs.

7.2 The amount lying with the Tribunal and/or in the FDR, or as per order of this Court in this appeal if any, along with accrued interest thereon if any, shall be paid to the claimants, by account payee cheque, after following due procedure and after proper verification.

7.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE