Rasilaben Rajeshbhai Pandor vs Firozbhai Razakbhai Mansuri
2022 Latest Caselaw 1829 Guj

     C/FA/111/2014                               JUDGMENT DATED: 16/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 111 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 copyNo
     of the judgment ?

4    Whether this case involves a substantial questionNo
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                     RASILABEN RAJESHBHAI PANDOR
                                 Versus
                 FIROZBHAI RAZAKBHAI MANSURI & 5 other(s)
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Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 16/02/2022

                            ORAL JUDGMENT

1. The present First Appeal No. 111/2014 under Section 173 of Motor Vehicles Act, 1988, is filed by the Claimant, being aggrieved and dissatisfied with the judgment and award passed in Motor Accident Claim Petition No. 357/2010 by the Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar,

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by which, the Tribunal has awarded compensation of Rs.2,37,939/- with 8% interest p.a. from the date of application to the claimant.

2 Brief facts of the case are as under:-

2.1 On 23.10.2009, the claimant, as pillion rider, was traveling on the Motorcycle bearing registration No. GJ-9-AM- 2337 with opponent No. 4 in moderate speed on correct side of the road. At about 10.00 a.m., when they were passing in the turning of hill on Hadad Ambaji Road, in the sim of village Bamanoj, opponent No. 1 - driver of truck No. GJ-9-V- 7301 drove his vehicle in rash and negligent manner with full speed, came in wrong side and dashed with the motorcycle. As a result, the claimant fell down and sustained injuries as mentioned in the medical certificates. Complaint regarding the accident was lodged against opponent No. 1 with the Ambaji Police Station vide I.CR. No. 116/09.

2.2 The claimant has filed a claim petition for compensation of Rs.4,00,000/- from the opponents before the Tribunal.

2.3 Notices were duly served to the opponents. Opponent Nos. 1 & 2 remained absent. Opponent No.3 - Reliance General Insurance Co. Ltd appeared through its advocate and has filed its written statement at Exh. 33, denying all the allegations and averments made in the claim petition. Opponent Nos. 4 & 5 appeared through their advocate, but not filed their written statement. Opponent No. 6 - National Insurance Co Ltd. appeared through its advocate and has filed its written statement at Ex. 23, denying all the allegations and averments made in the claim petition.

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2.4 Thereafter, the Tribunal has framed issues at Ex. 35 and the claimant herself given her oral evidence at Ex. 42, by which, she was also cross-examined by the advocate for the opponent. The claimant has also examined witness Dr. P.N. Shah at Ex. 57, who was cross-examined by the learned advocate for the opponents-insurance companies. The documentary evidence like school leaving certificate at Ex. 50, copy of charge-sheet at Ex. 53, copy of Kabulat Pursis in Criminal Case No. 517/2010 at Ex. 54, disability certificate at Ex. 58, copy of FIR at Ex. 61, copy of Panchnama of place of accident, copy of Panchnama of involved truck at Ex.63, copy of injury certificate of claimant, issued by Civil Hospital, Ahmedabad at Ex. 64, copy of insurance policy of involved truck No. GJ-9-V-7301 at Ex. 67, discharge-card of claimant, issued by Civil Hospital, Ahmedabad at Ex. 68, medical expense bills at Ex. 69 & 70 and other relevant documents like village abstract form No. 7/12 of agricultural land situated at Chithhoda, Tal. Vijaynagar at Ex. 71 were produced on record.

2.5 After hearing the submissions of respective learned advocates, the Tribunal has decided the claim petition by awarding Rs.2,37,939/- with 8% interest p.a from the date of application, directing opponent Nos. 1 to 3 to pay jointly and severally and dismissed the claim petition against opponent Nos. 4 to 6. Aggrieved by the insufficient amount awarded by the Tribunal, the present appeal is preferred by claimant for enhancement of the awarded amount.

3. Learned advocate for the claimant Mr. R.K Mansuri has submitted that at the time of accident, he was 34 years old and was doing agriculture and animal husbandry work and earning Rs.3,000/- p.m. He has submitted that the amount awarded by the Tribunal is insufficient and improper. He has submitted that the Tribunal has committed grave error in

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considering the income of claimant Rs.2,500/- p.m only, as the claimant was doing agriculture work and animal husbandry work. Therefore, the Tribunal ought to have considered the income of the claimant Rs.3,000/- p.m. He has further submitted that the Tribunal has erred in considering the prospective income of the claimant. He has also submitted that personal disability of the claimant was not properly considered by the Tribunal where the claimant has examined the Orthopedic Surgeon at Ex. 57 wherein she has categorically deposed that due to injuries received by the claimant, working ability of right hand is reduced and such patient can be incapable of doing agriculture work. It is further deposed that such patient suffers in day to day work. Therefore, he has submitted that the Tribunal ought to have considered 100% disability because claimant is not able to do any work of her profession, therefore, personal disability is required to be considered. He has further submitted that the Tribunal has committed grave error in awarding compensation under the head of pain, shock and suffering to the tune of Rs.10,000/- only. He has submitted that accident occurred on 23.10.2009 and claimant remained as indoor patient till 15.12.2009, i.e. 53 days, therefore, the Tribunal has to consider compensation under the head of pain, shock and suffering of Rs.1,00,000/-. He has also submitted that the Tribunal has committed grave error by awarding Rs.7,500/- only under the head of transportation, attendant's charges and special diet, which should be on higher side to the extent of Rs. 25,000/-. He has submitted that the Tribunal has erred in not considering actual loss of income of 12 months by awarding compensation of Rs.5,000/- towards the head of actual loss of income, which is also insufficient. Therefore, he prays that under the head of actual loss of income, amount is required to be enhanced. He has submitted that this appeal may be allowed.

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4. Per contra, learned advocate Mr. Vibhuti Nanavati for the respondent No. 3 - Reliance General Insurance Co. Ltd., and learned advocate Mr. Sunil Parikh for the respondent No. 6 - National Insurance Co. Ltd. have submitted that the respondent No. 6 is exonerated from his liability to pay the compensation but Mr. Nanavati, has submitted that the amount of compensation awarded by the Tribunal is found just and proper. The Multiplier, which the learned advocate Mr. Mansuri is agitating is also not well founded as 17 multiplier is rightly awarded in view of the judgment in the case of Sarla Verma v. Delhi Transport Corporation, repoted in (2009) 6 SCC 121. He has submitted that disability is also assessed 40% as body as a whole, is also justified as the Tribunal has considered the disability certificate of Dr. Prafulla N. Shah at Ex. 58 and the cross-examination of Doctor at Ex. 57 whereby the disability can be assessed to the extent 43.7% for the body as a whole and after considering variation of 5% in the disability, the Tribunal has considered disability as 40%, which seems just and proper. He has, therefore, submitted that the Tribunal has rightly considered the income of the appellant to the extent Rs.2,500/-p.m looking to the evidence available on record. He has submitted that under the head of pain, shock and suffering, actual loss of income and transportation, attendant's charges, special diet, no further enhancement should be granted. Therefore, he has submitted that amount awarded by the Tribunal is just and proper and no interference is required. He has submitted this appeal may be dismissed.

5. I have heard learned advocates for the respective parties. I have also perused the record and proceedings. I have also perused the entire evidence available on record. I have gone through the affidavit filed by the claimant - Rasilaben Rajeshbhai Pandor at Ex. 42, where she has categorically deposed that she was earning Rs.3,000/- p.m at the time of

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accident. Further, she has also deposed that due to injuries, she is facing various difficulties in day-to-day work and in the agriculture field. She has also submitted that she has to visit Himmatnagar and Ahmedabad time and again for her treatment. Therefore, she has incurred huge expenses towards medical treatment as well as for transportation. She has also deposed record of her agriculture land. She was cross-examined by the advocate for the opponent No. 3, wherein nothing much has come out in the favour of the Insurance Company. It is pertinent to note that from the deposition of Dr. Prafulla N. Shah at Ex. 57, it clearly reflects that claimant received various injuries on right elbow, on right side shoulder, left side shoulder, in the right feet, etc., He also stated that she has examined claimant physically and also perused her medical papers and found that it is possible that the claimant could not do labour work in the field due to injuries received by her. He has also submitted that disability as body as a whole can be considered 43.7%.

5.1 I have also considered various medical papers and disability certificate issued by the doctor and injury certificate issued by the Civil Hospital at Ex. 64. From the deposition of the doctor as well as disability certificate produced on the record, functional disability of the claimant was considered, though considered by the Tribunal 40% as body as a whole. I found that it should be considered on higher side, but at least 60% in the facts and circumstances of the present case. Now, the aspect of monthly income is concerned, though there is documentary evidence by way of 7/12 abstract of agriculture land owned by the claimant and specific averments and specific deposition given by the claimant that she was earning Rs.3,000/- p.m at the relevant point of time. Therefore, there is no need for the Tribunal to reduce that amount to the tune of Rs.2,500/-. Therefore, I found that actual income of the

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claimant is Rs.3,000/- p.m at the time of accident. Claimant was aged about 34 years at the time of accident and in view of the judgment in the case of National Insurance Co. Limited vs. Pranay Sethi and Ors. reported in 2017 SCC 1270, 40% towards prospective income should be added and accordingly, Rs.4,200/- should be considered as prospective income, by which, 60% of disability is considered. Therefore, the amount of prospective loss of income should be considered to the tune of Rs.5,14,080/- and by applying multiplier of 17 to the above calculated amount. Therefore, I found that the Tribunal has awarded Rs.2,04,000/- towards the future loss of income, which should be enhanced to Rs.5,14080/- and the amount awarded under the head of medical expense i.e. Rs.11,439/- is found as per the bills, therefore, there is no interference is called for, but amount under the head of pain, shock and suffering awarded by the Tribunal Rs.10,000/- is looking to the hospitalization of the claimant of about two months and has received multiple injuries on right hand, right leg, therefore, it should be Rs.50,000/-. Then, under the head of transportation, attendant's charges and special diet the amount is awarded Rs.7,500/-, which should be enhanced to Rs.25,000/- in the facts and circumstances of the present case. However, as per the submission of the claimant, I found fit that Rs.20,000/- could be awarded under the head of transportation, attendant's charge and special diet and accordingly, I award Rs.20,000/- under the said head.

5.2 Thereafter, under the head of actual loss of income, the Tribunal has awarded only Rs.5,000/- for two months, which should be for at least six months, therefore, Rs.18,000/- is awarded under the head of actual loss of income. Therefore, total amount of compensation comes to Rs.6,13,5019/-, which will be the amount of award required to be passed, which will meet the ends of justice. The Tribunal has awarded

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Rs.2,37,939/- and after deducting that amount, the remaining amount, which is enhanced in the present appeal is Rs.3,75,580/-.

6. The Claimant is entitled to get the enhanced amount of Rs.3,75,580/- in addition to the amount already awarded by the Tribunal i.e. Rs.2,37,939/- from the respondent Nos. 1 to 3, jointly and severally, with 8% interest p.a from the date of application till realization.

6.1 Since the amount claimed in the present appeal is Rs.1,50,000/- and amount of Rs.3,75,580 is enhanced in view of the above calculation, the Court Fee of remaining Rs.2,25,580/- is required to be paid by the claimant/appellant. The Tribunal will deduct the amount of Court Fee before making payment to the claimant on depositing such amount by the opponents.

6.2 Opponents Nos. 1 to 3 are directed to pay enhanced amount of Rs.3,75,580/- to pay to the claimants within 6 weeks from the date of receipt of this order and deposit such amount before the concerned Tribunal.

6.3 On deposition of such amount, the Tribunal shall pay the such amount to the claimant-appellant herein by payee cheque, after due procedure.

6.4 In view of above, the following order is passed. The present appeal is partly succeeds. No order as to costs.

6.5 In view of the above, the present appeal is partly succeeds. The appellants are entitled to get the additional compensation of Rs.3,75,580/- with 8% interest from the date of application. Accordingly, appeal is disposed of.

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

(SANDEEP N. BHATT,J) MANISH MISHRA