Gujarat High Court
Hemrajbhai Mohanbhai Patel vs Amarshibhai Govindbhai Detroja on 13 January, 2022
Bench: Hemant M. Prachchhak
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1206 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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HEMRAJBHAI MOHANBHAI PATEL
Versus
AMARSHIBHAI GOVINDBHAI DETROJA & 2 other(s)
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Appearance:
MR DHAIRYAWAN D BHATT(11817) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/01/2022
ORAL JUDGMENT
1. This appeal is filed by the appellant - claimant seeking
enhancement of the compensation amount awarded by the
Motor Accident Claims Tribunal (Aux.), Morbi (hereinafter
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
referred to as "the Tribunal") vide impugned judgment and
award dated 12.10.2007 passed in M.A.C.P. No.116 of 1996,
whereby the Tribunal has partly allowed the claim petition.
2. Brief facts of the present case are that on 01.05.1996 at
about 3.00 p.m., the claimant was going to diamond factory as
pillion rider on bajaj scooter bearing registration no. GJ-03-M-
4745 of opponent no.1 at that time near Jepur Village Patia, a
dog came on the road, due to which, opponent no.1 applied
break, the motorcycle was slipped and, therefore, the claimant
fallen down on the road, as a result of which, he sustained injury.
Hence, the appellant - original claimant has filed M.A.C.P. No.116
of 1996 before the Tribunal and after evaluating the pleadings
and evidence tendered by the parties as noticed hereinabove,
the Tribunal has partly allowed the claim petition and awarded a
sum of Rs.91,148/- under the different heads as against the
claim of Rs.5,00,000/-.
3. It came to be held by the Tribunal that said amount was
ordered to be awarded to the deponents. Not being satisfied with
the compensation amount, this appeal has been filed.
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
4. Heard Mr.Dhairyawan Bhatt, learned counsel appearing for
the appellant and Mr.Palak Thakkar, learned counsel appearing
for the respondent no. 3 - New India Insurance Company. Though
served, nobody appears on behalf of rest of the respondents.
5. Mr.Bhatt, learned counsel appearing for the appellant has
submitted the same facts which are narrated in the memo of
appeal. He has submitted that the Tribunal has committed
serious error in awarding less compensation without considering
the material evidence available on record. He has submitted that
the Tribunal has not properly considered the oral as well as
documentary evidence available on record, which clearly
establishes that the appellant can get the amount of
compensation to the tune of Rs.5,00,000/-. He has submitted
that the Tribunal has not properly considered the pleadings of
the parties and erred in misconstruing the provisions of the law
in the facts and circumstances of the case. He has submitted
that the Tribunal has misread the documents at Exhibit 21, 22,
23, 24, 25 and 26 which are income tax returns as well as
extracts of Village Form No.7 & 12 and 8 which indicates that the
appellant is having land in his name and the income is pleaded in
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
the claim petition itself is Rs.1,00,000/- per annum of the
appellant at the time of accident, however, the Tribunal has
erred in holding that there is no evidence to establish the income
of the appellant and, therefore, the notional income of
Rs.2,00,000/- can be taken as monthly income of the appellant.
He has also submitted that the Tribunal has not awarded just and
reasonable compensation. Hence, he prays for enhancement of
compensation under all heads.
6. As against that, Mr.Palak Thakkar, learned counsel
appearing for respondent - Insurance Company has supported
the impugned judgment and award passed by the Tribunal. He
has submitted that so far as the income of the claimant is
concerned, there is no cogent and proper proof or evidence led
by the appellant about his income and even the multiplier
applied by the Tribunal is just and proper and, therefore, no
interference is called for.
7. Having considered the averments made in the appeal,
submissions made by the learned counsel appearing for both the
sides and considered the facts of the case and perused the
record and proceedings, it appears that the Tribunal has not
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
properly considered the income of the appellant and fact of FIR
and the panchnama of the place of occurrence.
9. Considering the ratio laid down by the Hon'ble Supreme
Court in the case of Sarla Verma and others Vs. Delhi
Transport Corporation and another, (2009) 6 SCC 1211,
Syed Sadiq and others Vs. Divisional Manager, United
India Insurance Company Ltd., (2014) 2 SCC 735, Kajal Vs.
Jagdish Chand and others, (2020) 4 SCC 413 and
Jithendran Vs. New India Assurance Company Limited, AIR
2021 SC 5382, I am of the considered opinion that the appellant
is entitled to get additional amount of compensation considering
the income of the claimant and appeal requires to be allowed
and the impugned judgment and award requires to be
substituted by enhancing the amount of compensation and,
therefore, the compensation is enhanced under the following
heads:-
Future Loss of Income Rs.83,700.00
Rs.3100 x 15% disability = Rs.465 x 12 = Rs.5580 x 15
multiplier
Pain, shock and suffering Rs.15,000.00
Medical expenses Rs.30,000.00
Actual loss of income Rs.6,200.00
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
Special diet, Attendance and Transportation Rs.3,000.00
Total amount Rs.1,37,900.00
Less: Compensation awarded by the Tribunal Rs.91,148.00
Additional / enhanced amount Rs.46,752.00
Accordingly a sum of Rs.46,752/- as additional
compensation requires to be awarded towards future loss of
income, which is just and reasonable compensation and the
same is awarded in addition to Rs.91,148/- awarded by the
Tribunal. However, the appellant is entitled to get enhanced
amount of compensation of Rs.46,752/- along with interest at the
rate of 6% per annum from the date of petition till realization of
the amount.
10. For the foregoing reasons, I proceed to pass the following
order.
(i) Appeal is allowed in part.
(ii) Judgment and award dated 12.10.2007 passed by the
Motor Accident Claims Tribunal (Aux.), Morbi in M.A.C.P.
No.116 of 1996 is hereby modified and in addition to what
has been awarded by the Tribunal, a sum of Rs.46,752/-
C/FA/1206/2009 JUDGMENT DATED: 13/01/2022
as additional amount with interest at the rate of 6% per
annum is awarded which shall be from the date of petition
till date of payment or deposit whichever is earlier.
(iii) The Insurance Company is directed to deposit additional
amount of compensation with 6% interest as early as
possible within an outer limit of eight weeks from the date
of receipt of certified copy of this order.
(iv) The apportionment and order for disbursement as made
by the Tribunal in paragraph no.20 of the operative
portion of the order shall hold good for the additional
amount of compensation.
(v) Decree be drawn accordingly.
Record and proceedings be sent back to the concerned
Tribunal forthwith. Pending civil applications, if any, shall stand
disposed of accordingly.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
