Gujarat High Court
Ashokbhai Chandulal Mehta vs Ravjibhai Jivebhai Aahir on 4 January, 2022
Bench: Niral R. Mehta
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3597 of 2008
With
R/FIRST APPEAL NO. 1499 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
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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ASHOKBHAI CHANDULAL MEHTA
Versus
RAVJIBHAI JIVEBHAI AAHIR & 3 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1,3,4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 04/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
1. Both these appeals arise out of the same
judgment and award and hence, both the appeals were
heard together and were disposed of by this common
judgment and order.
2. Feeling aggrieved and dissatisfied by the
judgment and award dated 01.10.2007 passed by the
Motor Accident Claims Tribunal (Aux), Vadodara in
MACP No. 1940 of 1999, the original claimant has
preferred First Appeal No. 3597 of 2008 and the
insurance company has preferred First Appeal No. 1499
of 2008 on the limited aspect of interest as well as
compensation granted as loss of salary to the brother
of the injured claimant.
3. The following facts emerge from the record of
the appeals -
3.1 That the accident occurred on 22.08.1994 at 3.00
AM on Mithapur - Limdi National Highway No.8 within
the jurisdiction of Bagodara Police Station. It is
the case of the claimant that the accident occurred
between truck bearing registration No.GTY-6349 and
Mini Luxury Bus bearing registration no. GJ-3T-8417
as both the vehicles collided with each other. It is
the case of the original claimant that on the date of
the accident, when the claimant boarded the Mini Bus
from Rajkot and when it reached the place of
occurrence at about 3.00 AM on 22.08.1994, the truck
bearing registration no.GTY-6349 being driven in rash
and negligent manner, dashed on the right side of the
Mini Luxury Bus because of which the original
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
claimant sustained serious injuries. It is the case
of the claimant that driver of both the vehicles were
negligent and driver of both the vehicles died in the
accident. Claim petition being MACP No.1266 of 1994
was filed by the original claimant before the Motor
Accident Claims Tribunal, Ahmedabad on 25.11.1994 and
claimed compensation of Rs. 15,00,000/-, which was
further increased to Rs. 1,00,00,000/-. The record
indicates that thereafter, by an order dated
11.08.1999 passed by this Court, the proceedings of
the said claim petition were transferred to Motor
Accident claims Tribunal at Vadodara and numbered as
MACP No. 1940 of 1999. The original claimant had
deposed at exhibit 75. 16 witnesses were examined by
the original claimant as under -
1. Doctor Mayurbhai Vinodray Mehta at exhibit 149
2. Mukeshkumar Shankarbhai Patel at exhibit 153
3. Subhaschandra Raychandbhai Shah at exhibit 155
4. Kalindiben Paramjitsinh Malhotra at exhibit 164
5. Shyamkumar Pandurang Sapkal at exhibit 166
6. Shivprakash Basappa at exhibit 173
7. Chandresh Shamaldas Nagori at exhibit 191
8. Sureshbhai Gabhrubhai Kacchi at exhibit 201
9. Kiritkumar Babubhai Shah at exhibit 236
10. Dr. Truptiben Jatinbhai Zala at exhibit 238
11. Avdheshnarayan Danbahadursinh at exhibit 243
12. Satish Sitaram Mohite at exhibit 245
13. Dr. Chaitanya Sharadkumar Buch at exhibit 251
14. Dr. Dipak Narendrabhai Joshi at exhibit 259
15. Dr. Sureshchandra Chandulal Mehta at exhibit 268
16. Gautam Khushalbhai Parmar at exhibit 289
The claimant also relied upon plethora of documentary
evidences such as -
1. FIR at exhibit 76
2. Panchnama at exhibit 77
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
3. Case papers of Ahmedabad Civil Hospital at
exhibit 78
4. Discharge card of the treatment taken by the
claimant at Mumbai from Dr. Bhagwati at exhibit
5. Letter written by neuro surgeon Dr. Adhyavaid to
Dr. Walls at exhibit 80.
6. Cuttings of Rajkot Jaihind paper dated
23.08.1994 at exhibit 81.
7. Cuttings of news articles publishes in Sandesh
Daily, Vadodara at at exhibit 82
8. 10 Photographs depicting condition of the
claimant at exhibit 88
9. Certificate of Dr. Walls recommending the
claimant to drink beer at exhibit 89
10. Certificate of Dr. Mahesh Shah recommending the
claimant to drink beer at exhibit 90
11. Certificate of Dr. Chaitanya buch recommending
the claimant to drink beer at exhibit 91
12. Health permit of the claimant at exhibit 92
13. Medical prescription of Dr. C.S. Buch at exhibit
14. Bills for medicines as per the prescription of
Dr. C.S. Buch at exhibit 94.
15. Registration certificate of Arihant Emporium at
exhibit 95.
16. Aakarni form of the claimant for the year 1993-
94 at exhibit 96.
17. Receipt of Income Tax Department showing payment
of tax for the year 1993-94 at exhibit 96.
18. Receipt of tax paid of Rs. 9000/- for the
assessment year 1993-94 at exhibit 97.
19. True copy of the statement of income given to
the income tax department for the financial year
01.04.1993 to 31.03.1994 at exhibit 98.
20. Receipt of Tax paid of Rs.8,000/- for the
accounting year 1994-95 at exhibit 99.
21. Counter Folio of bank pertaining to Luxury Bux
at exhibit 100.
22. Original receipt of tax paid of Rs.9,250/- for
the period 17.08.1994 to 31.08.1994 at exhibit
23. Copy of the letter to the RTO Ahmedabad to RTO
Vadodara for the use of Luxury Bus at exhibit
24. Air Ticket of the claimant and his brother for
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
taking treatment in America at exhibit 103
25. Documents related to Income Tax at exhibits 112
to 118
26. Certificate of treatment undertaken at Limdi
Government Hospital at exhibit 145 to 147
27. Prescription and certificate of Dr. Mayur Jani
at exhibit 150, 151 and 152
28. Bank statement of Arhihant emporium at exhibit
152A
29. Bills pertaining to Megh Dhanush Medical Store
at exhibit 154
30. Wine Bills at exhibit 165
31. Bills of attendant Shyamkumar at exhibit 167
32. Appointment letter of Manager of Union Bank at
exhibit 175
33. Extracts of account showing conversion of Indian
Ruppes into USD at exhibit 177
34. Document related to Bank FD and Authority letter
at exhibit 178 and 193
35. Documents pertaining to Sahajanand Travels at
exhibit 194 and 195
36. Medical bills from exhibit 203 to 233
37. Bank documents at exhibit 237
38. Bills of physiotherapist and Bombay Hospital at
exhibit 239
39. Deposition of Satish Sitaram Mohite of Bombay
Hospital at exhibit 244
40. Documents related to Mumbai Hospital and
treatement taken from Dr. Chaitanya Buch at
exhibits 246-249, 252-255
41. Certificate of permanent disability given by Dr.
Dipak Joshi at exhibit 260
42. Documents pertaining to Sureshbhai, brother of
the claimant at exhibit 270-274
43. Visa of Sureshbhai and Hasmukhbhai and receipt
of USD paid towards the same at exhibit 275
44. Letter of Bank of India for DD towards
treatment in America at 276
45. Letter written by the father of the claimant to
Dr. Wales at exhibit 279
46. Passport of the brother of the applicant at
exhibit 279
47. Birth certificate of Mansi, daughter of the
claimant at exhibit 281
48. Birth certificate of Kinjal, daughter of the
claimant at exhibit 282
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
49. Xerox copy of ration card of the claimant at
exhibit 283
50. Vouchers of witness Gautambhai Khushalbhai
Parmar, attendant for the year 2004, July 2005
and Sept 2005 towards salary and bonus at
exhibit 290-292
3.2 The Tribunal upon appreciating the evidence on
record, came to the conclusion that the driver of
both the vehicles were jointly negligent. The
Tribunal examining the evidence in toto, considered
the disability of the injured claimant to be 100%
permanent functional disability of the body as a
whole and considered the income of the claimant at
Rs.3,000/- and applied multiplier of 15 and awarded a
sum of Rs. 5,40,000/- as compensation under the head
of Future Loss of Income. The Tribunal also awarded
a sum of Rs.3,00,000/- under the head of pain, shock
and suffering and loss of amenities, Rs.1,00,000/-
under the head of loss of matrimonial life and
enjoyment of life, Rs.2,34,000/- as attendant
charges, Rs.3,12,000/- as Future attendant charges,
Rs.4,42,042/- as medical expenses, Rs. 2,00,000/- as
Misc. expenses, special diet and transportation,
Rs.3,60,000/- as loss of income of brother of the
claimant, Rs. 1,50,000/- as medical expenses incurred
in USA and thus granted total compensation of
Rs.30,88,042/- with interest at the rate of 7.5% p.a.
from the date of filing of the claim petition,
excluding the amount of Rs.7,62,000/-, which was
granted under the head of Future Expenses and thus,
the Tribunal was pleased to partly allow the claim
petition as observed hereinabove. Being aggrieved by
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
the same, the claimant as well as the insurance
company has filed their respective appeals.
4. Heard Mr. Mohsin Hakim, learned advocate for the
original claimant in both the appeals and Mr. Vibhuti
Nanavati, learned advocate for New India Insurance
Co. Ltd., the insurer of Mini Bus and Mr. Maulik J.
Shelat, learned advocate for United India Insurance
Co. Ltd., the insurance of the luxury bus. We have
also perused the paper book and the original record
and proceedings.
5. Mr. Nanavati, learned advocate appearing for the
insurance company in First Appeal No. 1499 of 2008
has contended that the appeal filed by the insurance
company is only limited to two aspects, i.e., (1)
Rs.3,60,000/- awarded to the brother of the original
claimant as loss of income and the interest at the
rate of 7.5%. Mr. Nanavati contended that in the
claim petition of an injured, no loss of income can
be given to any of his family member including the
brother and such compensation is not available under
the provisions of the Act. Mr. Nanavati further
contended that the Tribunal has awarded higher rate
of interest at the rate of 7.5.% p.a., which should
be reduced to 6% p.a. Mr. Nanavati therefore
submitted that the appeal filed by the insurance
company on both the grounds, deserves to be allowed.
6. Per contra Mr. Mohsin Hakim, learned advocate
has opposed the appeal filed by the insurance company
and has contended that the Tribunal has rightly
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
considered the evidence on record and as the brother
of the claimant had to leave high paying occupation
at Djibouti wherein he was earning handsome amount,
has rightly awarded compensation. Mr. Hakim
contended that on the contrary, the compensation
deserves to be enhanced to Rs. 10,00,000/- as lumsum
compensation to the original claimant under the head
of loss of income of brother of the claimant.
7. Mr. Hakim further contended that the appellant-
claimant was owner of the firm known as Arihant
Emporium. Relying upon the Income Tax returns for
the years 1993-94 at exhibit 96, it was contended by
Mr. hakim that the gross income of the original
claimant was Rs. 53,957/- and the tax paid was Rs.
8,905/-. Mr. Hakim further relying upon the income
tax return at exhibit 98, contended that for the
assessment year 1994-95, the gross income of the
original claimant was Rs. 61,054/- out of which an
amount of Rs. 7,742/- came to be deducted as income
tax. Mr. Hakim relying upon such piece of evidence,
contended that the Tribunal has miserably erred in
considering the income of the original claimant at
Rs. 3,000/-. Mr. Hakim further contended that it is
an admitted position that the injuries sustained upon
the original claimant are so serious in nature that
he has acquired 100% permanent disability and even
the disability assessed by the Doctor is 100%, which
is not questioned by the insurance company. Relying
upon the judgment of the Apex Court in the case of
National Insurance Company Ltd. Vs. Pranay Sethi,
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
reported in 2017 (16) SCC 680, it was contended by
Mr. Hakim that as the original claimant was 38 yeas
old on the date of the accident, he would be entitled
to prospective income to the tune of 40%.
8. Mr. Hakim also drew attention of this Court to
the documents at exhibit 100 to 102 and contended
that just before few days, the original claimant had
purchased a second hand luxury bus and according to
Mr. Hakim, the original claimant would have derived
Rs. 60,000/- p.a. as income from the luxury bus. To
buttress his argument, Mr. Hakim relied upon the
judgment of the Apex Court in the case of New India
Assurance Co. ltd. Vs. Yogesh Devi reported in (2012)
3 SCC 613.
9. Mr. Hakim contended that the Tribunal has also
erred in awarding a meagre amount of Rs. 3,00,000/-
under the head of pain, shock and suffering and loss
of amenities of life. Relying upon the judgment of
the Apex Court in the case of Kavita Vs. Deepak &
Ors. reported in (2012) 8 SCC 604, it was contended
by Mr. Hakim that the claimant is suffering
permanently because of the injuries sustained and
therefore, the compensation under the head of pain,
shock and suffering as well as loss of amenities of
life, deserves to be enhanced considerably.
10. Further, relying upon the judgment of the Apex
Court in the case of G. Ravindranath @ R. Chowdary
Vs. E. Srinivas and Ors. reported in 2013(12) SCC
455, it was contended by Mr. Hakim that the original
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
claimant has suffered considerably because of the
injuries sustained. Mr. Hakim submitted that as per
the record, which is an admitted position, the
original claimant has acquired 100% functional
disability of the body as a whole that too at the
tender age of 38. Mr. Hakim contended that because
of the serious injuries sustained, the original
claimant has lost his matrimonial and enjoyment of
life for ever and under such circumstances, the
original claimant would be entitled to compensation
under the head of loss of matrimonial life and
enjoyment of life at least to the tune of
Rs.3,00,000/-. Relying upon the evidence at exhibits
75, 166, 289, 167, 290 to 292, which are in form of
receipts of payment made for attendant charges, it
was contended by Mr. Hakim that even if the
multiplier of 13 is applied, considering the pendency
of this appeal proceedings, the appropriate amount
under the head of attendant charges would come to Rs.
3,81,280/-. Mr. Hakim further contended that even as
per the deposition of attendants at exhibits 75, 166,
289, 167, 290, 291, 292, the appellant had to pay Rs.
3,000/- per month to he attendants. It was contended
by Mr. Hakim that the Tribunal has just considered
Rs. 2,000/- and has awarded Rs. 3,12,000/- as Future
Attendant charges. According to Mr. Hakim, the last
paid salary to Mr. Gautambhai Parmar, exhibit 290 to
292, as attendant charges were Rs.3,000/-.
Considering 50% future prospective rise in such
charges, even if such amount is calculated during the
duration of pending appeal proceedings, the original
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
claimant would be entitled to Rs. 4,500/- per month
and with 13 multiplier. According to Mr. Hakim, such
amount would come to Rs. 7,02,000/-.
11. It was also contended that the Tribunal has not
considered the medical expenses properly. According
to Mr. Hakim, bills worth Rs. 6,28,928/- were
produced on record, but as the same were not
exhibited, the same has not been considered by the
Tribunal. Mr. Hakim also further contended that the
appellant-claimant would be entitled to enhanced
amount under the head of Misc. expenses, special diet
and transportation as the Tribunal has awarded lumsum
amount of Rs.2,00,000/-, which is meagre and less.
Mr. Hakim contended that even if miscellaneous
expenses, special diet and transportation are
computed at Rs.5,000/- per month, the original
claimant would be entitled to an amount of Rs.
7,80,000/-.
12. Mr. Hakim contended that the claimant had to
travel to USA for medical treatment. According to
Mr. Hakim, even though such evidence was brought on
record, the Tribunal has not granted any amount
towards the same. It was further contended that the
brother of the original claimant was working in
Djibouti in Africa and was earning handsome amount.
Mr. Hakim contended that as nobody is there in the
family to take care of bedridden original claimant,
the brother of the original claimant had to leave
high paying occupation and come back to India to look
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
after his brother, i.e., the original claimant. Mr.
Hakim reiterated that the Tribunal ought to have
granted Rs. 10,00,000/- as lumpsum compensation.
Relying upon the document at exhibit 268, it was
contended by Mr. Hakim that the Tribunal has misread
the said document.
13. It was also further contended by Mr. Hakim that
even though the evidence was produced, the Tribunal
has granted only Rs. 1,50,000/- towards medical
expenses incurred by the claimant at USA. According
to Mr. Hakim, such amount is even less than the air
ticket for going to USA and it was therefore
contended by Mr. Hakim that the original claimant is
entitled to Rs. 10,00,000/- as lumsum compensation
under the said head. On the aforesaid grounds, Mr.
Hakim contended that the award being erroneous,
deserves to be modified as prayed for and it was
contended that the appeal filed by the claimant
deserves to be allowed and appeal filed by the
insurance company deserves to be dismissed.
14. Mr. Vibhuti Nanavati as well as Mr.Maulik J.
Shelat, learned advocates for the respective
insurance companies have opposed the appeal filed by
the claimant. Referring to and relying upon the same
set of evidence, as relied upon by the learned
advocate appearing for the original claimant, both
the learned counsels appearing for the insurance
company have submitted that except the interest
segment and the amount granted under the head of loss
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
of income of the brother, the Tribunal has rightly
appreciated the evidence and has granted just and
adequate compensation and no interference is called
for in exercise of appellate jurisdiction of this
Court. The learned counsel appearing for the
insurance company contended that the learned counsel
for the claimant has wrongly relied upon the judgment
of the Apex Court in the case of New India Assurance
Company (supra). According to the learned counsel
appearing for the insurance company, no evidence
about the income from the second hand luxury bus is
produced or brought on record. It was contended that
on the contrary, the luxury bus has already been sold
and no income has been derived from the same. It was
also contended by the learned counsel appearing for
the insurance companies that no rise or additional
compensation deserves to be granted under any of the
heads as claimed for by the claimant and the appeal
of the claimant being meritlesss, deserves to be
dismissed whereas the appeal of the insurance company
on the aforesaid two grounds, deserves to be allowed.
15. No other or further submissions, grounds or
contentions have been raised by the learned counsel
appearing for the parties.
16. We have perused the original Record and
Proceedings and re-appreciated the evidence on
record. The claimant has brought on record and has
proved that he was in the business of gift articles
and travels in the name and style of Arihant
Emporium. Upon re-appreciating the income tax return
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
at exhibit 96, which relates to assessment year 1993-
94, the gross income of the original claimant was Rs.
53,957/- whereas the income tax paid was Rs.8,905/-
and thus, the net income for the assessment year
1993-94 would come to Rs. 45,052/-. Similarly, as
per the document at exhibit 98, which is the income
tax return for the assessment year 1994-95, the gross
income of the original claimant is Rs. 61,054/- and
after deduction of tax of Rs.7,742/-, net income for
the assessment year 1994-95 would come to Rs.
53,312/- and applying the principles of mean, the
average income of the original claimant would come to
Rs. 49,182/- p.a. from Arihant Emporium, which can be
easily rounded off to Rs.50,000/- p.a. Thus, the
Tribunal has committed an error in determining the
income of the original claimant at Rs.3,000/-. It is
an admitted position that the original claimant has
sustained serious injuries and has acquired 100%
functional disability of the body as a whole and is
completely bedridden. Following the ratio laid down
by the Apex Court in the case of Pranay Sethi (supra)
as the age of the original claimant was 38 years on
the date of the accident, he would be entitled to
increase in the income by way of prospective income
to the tune of 40%. Even the appropriate multiplier
would be that of 15. Thus, considering Rs.70,000/-
p.a. as income (50,000/- income + 40% prospective
income) and applying multiplier of 15, the original
claimant would be entitled to compensation of Rs.
10,50,000/- under the head of Future Loss of Income.
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
17. Considering the ratio laid down by the Apex
Court in the case of New India Assurance Co. Ltd.
(supra), relied upon by Mr. Hakim, in absence of any
proof, merely relying upon the payment made as per
the exhibits 100 to 102, it cannot be assumed that
the original claimant derived income of Rs.60,000/-
per annum from luxury bus. On the contrary, it has
come on record, as rightly observed by the Tribunal,
that the luxury bus was sold and as such, there is no
income from the luxury bus.
18. In Kavita (supra), the Hon'ble Apex Court has
considered the aspect of grant of non-pecuniary
damages such as pain, shock and suffering and trauma
and loss of amenities of life as well as loss of
expectation of life and has observed thus -
19. In light of the principles laid down in the
aforementioned cases, it is suffice to say that
in determining the quantum of compensation
payable to the victims of accident, who are
disabled either permanently or temporarily,
efforts should always be made to award adequate
compensation not only for the physical injury
and treatment, but also for the loss of earning
and inability to lead a normal life and enjoy
amenities, which would have been enjoyed but for
the disability caused due to the accident. The
amount awarded under the head of loss of earning
capacity are distinct and do not overlap with
the amount awarded for pain, suffering and loss
of enjoyment of life or the amount awarded for
medical expenses."
"25. Respondent No.3 is directed to pay to the
appellant total compensation of Rs.34,38,747/-
within a period of 3 months by getting prepared
a demand draft in her name which shall be
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
delivered at her residence. While doing so,
respondent No.3 shall be free to deduct the
amount already paid to the appellant pursuant to
the award passed by the Tribunal and/or the
impugned judgment. If law permits it to do so,
respondent No.3 shall be free to recover the
amount of compensation from respondent Nos.1 and
2."
Thus, the original claimant would be entitled to
an amount of Rs. 6,00,000/- towards pain, shock and
suffering and loss of amenities.
19. On the aspect of the loss of matrimonial life
and enjoyment of life, considering the ratio laid
down by the Apex court in the case of G. Ravindranath
@ R. Chowdary (supra), the original claimant would be
entitled to an amount of Rs.3,00,000/- towards loss
of matrimonial life and enjoyment of life.
19. Upon re-appreciating the deposition of the
attendants at exhibit 75, 166, 289, 167, 290, 291 and
292, the Tribunal has considered that the amount of
Rs. 1,500/- was paid as attendant charges immediately
after the accident, which had occurred in the year
1994. Applying the dictum figure of Rs.1,500/- per
month and applying the multiplier of 13, the Tribunal
has granted Rs.2,34,000/- as Attendant charges. In
light of the fact that we have to consider the future
attendant charges as well as other heads, we do not
think it fit to enhance the amount from Rs.1,500/- as
Attendant charges has already been paid as per the
expenses incurred, however, the multiplier would be
15 instead of 13. Thus, the amount towards attendant
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
charges would come to Rs.2,70,000/- (Rs.1,500/- X 12
X 15).
20. Upon re-appreciation of the evidence of witness
Mr. Gautam Parmar, which is much after the date of
accident, the salary paid to the Attendant was
Rs.3,000/-. However, it is not certain whether the
same attendant has continued or not. Upon re-
appreciation of the evidence on record, we are of the
opinion that the Tribunal has committed an error in
considering only Rs.2,000/- and applying multiplier
of 13. At the same time, no prospective rise can be
considered and given to the claimant as canvassed by
the learned counsel for the claimant. Hence, taking
the dictum figure for future attendant charges at
Rs.3,000/- per month, the same would come to
Rs.3,000/- X 12 X 15 (considering the age of the
claimant) = Rs. 5,40,000/-.
21. We have also gone through the original Record and
Proceedings as far as the medical bills are
concerned. The Tribunal has rightly appreciated the
same and the original claimant could prove only Rs.
4,42,042/-, we do not find it proper to modify the
said amount. The other contention about
miscellaneous expenses and special diet and
transportation if examined in totality of the
evidence on record, upon re-appreciating the evidence
as a whole and even applying multiplier of 15 instead
of 13, appropriate amount would be Rs.3,60,000/-,
(Rs. 2,000/- X 12 X 15) instead of Rs.2,00,000/-.
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
22. Upon re-appreciating the evidence as a whole, we
find that the original claimant has not proved
anything about his future misc. expenses and special
diet and transportation and therefore, he is not
entitled to the same. As we have also considered the
other heads, even on the principles of just and
adequate compensation, we hold that the original
claimant is not entitled to any compensation under a
separate head of future miscellaneous expenses,
special diet and transportation. Similarly, upon re-
appreciating the evidence as a whole, we find that
the Tribunal has rightly appreciated the evidence on
record and granted Rs. 1,50,000/- as compensation
under the head of medical expenses incurred at USA as
per the proved documents. Even if the other
documents are taken into consideration, the
respondent-original claimant has not proved any
further amount.
22. As far as compensation awarded under the head of
loss of income of brother of claimant to the extent
of Rs.3,60,000/- is concerned, the same deserves to
be modified and upon appreciation of the evidence and
more particularly the documents at exhibit 268, on
the contrary, the Tribunal has committed an error in
granting compensation for loss of income for the
brother of the claimant which is beyond the scope of
the claim petition.
23. Having come to the aforesaid conclusion, the
original claimant would be entitled to compensation
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
as under -
Future Loss of Income - 10,50,000/-
Pain, shock and suffering and
loss of amenities of life - 6,00,000/-
Loss of matrimonial life
and enjoyment of life - 3,00,000/-
Attendant charges - 2,70,000/-
Future Attendant charges - 5,40,000/-
Medical expenses - 4,42,042/-
Misc. expenses, special diet
and transportation - 3,60,000/-
Medical expenses incurred at
USA - 1,50,000/-
----------
Total compensation 37,12,042/-
==========
24. However, as far as the contention raised by the
learned counsel for the insurance company as regards
interest is concerned, the same does not require any
modification. We are of the opinion that the
Tribunal has rightly exercised its discretion in
granting 7.5% interest, which does not require any
interference. However, on the enhanced amount, the
original claimant would be entitled to 6% interest
from the date of filing of the claim petition till
its realisation.
25. Resultantly, First Appeal No. 3597 of 2008 filed
by the original claimant is partly allowed. The
appellant-claimant would be entitled to additional
compensation of Rs.6,24,000/-. It is clarified that
on the principal amount, i.e., Rs.30,88,042/- as
awarded by the Tribunal, the original claimant would
be entitled to interest at the rate of 7.5% p.a. from
C/FA/3597/2008 JUDGMENT DATED: 04/01/2022
the date of filing of the claim petition till its
realisation as awarded by the Tribunal. On future
attendant charges, no interest shall be payable on
such amount. Rest of the award stands modified to
the aforesaid extent.
26. The appeal being First Appeal No. 1499 of 2008
filed by the insurance company also stands partly
allowed accordingly. The insurance company shall
deposit the additional amount within a period of
eight weeks from the date of receipt of the present
judgment and order with proportionate interest at the
rate of 6% as provided in this order.
(R.M.CHHAYA,J)
(NIRAL R. MEHTA,J)
,BIJOY B. PILLAI
