Gujarat High Court
Dilip Rameshbhai Rathwa vs Mohmandyusuf Ismail Surati on 19 July, 2022
Bench: Ashutosh J. Shastri
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3042 of 2009
FOR APPROVAL AND SIGNATURE: sd/-
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
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 copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
DILIP RAMESHBHAI RATHWA
Versus
MOHMANDYUSUF ISMAIL SURATI & 2 other(s)
==========================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 19/07/2022
ORAL JUDGMENT
1. Present First Appeal under section 173 of the Motor
Vehicles Act is directed against the decision delivered by the
Motor Accident Claims Tribunal (Aux.), F.T.C. No. 6, at
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
Vadodara in M.A.C.P. No. 1721 of 1997 dated 31.07.2008.
2. The case of the appellant - claimant is that on 14.07.1997,
the appellant was travelling in a Cleaner in Truck bearing
registration No. GTC 4691 and was proceeding from
Chhotaudepur to Vadodara after loading bags of Dolamite
powder. The appellant - claimant was sitting on the seat
beside the Driver and the Driver of the truck was driving
rashly and negligently with full speed. There was a tractor
parked on the road near Bhadrali Village. At that time, one
truck coming from opposite direction and the Driver of the
truck i.e. GTC 4691 took a turn towards the left side but
truck was in full speed and as such could not slow down.
Hence, dashed with back portion of truck which was parked
on the road side. On account of which the accident took
place, in which the appellant got serious injuries on left leg
and also received severe injuries on the other parts of the
body. The appellant - claimant was required to be admitted
in the S.S.G. Hospital at Vadodara, where he was treated and
during the treatment, as per the medical advise, left leg
below knee was required to be amputated. He took the
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
treatment in S.S.G. Hospital from 14.04.1997 to 25.05.1997
as an indoor patient and during the said hospitalization, skin
grafting was done twice. After discharge from the hospital,
he took the treatment as outdoor patient for a further period
of six months and then he was able to walk with the help of
crunches. He suffered disability of his left lower limb to the
extent of 70% and on account of this injury, he was not able
to walk without artificial leg and he has to spend Rs. 3,000/-
to 5,000/- in every three years to change the artificial leg.
3. It is the case of the applicant - claimant that at the time of
accident, he was working as a Cleaner cum Labourer on the
truck and was earning Rs. 1,500/- and he was getting daily
allowance Rs. 30 per day in addition. Thus, according to him,
he was earning Rs. 2,000/- to 2,500/- per month. If he had
not met with an accident, he would have earning Rs. 3,000/-
per month and after getting driving licence, he would have
earned 3,500/- per month. On account of these injuries,
economic loss has been sustained by him and he has to
undergo severe pain, shock and suffering. He had to spend
Rs. 15,000/- for medicines, treatment, special diet,
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
transportation, etc. Hence, the appellant - claimant had
claimed compensation for all to the extent of Rs. 7,00,000/-.
The said claim petition came to be registered as M.A.C.P. No.
1721 of 1997.
4. Pursuant to the notice having been issued, the opponent
Nos. 1 and 2 have despite being served, not filed any reply,
whereas the opponent no. 3 namely United India Insurance
Company Ltd. appeared, filed written statement opposing the
stand taken by the appellant. It has been contended that no
cause of action has arisen against the opponent. The
application against is not tenable in the eyes of law and
further it has been submitted that the appellant is not
entitled to ask any amount of compensation. After
considering the pleadings, issues were framed at Exh. 13 and
after analysing the oral as well as documentary evidence led
before it, the learned Tribunal was pleased to pass order on
31.07.2008 which order is made the subject matter of present
First Appeal for seeking enhancement. Following order is
passed by the learned Tribunal on 31.07.2008, which reads
and reproduced as under : -
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
"The present petition is hereby allowed in part.
Opponents are hereby ordered to pay Rs. 2,90,600/- (Rupees
Two Lakhs Ninety Thousand Six Hundred Only) to the
applicant together with cost and interest @ 7.5% p.a. from the
date of filing of claim petition upto realization.
Opponents are ordered to be deposit the aforesaid amount
within one month from the date of this order.
On depositing the amount, firstly, the deficit court Fees be
deducted from the awarded amount.
Interim compensation, if any, paid or deposited be deducted
from the awarded amount.
After making above deduction, 70% amount of the awarded
compensation be invested in the name of applicant on his
choice in any Nationalized Bank for a period of five years with
the condition that no advance, loan or other credit facility
shall be granted against the said Fixed Deposit without prior
permission of this Tribunal. However, applicant is entitled to
get periodical interest as and when it becomes due.
Remaining 30% amount be paid to the applicant by issuing
A/c. Cheque.
Award be drawn up accordingly.
Signed and pronounced in the open Court today i.e. on this
31st day of July, 2008."
5. Feeling aggrieved and dissatisfied with the said judgment
delivered by the Motor Accident Claims Tribunal (Aux.),
F.T.C. No. 6, Vadodara in M.A.C.P. No. 1721 of 1997, present
appeal for seeking enhancement came to be filed by the
original claimant contending that the amount which has been
awarded is too meagre considering the seriousness of
injuries. It has been further submitted that while evaluating
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
the amount of compensation, the learned Tribunal has not
considered in its true perspective each head underwhich
compensation to be determined nor applied correct multiplier
looking to the age of the appellant. It has also been submitted
that so far as pain, shock and suffering is concerned, no
proper amount is awarded and loss of amenities and other
aspects are also not properly construed as a result of this,
very less amount of compensation is awarded which has led
the appellant to approach this Court by way of present First
Appeal.
6. On being notified, the learned advocate Mr. MTM Hakim
has represented the appellant, whereas learned advocate Mr.
Palak Thakkar has appeared for opponent no. 3 and though
respondent No. 1 and 2 are served, have not represented and
it is reported that respondent no. 2 is unserved on account of
he being passed away. Be that as it may, contesting
advocates since appeared before the Court, upon request of
both the learned advocates, present First Appeal is taken up
for hearing.
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
7. Learned advocate Mr. MTM Hakim appearing on behalf of
appellant - claimant has submitted that the learned Tribunal
has not properly considered each head on the basis of which
the compensation ought to have been awarded. He has
submitted that the so far as the income which has been
evaluated by the learned Tribunal, there appears to be no
dispute that so far as prospective rise in the income aspect is
concerned, the learned Tribunal ought to have considered
and atleast 40% in view of settled proposition of law, ought to
have been considered and if that be considered, the income
would come to around Rs. 2,100/- per month, and therefore,
even if amount of Rs. 1,500/- per month if to be taken into
consideration, then also 40% prospective rise in income
would to Rs. 2,100/- per month and as such that having not
been considered, the enhancement correspondening may be
awarded. So far as disability aspect is concerned, looking to
the seriousness of the injury, 70% disability is determined on
his left lower limb, for which also there is no dispute looking
to the medical papers and deposition of Doctor Amul
Satisbhai Pandya, who was examined at Exh. 25.
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
8. But then, learned advocate Mr. Hakim has stated that so
far as multiplier which has been applied as reflecting in
paragraph 16, the age of the appellant was 19 years as his
date of birth was 12.07.1979 and as such the multiplier which
has been applied, 16 is erroneous and looking to the certain
position, on this issue, the multiplier of 18 ought to have been
applied and corresponding enhancement on that deserves to
be considered.
9. Learned advocate Mr. Hakim by referring to decision
delivered by the Hon'ble Apex Court in the case of Syed
Sadiq and Others versus Divisional Manager, United
India Insurance Company Limited reported in (2014) 2
SCC 735, has pointed out that in view of such proposition,
the Tribunal ought to have considered pain, shock and
suffering to the extent of Rs. 75,000/- instead of what has
been awarded is meagre amount of Rs. 15,000/-. It has
further been provided that so far as loss of marriage prospect
is considered, the same has not at all considered in the
instant case but in view of this proposition as stated above,
Rs. 50,000/- ought to have been awarded for loss of marriage
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
prospect. In respect of loss of amenities, learned Tribunal
has not considered the said aspect but an amount of Rs.
75,000/- ought to have been considered and awarded by the
learned Tribunal and as such, to aforesaid extent, proper
amount of compensation which would be just and reasonable,
ought to have been awarded. Having not been done so, the
order under challenge is required to be corrected to the
aforesaid extent.
10. Learned advocate Mr. MTM Hakim has submitted that
apparent circumstances which have not been considered as
stated herein before, the order said to be perverse, which
deserves to be interfered with in appellate jurisdiction of this
Court and accordingly has requested that to the aforesaid
extent, amount appropriately be awarded by suitably
modifying the order under challenge.
11. As against this, learned advocate Mr. Palak Thakkar
appearing on behalf of Insurance Company i.e. original
opponent no. 3 initially vehemently tried to oppose the stand
of the appellant by supporting the view taken by the learned
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
Tribunal but then realizing the situation which is prevailing
on record and in view of settled proposition of law enunciated
by the Hon'ble Apex Court, learned advocate Mr. Thakkar has
submitted that due consideration be given to the stand and
left it to the discretion of the Court.
12. However, learned advocate Mr. Thakkar has resisted on
the issue of award of interest since the learned Tribunal has
awarded rate of interest as 7.5% from the date of claim
petition till realisation and has submitted that looking to the
interest structure, which is prevailing, the said interest
aspect may kindly be suitably modified and has suggest that
instead of 7.5%, 6% interest be awarded and to this stand
taken by learned advocate Mr. Palak Thakkar, learned
advocate Mr. Hakim has candidly submitted that he would
not have any resistance if the said amount of interest be
reduced and fixed @ 6% from the date of application.
13. Having heard learned advocates appearing for the parties
and having gone through the relevant records produced
before the Court and looking to their rival submissions, it
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
appears clearly from the material that on account of this
vehicular accident, serious injuries has been suffered by the
claimant, and was admitted in S.S.G. Hospital as an indoor
patient from 14.04.1997 to 25.05.1997. The discharge card as
well as OPD case papers were also produced at Exh. 18
before the Tribunal. It further appears that on account of
this injury, his left leg below the knee was amputated and Dr.
Amul S. Pandya was examined to justify the disability aspect
and his deposition at Exh. 25 reveals that the appellant
sustained permanent disability to the extent of 70% on his
left lower limb and such certificate is also reflecting on
record at Exh. 26, and as such looking to this seriousness of
injury and the difficulties which have been faced throughout,
the appellant has miserably suffered pain, shock and
suffering and has faced traumatized period during the
treatment and thereafter as well. As such, the learned
Tribunal has not appropriately awarded pain, shock and
suffering as emerged from the record. In the case of Syed
Sadiq (Supra), the Hon'ble Court while considering and
determining the amount of compensation, has almost in
similar circumstances, propounded a broad amount of
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
compensation to be considered in which case also almost
similar situation had arisen in which the right leg of the
victim was amputated and there was a loss of income, pain,
shock and suffering etc., in which case also he was also a
vegetable vendor aged about 25 years and as such after
considering and evaluating the materiel, the Hon'ble Apex
Court has determined the amount in respect of such claimant
and pointed out the chart under which head he is entitled to
what amount. The said chart having pressed into service by
the learned advocate for the claimant and the same is
requested to be applied, the Court deems it proper to
reproduce hereunder : -
Towards cost of artificial leg Rs. 50,000/-
Towards pain and suffering Rs. 75,000/-
Towards loss of marriage prospects Rs. 50,000/-
Towards loss of amenities Rs. 75,000/-
Towards medical and incidental costs Rs. 1,00,000/-
Towards cost of litigation Rs. 25,000/-
14. In view of aforesaid situation being faced by the learned
advocate Mr. Palak Thakkar for the Insurance Company has
candidly and broadly submitted that he would not be in a
position to confront with a such situation in respect of
enhancement of claim put forth by the claimant on the basis
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
of this chart and as such he has broadly submitted to
consider and pass suitable order in the interest of justice, and
as such in respect of pain, shock and suffering, since the
quantum as suggested by the learned advocate for the
claimant, has not been resisted, it deems it proper that
instead of Rs. 15,000/- for pain, shock and suffering, an
amount of Rs. 75,000/- deserves to be awarded looking to
seriousness of injury, looking to the age of 19 years at a
relevant point of time and as such, the aforesaid amount
would meet the ends of justice. So far as further issue related
to loss of marriage prospect is concerned, as also the loss of
amenities, the learned advocate Mr. Thakkar has candidly
submitted that the said be considered. Resultantly, the Court
is of the view that amount of Rs. 50,000/- be awarded, and
also the amount of Rs. 75,000/- for loss of amenities which is
being agitated by learned advocate for appellant, and as such
considering the aforesaid situation prevailing, the Court is of
the view that aforesaid amount deserves to be awarded in
favour of the appellant.
15. So far as other aspects on a different head, the amount
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
which has been determined, the same being not agitated by
the learned advocate Mr. Hakim, as a result of this, the
amount so determined except to the aforesaid extent, is not
altered or modified by this Court and hence conjoint effect of
aforesaid consideration would lead to a situation that present
appellant has made out a case for enhancement of
compensation in addition to what has been awarded to the
extent of Rs. 3,00,920/-, which this Court deems it proper to
award which would meet the end of justice.
16. So far as multiplier application is concerned, it appears
clearly that the appellant was a relevant point of time was of
19 years, and as such instead of 16 multiplier, 18 multiplier
ought to have been awarded, on which also there is a broad
consensus and accordingly, the amount be considered to be
enhanced by applying such multiplier as well. Hence, with
aforesaid broad submission of both the learned advocates,
this Court is of the opinion that amount of Rs. 5,91,520/-
ought to have been awarded and the Court is of the clear
opinion that said amount would be considered as a just and
proper compensation. The amount which has already been
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
awarded, deserves to be considered while enhancing the
amount appropriately and as such additional amount of
compensation to the extent of Rs. 3,00920/- is to be awarded
to the appellant, which would be in consonance with the
principle of just and adequate compensation as propounded
by the catena of decisions and also would meet the end of
justice.
17. So far as the interest issue is concerned, in view of the
broad acceptance of rate of 6% interest by both the sides, the
Court deems it proper to reduce the said 7.5% to 6% interest
from the date of filing of claim petition till realisation and
accordingly, the award dated 31.07.2008 deserves to be
modified.
18. At this stage, the Court is mindful of the proposition of law
laid down by the Hon'ble Apex Court in the case of Meena
Pawaia and Others versus Ashraf Ali and Others
reported in 2021 SCC OnLine SC 1083, on the issue of
just and adequate award of compensation, the relevant
paragraph containing in the said decision, the Court deems it
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
proper to reproduce hereunder : -
"12. ......xxxxxx.......
54. In Santosh Devi (Santosh Devi v. National Insurance
Co. Ltd., (2012) 6 SCC 421] the Court has not accepted
as a principle that a self-employed person remains on a
fixed salary throughout his life. It has taken note of the
rise in the cost of living which affects everyone without
making any distinction between the rich and the poor.
Emphasis has been laid on the extra efforts made by this
category of persons to generate additional income. That
apart, judicial notice has been taken of the fact that the
salaries of those who are employed in private sectors also
with the passage of time increase manifold. In Rajesh
case [Sarla Verma v. DTC, (2009) 6 SCC 121], the Court
had added 15% in the case where the victim is between
the age group of 15 to 60 years so as to make the
compensation just, equitable, fair and reasonable. This
addition has been made in respect of self-employed or
engaged on fixed wages.
55. Section 168 of the Act deals with the concept of "just
compensation" and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standard because such determination
can never be in arithmetical exactitude. It can never be
perfect. The aim is to achieve an acceptable degree of
proximity to arithmetical precision on the basis of
materials brought on record in an individual case. The
conception of "just compensation" has to be viewed
through the prism of fairness, reasonableness and non-
violation of the principle of equitability. In a case of
death, the legal heirs of the claimants cannot expect a
windfall. Simultaneously, the compensation granted
cannot be an apology for compensation. It cannot be a
pittance. Though the discretion vested in the tribunal is
quite wide, yet it is obligatory on the part of the tribunal
to be guided by the expression, that is, "just
compensation". The determination has to be on the
foundation of evidence brought on record as regards the
age and income of the deceased and thereafter the
apposite multiplier to be applied. The formula relating to
multiplier has been clearly stated in Sarla Verma [Sarla
Verma v. DTC, (2009) 6 SCC 121] and it has been
approved in Reshma Kumari [Reshma Kumari v. Madan
Mohan, (2013) 9 SCC 65]. The age and income, as stated
earlier, have to be established by adducing evidence. The
tribunal and the courts have to bear in mind that the
basic principle lies in pragmatic computation which is in
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
proximity to reality. It is a well-accepted norm that
money cannot substitute a life lost but an effort has to be
made for grant of just compensation having uniformity of
approach. There has to be a balance between the two
extremes, that is, a windfall and the pittance, a bonanza
and the modicum. In such an adjudication, the duty of the
tribunal and the courts is difficult and hence, an
endeavour has been made by this Court for
standardisation which in its ambit includes addition of
future prospects on the proven income at present. As far
as future prospects are concerned, there has been
standardisation keeping in view the principle of
certainty, stability and consistency. We approve the
principle of "standardisation" so that a specific and
certain multiplicand is determined for applying the
multiplier on the basis of age.
..........xxxxx..............."
19. Learned advocates after mutually exchanging the figures
have pointed out before the Court that calculation which
comes for addition of the amount of compensation be
considered in the interest of justice and the said chart is
accordingly reproduced hereunder which has been broadly
submitted : -
Rs. 1,500/- p.m. (Income)
+Rs. 600/- p.m. (40% prospective rise in income)
Rs. 2,100/- p.m.
x 70% (disability)
Rs. 1,470/- p.m.
x 12
Rs. 17,640/- p.a.
x 18 (adopting multiplier of 18 considering
__________________ age of 19 years)
Rs. 3,17,520/- (future loss of income)
+ Rs. 50,000/- (towards cost of artificial limb)
+ Rs. 75,000/- (towards pain, shock and suffering)
+ Rs. 50,000/- (towards loss of marriage prospects)
+ Rs. 75,000/- (towards loss of amenities in life)
+ Rs. 9,000/- (towards actual loss of income)
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
+ Rs. 15,000/- (medical expenses, special diet, attendant and
transportation etc.)
___________________
Rs. 5,91,520/- Total compensation
- Rs. 2,90,600/- Deducting amount already awarded by learned
Tribunal
_________________
Rs. 3,00,920/- Additional amount of compensation with 6%
interest from date of filing of claim petition.
20. In view of the aforesaid situation which is prevailing on
record, the present First Appeal stands allowed with
following order which would meet the ends of justice : -
(i) The judgment impugned dated 31.07.2008 passed by
the Motor Accident Claims Tribunal (Aux.), F.T.C. No. 6 at
Vadodara in M.A.C.P. No. 1721 of 1997 is modified to the
following extent that :-
(a) an additional amount of compensation of Rs.
3,00920/- is determined to be awarded together with
interest @ 6% from the date of filing of claim
petition;
(b) the aforesaid additional amount of compensation
in addition to what has been already awarded, be
C/FA/3042/2009 JUDGMENT DATED: 19/07/2022
deposited to the concerned Tribunal within a period
of one month from today and upon such deposit, an
appropriate disbursement order be passed by the
concerned Court.
21. With these observations, the present First Appeal stands
ALLOWED.
sd/-
(ASHUTOSH J. SHASTRI, J)
AMAR SINGH
