Karshanbhai Dahyabhai Tandel vs Ishwarbhai Khalapbhai Patel
2022 Latest Caselaw 5234 Guj

      C/FA/1448/2011                               JUDGMENT DATED: 16/06/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1448 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

and

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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                      KARSHANBHAI DAHYABHAI TANDEL
                                 Versus
                  ISHWARBHAI KHALAPBHAI PATEL & 1 other(s)
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
MS AMI K PATEL(3152) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 16/06/2022

                              ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

C/FA/1448/2011 JUDGMENT DATED: 16/06/2022

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant for enhancement, being aggrieved and dissatisfied with the judgment and award dated 07.02.2011 passed by the Motor Accident Claims Tribunal (Main), Valsad in Motor Accident Claim Petition No.36 of 2004, by which the Tribunal has awarded compensation of Rs.2,84,200/- with 6% per annum interest to the claimant, holding Opponents i.e. owner and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 20.04.2006, the claimant came from Mumbai to Kosamba in Maruti Van bearing registration No.DN-09-9369. The said car was in full speed and was driven in rash and negligent manner endangering to human life. At about 7:15 a.m., near Bhilad on Selvas Road, the said car was dashed with the canal and caused accident. Due to that, the claimant received various fractures and injuries on the whole body. He was shifted to the hospital immediately for treatment. Therefore, the claim petition is filed by the claimant to get the compensation of Rs.30 lakhs with interest.

2.2 Notices were served to the opponents. Opponent No.1 has filed his written statement at Exh.24 and denied the facts. Opponent No.2

- insurance company has also filed its written statement at Exh.52 and denied the claim petition.

2.3 The Tribunal has framed the issues at Exh.29. The oral as well as documentary evidence were led by the rival parties before the Tribunal, which are mentioned in para 6 and 7 [internal Page Nos.4

C/FA/1448/2011 JUDGMENT DATED: 16/06/2022

and 5] of the impugned award. After considering the various documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.

2.4 Hence, the present appeal is by the claimant for enhancement before this Court.

3. Learned advocate Mr. Amit N. Patel for the appellant - original claimant has submitted that the Tribunal has committed an error by considering the income of only Rs.3,000/- per month. Further, he has submitted that the Tribunal has not considered prospective rise in the income while awarding future loss of income. He has submitted that the Tribunal has not properly awarded amount of compensation towards pain, shock and suffering. He has submitted that the Tribunal has not properly considered the compensation towards transportation, attendant charges, special diet, etc. He has submitted that interference may be called for by this Court in the impugned judgment. He has submitted that this appeal may be allowed and the amount of compensation may be enhanced.

4. Per contra, Mr. Rathin P. Raval, learned advocate for the insurance company has submitted that the Tribunal has rightly awarded compensation to the claimant. He has submitted that the Tribunal has rightly considered income of the claimant. He has submitted that the Tribunal has awarded just and proper compensation to the claimant and therefore, no interference is called for by this Court in the impugned judgment. He has submitted that this appeal may be dismissed.

5. It is noteworthy to mention that the provisions of the Motor

C/FA/1448/2011 JUDGMENT DATED: 16/06/2022

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.

6.1 We have considered the submissions made by the rival parties. We have perused the record and proceedings of the Tribunal. We have gone through the impugned judgment and award passed by the Tribunal. Now the question for consideration before this Court is as to whether the Tribunal has awarded just compensation by considering the aspects of income, prospective income and injuries as well as disability.

6.2 The contention that the Tribunal has not properly considered the income of the claimant is concerned, it is a matter of record that the claimant was working as Seaman in Executive Ship Management Private Limited, Singapore and was receiving Rs.30,000/- monthly income. The claimant has produced the evidence regarding his income at Exh.81. Due to the accident, the claimant was declared unfit for the job of Seaman as he has received permanent disability. Looking to the certificate at Exh.36 issued by Dr. A.M. Hajwane, the claimant may be considered permanently unfit for sea service. However, considering the deposition of the witness No.2 - Dr. Ajit Jerambhai Tandel at Exh.62, it reveals that the claimant is able to do table work. Thus, considering the circumstances, the income of the claimant is to be considered as Rs.10,000/- per month, which would

C/FA/1448/2011 JUDGMENT DATED: 16/06/2022

be just and proper. Further, the doctor has assessed 25% disability body as a whole looking to the injury, which would just and proper considering the material available on record. Therefore, considering the notional income of Rs.10,000/- per month and disability to the extent 25%, it would come to Rs.2,500/- per month towards future loss of income and looking to the age of the claimant i.e. 51 years at the time of accident, the multiplier of 11 would be proper. Thus, Rs.2,500/- multiplied by 12 months and further multiplied by 11 multiplier, it comes to Rs.3,30,000/- would be the future loss of income, which should be awarded to the claimant towards future prospective income.

6.3 Further, it is a matter of record that the claimant was working as a Seaman at Singapore. Due to the accident, he was unable to perform his duty as a Seaman. Looking to evidence at Exh.63 and 64, the injury sustained by the claimant is of permanent nature which led to permanent disability. The claimant was admitted in the hospital for four months for various treatment of multiple fractures. Therefore, keeping in view the observations made by the Hon'ble Apex Court in the case of Syed Sadiq versus United India Insurance Co. Ltd. reported in 2014(2) SCC 735, the amount of Rs.25,000/- should be awarded towards pain, shock and suffering to the claimant. Further, since the claimant has taken long treatment for about four months as an indoor patient, the compensation of Rs.40,000/- (Rs.10,000/- monthly income x 4 months) towards actual loss of income should be awarded.

6.4 Further, the amount of compensation of Rs.30,000/- towards special diet, transportation expenses and attendant charges should be awarded keeping in view the catena of decisions of the Hon'ble Apex Court.

       C/FA/1448/2011                                JUDGMENT DATED: 16/06/2022




6.5     The Tribunal has rightly awarded the amount towards medical

expenses. Therefore, no interference is required to be called for qua medical expenses.

6.6 Thus, the appellant - claimant is entitled to get the following final amount as compensation :

                            Particulars                        Amount (Rs.)
         Future loss of income                                          3,30,000/-
         Special diet, transportation, attendant                           30,000/-
         Actual loss of income                                             40,000/-
         Medical expenses                                               1,48,200/-
         Pain, shock and suffering                                         25,000/-
                                                   Total...               5,73,200/-


6.7     Thus, the Tribunal has committed an error in awarding total

compensation of Rs.2,84,200/- only under various heads. The appellant - original claimant is entitled to get the additional amount of compensation of Rs.2,89,000/- over and above the amount of Rs.2,84,200/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.2,89,000/- to the appellant - original claimant together with interest @ 6% per annum from the date of the claim petition till realization. Rest of the direction(s) of the Tribunal if any, shall remain same.

7. For the reasons recorded above, the following order is passed.

7.1     The present appeal is partly allowed.

7.2     The judgment and award dated 07.02.2011 passed by the

Motor Accident Claims Tribunal (Main), Valsad in Motor Accident

C/FA/1448/2011 JUDGMENT DATED: 16/06/2022

Claim Petition No.36 of 2004 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above.

7.3 The opponent No.2 - insurance company is directed to deposit Rs.2,89,000/- (enhanced amount) before the concerned Tribunal, within a period of four weeks from the date of receipt of this order.

7.4 The Tribunal shall disburse the entire awarded amount (including the enhanced amount) lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimant, by account payee cheque, after proper verification and after following due procedure.

7.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.

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

(R.M.CHHAYA,J)

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA