Gujarat High Court
Manish Kanubhai Patel vs Driver Of Truck No Gj 6T 4853 on 22 June, 2022
Bench: Sandeep N. Bhatt
C/FA/2713/2012 JUDGMENT DATED: 22/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2713 of 2012
FOR APPROVAL AND SIGNATURE:
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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MANISH KANUBHAI PATEL
Versus
DRIVER OF TRUCK NO GJ 6T 4853 & 2 other(s)
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Appearance:
MR HARESH J TRIVEDI(927) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/06/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles
Act, 1988, is preferred by the appellant - original claimant, being
aggrieved and dissatisfied with the common judgment and award
dated 11.05.2012 passed by the Motor Accident Claims Tribunal
(Aux.), City Civil and Sessions Court, Ahmedabad in Motor Accident
C/FA/2713/2012 JUDGMENT DATED: 22/06/2022
Claim Petition No.656 of 2001, by which the Tribunal has awarded
compensation of Rs.2,50,000/- with 7.5% 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 18.02.2000 at about 1:15 hours, the claimant - Manish
Kanubhai Patel was going on his motorcycle bearing registration
No.GJ-1-BM-5488, along with one Riken Jainikbhai Nayak as pillion
rider. When they reached near Fatepura Old Post Office, Paldi, at
that time, one truck bearing registration No.GJ-6-T-4853 came from
wrong side and dashed with the motorcycle of the claimant. It was a
head on collusion. Due to that, the claimant has sustained multiple
injuries. The pillion rider has also got injured in the said accident.
The claimant was immediately shifted to the hospital. A complaint
was also registered by a pillion rider against the truck driver before
the Ellisbridge Police Station, Ahmedabad being FIR No.109 of 2000.
Therefore, a claim petition was filed by the claimant to get the
compensation of Rs. 20 lakhs.
2.2 Notices were served to the opponents. Opponent No.3 -
insurance company has appeared and disputing all the averments
made by the claimant in the claim petition.
2.3 The Tribunal has framed the issues. The oral as well as
documentary evidence, mentioned in Para : 5 of the impugned award,
were led by the rival parties before the Tribunal. 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.
C/FA/2713/2012 JUDGMENT DATED: 22/06/2022
2.4 Hence, the present appeal by the appellant - original claimant
for enhancement.
3. Learned advocate for appellant - original claimant has
submitted that the Tribunal has committed any error in passing the
impugned award. He has submitted that the Tribunal ought to have
taken into consideration the real and actual income of the appellant
while calculating the amount of compensation. He has submitted the
Tribunal ought to have taken into consideration the fact that the
ability of the claimant to work is seriously affected due to the
accident. He has submitted that the Tribunal has committed serious
error by not considering the permanent disability of body as a whole
and has ignored the expert opinion in the form of medical certificate.
He has submitted that the Tribunal has awarded meager amount
towards pain, shock & suffering and loss of amenities of life, medical
expenses and treatment as well as attendant charges, special diet &
transportation. He has submitted that the present appeal may be
allowed and the amount be enhanced.
4. Per contra, learned advocate for the respondent No.3-
insurance company has mainly contended that at the time of
accident, the involved truck was not insured with the insurance
company and that fact has not been considered by the Tribunal. He
has submitted that the owner of the truck has suppressed the fact of
accident, which was occurred before filing proposal form. He has
submitted that therefore, insurance company has no liability to pay
any compensation. He has submitted that the Tribunal has held truck
liable. He has submitted that the owner of the truck has committed
fraud with the insurance company, therefore, the insurance company
is not liable to pay any compensation, which was not considered by
the Tribunal and passed the impugned award. He has submitted on
C/FA/2713/2012 JUDGMENT DATED: 22/06/2022
the aspect of quantum that the Tribunal has rightly considered the
income, so also the disability. He has submitted that the Tribunal has
rightly awarded the amount of compensation towards pain, shock &
suffering and loss of amenities of life, medical expenses and
treatment as well as attendant charges, special diet & transportation.
He has submitted that no further amount may be awarded to the
claimant. He has submitted that this appeal may be dismissed.
5. It is noteworthy to mention that the provisions of the Motor
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 I have considered the submissions made by the rival parties. I
have perused the record and proceedings of the Tribunal. I have
gone through the impugned judgment and award passed by the
Tribunal.
6.2 From record, it transpires that the Tribunal has rightly
considered the income of the claimant as it is a matter of record that
the claimant was a partner in the J.K. Textile and was getting
income. The Tribunal has rightly considered the monthly income of
Rs.3,000/-, which is just and proper.
6.3 Further, considering the certificate issued by the doctor at
Exh.58, wherein it is mentioned specifically that it was the disability
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to the extent 45%, which the Tribunal has not appreciated in true
spirit. Further, looking to the age of the claimant, i.e. 24 years at the
time of accident and considering the decision of the Hon'ble Apex
Court in the case of Sarla Verma versus Delhi Transport
Corporation reported in (2009) 6 SCC 121, 18 multiplier would be
just and proper to award. Therefore, considering disability to the
extent 45%, which would come to Rs.1,350/- x 12 (months) x 18
(multiplier) = Rs.2,91,600/- would be the amount under the head of
future loss of income, to be awarded to the claimant.
6.4 Further, it is a matter of record that the claimant has received
serious bodily injuries and has received permanent disability due to
the accident. The claimant has received about nine fractures on his
body. Further, the claimant had to undergo knee operation on his left
leg. The claimant has received crush injuries on his right leg. Due to
such serious injuries, the claimant taken treatment in the hospital for
the period from 18.02.2000 to 22.05.2000 as an indoor patient.
Therefore, keeping in view the decision of 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 towards pain, shock &
suffering as well as loss of amenities of life should be awarded more.
6.5 Further, in view of above treatment, much expenses had
occurred towards treatment and medicines. Therefore, the Tribunal
has committed error in awarding meager amount towards medicines
and treatment, which should be more considering the injuries and
treatment of the claimant.
6.6 The Tribunal has not properly awarded compensation towards
attendant charges, special diet & transportation keeping in view the
ratio laid down by the Hon'ble Apex Court in the case of Magma
C/FA/2713/2012 JUDGMENT DATED: 22/06/2022
General Insurance Company Limited versus Nanu Ram and
others reported in (2018) 18 SCC 130, which should be more.
6.7 Therefore, total compensation would be as under, which the
claimant is entitled to get:
Particulars Amount (Rs.)
Future prospective income 2,91,600/-
Loss of actual income 18,000/-
Pain, shock & suffering 30,000/-
Medical expenses & treatment 80,000/-
Attendant charges, special diet 16,000/-
& transportation
Total... 4,35,600/-
Therefore, I hold that the claimant is entitled to get the total
amount of compensation of Rs.4,35,600/- with 7.5% p.a. interest from
the date of filing the claim petition till its realization, which would
meet the ends of justice. Rest of the direction(s) of the Tribunal
remain same. The Tribunal has already awarded Rs.2,50,000/-
therefore, remaining amount of Rs.1,85,600/- would be the enhanced
amount of compensation payable to the claimant.
7. For the reasons recorded above, the following order is passed.
7.1 The present appeal is partly allowed.
7.2 The Insurance Company is directed to deposit the enhanced
amount Rs.1,85,600/- with 7.5% p.a. interest from the date of claim
petition till its realization before the concerned Tribunal, within a
period of six weeks from the date of receipt of this order.
7.3 The Tribunal shall disburse the entire awarded amount lying in
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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.
7.4 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
7.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
M.H. DAVE
