Gujarat High Court
Iqaramkhan Bismillahmhan Pathan vs Harmatbhai J Rabari on 4 October, 2022
Bench: Mauna M. Bhatt
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1450 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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 ?
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IQARAMKHAN BISMILLAHMHAN PATHAN
Versus
HARMATBHAI J RABARI & 1 other(s)
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Appearance:
MR ADNAN KHAN, LD.ADVOCATE FOR MR MTM HAKIM(1190) for the
Appellant(s) No. 1
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 04/10/2022
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 ("the Act" for short) is filed by the original claimant as appellant
challenging the judgement and award dated 27/04/2007, passed by the
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
Motor Accident Claims Tribunal (Auxi.), Fast Track Court No.2,
Vadodara in Motor Accident Claim Petition No.1548 of 1993, wherein
claim petition came to be allowed in part and compensation of
Rs.47,380/- was awarded with interest at the rate of 7.5% per annum from
the date of filing of the claim petition till final disbursement.
2. Short facts, arising from the record, are as under:
On 25/07/1993 at around 11:30 in the night, original
claimant was traveling in S.T.Bus No.GJ-1-T-9692 as passenger. The
said bus met with an accident, resultantly, some of the passengers died
and many sustained injuries. The appellant - original claimant is one of
the passengers, who sustained injuries on account of the accident
occurred on 25/07/1993. It was case of the original claimant that the
accident occurred because of rash and negligent driving of driver of
S.T.Bus No.GJ-1-T-9692. Original claimant filed claim petition under
section 166 of the Motor Vehicles Act, seeking compensation of
Rs.1,75,000/-.
Upon filing of the claim petition, Notices were issued.
Respondent - insurance company appeared and filed its written
statement. Tribunal after hearing the parties and upon appreciation of oral
and documentary evidence on record, decided the issue of negligence in
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
favour of the original claimant by holding driver of the S.T.Bus, sole
negligent for occurrence of the accident. The Tribunal awarded total
compensation of Rs.47,380/- under different heads, as under:
Actual loss of income for 3 months Rs. 6,000/-
Future loss of income Rs.26,880/-
Pain, shock & suffering Rs.10,000/-
Special diet Rs. 3,000/-
Transportation charges Rs. 1,500/-
Total compensation Rs.47,380/-
3. Aggrieved by the amount of compensation awarded, present
appeal is filed by the original claimant seeking enhancement.
4. Heard learned advocate Mr.Adnan Khan, for the appellant
and learned advocate Ms.Sejal Mandavia, for respondent No.2 - Gujarat
State Road Transport Corporation ("GSRTC" for short). As liability has
not been denied, presence of respondent No.1 is not necessary for
deciding this appeal and therefore dispensed with. Record and
proceedings of the case have been secured and placed before this court
for perusal.
5. Learned advocate Mr.Adnan Khan, for the appellant submitted that
the Tribunal is in error in not awarding future prospective rise in the
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
income of the deceased. In support of his submission, he relied upon
decision of Hon'ble Supreme Court in the case of Pappu Deo Yadav V/s.
Naresh Kumar reported in AIR 2020 SC 4424 and in the case of
National Insurance Company Limited vs. Pranay Sethi and Others
reported in (2017) 16 SCC 680 .
He further submitted that the Tribunal is in error in assessing
disability to the extent of 14%. He relied upon Disability Certificate of
Dr.Tushar Modi at Exh.34 and submitted that functional disability has
been assessed by the Doctor to the extent of 30% and therefore, the
Tribunal is in error in assessing disability to the extent of 14%. The
disability sustained resulted into reduction in earning capacity and
therefore, the tribunal ought to have considered disability to the extent of
30%. Moreover, as the claimant was 50 years of age at the time of
accident, multiplier of 11 would be applicable instead of 8.
Relying upon the decision of Hon'ble Supreme Court in the
case of National Insurance Company Limited vs. Pranay Sethi and
Others reported in (2017) 16 SCC 680 and Sarla Verma and others Vs.
Delhi Transport Corporation and another reported in (2009) 6 SCC
1211, he submitted to enhance the compensation towards other
conventional heads accordingly. He thus, requested to enhance the
compensation accordingly and to allow this appeal.
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
6. Per contra, Ms.Sejal Mandavia, learned advocate for the
respondent No.2- GSRTC submitted that the Tribunal has awarded just
compensation and therefore, no interference is called for. She further
submitted that Disability Certificate of Dr.Tushar Modi at Exh-34
mentions permanent partial disability to the extent of 30% whereas, in the
cross-examination Dr.Tushar Modi, stated that the claimant sustained
disability to the extent of 14% and therefore 14% is correctly assessed by
the Tribunal. She, thus contended to dismiss the appeal filed by the
original claimant.
7. Heard learned advocates for the respective parties and
perused the record and proceedings.
8. Upon re-appreciation of evidence, it is noticed that the
income of the original claimant was appropriately assessed by the
Tribunal. Considering the decision of Hon'ble Supreme Court in the case
of Pappu Deo Yadav (supra) and Pranay Sethi and Others (supra), the
original claimant would be entitled to 10% rise towards future
prospective income. Further, on conjoint reading of Exh-34,- a Disability
Certificate of Dr.Tushar Modi and Exh-33, his cross-examination, in my
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
opinion, the Tribunal has correctly assessed the disability at 14%, because
in the cross-examination Dr. Modi had stated that the claimant sustained
permanent partial disability to the extent of 14%. Further, considering the
contradiction between the certificate and cross-examination, in my
opinion, the Tribunal is correct in observing that Dr.Tushar Modi has not
given Disability Certificate in proper manner and therefore, also in my
opinion, the Tribunal is correct in assessing the functional disability to
the extent of 14%. As the claimant was of 50 years and self-employed at
the time of accident, multiplier of 11 would be applicable instead of 8.
Therefore, the original claimant would be entitled for future loss of
income as under:
"Rs.2,000/- per month + Rs.200/- (10% future prospective
rise) = Rs.2,200/- per month x 14% functional disability =
Rs.308/- per month x 12 months = Rs.3,696/- per annum x
11 multiplier (considering age at 50 years) = Rs.40,656/-".
9. In relation to the compensation under other conventional
heads, in my opinion, considering the period of hospitalization and the
treatment taken by the claimant, in my opinion, Rs. 20,000/- would be
appropriate towards pain shock and sufferings. Rs.6,000/- was correctly
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
assessed by the tribunal towards actual loss of income as the claimant
could not work for 3 months. For special diet, transportation and
attendant charges, Rs. 15,000/- would be appropriate.
10. In view of above, the original claimants would be entitled
for total compensation as under:
Future loss of income Rs.40,656/-
Actual loss of income (Rs.2,000/- x 3 months) Rs. 6,000/-
Medical expenses Rs. 5,000/-
Special diet, transportation, attendant charges Rs.15,000/-
Pain, shock and suffering Rs.20,000/-
Total compensation Rs.86,656/-
11. Therefore, following order is passed: -
ORDER
(1) First Appeal is partly allowed.
(2) The impugned judgement and award dated
27/04/2007, passed by the Motor Accident Claims Tribunal
(Auxi.), Fast Track Court No.2, Vadodara in Motor Accident
C/FA/1450/2008 JUDGMENT DATED: 04/10/2022
Claim Petition No.1548 of 1993, is hereby substituted and total
compensation of Rs.86,656/- is awarded to the original claimant.
As the Tribunal has awarded an amount of Rs.47,380/-, the original
claimant is entitled to get additional amount of Rs.39,276/-
[Rs.86,656/- - Rs.47,380/-] with interest at the rate of 6% per
annum from the date of filing of claim petition till its realisation.
The balance amount of compensation shall be deposited by the
respondent- insurance company with the Tribunal within a period
of eight weeks from the date of receipt of this order.
(3) The amount shall be disbursed to the original claimant
through RTGS, after due verification. The rest of the judgment and
award passed by the learned Tribunal shall remained unaltered.
(4) Registry is directed to transmit back the Record and
Proceedings of the case to the concerned Tribunal forthwith.
However, there shall be no order as to costs.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL
