Gujarat High Court
Hinaben Hasmukhbhai Rana vs Zafrullakhan Amankhan Pathan on 7 October, 2022
Bench: Mauna M. Bhatt
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2012 of 2012
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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HINABEN HASMUKHBHAI RANA
Versus
ZAFRULLAKHAN AMANKHAN PATHAN & 3 other(s)
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Appearance:
MR MOHSIN HAKIM, LD.ADVOCATE FOR MR MTM HAKIM(1190) for the
Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 4
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 07/10/2022
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 ("the Act" for short) is filed by the original claimant challenging the
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
judgement and award dated 07/05/2011, passed by the Motor Accident
Claims Tribunal (Auxi.), 6th Additional District Judge, Vadodara in
Motor Accident Claims Petition No.760 of 2005, wherein claim petition
filed by the original claimant came to be allowed in part and
compensation of Rs.5,00,000/- was awarded with interest at the rate of
7.5% per annum from the date of filing of the claim petition till
realization, with proportionate costs.
2. Short facts, arising from the record, are as under:
On 06/12/2004 at around 1:30 pm, Gopalbhai Rana,
Lalitaben Rana and Hinaben Rana were going on Borsad to Petlad road
by Autorickshaw No.GJ-7-Z-2254. When they reached near Khodiar
Mata temple, on Borsad-Petlad road, a S.T.Bus No.GJ-18-V-6898 came
from opposite side in rash and negligent manner with full speed and
dashed with Autorickshaw. Resultantly the Autorickshaw turned turtle
into the ditch. Gopalbhai Rana and Lalitaben Rana died on the spot,
whereas Hinaben Rana sustained serious injuries. For the said accident,
original claimant filed claim petition under section 166 of the Motor
Vehicles Act, seeking compensation of Rs.7,00,000/-. It was case of the
original claimant that accident occurred due to sole negligence of the
driver of the S.T.Bus No.GJ-18-V-6898.
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
Upon filing of the claim petition, Notices were issued.
Respondents appeared and filed their written statements. Tribunal after
hearing the parties and upon appreciation of oral and documentary
evidence on record, decided the issue of negligence in favour of the
original claimant by holding driver of the S.T.Bus, sole negligent for the
said accident. In the impugned judgement and award, the Tribunal
awarded total compensation of Rs.5,00,000/- with interest at the rate of
7.5% per annum from the date of filing of the claim petition till
realisation, with proportionate costs, under different heads, as under:
Future loss of income Rs. 1,44,000/-
Actual loss of income Rs. 20,000/-
Pain, shock & suffering Rs. 25,000/-
Treatment charges and medicines Rs. 2,90,000/-
Special diet, attendant charges, transportation Rs. 21,000/-
charges and Misc. expenditure
Total compensation Rs.5,00,000/-
3. Aggrieved by the amount of compensation awarded, present
appeal is filed by the original claimant seeking enhancement.
4. Heard learned advocate Mr. Mohsin Hakim, for the
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
appellant- original claimant, learned advocate Mrs. Vasavdatta Bhatt, for
respondent No.2- Gujarat State Road Transport Corporation ("GSRTC"
for short) and learned advocate Mr.Rituraj Meena for respondent No.4.
Since liability has not been denied by respondent No.2- GSRTC, presence
of other respondents is not necessary for deciding this appeal and
dispensed with. Record and proceedings of the case have been secured
and placed before this court for perusal.
5. Mr.Mohsin Hakim, learned advocate for the appellant
submitted that the Tribunal is in error in not assessing the income of the
appellant correctly. He submitted that the appellant was doing seasonal
work and thereby earning Rs.3,000/- per month, however, the tribunal has
assessed yearly income of the appellant at Rs.30,000/- only. He further
submitted that considering the nature of work, which the appellant was
doing, it is difficult to produce any income proof and even in the case of
housewife, the Courts have considered income of the appellant as
Rs.3,000/- per month and Rs.36,000/- per annum .
He further submitted that the Tribunal is in error in not
awarding future prospective rise. 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
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
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 30%. He relied upon Disability Certificate of
Dr.Tushar Modi at Exh.62 and submitted that as per Certificate,
permanent partial disability of the appellant is 19.8% of left lower limb
and 36.4% of right lower limb. Therefore, the Tribunal is in error in
assessing disability to the extent of 30%. The disability sustained by the
appellant resulted into reduction in functional capacity and therefore, the
tribunal ought to have considered disability to the extent of 36.4%.
Moreover, as the claimant was 27 years of age at the time of accident,
multiplier of 17 would be applicable instead of 16.
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. He thus, requested to enhance the compensation
accordingly and to allow this appeal.
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
6. Per contra, Mrs.Vasavdatta Bhatt, learned advocate for the
respondent- GSRTC submitted that the Tribunal has properly considered
the income of the appellant as Rs.30,000/- per annum. She further
submitted that compensation awarded by the Tribunal being just
compensation, does not call for any interference. She thus, submitted to
dismiss the appeal.
7. Heard learned advocates for the respective parties and
perused the record and proceedings of the case.
8. Upon re-appreciation of evidence, it is noticed that the
income of the appellant was appropriately assessed by the Tribunal as she
was doing seasonal work. 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 get 40% rise
towards future prospective income. Further, on conjoint reading of Exh-
62,- a Disability Certificate of Dr.Tushar Modi and Exh-61, his cross-
examination, in my opinion, the Tribunal has correctly assessed the
disability to the extent of 30% as body as whole. The tribunal relying
upon the cross-examination of Dr.T.P.Modi, where he stated that the
appellant can do tailoring work as well as other work, has assess the
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
disability to the extent of 30%, which in my opinion, is appropriate. As
the claimant was of 27 years and self-employed at the time of accident,
multiplier of 17 would be applicable instead of 16. Therefore, the original
claimant would be entitled for future loss of income as under:
"Rs.3,000/- per month + Rs.1,200/- (40% future prospective
rise) = Rs.4,200/- per month x 30% functional disability =
Rs.1,260/- per month x 12 months = Rs15,120/- per annum x
17 multiplier (considering age at 27 years) = Rs.2,57,040/-".
9. In relation to the compensation under other conventional
heads, in my opinion, considering the period of hospitalization and the
treatment taken by the appellant, in my opinion, the tribunal has correctly
assessed Rs.20,000/- towards actual loss of income. The compensation of
Rs.25,000/- towards pain, shock and sufferings; Rs.2,90,000/- towards
medicine and treatment charges and Rs.21,000/- towards special diet,
attendant charges, transportation charges and Misc. expenditure, in my
opinion, is appropriate.
10. In view of the above, the original claimant would be entitled
to get total compensation as under:
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
Future loss of income Rs. 2,57,040/-
Actual loss of income Rs. 20,000/-
Pain, shock & suffering Rs. 25,000/-
Treatment charges and medicines Rs. 2,90,000/-
Special diet, attendant charges, transportation Rs. 21,000/-
charges and Misc. expenditure
Total compensation Rs.6,13,040/-
11. In view of the above, following order is passed:-
ORDER
(1) First Appeal is partly allowed.
(2) The appellant - original claimant would be entitled to
get total compensation of Rs.6,13,040/-. As the Tribunal has
awarded an amount of Rs.5,00,000/-, the respondent - GSRTC
shall deposit the balance amount of compensation of Rs.1,13,040/-
[Rs.6,13,040/- - Rs.5,00,000/-] with interest at the rate of 6% per
annum with proportionate costs, from the date of filing of the claim
petition till realization, with the Tribunal within a period of eight
weeks from the date of receipt of this order.
C/FA/2012/2012 JUDGMENT DATED: 07/10/2022
(3) The original claimants are entitled for the
compensation and the same 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) Deficit Court Fees, if any, is to be paid by the
appellant within a period of four weeks, failing which the amount
shall be recovered from the amount to be deposited by the
insurance company.
(5) 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
