Nitinkumar Jayantilal Parmar vs Mansukhbhai Tapubhai Luhar
2022 Latest Caselaw 8362 Guj

     C/FA/2529/2008                              JUDGMENT DATED: 23/09/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2529 of 2008


FOR APPROVAL AND SIGNATURE:                                           Sd/-


HONOURABLE MRS. JUSTICE MAUNA M. BHATT

=============================================

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 ?

=============================================
                    NITINKUMAR JAYANTILAL PARMAR
                               Versus
                MANSUKHBHAI TAPUBHAI LUHAR & 2 other(s)
=============================================
Appearance:
MR AMAR D MITHANI(484) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
=============================================

    CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 23/09/2022

                              ORAL JUDGMENT

1. This Appeal under Section 173 of the Motor Vehicles Act,

1988 ("the Act" for short) is filed by the appellant - original

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

claimant, challenging the judgment and award dated

24.08.1999, passed by the Motor Accident Claims Tribunal

(Main), Junagadh in Motor Accident Claims Petition No.235 of

1995, wherein the Tribunal has partly allowed the claim

petition and awarded compensation of Rs.2,45,250/- with 12%

interest p.a. from the date of filing of claim petition till its

realization with proportionate cost.

2. The facts in brief are:

2.1 That Nitinkumar Jentilal Parmar (original claimant) was

traveling in a Maruti Car No.GUW-9361 from Bhavnagar to

Junagadh. When the car reached near Movia village, one truck

No.GTE-8455 came from opposite direction and dashed with

Car resulted into an accident. For the said accident, the

original claimant sustained injuries and was taken to Dr.

Lakhani's hospital, Junagadh, where he remained as an in-door

patient for 15 days and operated more than thrice. It is on

record that through surgeries, the plats and iron rods were

inserted. The operation for external fixation was also done and

was required to take continuous treatment for more than eight

months. It was case of the original claimant that the accident

occurred on account of sole negligence on the part of driver of

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

truck and the claimant sustained permanent disability for no

fault of him. For the said accident, the original claimant filed

claim petition seeking compensation of Rs.5,00,000/-.

2.2 Upon claim petition being filed, notices were issued. The

respondent - Insurance Company appeared and filed their

written statement. The Tribunal, after hearing the parties and

on consideration of evidence on record, decided the issues as

under:

(i) In relation to negligence, the Tribunal held the driver

of truck as sole negligent for occurrence of the said

accident.

(ii) For compensation, the Tribunal awarded total

compensation of Rs.2,45,250/- with interest @ 12%

per annum from the date of filing of the claim petition

till its realization with proportionate cost.

2.3 Aggrieved by the quantum of compensation awarded, the

present Appeal is filed seeking enhancement.

3. Heard Mr. Aditya P. Mistri, learned advocate for Mr. Amar

D. Mithani, learned advocate appearing for the appellant -

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

original claimant and Mr. M. J. Shelat, learned advocate for

respondent - Insurance Company. As liability has not been

denied, presence of respondent Nos.1 and 2 (driver and owner

of the offending truck) is dispensed with. Record and

Proceedings have been secured from the Tribunal and placed

before the Court for perusal.

4. Appearing for the appellant-original claimant, Mr. Aditya

P. Mistri, learned advocate fairly submitted that the Tribunal

has considered the income of the claimant at Rs.3,450/- p.m.

to assess the dependency loss. The same is based on the

salary slip at Exh.110, and therefore, does not call for any

interference.

4.1 In relation to the disability, he submitted that 8%

disability as body as a whole was agreed between the parties

and therefore, Tribunal has correctly considered 8% disability.

He submitted that however no calculation and bifurcation has

been provided by the Tribunal to arrive at total compensation

of Rs.1,48,650/- for dependency loss. In relation to the actual

loss of income, he fairly contended that as the claimant could

not work for 28 months, the Tribunal has rightly calculated the

same at Rs.96,600/-. Relying upon the decision of Hon'ble

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

Supreme Court in the case of National Insurance Company

Limited Vs. Pranay Sethi and others reported in (2017)

16 SCC 680, he submitted that Tribunal is in error in not

awarding the compensation towards pain, shock and suffering.

Referring to findings of Tribunal, he submitted that admittedly,

the claimant had to remain hospitalized for more than 20 days

and had to remain under treatment for more than 28 months,

and therefore, the compensation under pain, shock and

suffering is required to be awarded accordingly. Relying upon

the actual medical bills at Exh.33 to 93, he submitted that the

Tribunal is in error in not awarding actual medical expenses

incurred by the claimant.

4.2 He, thus, submitted that to allow his appeal and enhance

the compensation accordingly.

5. On the other hand learned advocate Mr. M.J. Shelat for

the Insurance Company could not controvert the fact that

Tribunal has not given any bifurcation to assess the

dependency loss. He submitted that, it is true that the Tribunal

has not provided any bifurcation for assessing dependency loss

however, the same will not make the award erroneous. In

relation to future prospective income, compensation towards

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

pain, shock and suffering and actual medical expenses

incurred, he could not controverted the submissions made on

behalf of the appellant.

6. Having heard learned advocates for the respective

parties and upon re-appreciation of evidence on record, it is

noticed that as per the salary certificate at Exh.110, the

claimant at the time of accident was earning salary of

Rs.3,450/- p.m. The permanent partial disability assessed

before the Tribunal was 8% as body as a whole, which was

agreed between the parties. It is not in dispute that future

prospective income was not awarded to the claimant. As the

claimant was 24 years of age at the time of accident, in view of

decisions of Hon'ble Supreme Court in the case of Pappu Deo

Yadav Vs Naresh Kumar reported in AIR 2020 SC 4424 and

Pranay Sethi (supra), he would be entitled for 50% rise towards

future prospective income. Further, in view of decision of

Hon'ble Supreme Court in the case of Sarla Verma and

others Vs. Delhi Transport Corporation and another

reported in (2009) 6 SCC 1211, the multiplier of 18 would be

applicable. Therefore, in my opinion, the claimant would be

entitled for the future economic loss as under:

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

"Rs.3,450/- per month (income) X 8% disability = Rs.276/- + Rs.138/- (50% prospective income) = Rs.414/- X 12 (p.a.) = Rs.4,968 X 18 Multiplier (as the age of the claimant was 24 years) = Rs.89,424/- as future economical loss"

7.3 Considering the number of surgeries performed on the claimant, the period of hospitalization and continuous treatment taken by the claimant for a considerable period, in my opinion, Rs.50,000/- would be appropriate towards pain, shock and suffering. The claimant would be entitled to actual medical expenses of Rs.90,000/- and attendance charges of Rs.50,000/-.

8. Therefore, the claimants would be entitled for the total compensation as under:

     Particulars                                             Amount (Rs.)
     Future Economic Loss                                            89,424/-
     Actual Loss of Income                                           96,600/-
     Pain, Shock and Suffering                                       50,000/-
     Actual Medical Expenses                                         90,000/-
     Attendance Charges                                              50,000/-
                                                    Total       3,76,024/-

9. For the reasons aforestated, following order is passed.

ORDER

(i) Appeal of the original claimant is partly allowed.

(ii) The appellants - original claimant would be entitled to total compensation of Rs.3,76,024/-. As the Tribunal

C/FA/2529/2008 JUDGMENT DATED: 23/09/2022

has awarded an amount of Rs.2,45,250/-, the respondent

- Insurance Company shall deposit the balance amount of compensation of Rs.1,30,774/- (Rs. 3,76,024 - Rs.2,45,250) with 6% interest p.a. and proportionate costs from the date of filing of the claim petition till its realization with the Tribunal within a period of eight weeks from the receipt of the order.

(iii) The rest of the judgment and award passed by the learned Tribunal has remained unaltered.

(iv) Deficit Court Fees, if any, is to be paid by the appellants within a period of four weeks, failing which amount is recovered by the Insurance Company from the enhanced amount.

(v) 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) T. J. Bharwad