Tusharkumar Rajaram Patel vs Mahendrabhai Rawajibhai Thakor
2023 Latest Caselaw 2900 Guj

Citation : 2023 Latest Caselaw 2900 Guj
Judgement Date : 12 April, 2023

Gujarat High Court

Tusharkumar Rajaram Patel vs Mahendrabhai Rawajibhai Thakor on 12 April, 2023

Bench: Gita Gopi

     C/FA/3515/2019                                   JUDGMENT DATED: 12/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3515 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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                        TUSHARKUMAR RAJARAM PATEL
                                 Versus
                      MAHENDRABHAI RAWAJIBHAI THAKOR
==========================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR KV GADHIA(319) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 12/04/2023

                              ORAL JUDGMENT

1. The injured claimant is challenging the

judgment and award dated 21.3.2018 passed by

C/FA/3515/2019 JUDGMENT DATED: 12/04/2023

the MACT (Main), Panchmahal at Godhra in

MACP no. 282/11 raising the ground that the

income has not been considered in accordance

to the evidence. It was stated in the

affidavit that at the time of the accident,

the applicant - claimant was working as

Machine Operator in Gajanand Saw Mill and

thereby, earning Rs.8,000/- per month and to

substantiate the same, they have examined

owner of Gajanand Saw Mill at Exh.24.

2. Mr. Bhalodi, learned advocate for the

appellant submits that the learned Tribunal

has considered only Rs.3,600/- per month as

the income of the applicant though the fact

was proved by the owner of Gajanand Saw Mill

at Exh.24.

3. While countering the same, Mr. Gadhia,

learned advocate for the insurance Company

stated that though the said witness appeared

before the Tribunal, but has admitted that

C/FA/3515/2019 JUDGMENT DATED: 12/04/2023

he was not maintaining any accounts and

therefore, the contention of receiving

Rs.8,000/- per month as a salary could not

be proved. Further, the witness could not

even produce any attendance sheet or salary

slip of his employees to even support the

case of the applicant being his employee and

further states that the said witness is the

father of the claimant.

4. The learned Tribunal has observed that the

applicant had failed to prove that he was

doing any job as a Machine Operator in

Gajanand Saw Mill and that he failed to

prove his earning at Rs.8,000/- per month.

The learned Tribunal, thus, presuming the

income keeping in view the year of accident,

had considered the income at Rs.3,600/- per

month. The presumption so made by the

learned Tribunal is on random basis without

any support and no reliance is placed on

C/FA/3515/2019 JUDGMENT DATED: 12/04/2023

minimum wages schedule to assess the income

of the claimant. Hence, for just and fair

assessment, this Court considers the income

at Rs.4,370/- keeping in view the minimum

wages schedule. Age of the claimant is 29

years. The disability as has been consented

by the parties is 16%. The multiplier, thus,

would become applicable is 17. Hence, future

loss of income would come to Rs.1,42,637/-

(Rs.4,370/- x 12 X 16% x 17). The learned

Tribunal has granted Rs.20,000/- under the

head of pain, shock and suffering, actual

medical expenses is Rs.1,90,000/- and

towards food, special diet, transportation,

etc., Rs.10,000/- has been granted, which is

just and in accordance to the evidence on

record. However, the income assessed is

required to be considered at Rs.4,370/- per

month. Hence, under the head of actual loss

of income for a period of six months, which

C/FA/3515/2019 JUDGMENT DATED: 12/04/2023

has been considered by the Tribunal, the

amount under the said head would come to

Rs.26,220/-.

5. The computation of the compensation under

different heads would be as under:-

Rs.1,42,637/- Future loss of income Rs.26,220/- Actual loss of income Rs.20,000/- Pain, shock and suffering Rs.10,000/- Special diet, attendant and transportation 1,90,000/- Medical expenses Rs.3,88,857/- Total compensation

6. As the Tribunal has granted compensation of

Rs.3,59,104/- with interest at the rate of

9% per annum, the appellant would be

entitled to enhanced amount of compensation

of Rs.29,753/- with interest at the rate of

7.5% per annum from the date of filing of

the claim petition till its realization. The

insurance Company is directed to deposit

C/FA/3515/2019 JUDGMENT DATED: 12/04/2023

Rs.29,753/- within eight weeks from the date

of receipt of writ of this Court.

7. The impugned judgment and award be modified