Burhanbhai Abdulrahim Shaikh ... vs Maksudbhai Usmangani ...
2023 Latest Caselaw 3539 Guj

     C/FA/463/2013                              JUDGMENT DATED: 28/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 463 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO

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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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            BURHANBHAI ABDULRAHIM SHAIKH (MORAVALA)
                            Versus
           MAKSUDBHAI USMANGANI KHEDAPAVALA & 2 other(s)
==========================================================
Appearance:
MR MA KHARADI(1032) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                            Date : 28/04/2023

                           ORAL JUDGMENT

1. Though served, no one has appeared for the

respondent Nos.1 and 2.

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

2. This appeal has been preferred by the appellant -

original claimant under section 173 of the Motor Vehicles

Act ("the Act" for short) being aggrieved and dissatisfied by

the judgment and award passed by the learned Motor

Accident Claims Tribunal (Aux), Panchmahal @ Godhra in

Motor Accident Claims Petition No.1524 of 2005 on

29.1.2008.

3. The brief facts of the case that emerge from the

record are as under.

3.1 That on 14.5.2005 the claimant and his minor

son Shehjad were going as pillion riders on Hero Honda

Motor Cycle No.GJ 17 5264 for attending a marriage

ceremony at village Godhibda. The motor cycle was being

driven by one Faruk Gulam Gatli who was driving the motor

cycle on the correct side of the road and when they reached

near village Rinchhdi, the opponent No.1 came driving

Truck No.GJ 7 Y 347 in a rash and negligent manner and

came on the wrong side of the road and dashed the truck

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

with the motor cycle, as a result of which, both the pillion

riders sustained injuries and minor Shehjad succumbed to

his injuries. A complaint at I CR No.59 of 2005 was

registered with Santrampur Police Station. The respondent

No.2 is the owner of Truck No.GJ 7 Y 347 and the

respondent No.3 is the insurance company of the truck

involved in the accident.

4. The claimant filed the claim petition against the

driver, owner and insurance company of the truck but did

not join the driver, owner and insurance company of the

motor cycle that was involved in the accident and the

notices were duly served to all the respondents, but the

respondent Nos.1 and 2 have remained absent. The

respondent No.3 insurance company appeared before the

learned Tribunal and filed their written statement at Exhs.9

and 11 and have specifically denied all the contents of the

claim petition.

5. The learned Tribunal, after having considered the

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

evidence on record, held all the opponents including the

driver, owner and insurance company of the motor cycle

jointly and severally liable to pay the amount of

compensation and considered the negligence of the truck

driver at 80% and as the driver, owner and insurance

company of the motor cycle were not joined as party to the

petition, the learned Tribunal held that the claimant was

entitled to only 80% amount of the total compensation from

the driver, owner and insurance company of the Truck

No.GJ 7 Y 347 and accordingly awarded the amount of

Rs.3,28,400/- but deducted 20% and held that the claimant

is entitled to Rs.2,62,720/- under all the available heads

with interest at the rate of 7.5% from the date of the petition

till realization.

6. Being aggrieved and dissatisfied by the aforesaid

award, the appellant - original claimant has approached

this Court by way of this appeal.

7. I have heard learned advocate Mr.M.A.Kharadi for

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

the appellant - original claimant and learned advocate for

Mr.Palak Thakkar for the respondent No.3. Though served,

the respondent Nos.1 and 2 have not appeared.

8. It is mainly contended by Mr.M.A.Kharadi,

learned advocate appearing for the appellant - original

claimant that the learned Tribunal has erred in calculating

the amount of negligence of the truck and the driver of the

motor cycle was not negligent upto 20% and in fact, the

learned Tribunal ought to have considered 100% negligence

on the part of the larger vehicle involved in the accident.

That the learned Tribunal has also awarded only the

amount of Rs.2000/- as transportation charges even though

it is on record that the claimant has spent the huge amount

on transportation during his treatment. Moreover, the

learned Tribunal has awarded the amount of Rs.10,000/-

under the head of pain, shock and sufferings when in fact, if

the medical certificate is considered, the claimant has

suffered fracture on his hand and leg and the learned

Tribunal has awarded only Rs.5000/- as attendant charges

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

which is a meager amount. Hence, considering the meager

amount awarded by the learned Tribunal, the amount must

be enhanced as per the settled principles of law.

9. On the other-hand, Mr.Palak Thakkar, learned

advocate for the respondent No.3 - insurance company has

submitted that the award of the learned Tribunal is just and

proper and no interference is required and hence, the

appeal of the appellant - original claimant must be

dismissed with costs.

10. I have gone through the record and proceedings

of the present appeal and there is no dispute with regard to

the occurrence of the accident and the fact that appellant -

original claimant was travelling along with the minor

deceased Shehjad as a pillion rider on the Motor Cycle

No.GJ 17 5264 which was being driven by one Faruk

Gulam. Gatli. That the motor cycle and Truck No.GJ 7 Y

347 had an accident and the driver of Truck No.GJ 7 Y 347

came on the wrong side, driving his truck in a rash and

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

negligent manner and dashed with the motor cycle and the

claimant sustained serious injuries.

11. The learned Tribunal has considered the

negligence of the truck driver upto 80% and also considered

the negligence of driver of the motor cycle upto 20%. But, it

is pertinent to note that even though the claimant was

riding as pillion rider and was aware of the details of the

driver, owner and the insurance company of the Motor Cycle

No.GJ 17 5264 have not joined them as party to the claim

petition. That as they have not been joined as party, the

learned Tribunal has held that the claimant is not entitled

to 20% amount of compensation and has ordered 80% of

the awarded amount to be paid by the driver, owner and the

insurance company of the Truck No.GJ 7 Y 347.

12. As far as the amount of compensation is

concerned, the learned Tribunal has calculated the monthly

income of the claimant at Rs.2500/- per month and

considering the disability of the left lower limb at 21% as

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

per the consent purshis of the parties produced on record at

Exh.28, loss of future earning has been calculated at

Rs.525/- per month and Rs.6300/- per annum. The

learned Tribunal has, as per the judgment of the Sarla

Verma and others Vs Delhi Transport Corporation and

another, reported in (2009) 6 SCC 121, applied the

multiplier of 16 and has granted the amount of

Rs.1,00,800/- as compensation for loss of future earning

capacity of the claimant which is just, reasonable and

proper. Considering the actual income of the claimant at

Rs.2500/- per month, the learned Tribunal has held that

considering the injuries suffered by the claimant, the

claimant would not have worked for a period of six months

and actual loss of income of Rs.15,000/- has been awarded.

Moreover, as per the medical bills produced by the claimant,

the amount of Rs.1,92,600/- has been awarded as medical

expenses which is just and proper. As far as the amount

awarded under the head of pain, shock and sufferings is

concerned, the learned Tribunal has awarded the amount of

Rs.10,000/- and Rs.10,000/- towards transportation,

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

special diet and attendant charges. The claimant has

produced his affidavit of the examination-in-chief at Exh.26

and the claimant has stated that due to the accident, he has

suffered compound communicated frature Lt.Femur Shaft,

Fracture Left Trochanetor, Commi. Frature Scapula

Lt.Fracture Rt.Wrist, Fracture Lateral Epicondyle Femur Lt.

and he was immediately taken to Santrampur Government

Hospital where he was given primary treatment and was

thereafter taken to the Government Hospital at Godhra.

From there, the claimant was taken to SSG Hospital,

Vadodara for further treatment and as the claimant did not

recover, he has taken treatment in the hospital of Dr.Rajiv

Shah, Orthopedic Hospital at Vadodara. That the claimant

was operated upon for his injuries and has thereafter taken

further treatment at the hospital of Dr.V.M.Shah,

Orthopedic Surgeon at Jamnagar and was also operated

upon in Jamnagar. That the claimant has spent huge

amount on transportation and considering the injury

certificate produced at Exh.20, it appears that the claimant

has suffered two fractures on his left leg and has also

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

suffered fracture on the left shoulder. The bills produced at

Exh.24 also prove that the claimant has paid room charges,

operation charges, theater charges, anesthesia charges and

was operated upon at Dr.V.M.Shah's Orthopedic Hospital,

Jamnagar, Baroda Hospital of Dr.Rajiv Shah and

considering huge amount of medical bills of Rs.1,92,600/-,

it appears that the amount awarded towards pain, shock

and suffering and transportation, special diet and attendant

charges is erroneous and much on the lower side.

Accordingly, if the claimant is granted the amount of

Rs.35,000/- towards pain, shock and sufferings and

Rs.20,000/- towards transportation, special diet and

attendant charges instead of the amount of Rs.10,000/-

each, it would be just and proper. The learned Tribunal has

rightly deducted negligence of 20% of the motor cycle from

the awarded amount as the claimant had not joined the

driver, owner and insurance company of the motor cycle as

party to the petition. In these circumstances, it is held that

the claimant is entitled to Rs.35,000/- as pain, shock and

sufferings, out of which the learned Tribunal has awarded

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

Rs.10,000/-. Hence, the claimant is entitled to enhanced

amount of Rs.25,000/- towards pain, shock and sufferings.

As far as the amount of Rs.20,000/- awarded towards

transportation, special diet and attendant charges is

concerned, out of which, the learned Tribunal has awarded

Rs.10,000/-. Hence, the claimant is entitled to enhanced

amount of Rs.10,000/- towards transportation, special diet

and attendant charges. In all, the amount of Rs.35,000/-

minus 20% negligence of the motor cycle involved in the

accident, i.e. the claimant is entitled to an amount of

Rs.28,000/-.

13. In view of the aforesaid discussion, First Appeal

No.463 of 2013 filed by the appellant - original claimant is

partly allowed. The impugned judgment and award passed

by the learned Motor Accident Claims Tribunal (Aux),

Panchmahal @ Godhra in Motor Accident Claims Petition

No.1524 of 2005 is hereby modified to the aforesaid extent.

The respondent No.3 is hereby directed to deposit the

enhanced amount of Rs.28,000/- before the learned

C/FA/463/2013 JUDGMENT DATED: 28/04/2023

Tribunal within a period of 12 weeks from the date of receipt

of the order with interest at the rate of 6%. As the original

matter is of 2005 and the First Appeal is of the year 2013,

the learned Tribunal is directed to disburse the said

enhanced amount to the claimant after due verification

through RTGS or NEFT. Record and Proceedings be sent

back to the concerned learned Tribunal forthwith. No order

as to costs.

(S. V. PINTO,J) H.M. PATHAN