Rameshbhai Bhikhabhai Patel vs Viththalbhai Manilal Bariya
2023 Latest Caselaw 3625 Guj

     C/FA/3347/2013                             JUDGMENT DATED: 29/04/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 3347 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN --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 of            NO
      the judgment ?

4     Whether this case involves a substantial question of            NO
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

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         RAMESHBHAI BHIKHABHAI PATEL
                    Versus
     VITHTHALBHAI MANILAL BARIYA & 2 others
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Appearance:
MS MAMTA R VYAS(994) 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 MR. JUSTICE RAJENDRA M. SAREEN

                          Date : 29/04/2023

                         ORAL JUDGMENT

1. Admit. Mr.Palak Thakkar, learned advocate waives service of notice of admission on behalf of respondent no.3 - insurance company.

C/FA/3347/2013 JUDGMENT DATED: 29/04/2023

2. Heard learned advocates for the parties. Perused the record. The appellant herein is the original claimant before the Motor Accident Claims Tribunal (Aux) of Panchmahal at Godhra in Motor Accident Claims Petition No.1651 of 2005. The appellant - original claimant had preferred such petition claiming compensation for the injuries sustained to him due to accident. It is undisputed fact that on 4 th November, 2004 at about 5:00 p.m. he was going through village Ramod, Taluka Kalol on MAT no.GJ-17 539 at that time, the opponent no.1 came from the opposite side driving tractor rashly and negligently and dashed with the vehicle of the appellant - original claimant. Due to the accident, the appellant - original claimant had sustained serious injuries and hence, he being shifted to the hospital for treatment.

3. The only issue in this appeal is with regard to the quantum of compensation that may be awarded to the claimant. The tribunal has awarded an amount of Rs.1,73,000/- towards different heads including Rs.16,500/- as future loss of income (considering income of Rs.2,500/- and disability of 11% and multiplier of 5), Rs.12,500/- towards actual loss of income (for five months), Rs.15,000/- towards Pain, Shock and Suffering (PSS), Rs.1,19,000/- towards medical expenses and Rs.10,000/- under the head of SAT (Special diet, Attendent and Transportation). The appellant - original claimant was aged about 60 years and therefore, the tribunal has applied multiplier of 5. Thereby, the tribunal has awarded an amount of Rs.1,73,000/- as compensation.

C/FA/3347/2013 JUDGMENT DATED: 29/04/2023

4. Ms. Mamta Vyas, learned advocate for the appellant - original claimant has submitted that the tribunal has failed to consider the proper income of the appellant - original claimant. She has further submitted that tribunal ought to have consider at least Rs.4,000/- as monthly income of the appellant - original claimant. She has also submitted that looking to the age of the appellant - original claimant, multiplier of 9 be applied instead of multiplier of 5 as awarded by the tribunal.

4.1 Ms. Vyas, learned advocate for the appellant - original claimant also submitted that the tribunal has erred in awarding Rs.15,000/- under the head of pain, shock and suffering as the appellant - original claimant had sustained serious injuries and due to the injuries and he has to remain bedridden for 10 months. Thereby, she has requested to allow the present appeal by enhancing the awarded amount suitably.

4.2 Ms. Vyas, learned advocate for the appellant - original claimant further submitted that the actual loss of income is also calculated on the lower side by the tribunal and it should be enhanced to the tune of Rs.20,000/- considering the income of the appellant - original claimant as Rs.4,000/- per month.

4.3 Ms. Vyas, learned advocate for the appellant - original claimant submits that the amount of Rs.10,000/- awarded by the tribunal under the head of SAT is also not justified as for

C/FA/3347/2013 JUDGMENT DATED: 29/04/2023

the follow-up treatment he has time and again have to visit Vadodara from Kalol and therefore, he needed someone to accompany him and that had added additional expenses upon him. She therefore, requests to enhance some amount under the head of SAT.

5. Mr. Palak Thakkar, learned advocate for the respondent No.3 - insurance company has supported the impugned award and submitted that this Court may not interfere with the impugned award.

6. After hearing the learned advocates appearing for the parties and perusing the record, it is clear that the tribunal has failed to consider proper income of the appellant - original claimant, so also the future loss of income and not considered just and reasonable compensation under the heads of PSS, actual loss of income and SAT etc. Therefore, it would be appropriate to modify the award by enhancing the amount of compensation as under:

7. It is undisputed fact that appellant - original claimant had not claimed any exhaustive amount. It is submitted that appellant - original claimant was doing agricultural work and earning Rs.4,000/- per month. As such, this Court considers Rs.4,000/- as his monthly income and considering the disability of 11% for future loss of income the amount would come to Rs.5,280/- as yearly loss of income (Rs.4,000/- x 11% x 12) and after applying multiplier of 9 looking to the age of

C/FA/3347/2013 JUDGMENT DATED: 29/04/2023

the appellant - original claimant, the appellant - original claimant is entitled to Rs.47,520/- towards future loss of income.

8. As the monthly income of the appellant - original claimant is considered as Rs.4,000/- the actual loss of income would come to Rs.20,000/- (Rs.4,000 x 5) for the period of five months.

9. Further, considering the judgment of Division Bench of Hon'ble Supreme Court in case of Syed Sadiq Etc. Vs. Divisional Manager, united India Ins. Co., reported in 2014 (1) SCALE 377, appellant - original claimant is entitled for enhancement under the head of PSS and SAT as observed by Hon'ble Apex Court in para no.24 of the said judgment, which reads thus :

"24. It is pertinent to note that the appellant/ claimant in this appeal has produced medical bills for 8000/-. He was treated as an inpatient for 15 days in a private hospital. Therefore, considering the same, the High Court has awarded a sum of 15000/- under the head of medical and incidental expenses. However, considering the fact that the appellant/claimant was also required to have conveyance, nourishment and attendant charges for proper recovery

C/FA/3347/2013 JUDGMENT DATED: 29/04/2023

of health, we increase the compensation under this head to 50,000/-. Further, considering the fracture sustained by the appellant/claimant and the evidence produced by the doctor, another 5000/- awarded by the High Court towards future expenses is upheld by us."

10. Here in this case, as per the record, the appellant - original claimant had also sustained serious injuries due to which he has been treated as an indoor patient from 4 th November, 2004 to 20th November, 2004 in Ashirvad Hospital, Vadodara and again on 9th March, 2005 to 11th March, 2005 he has been admitted for removal of K-wire and as there was fracture injury as per Exh.82, he was again admitted on 13 th October, 2005 to 27th October, 2005 for operation.

11. Therefore, in view of settled legal position as above appellant - original claimant is entitled to Rs.40,000/- under the head of pain, shock and suffering (PSS) and Rs.20,000/- towards special diet, attendant and transportation (SAT). Thereby, the enhanced amount comes to Rs.2,46,520/-. As the tribunal has awarded Rs.1,73,000/-, the same shall be deducted from Rs.2,46,520/-. Hence, after deducting the amount awarded by the tribunal from the enhanced amount, it comes to Rs.73,520/- (Rs.2,46,520/- - Rs.1,73,000/-).

C/FA/3347/2013 JUDGMENT DATED: 29/04/2023

12. In the result, present appeal is partly allowed. The appellant - original claimant is entitled to enhanced amount of Rs.73,520/- with the interest at the rate of 6% from the date of original petition. The insurance company shall deposit the enhanced amount with interest within the period of 6 weeks from the date of receipt of this order before the tribunal.

13. R. & P., if called for, be sent back to the concerned tribunal forthwith.

Sd/-

(RAJENDRA M. SAREEN, J.) AMAR RATHOD...