Shri Rushi Sureshbhai Thacker vs Shri Ramesh Madeva Danger
2023 Latest Caselaw 5680 Guj

                                                                                       NEUTRAL CITATION




     C/FA/3870/2018                                   JUDGMENT DATED: 04/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3870 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE S.V. PINTO
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1     Whether Reporters of Local Papers may be allowed to                  YES
      see the judgment ?

2     To be referred to the Reporter or not ?                               NO

3     Whether their Lordships wish to see the fair copy of the              NO
      judgment ?

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

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                      SHRI RUSHI SURESHBHAI THACKER
                                   Versus
                       SHRI RAMESH MADEVA DANGER
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                               Date : 04/08/2023
                               ORAL JUDGMENT

1] This appeal has been filed by the appellant-original claimant

against respondents-original opponents under Section 173 of the

Motor Vehicles Act, ( 'The Act', for short) against the judgment

and award passed by learned M.A.C.Tribunal (Aux.) & 9th Ad-hoc

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Additional District Judge, Bhuj-Kutchh in Motor Accident Claim

Petition No. 595 of 2004 on 21st March, 2018. The parties are

hereinafter referred to as the claimants and the opponents as they

stood in the original petition for the sake of convenience, clarity

and brevity.

2] The brief facts that emerge from the record of the case are

as under:-

2.1] That on 5th August, 2004, the claimant was returning

from Gandhidham to Anjar in a Jeep Car No. GJ-02-A-6951 and

the driver of the jeep was driving the jeep on the left side of the

road with moderate speed and at around 21:00 hours, when they

reached on Gariyadar-Anjar Highway road, near Patel Saw Mill,

the opponent No. 1 came driving Truck No. GJ-12-W-9315, which

belonged to the opponent No.2 and was insured with the opponent

No. 3, in a rash and negligent manner and in excessive speed and

lost control over the truck. As a result of which, the truck came on

the wrong side of the road and dashed with the jeep and the

claimant sustained serious injuries. The offence was registered at

Adipur Police Station by Janva Jog Entry No.48/2004 at Station

diary Entry no. 7 of 2004 at 10:05 hours.

2.2] As the claimant sustained grievous injuries, he was

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immediately taken to Dr.Hotchandani Orthopedic Hospital at

Gandhidham and he had sustained injuries on his head, face,

shoulder of the right hand, right leg and other parts of his body and

sustained fracture on the right hand. He was operated at the

hospital and took treatment as an indoor patient from 05 th August,

2004 to 14th August, 2004. The claimant has claimed that he has

spent a huge amount for medical expenses and has suffered loss

of income. That at the time of the accident, he was doing

transportation business and working in Versha Shipping and

Travels and has suffered a great loss and hence has filed the

claim petition, claiming an amount of Rs.4,00,000/-, jointly and

severally, from all the opponents under all available heads. .

3] The opponents were duly served with the notices and

the opponent Nos. 1 and 2 did not file any written statement but

the opponent No. 3-Insurance Company appeared and filed its

written statement at Exh: 34, mainly denying all contents of the

claim petition.

4] After recording evidence of all parties, the learned

Tribunal awarded an amount of Rs.1,36,200/- with interest at the

rate of 7.5% p.a., to be paid jointly and severally by all the

opponents from the date of filing of application till realization, under

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all available heads.

5] Being aggrieved and dissatisfied with the judgment and

award, the appellant-original claimant has filed the present appeal

for enhancement of compensation, mainly stating that the amount

awarded by the learned Tribunal, after proper appreciation of the

evidence on record is not proper and the learned Tribunal has not

considered that the claimant would be earning Rs.15,000/- per

month in future. That the learned Tribunal has awarded meagre

amounts under pain, shock and sufferings, special diet, attendant

& transportation charges as also on actual loss of income. The

learned Tribunal has also awarded interest only at the rate of 7.5%

p.a., wherein, in fact, the claimant would be awarded interest at the

rate of 9 % to 12 % p.a. Hence, the amount of award must be

enhanced.

6] I have heard learned advocate Mr. Hemal Shah

appearing for the appellant-original claimant and learned advocate

Mr. G.C.Majmudar appearing for the respondent No.3. Though

served, the other respondents have not appeared.

7] Learned advocate Mr. Hemal Shah appearing for the

appellant has reiterated the contents of the claim petition and has

urged this Court to properly consider the evidence and enhance

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the amount of compensation accordingly.

8] Learned advocate Mr. G.C.Majmudar appearing for the

respondent No. 3 has submitted that the judgment and award

passed by the learned Tribunal is just, proper and reasonable and

no inference is required in the judgment and award by the tribunal,

and hence, appeal of the appellant must be rejected.

9] On perusal of the records and proceedings of M.A.C.P.

No. 595 of 2004, it appears that the claimant has produced the his

affidavit of examination-in-chief at Exh: 23 and has reiterated the

averments made in the claim petition. The claimant has produced

a copy of the FIR at Exh; 41, a copy of the panchnama at Exh:42,

a copy of RC book of truck No. GJ-12-W-9315 at Exh: 43 and the

copy of the insurance policy as also other documents on record.

10] The learned Tribunal, as far as the aspect of

negligence is concerned, has concluded that the accident has

occurred due to sheer negligent driving of the driver of Truck No.

GJ-12-W-9315, and as far as the income of the claimant is

concerned, the claimant has stated that he was doing the

business of transportation and earning Rs.8,000/- p.m. The

claimant has produced ITRs' for year 2001-2002, 2002-03 and

2003-04, and as per these documents the average income of the

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claimant was Rs.50,000/- p.a. The claimant has also stated that he

was earning monthly salary of Rs.3,000/- from Versha Shipping

and Travels and has examined the Manager of Versha Shipping

and Travels at Exh; 31 and hence the learned Tribunal has

concluded the income of the claimant to be Rs.3,000/- per month.

11] On perusal of the ITRs' produced by the claimant, it

appears that the income of the claimant, for the Assessment year

2002-03 is Rs.52,160/-, for the Assessment year 2003-04 is

Rs.60,178/- and for the Assessment year 2004-05, is Rs.50,718/-.

Considering these ITRs' produced on record, the monthly average

income of the claimant can be considered to be Rs.4,529/- per

month. The learned Tribunal has considered the monthly income

of the claimant to be Rs.3,000/- per month but the claimant has

produced the copies of ITRs', the same must be considered. That

as per the disability certificate of Dr. Hotchandani produced at Exh:

38, the parties have consented to consider 14% disability body as

a whole and as the age of the claimant on the date of accident,

was of 20 years, the multiplier of 18 is to be applied as per the

judgment of the Hon'ble Apex Court delivered in the case of Smt.

Sarla Verma (Smt) & Ors. Vs. Delhi Transport Corporation &

Anr, reported in (2009) 6 SCC 121. Accordingly, the claimant

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would be entitled to an amount of Rs.1,37,160/- (Rs.4529 X14%

disability X 12 X 18) under the head of future loss of income and

Rs.30,000/- towards medical bill, Rs.5000 towards special diet,

Attendant and transportation, Rs.7,500/- towards pain, shock and

sufferings and Rs.4529/- towards the actual loss of income. Thus

in all the claimant is entitled to get an amount of Rs.1,84,189/-.

12] In view of above discussion and as per the judgment of

the Hon'ble Apex Court in the case of Sarla Verma (Supra), the

claimant is entitled to an amount of Rs.1,84,189/-, while the

learned Tribunal has already awarded Rs.1,36,200/-, and hence,

the claimant is entitled to an enhanced amount of Rs.47,989/- with

interest at the rate of 6% p.a, jointly and severally from all

opponents from the date of filing of application till realization.

15] For the foregoing reasons, the appeal is allowed and

the judgment and award passed by learned M.A.C.Tribunal (Aux.)

& 9th Ad-hoc Additional District Judge, Bhuj-Kutchh in Motor

Accident Claim Petition No. 595 of 2004 on 21 st March, 2018 is

hereby modified and in addition, the claimant is entitled to

Rs.47,989/- as an additional amount with interest at the rate of 6%

p.a. is awarded which shall be from the date of filing of claim

petition till its realization. The Insurance Company is directed to

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deposit the additional amount of compensation with 6% interest as

early as possible within an outer limit of eight weeks from the date

of receipt of certified copy of this order. After depositing of the

additional amount of compensation, the same shall be disbursed in

favour of the claimants through NEFT/RTGS, after proper

verification.

Record and proceedings be sent back to the concerned

Tribunal forthwith. Pending civil applications, if any, shall stand

disposed of accordingly.

(S. V. PINTO,J) VVM