Gujarat High Court
Mohammadjafar Ahmedbhai ... vs Mohammadrafik Ahmadmiya Idariya on 28 August, 2023
Bench: Mauna M. Bhatt
NEUTRAL CITATION
C/FA/5171/2010 JUDGMENT DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5171 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 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 ?
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MOHAMMADJAFAR AHMEDBHAI HARSOLIA
Versus
MOHAMMADRAFIK AHMADMIYA IDARIYA & 1 other(s)
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Appearance:
MR R.K. MANSURI (3205) for the Appellant(s) No. 1
MR GC MAZMUDAR (1193) for the Defendant(s) No. 2
MR HG MAZMUDAR (1194) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date: 28/08/2023
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act, 1988
("the Act" for short) is filed by the original claimant as appellant,
challenging the judgment and award dated 19.03.2010, passed by
Motor Accident Claims Tribunal (Main), Sabarkantha at
Himmatnagar, ("the Tribunal", for short), in M.A.C.P No. 178 of
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C/FA/5171/2010 JUDGMENT DATED: 28/08/2023
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2006, wherein, the Tribunal rejected claim petition filed by the
appellant herein.
2. The facts in brief are as under:
2.1 For the accident, occurred on 23.04.2004, at 9:45 a.m., near
Mahila Arts College, Himmatnagar- Vijapur Road, the appellant as
original claimant had filed claim petition under Section 166 of the
Motor Vehicles Act, ("the Act", for short), seeking compensation of
Rs.1,00,000/-. It was case of the appellant that he was sitting as
pillion rider on scooter No. GJ-9D-9594, insured with respondent
No.2- Insurance Company - (original opponent No.2). The said
scooter was driven by Mohammadrafik Ahmadmiya Idariya
(Opponent No.1) and on account of rash and negligent driving of the
driver of scooter, the accident occurred. Because of sudden brake,
the appellant fell down and sustained injuries on his right hand and
other parts of body. The FIR, was lodged on 24.03.2004 (next day of
accident). The tribunal after hearing the parties and upon
appreciation of evidences rejected the claim petition on the ground
that, name of person, who took the appellant to the hospital was not
referred in the FIR. Further, though the scooter was driven by
nephew of the appellant, claim petition was not filed by him. None
of the witnesses have been examined. Though, driver of the scooter
was hospitalized in the same hospital, he was not examined and
therefore, the fact of accident occurred is difficult to believe.
Upon filing of the claim petition, Notices were issued to the
respondents. Respondent - Insurance Company appeared and filed
its written statement. Tribunal after hearing the parties and upon
appreciation of oral and documentary evidence on record, rejected
the claim petition. Aggrieved by the rejection of claim petition, the
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C/FA/5171/2010 JUDGMENT DATED: 28/08/2023
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present appeal is filed.
3. Heard learned advocate Mr. Mansuri for the appellant and
learned advocate Mr. Mazmudar for the respondent No.2 - Insurance
Company. Since the insurance company has not disputed the
issuance of policy and liability not being denied, presence of the
other respondents is not necessary for deciding this appeal. Record
and proceedings of the case is secured.
4. Learned advocate Mr. Mansuri submitted that the Tribunal
erred in not considering the lodging of FIR, by the appellant.
Panchnama of the accident was drawn and charge sheet was also
filed against the driver of the vehicle and therefore, the order is
erroneous. For the income, learned advocate submitted that the
appellant was earning Rs.36,000/- per month. To justify income
earned, the income tax returns were filed at Exh. Nos. 35 and 36,
which the tribunal had not considered. Therefore, future loss of
income is to be assessed accordingly. Referring the hospitalization
and injuries, he submitted to award compensation under other
conventional heads accordingly. He also prayed that though original
claim petition was filed for Rs.1,00,000/-, considering that there was
no fault of appellant, nature of injury and the income which the
appellant was earning, enhancement of claim may be considered
accordingly.
4.1 Relying upon the decision of Hon'ble Supreme Court in the
case of National Insurance Company Limited vs. Pranay Sethi
and Others reported in (2017) 16 SCC 680 and Sarla Verma and
others Vs. Delhi Transport Corporation and another reported
in (2009) 6 SCC 1211, he submitted to enhance the compensation
under the head pain, shock and suffering. Thus, he submitted to
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allow this appeal.
5. On the other hand, learned advocate Mr. Mazmudar for
respondent No.2- Insurance Company submitted that the judgment
and award of the Tribunal is just and proper. The tribunal has rightly
observed that the fact of accident is hard to believe. In the
alternative, the appellant sustained minor injury on his wrist.
Disability was assessed @ 9%, by consent of both the parties.
Further, there was no loss of income which was evident from Income
Tax Returns of the next assessment year. He therefore submitted
that even otherwise, there is no error in the award passed by the
Tribunal and therefore no interference is required.
6. Considered the submissions and evidence on record. Upon re-
appreciation of evidence, it is noticed that for the accident occurred
on 23.03.2004, the FIR was lodged on 24.03.2004, i.e. next day.
Panchamana was prepared and charge sheet was filed against the
driver of the scooter, who happens to be nephew of the appellant.
Therefore, in the opinion of this court, the accident took place on
23.04.2004. Merely the FIR, was lodged on the next day cannot be
the ground for denial of claim. In view of the decision of Hon'ble
Supreme Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others (Supra), and Sarla
Verma & Ors vs Delhi Transport Corp.& Anr (Supra), the
Tribunal is therefore is in error to deny the claim of the appellant.
6.1 For grant of compensation this Court is of the opinion that for
assessing the income of the appellant, the income tax return for
Assessment Year 2003- 04 at Exh.35, is on record which refers to
total income of Rs.36,000/-. For the next Assessment Year 2004-05
at Exh. 36, the income tax return refers to income of Rs.50,274/-.
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Moreover, in the cross examination at Exh. 27, the appellant had
admitted that there was increase in his total income and therefore,
in the opinion of this Court, there was no future loss of income. The
appellant is therefore not entitled for any future loss of income as
claimed. However, considering the fact that for the accident
occurred on 23.03.2004, the appellant was taken to hospital for
emergency medical treatment therefore, just to balance the equity,
this Court deems appropriate to award Rs.20,000/- towards Pain
Shock and Suffering, Rs. 25,000/- towards actual loss of income,
Rs.15,000/- for medical treatment and Rs.10,000/- for Special diet,
attendant and transportation and therefore, the appellant would be
entitled for total compensation Rs.70,000/-.
7. In view of the above, following order is passed: -
ORDER
(1) First Appeal is allowed.
(2) The impugned judgment and award dated 19.03.2010,
passed by Motor Accident Claims Tribunal (Main), Sabarkantha at
Himmatnagar, in M.A.C.P No. 178 of 2006 is hereby quashed and set
aside.
(3) The original claimant would be entitled for total compensation
as under:
Pain, shock and suffering Rs.20,000/-
Actual loss of Income Rs.25,000/-
Medical treatment Rs.15,000/-
Special diet, attendant and transportation Rs.10,000/-
Total compensation Rs.70,000/-
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(4) The original claimant - appellant shall be entitled for
compensation of Rs.70,000/- with interest at the rate of 6% per
annum from the date of filing of claim petition till realisation. The
amount of compensation shall be deposited by the respondent -
insurance company with the Tribunal within a period of eight weeks
from the date of receipt of this order.
(5) The amount shall be disbursed to the original claimant
through RTGS, after due verification.
(6) 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.
(7) This award is passed in the facts and circumstances of the
present case and to just balance the equity, and shall not be treated
as precedent.
(MAUNA M. BHATT,J)
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