Gujarat High Court
Bhuraji Gemaji Bamniya vs Nanabhai Ladubhai Kotvala on 28 August, 2023
Bench: Mauna M. Bhatt
NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1629 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
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 ?
==========================================================
BHURAJI GEMAJI BAMNIYA
Versus
NANABHAI LADUBHAI KOTVALA & 2 other(s)
==========================================================
Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
==========================================================
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 14.07.2010, passed by
the Motor Accident Claims Tribunal, (Auxi), First Fast Track Court, at
Modasa ("the Tribunal", for short), in Motor Accident Claims Petition
No. 1240 of 2005, wherein the Tribunal awarded compensation of
NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
undefined
Rs.48,300/- with interest at the rate of 6% from the date of
application till realization.
2. The facts in brief are as under:
2.1 The accident occurred on 22.03.2005, at village - Sompur on
Dhasura road. The appellant was hit by one rickshaw bearing
registration No. GJ-9-Y-887, driven by respondent No.1. The
rickshaw was owned by respondent No.2 and insured with
respondent No.3- National Insurance Company. For the said
accident the appellant was taken to hospital. It was case of the
appellant that he had to undergo surgery and to remain as indoor
patient for three days. For the said accident, he preferred claim
petition under section 166 of the Act, before Fast Track Court
Sabarkantha at Modasa, seeking compensation of Rs. 2,00,000/-.
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, decided
the issue of negligence in favour of the original claimant by holding
driver of the rickshaw, as sole negligent for the accident. The
Tribunal awarded total compensation of Rs.48,300/- with interest at
the rate of 6% from the date of application till realization under
different heads, as under: -
Future loss of income Rs.28,800/-
Actual loss of income Rs.4,000/-
Pain, shock and suffering Rs.7,500/-
Medical expenses, Attendant charges, Special diet Rs.8,000/-
and Transportation
Total compensation Rs.48,300/-
NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
undefined
3. Aggrieved by the amount of compensation awarded, present
appeal is filed by the original claimant seeking enhancement.
4. Heard learned advocate Mr. R.K. Mansuri for the appellant and
learned advocate Mr. Sunil Parikh for respondent No.3 - National
Insurance Company. Since the insurance company has not disputed
the issuance of policy and liability not being denied, presence of
other respondents is not necessary for deciding this appeal. Record
and proceedings of the case is secured.
5. Learned advocate Mr. Mansuri submitted that the tribunal had
erred in not considering the income of the appellant appropriately.
The appellant was earning Rs.4000/- per month, by doing
agricultural and miscellaneous - animal husbandry work. For the
income earned the appellant had filed affidavit, despite that amount
of Rs.2,000/- was considered which needs enhancement. Actual loss
of income requires enhancement accordingly. He also submitted
that the appellant is entitled for 30% increase in prospective
income.
5.1 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
allow this appeal.
6. On the other hand, learned advocate Mr. Sunil Parikh for
respondent No.3 - Insurance Company submitted that the award of
the Tribunal is just and proper, as no evidence in relation to income
NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
undefined
was led by the appellant. For enhancement under the head pain,
shock and suffering, he submitted that the same is appropriately
awarded as no evidence was placed by the appellant. The award
being just and proper, no interference is called for.
7. Considered the submissions and also evidence on record.
Upon re-appreciation of evidence, it is noticed that for income
earned, the appellant filed an affidavit. It is true that no evidence
was placed on record in support of income earned. However, as per
the minimum wages Act, the minimum income in the year 2005 was
Rs.2,400/-. Therefore, this Court deems it appropriate to assess the
income of appellant at Rs.2,400/- per month. 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),
multiplier 14 would be applicable instead of 15, for assessing the
future loss of income. The disability agreed between the parties was
8%. Thus, the future loss of income is calculated as under:
Rs.2,400/- (income per month) + Rs.720/- (30% prospective income)
= Rs.3,120/- per month X 8% functional disability = Rs.249.6 per
month X 12 months = Rs.2,995.2 per annum X 14 (multiplier) = Rs.
41,932/- (future loss of income).
7.1 Considering the surgery underwent and period of
hospitalization, Rs. 10,000/- would be appropriate instead of Rs.
7500/-. Since the income is assessed at Rs. 2400/- per month, the
actual loss of income would be Rs. 4800/- instead of Rs. 4800/-
7.2 Thus, the original claimant would be entitled for total
compensation as under:
NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
undefined
Future loss of income Rs.41,932/-
Pain, shock and suffering Rs.10,000/-
Actual loss of Income Rs. 4,800/-
Medical Expenses Rs. 8,000/-
Total compensation
Rs.64,732/-
8. In view of the above, following order is passed:-
ORDER
(1) First Appeal is partly allowed.
(2) The impugned judgment and award dated 14.07.2010, passed
by the Motor Accident Claims Tribunal, (Auxi), First Fast Track Court,
at Modasa, in Motor Accident Claims Petition No. 1240 of 2005, is
hereby substituted and total compensation of Rs.64,732/- is
awarded to the original claimant. Since, the Tribunal was awarded
an amount of Rs.48,300/-, the original claimant is entitled to get
additional amount of Rs.16,432/- (Rs.64,732/- - Rs.48,300/-)
with interest at the rate of 6% per annum from the date of filing of
claim petition till its realisation. The balance 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.
(3) The amount shall be disbursed to the original claimant
through RTGS, after due verification. The rest of the judgment and
award passed by the learned Tribunal shall remained unaltered.
NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
undefined
(4) 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.
(MAUNA M. BHATT,J)
prk
