Gujarat High Court
Sureshbhai Kantibhai Patel vs Dhirjakumar Jivabhai Vankar on 28 August, 2023
Bench: Mauna M. Bhatt
NEUTRAL CITATION
C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1628 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT 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 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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SURESHBHAI KANTIBHAI PATEL
Versus
DHIRJAKUMAR JIVABHAI VANKAR & 2 other(s)
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Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1
MR DHARMESH R PATEL(5592) for the Defendant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
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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 judgement and award dated 11.08.2010, passed by the
NEUTRAL CITATION
C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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Motor Accident Claims Tribunal, (Aux.), Sabarkantha at Modasa in
Motor Accident Claims Petition No.1052 of 2002, wherein claim petition
of the original claimant was allowed in part and compensation of
Rs.44,100/- was awarded with interest at the rate of 6% per annum from
the date of filing of the claim petition till its realization, with
proportionate costs.
2. Short facts, arising from the record, are as under:
2.1 For the accident, which occurred on 13.04.2002 on Malpur Road,
the appellant sustained injury. It was case of the appellant that when he
was waiting on the bus stand, one rickshaw bearing No.GJ-9-Y-321 came
in rash and negligent manner and pushed the appellant, for which, he
sustained injuries. For the said accident, an FIR was lodged and
Panchnama was drawn. The appellant herein - original claimant filed
claim petition under section 166 of the Motor Vehicles Act, seeking
compensation of Rs.1,00,000/-. It was case of the original claimant that
accident occurred due to sole negligence of driver of the rickshaw.
Upon filing of the claim petition, Notices were issues to the
respondents. Respondent - insurance company appeared and filed its
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C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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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.44,100/- under different heads, as under:
Future loss of income Rs. 19,200/-
Pain, shock and suffering Rs. 7,500/-
Medical expenses Rs. 10,150/-
Transportation, Diet Food and Attendant charges Rs. 6,000/-
Actual loss of income Rs. 1,250/-
Total compensation Rs.44,100 /-
3. Aggrieved by the amount of compensation awarded, present appeal
is filed by the original claimant as appellant, seeking enhancement.
4. Heard Mr.R.K.Mansuri, learned advocate for the appellant-
original claimant and Mr.H.G.Mazmudar, learned advocate for
respondent No.3- insurance company. Since the insurance company has
not disputed the issuance of policy to the rickshaw and liability not being
denied, presence of other respondents is not necessary for deciding this
appeal. Record and proceedings of the case is secured.
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C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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5. Mr.R.K.Mansuri, learned advocate for the appellant submitted that
the Tribunal is in error in assessing the income of the appellant at
Rs.1,250/- per month. Referring to the affidavit of appellant at Exh-47, he
submitted that by repairing the machines operating the borewell, the
appellant was earning Rs.3,000/- per month. Further, in cross-
examination by the insurance company, nothing contrary came on record
and therefore, Tribunal ought to have considered the income of original
claimant as Rs.3,000/- per month. Moreover, original claimant would be
entitled to get future loss of income to the extent of 40% as he was 20
years old at the time of accident. Considering the injury sustained and the
treatment underwent at the young age of 20, compensation awarded by
the Tribunal towards pain, shock and suffering needs enhancement.
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 towards other conventional heads
accordingly. Thus, he submitted to allow this appeal.
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C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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6. Per contra, learned advocate Mr.H.G.Mazmudar, for the
respondent- insurance company submitted that the Tribunal has awarded
just compensation based on evidence on record, which does not call for
interference of this Court. In relation to income, there is no income proof
produced. He therefore, submitted to dismiss the appeal filed by the
original claimant.
7. Heard learned advocates for respective parties and perused the
record and proceedings of the case. Upon re-appreciation of evidence, it
is noticed that in the affidavit of original claimant at Exh-47, he had
stated that he was earning Rs.3,000/- per month. It is true that no
evidence was produced by the original claimant to prove his income.
However, for the nature of work, the claimant was doing, it is difficult to
produce income proof. Therefore, in my opinion, Tribunal is in error in
considering the income of the claimant at Rs.1,250/- per month. I am not
unaware of the fact that no documentary evidence was placed record to
support his income. However, considering the nature of work and income
applicable as per Minimum Wages Act, the income of original claimant is
assessed at Rs.2,200/- per month. The disability assessed and agreed
between the parties before the Tribunal was 8%.
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C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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8. The original claimant was 18 years old at the time of accident and
therefore, in view of decision of the Hon'ble Supreme Court in the case
of Pappu Deo Yadav V/s. Naresh Kumar reported in AIR 2020 SC 4424
and Pranay Sethi (supra), the original claimant would be entitled to get
40% rise towards future loss of income. Thus, the original claimant
would be entitled for future loss of income as under:
"Rs.2,200/- per month + Rs.880/- (40% prospective rise) =
Rs.3,080/- per month x 8 % functional disability = Rs.246/-
per month x 12 months = Rs.2,952/- per annum x 18
multiplier (considering age of the claimant at 20 years) =
Rs.53,136/-".
9. As the claimant sustained serious injury for which, he was required
to take prolong treatment, in my opinion, Rs.10,000/- would be
appropriate towards pain, shock and suffering. The compensation under
other conventional heads in my opinion are properly considered by the
Tribunal, which does not call for any interference. Thus, the original
claimant would be entitled for total compensation as under:
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C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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Future loss of income Rs. 53,136/-
Pain, shock and suffering Rs. 10,000/-
Medical expenses Rs. 10,150/-
Transportation, Diet and Attendant charges Rs. 6,000/-
Actual loss of income Rs. 4,400/-
Total compensation Rs.83,686 /-
10. In view of the above, following order is passed: -
ORDER
(1) First Appeal is partly allowed.
(2) The impugned judgement and award dated
11/08/2010, passed by the Motor Accident Claims Tribunal,
(Aux.), Modasa in Motor Accident Claims Petition No.1052 of
2002, is hereby substituted and total compensation of Rs.83,686/-
is awarded to the original claimant. As the Tribunal has awarded an
amount of Rs.44,100/-, the original claimant is entitled to get
additional amount of Rs.39,586/- [Rs.83,686/- - Rs.44,100/-] 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
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C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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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.
(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.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL
