Gujarat High Court

Babubhai Shankerbhai Patel vs Bipinkumar Sendhabhai Patel on 31 August, 2023

Bench: Gita Gopi

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     C/FA/1656/2023                                   JUDGMENT DATED: 31/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1656 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      BABUBHAI SHANKERBHAI PATEL
                                 Versus
                      BIPINKUMAR SENDHABHAI PATEL
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 31/08/2023

                             ORAL JUDGMENT

[1] The claimant-injured is before this Court

praying for enhancement of the compensation

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amount in MACP no.795/98 which was pronounced

on 19.9.2022 by MACP (Aux), Mehsana at

Visnagar. The learned Tribunal had granted

compensation of Rs.4,52,834/- with interest at

the rate of 9% per annum.

[2] Advocate Mr. Amit Patel for the appellant

submits that this is a second round of

litigation. In the previous matter, the owner

was not served and thereafter, earlier order

passed by the Tribunal was set aside and the

MACP was ordered to be restored back for

deciding the matter afresh.

[3] Advocate Mr. Patel submits that the injured-

claimant is agriculturist and was also earning

income by doing borewell work and the income

was required to be considered accordingly.

However, the learned Tribunal has assessed the

monthly income at Rs.2,500/- per month which

according to Advocate Mr. Patel is not

consistent to the work undertaken by the

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injured. Advocate Mr. Patel states that the

learned Tribunal had also failed to take into

consideration that the claimant had suffered

75% permanent disability who has lost his left

leg above knee due to accidental injuries and

owing to the amputation of leg, the claimant

is unable to do his work and having lost the

source of employment, his functional

disability ought to have been considered as

100%. Advocate Mr. Patel further submits that

the learned Judge has also materially erred in

granting only Rs.5,000/- under the head of

pain, shock and suffering oblivious of the

fact that the claimant had suffered amputation

above knee at the age of 42 and that he would

be undergoing pain, suffering and trauma

throughout his life and would not be in a

position to live a normal life and thus,

according to Advocate Mr. Patel, the Tribunal

has not adequately compensated the claimant

even under other heads and has also failed to

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appreciate that the claimant would not have

normal life and would have to suffer other

amenities of life and enjoyment for the

remaining period of his life.

[4] Advocate Mr. Shelat for the insurance company

submitted that the claimant-injured failed to

prove his income during the course of trial by

producing any cogent evidence to show that he

was earning from any borewell work and thus,

submitted that the monthly income assessed at

Rs.2,500/- is just and appropriate. Advocate

Mr. Shelat further submitted that the learned

Tribunal has considered 75% permanent

disability for the body as a whole and total

amount of medical expenses have been granted.

Mr. Shelat submitted that there is no

documentary evidence in connection with the

agriculture work, and in the present case, the

oral evidence is to the effect that his father

owns agricultural property. Advocate Mr.

Shelat referring to the judgment in the case

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of State of Haryana & Anr. v. Jasbir Kaur &

Ors., (2003) 7 SCC 484 stated that Rs.3,000/-

could be considered as just amount for the

person engaged in agricultural work. Mr.

Shelat submitted that in earlier round of

litigation, the Tribunal has assessed income

of Rs.3,000/- per month which could be in par

to the minimum wages schedule.

[5] Record and proceedings indicates that in

previous round of litigation, the matter was

proceeded ex-parte against opponent no.1

before the MACT (Aux), Mehsana which came to

be decided on 27.11.2009, wherein the

insurance company came to be exonerated and

the claim was granted against opponent no.1.

Aggrieved by the said judgment and order,

opponent no.1 - Bipinkumar Sendhabhai Patel

filed Special Civil Application no.3386/2018

and in that matter, record and proceedings

were sent back to the Tribunal to decide the

application on merits. Thus, opponent no.1

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filed Misc. Motor Accident Claims Application

no.14 of 2022 before the Tribunal under the

provisions of Order 9 Rule 13 of the Code of

Civil Procedure, 1908 for setting aside the

ex-parte judgment and decree. The Tribunal

thus served all the necessary parties and

heard the matter afresh and thereafter, the

judgment and award was passed on 19.9.2022.

The said judgment and award dated 19.9.2022 is

impugned specifically on the ground that the

compensation granted is on very lower side.

The income has not been assessed in accordance

to the evidence and the amount under various

heads too, are on the lower side and the

learned Tribunal has failed to consider the

aspect of amputation of the leg of the

claimant.

[6] The facts of the case as were urged before the

Tribunal making a prayer for compensation for

the accidental injuries sustained is about the

vehicular accident dated 7.11.1997, where the

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claimant was traveling in a Matador bearing

registration no. GJ-2 T-9658 loaded with goods

from Kamana to Ratanpur of Idar Taluka and

suddenly on the road to rescue the monkeys, he

lost control on the Matador which turned

turtle on the road and the claimant sustained

grievous injuries over his left leg which was

amputed during the operation.

[7] The learned Tribunal has referred to the copy

of the complaint Exh.43 and the evidence of

the claimant vide Exhs.29 and 71 and had

observed that the claimant is not an income-

tax payer and no evidence with regard to

income and occupation has been produced on

record. Hence, the Tribunal assessed the

income at Rs.2,500/- per month. It is required

to be noted that in the earlier judgment which

was remanded back for hearing afresh, the

Tribunal has considered the income of the

claimant as Rs.3,000/- per month. It is the

case of the claimant that he was working in

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the agricultural field. The evidence had come

on record that his father is owning

agricultural land.

[8] In the case of State of Haryana (supra), the

Hon'ble Apex Court has explored the concept of

just and reasonable in connection with the

compensation under the Motor Vehicles Act,

1988 and further has referred the case, where

no material was pressed before the Tribunal to

substantiate the actual income from

agriculture source. The aspect has been dealt

with in Paragraphs 7 and 8 which are

reproduced hereunder to justify that the

assessment of income of Rs.3,000/- per month

of the claimant as was granted in earlier

round of proceedings would be appropriate to

be considered for the claimant.

"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is

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to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question.

There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrary.

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If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191).

8. It is clear on a bare reading of the Tribunal's decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs.4500 per month. No reason has been indicated to arrive at this figure.

In the light of what has been discussed above about "just compensation" the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life, and the matter was pending

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before the Tribunal and the High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauzing the relevant aspects, noted above, the monthly income is fixed at Rs.3000/- per month... ..."

[9] The age of the claimant has been considered as

42. In accordance to the principles laid down

in the case of National Insurance Company

Limited Vs. Pranay Sethi & Ors., (2017) 16 SCC

680, the prospective rise in income could be

considered as 25%. Hence, the income of the

claimant could be assessed as Rs.3,000/- per

month and 25% rise, would come to Rs.750/- and

thus, the income of the claimant is considered

as Rs.3,750/-.

[10] The learned Tribunal has relied upon the

disability certificate at Exh.49 wherein the

Doctor has assessed the permanent disability

of 75% which has been admitted by the

opponents. The loss which has been suffered by

the claimant is the amputation of left leg and

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75% permanent disability of the body as a

whole. Assessment for the functional

disability does not require any interference

from this Court since the claimant would be in

a position to do other work and can also have

the assistance of the person to look after the

agricultural work. Thus, the annual income

comes to Rs.45,000/-. 75% loss in income would

be Rs.33,750/-. Considering the age of 42,

multiplier of 14 would be applicable. Hence,

the future loss of income would come to

Rs.4,72,500/-.

[11] The learned Tribunal has granted only

Rs.5,000/- under the head of pain, shock and

suffering which is on the very lower side.

Since the claimant had to undergo operation

and had lost his left leg above knee at the

age of 42, it would be just and reasonable to

grant Rs.1,50,000/- under the head of pain,

shock and suffering and also taking into

consideration the fact that the claimant would

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not be in a position to enjoy the amenities of

life, it would be appropriate to grant

Rs.75,000/- under the head of loss of

enjoyment and amenities of life.

[12] As per the evidence, the claimant had to

suffer operation and taking into consideration

the disability of 75%, the fact that he would

not have recuperated, this Court considers

that he may have suffered loss of income for

about 5 months. Hence, under the head of

actual loss of income, Rs.15,000/- (Rs.3,000/-

X 5) is granted. The learned Tribunal has

granted Rs.5,000/- under the head of special

diet, attendant and transportation, which this

Court has not found any reason to change the

said amount as the claimant had been

adequately compensated under other heads.

Rs.36,710/- are the medical bills which have

been granted by the Tribunal as necessary

bills were produced on record. In view of the

said fact and the reasons given hereinabove,

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total computation of the compensation would be

as under:-

Rs.4,72,500/- Future loss of income + Rs.1,50,000/- Pain, shock and suffering + Rs. 75,000/- Loss of enjoyment and amenities of life + Rs. 15,000/- Actual loss of income + Rs. 5,000/- Special diet, attendant and transportation + Rs. 36,710/- Medical bills = Rs.7,54,210/- Total compensation

[13] As the Tribunal has granted compensation of

Rs.4,52,834/- with interest at the rate of 9%

per annum, the claimant would be entitled to

the enhanced amount of compensation of

Rs.3,01,376/- with interest at the rate of

7.5% per annum from the date of filing of the

claim petition till its realization. The

insurance Company is directed to deposit the

said amount within eight weeks from the date

of receipt of writ of this Court.