Gujarat High Court

Prafulbhai Madhubhai Desai vs Rajubhai Laxmanbhai Chauhan on 9 February, 2023

Bench: Hemant M. Prachchhak

     C/FA/2985/2008                                  JUDGMENT DATED: 09/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2985 of 2008

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                              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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                     PRAFULBHAI MADHUBHAI DESAI
                               Versus
                RAJUBHAI LAXMANBHAI CHAUHAN & 2 other(s)
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
=========================================================
  CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
                              Date : 09/02/2023
                             ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied with the

impugned judgment and award dated 24.01.2008 passed

by the learned Motor Accident Claims Tribunal (Main)

Gandhinagar in Motor Accident Claims Petition No.20 of

2006, whereby the Tribunal has partly allowed the claim

petition and awarded Rs.2,60,000/- towards compensation

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

to the original complainant

2. The short facts giving rise to present appeal reads as

under:-

2.1 On 17.11.2005 at about 6.00 a.m. an accident was

taken place. The deceased Naranbhai Somnathbhai

Valand along with other persons were going from

Gandhinagar to Virpur as a pedestrian in the 9th

Procession which was organized by Shri Lohana Yuva

Sangathan, Gandhinagar, when they were passing near

Vachhraj Tea Stall on Naklang-Gondal National Highway

Road, they were walking on the side of the road carefully.

At that time, one luxury bus bearing registration No.

GJ.4V-1130 came with full speed, rashly and negligently

on the wrong side of the road and dashed with Naranbhai

Somnathbhai Valand. As a result of which, accident took

place and Naranbhai has received grievous injuries on

various parts of his body and due to injury, he died during

the treatment hours.

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

2.2 Due to the said accident, since present appellant was

also pedestrian with the said deceased and other persons,

he was also sustained fracture on the right hand with

grievous injuries over head and other parts of the body.

Hence, above mentioned claim petition is filed by the

present appellant.

2.3 The learned Tribunal has considered the oral and the

documentary evidence and after considering the

arguments of all the concerned parties, partly allowed the

claim petition and passed the order and awarded

Rs.2,60,000/- towards the compensation. Therefore, the

claimant has filed present appeal for enhancement of the

compensation.

3. Mr. Modi, learned advocate for the appellant has

submitted that present appeal is filed on the ground that

learned Tribunal has committed serious error while

considering the income of the present appellant, at the

time of determining the amount of compensation. He

further submitted that the learned Tribunal has not

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

awarded just and adequate compensation. It is further

submitted that the learned Tribunal has not properly

awarded the amount under head of pain, shock and

suffering, though appellant has undergone five operations

after having injury on the head. Therefore, the amount

ought to have been awarded on higher side under the

head of pain, shock and suffering and instead that learned

Tribunal has awarded Rs.15,000/- towards pain, shock

and suffering and therefore, the impugned judgment and

award deserves to be modified.

4. On the other hand, Mr. Mehta, learned advocate

appearing for the insurance company has submitted that

there was no cogent material or evidence produced by

the appellant on record with regard to the future

prospective rise or any loss towards the future

prospective rise, as he was serving as a Statistics

Assistant in Gujarat State Agricultural Marketing Board,

Gandhinagar and he was continuously served as on the

same post till his superannuation and therefore there was

no loss in future prospective rise in his salary. Therefore,

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

learned Tribunal has not committed any error while

passing the impugned judgment and award. It is also

further contended by learned Counsel Mr. Mehta, for the

respondent insurance company that the learned Tribunal

has rightly considered the disablement in its true and

proper spirit and therefore, there is no interference is

required to be called for. It is also contended that the

learned Tribunal has rightly awarded the amount under

the head of pain, shock and suffering, as there was no

sufficient material produced by the appellant before the

learned Tribunal, therefore, learned Tribunal has rightly

passed the impugned judgment and award. It is also

further contended that learned Tribunal has rightly

awarded the amount under the head of transportation,

special diet and the attendant charges and therefore,

there is no need to enhance the amount awarded by the

learned Tribunal. It is further contended that the award

passed by the learned Tribunal is in accordance with law

and the appeal deserves to be dismissed.

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

5. Heard learned Counsel Mr. Hiren Modi, appearing for

the appellant - original claimant and Mr. Dakshesh

Mehta, learned advocate for the respondent insurance

company. Though the notice/rule served upon others,

they have chosen not to appear before this Court.

6. Considering the settled legal position and after

hearing the learned Counsels appearing for the

respective parties, present appeal requires to be allowed

in part and the impugned judgment and award is required

to be modified to the extent.

7. I have also considered the decision of the Hon'ble Apex

Court in case of Pappuu and others vs. Vinod Kumar

Lamba and other reported in (2018) 3 SCC 208. It is

also relevant to take into account the observations made

by the Hon'ble Apex Court in case of Jagdish vs. Mohan

and other reported in AIR 2018 SC 1347, which read

as under:-

"8 In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation.

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

The award of compensation must cover among others, the following aspects:

(i) Pain, suffering and trauma resulting from the accident;

(ii) Loss of income including future income;

(iii) The inability of the victim to lead a normal life together with its amenities;

(iv) Medical expenses including those that the victim may be required to undertake in future; and

(v) Loss of expectation of life.

In Sri Laxman @ Laxman Mourya v Divisional Manager, Oriental Insurance Co. Ltd2, this Court held:

"The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only 2011 (12) SCALE 658 for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

In K Suresh v New India Assurance Company Ltd3, this Court adverted to the earlier judgments in Ramesh Chandra v Randhir Singh4 and B Kothandapani v Tamil Nadu State Transport Corporation Limited.

The Court held that compensation can be granted for disability as well as for loss of future earnings for the first head relates to the impairment of a person's capacity while the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself.

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

In Govind Yadav v New India Insurance Company Limited6, this Court adverted to the earlier decisions in R D Hattangadi v Pest Control (India) (Pvt) Ltd.7 , Nizam's Institute of Medical Sciences v Prasanth S Dhananka8, Reshma Kumari v Madam Mohan9, Arvind Kumar Mishra v New India Assurance Company Limited10, and Raj Kumar v Ajay Kumar11 and held thus:

"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident." (Id at page 693). These principles were reiterated in a judgment of this Court in Subulaxmi v MD Tamil Nadu State Transport Corporation12 delivered by one of us, Justice Dipak Misra (as the learned Chief Justice then was).

9 Having regard to these principles, it would be now appropriate to assess the case of the appellant for enhancement of compensation. The accident took place on 24 November 2011. The appellant was a skilled carpenter and self-employed. The claim of the appellant that his earnings were Rs. 6,000/- per month cannot be discarded. This claim cannot be regarded as being unreasonable or contrary to a realistic assessment of the situation on the date of the accident.

10 In the judgment of the Constitution Bench in Pranay Sethi (supra), this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals.

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

In the case of a self-employed person, an addition of 40 per cent of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs. 2400/- towards loss of future prospects.

11 In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete Civil Appeal No. 7750 of 2012, decided on 1 November 2012 deprivation of the ability to earn. Nothing - at least in the facts of this case - can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90 per cent. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs. 18,14,400/-. In addition to this amount, the appellant should be granted an amount of Rs. 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs. 98,908/-); for extra nourishment (Rs. 25,000/-) and for attendant's expenses (Rs. 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The appellant is thus

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

awarded a total sum of Rs. 25,38,308/- by way of compensation. The appellant would be entitled to interest at the rate of 9 per cent per annum on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.

12 The appeal is accordingly allowed. There shall be no order as to costs."

8. Considering the recent decision of the Hon'ble Apex

Court in case of Sarla Verma and others Vs. Delhi

Transport Corporation and another, (2009) 6 SCC

121 and National Insurance Company Limited Vs.

Pranay Sethi and others, (2017) 16 SCC 680, it is

appropriate to grant just and adequate compensation to

the present appellant. In that view of the matter the

present appellant is entitled to the additional

compensation. Further looking to the medical condition of

the claimant and the hospital period of the claimant, the

amount granted under the head of pain shock and

suffering is very lower side. Hence, in my view, the said

amount is also required to be appropriately enhanced.

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

9. In view of the principle enunciated by the Hon'ble Apex

Court in the aforesaid decisions and considering the facts

and circumstances of the case, I am of the view that the

appellant is entitled to get enhanced compensation, in

following manner:-

===================================

Rs. 14,169 Income x 12 Months

--------------------

Rs. 1,70,028 20%

--------------------

              Rs.       34,005
    x                         14          Multiplier
              ---------------------
              Rs.     4,76,070            Future loss
    +         Rs.        42,507           Actual loss (3 months)
    +         Rs.        50,000           Pain Shock and Suffering
    +         Rs.        25,000           Special Diet, Attendance
                                          and Transportation
    +         Rs.        32,500           Medical
              ---------------------
              Rs.      6,26,077
     -        Rs.      2,60,000           Awarded by the Tribunal
              ----------------------
              Rs.     3,66,077/-          Enhanced compensation.

===================================

10. Therefore, the present appeal succeed in part and the

impugned judgment and award dated 24.01.2008 passed

by the learned Motor Accident Claims Tribunal (Main)

C/FA/2985/2008 JUDGMENT DATED: 09/02/2023

Gandhinagar in Motor Accident Claims Petition No.20 of

2006, is hereby modified to the extent that the appellant

is entitled to get enhanced amount of compensation of

Rs.3,66,077/-. The enhanced amount is bearing 6%

interest from the date of application till the realization.

11. The insurance company is hereby directed to deposit

the enhanced amount of compensation of Rs. 3,66,077/-