Gujarat High Court
Mehulkumar Ghanshyambhai Patel vs Prajapati Mulagiri Goswami on 9 February, 2023
Bench: Hemant M. Prachchhak
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2398 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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MEHULKUMAR GHANSHYAMBHAI PATEL
Versus
PRAJAPATI MULAGIRI GOSWAMI & 4 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Defendant(s) No. 5
MS LILU K BHAYA(1705) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/02/2023
ORAL JUDGMENT
1. This is an appeal by the appellant-original
claimant, challenging the judgment and award, Dated:
15.05.2008, passed by the learned Motor Accident
Claims Tribunal (Auxiliary), Fast Track Court No.2,
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
Vadodara ('the Tribunal', herein after), in Motor
Accident Claim Petition No. 1230 of 2003, whereby,
the Tribunal partly allowed the said claim petition
and awarded total Rs.1,87,000/- towards compensation,
along with interest at the rate of 7.5% per annum,
from the date of filing of the claim petition, till
realization so also proportionate costs.
2. Learned Advocate, Mr. Modi, appearing for the
appellant-claimant mainly submitted that the Tribunal
committed an error, while calculating the income of
the appellant-claimant by overlooking the relevant
documents, though, the same were produced before it.
2.1 It was submitted that, though, the appellant-
claimant produced the salary certificate, Exhibit-33,
issued by the TVS Motors and he also examined the
concerned person, i.e. owner of Jay Ambe Automobiles,
who was authorized service provider for the TVS
Motors, as a witness vide Exhibit-22, the Tribunal
did not consider the same, while calculating the
income of the appellant-claimant, and thereby
committed a grave error.
2.1.1 It was submitted that, while calculating the
income, the Tribunal did not even referred to the
aforesaid evidences and thereby, erred in passing the
impugned judgment and award.
2.2 Learned Advocate, Mr. Modi, submitted that the
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
Tribunal also did not award any amount towards the
loss of future or prospective income and committed a
serious error.
2.3 It was submitted that, on account of the
accident in question, the appellant-claimant
sustained 20% disability of the body as a whole, and
therefore, the amount awarded by the Tribunal under
the head pain, shock and suffering is insufficient.
2.4 It was submitted that, considering the nature of
injuries sustained by the appellant-claimant and the
fact that he had to remain in the hospital, as an
indoor patient, for about two months, the amounts
awarded under the heads attendance charges,
transportation charges and towards special diet are
very less and the Tribunal ought to have awarded some
more amount under these heads.
It was, therefore, prayed that the present
appeal be allowed.
3. On the other hand, learned Advocate, Ms. Bhaya,
appearing for Opponent No.3-insurer strongly opposed
this appeal and submitted that, initially, the
appellant-claimant had filed an application under
order 44 (1) and Order 33 (1) as a 'Pauper', stating,
therein, that he was neither having any movable or
immovable property and that he is not having
sufficient income. It was, therefore, submitted that,
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
at the time of accident, the appellant-claimant was
not having any income, and hence, the amount awarded
by the Tribunal is just and proper and does not call
for any interference.
3.1 By relying on the above, it was submitted that
the Tribunal rightly did not consider the rise in
future or prospective income of the appellant-
claimant.
3.2 So far as the amounts awarded by the Tribunal
under the head of pain, shock and suffering, medical
expenses, attendance charges etc. is concerned, it
was submitted that, since, the appellant-claimant did
not produce the sufficient evidence, the amounts
awarded by the Tribunal under the aforesaid heads are
just and proper. It was, thus, submitted that the
present appeal be dismissed.
4. I have heard the learned Advocates for the
parties and perused the record of this matter and
considering the ratio laid down by the Hon'ble Apex
Court in catena of decisions from time to time, the
Tribunal ought to have awarded just and fair
compensation. Hence, I am of the considered opinion
that the present appeal deserves to be allowed for
the reasons given, hereunder.
4.1 From the a perusal of the impugned judgment and
order of the Tribunal, it transpires that, while
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
calculating the loss of future or prospective income
to the appellant, the Tribunal has taken Rs.3,000/-
as the yearly or annual loss of income to the
appellant-claimant by observing that "...profession
and vocation of the claimant has not been pleaded as
well as had been stated on oath by the claimant".
However, while so doing the Tribunal seems to have
lost sight of the fact that the appellant-claimant,
in fact, had produced the salary certificate vide
Exhibit-33, and had also examined the owner of Jay
Ambe Automobiles vide Exhibit-22, which was the
authorized service provided for TVS Motors. Thus, the
submission made by the learned Advocate, Mr. Modi,
that, while calculating the amount towards future or
prospective loss of income, the Tribunal neither
considered nor appreciated the aforesaid evidences
and thereby, committed a serious error, deserves to
be accepted.
4.1.1 In view of the above, the Tribunal ought to
have held that the appellant-claimant must have been
earning, at least, Rs.3,500/- per month. Now,
considering the fact that the appellant-claimant must
have been earning Rs.3,500/- per month, the annual
loss of income would come to Rs.42,000/-.
4.1.2 Here, it may be noted that, at the time of
accident, the appellant-claimant was aged about 22
years. Thus, considering the young age of the
appellant-claimant, the Tribunal ought to have
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
considered the rise in the income of the appellant-
claimant, which the Tribunal failed to do. Thus,
after considering 40% rise in the future or
prospective income of the appellant-claimant, his net
monthly income would come to Rs.3500 + 1400 (i.e. 40%
rise in income)= Rs.4,900/- or his annual loss of
future or prospective income would come to Rs.4,900/-
X 12 = Rs.58,800/-.
4.1.3 From a perusal of the material on record, it
is revealed that, on account of the accident in
question, the appellant-claimant had to remain in the
hospital, as an indoor patient, for about two months.
Thus, considering the aforesaid aspect, the Tribunal
ought to have held that the appellant-claimant
incurred actual loss of income for about three
months. However, the Tribunal has not awarded any
amount towards actual loss of income. Resultantly,
the actual loss of income to the appellant-claimant
would come to Rs.3500 X 03 = Rs.10,500/-.
4.1.4 Here, it is pertinent to note that, before
the Tribunal, both the sides had agreed that the
disability sustained by the appellant-claimant is to
be treated as 20% of the body as a whole. Thus,
considering 20% disability of the body as a whole,
the loss of future or prospective income annually or
per year to the appellant-claimant would come to
Rs.58,800/- X 20% disability = Rs.11,760/-.
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
4.1.5 Now, from the record it transpires that,
while calculating the loss of prospective or future
income, the Tribunal applied the multiplier of 15,
which appears to be on the lower side and therefore,
considering the fact that the appellant-claimant was
22 years of age, at the relevant point of time, if,
the multiplier of 18 is applied, the same would meet
the ends of justice. Thus, by applying the multiplier
of 18, the loss in future or prospective income to
the appellant would come to Rs.11,760 X 18 =
Rs.2,11,680/-.
4.2 So far as the amount awarded by the Tribunal
under the head of medical expenses is concerned,
considering the documentary evidences produced by the
appellant-Claimant, the amount of Rs.90,000/- awarded
by the Tribunal under this head appears to be just
and needs no interference.
4.2.1 Insofar as the amount awarded by the
Tribunal under the head of pain, shock and suffering
is concerned, it is pertinent to note that, due to
accident in question, the appellant-claimant
sustained fracture injuries and plaster had to be
applied for 12 weeks and he had to remain in the
hospital, as an indoor patient, for nearly about two
months. Considering all these aspects, the amount of
compensation of Rs.35,000/- awarded by the Tribunal
under this head appears to be insufficient. Hence,
the ends of the justice would be met, if, an
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
additional amount of Rs.15,000/- is awarded under
this head and the same is enhanced to (Rs.35,000
(Awarded by Tribunal) + Rs.15,000 (Enhanced Amount)=
Rs.50,000/-.
4.2.2 Considering the nature of injuries sustained
by the appellant-claimant and the time period for
which he had to remained in the hospital, as an
indoor patient, which culminated into permanent
partial disability to the extent of 20%, the amount
awarded by the Tribunal of Rs.7000/- for special
diet, Rs.5,000/- for transportation and Rs.5,000/-
towards attendant charges do not appear to be
sufficient and the same require to be enhanced.
Accordingly, if, the amount towards food,
transportation and attendance, which comes to total
Rs.17,000/-, is cumulatively enhanced to
Rs.25,000/-, the same would be just and reasonable.
5. In view of the above, the appellant-claimant
shall be entitled to get the following amount towards
compensation, as stated herein below;
Sr. HEAD OF THE COMPENSATION AMOUNT OF
No. COMPENSATION
(IN RUPEES)
1. Actual loss of income Rs.10,500/-
2. Loss of Future or Prospective Rs.2,11,680/-
Income
3. Pain, Shock and Suffering Rs.50,000/-
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
4. Medical and Operation Expenses Rs.90,000/-
5. Attendance Charges, Rs.25,000/-
Transportation Charges and
Special Diet
Total Compensation Rs.3,87,180/-
5.1 Under the circumstances, the appellant-claimant
shall be entitled to get Rs.3,87,180/- towards
compensation.
5.1.1 In view of the fact that the Tribunal has
already awarded an amount of Rs.1,87,000/- towards
compensation, after deducting the same, the
appellant-claimant shall be entitled to get net
additional or enhanced amount of compensation of
(Rs.3,87,180/- - Rs.1,87,000) = Rs.2,00,180/- and
rounding the same off would come to Rs.2,00,200/-.
6. Resultantly, this appeal is PARTLY ALLOWED. The
appellant-original claimant shall be entitled to get
Rs.2,00,200/- towards additional / enhanced
compensation, over and above the amount of
Rs.1,87,000/- already awarded by the Tribunal, along
with simple interest, at the rate of 6% (Six Percent)
per annum, from the date of the filing of the claim
petition before the Tribunal, till actual
realization.
C/FA/2398/2009 JUDGMENT DATED: 09/02/2023
6.1 The aforesaid amount of compensation shall be
deposited before the concerned Tribunal by all the
opponents jointly or severally within the period of
EIGHT WEEKS, from today.
6.1.1 Once the amount, as stated herein above, is
deposited, after adjusting or deducting the amount
towards the deficit court fees, if any, the Tribunal
shall disburse, release the ENTIRE awarded amount in
favour of the appellant-claimant/s, after due
verification, by transferring the same to the
account/s of claimant/s by RTGS or NEFT.
6.2 The judgment and award, Dated: 15.05.2008,
passed by the learned Motor Accident Claims Tribunal
(Auxiliary), FTC No.2, Vadodara, in Motor Accident
Claim Petition No. 1230 of 2003 stands MODIFIED to
the aforesaid extent.
6.3 Registry is directed to send back R&P to the
concerned Tribunal, FORTHWITH. No order as to costs.
(HEMANT M. PRACHCHHAK,J)
UMESH/-
