Gujarat High Court
Ibrahim Mohammad Makhmal vs Bhailalbhai Bhathibhai Baria on 16 February, 2023
Bench: A.S. Supehia
C/FA/1507/2020 JUDGMENT DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1507 of 2020
FOR APPROVAL AND SIGNATURE: sd/-
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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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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IBRAHIM MOHAMMAD MAKHMAL
Versus
BHAILALBHAI BHATHIBHAI BARIA
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Appearance:
MR APURVA JANI, ADVOCATE for
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/02/2023
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original
claimant against the judgment and award dated 30.04.2018
passed by the Motor Accident Claims Tribunal (Main),
Panchmahals at Godhra in M.A.C.P. No.295 of 2011, wherein
and whereby, the Tribunal has awarded the total amount of
Rs.1,46,633/- towards the compensation with 9% interest.
C/FA/1507/2020 JUDGMENT DATED: 16/02/2023
2. It is the case of the appellant that on 18.12.2010, the
appellant was returning from his nephew's garage towards his
home, at that time, the offending vehicle being Motor Truck
bearing registration No.GJ-7-Y-818 driving in a rash and
negligent manner and dashed with the vehicle of the appellant.
A complaint was filed with the Godhra B Division Police Station
vide I-CR No.142/2010. The appellant suffered grievous
injuries resulting in fracture and amputation of thumb of the
leg and various surgeries were performed on the appellant.
Hence, the appellant filed a claim petition seeking
Rs.6,50,000/- from the opponents.
3. Learned advocate Mr.Apurva Jani, appearing for learned
advocate Mr.Hemal Shah, for the appellant has submitted that
the impugned judgment and award passed by the Tribunal is
required to be modified since the Tribunal has erroneously
determined the income of the claimant at Rs.3,500/-. He has
submitted that the claimant was doing the agriculture work as
well as animal husbandry and was also a driver and earning an
amount of Rs.6,500/- per month. It is submitted that at least,
the claimant is entitled to more compensation by determining
the income as per the rate of Minimum Wages, as prescribed
by the State of Gujarat for the period from 01.10.2010 to
31.03.2011 since the appellant met with an accident on
18.12.2010. He has further submitted that the amount
awarded by the Tribunal towards Pain, Shock and Sufferings of
Rs.10,000/- is also required to be enhanced to Rs.15,000/-,
since the claimant had hospitalized for a period of 13 days and
has suffered grievous injuries, of which his entire limb (thai)
C/FA/1507/2020 JUDGMENT DATED: 16/02/2023
was dislocated as well as the left feet was amputated. Thus, it
is submitted that the award may be modified. Learned
advocate Mr.Jani, is further submitted that the claimant has
entitled for enhancement of the amount under the head of
Special Diet, Attendant and Transportation expenses.
4. Per contra, learned advocate Mr.Thomas, appearing for
the respondent No.3 - Insurance Company has vehemently
opposed this appeal and has submitted that the impugned
judgment and award passed by the Tribunal does not require
any interference since the same is appropriately passed by the
Tribunal. It is submitted that the income of the appellant was
appropriately assessed by the Tribunal and accordingly on the
basis of the documentary and oral evidence, the
compensation, which is awarded by the Tribunal, can be said
to be just and proper.
5. I have perused the record and proceedings as well as the
impugned judgment and award passed by the Tribunal. This
Court finds that on three aspects, the present appeal is filed.
One with regard to determination of income of the claimant, as
determined by the Tribunal at Rs.3,500/-, second with regard
to enhancement of the amount under the head of Pain, Shock
and Sufferings and third with regard to enhancement of the
amount under the head of Special Diet, Attendant and
Transportation expenses.
6. The documentary as well as oral evidence reveal that the
claimant was doing agricultural work as well as animal
C/FA/1507/2020 JUDGMENT DATED: 16/02/2023
husband work and he was also a driver, however with regard to
the evidence of earning Rs.6,500/- per month, no documentary
evidence, in support of such income was produced. Hence, the
Tribunal has assessed the income of the claimant at Rs.3,500/-.
7. In the considered opinion of this Court, the amount as
considered by the Tribunal is not appropriate as per the settled
proposition of law. Even if it is assumed that there was no
documentary evidence produced with regard to the income of
the appellant of Rs.6,500/-, however it is established that the
appellant was a driver and working as semiskilled labour. The
accident had occurred on 18.12.2010. The Tribunal has
determined the income of Rs.3,500/-, of which the claimant
has been aggrieved. Since no documentary evidence was
produced before the Tribunal suggesting the income of the
appellant, hence, as per the settled proposition of law, the
minimum wages as prescribed by the State Government for
the semiskilled labour for the period from 01.10.2010 to
31.03.2011 i.e. Rs.4,240/- is required to be considered and
determined.
8. Thus, the Tribunal has fallen in error in determining the
income of Rs.3,500/- of the appellant. Looking to the peculiar
facts and circumstances of the case, it would be apposite that
the income of the appellant is fixed at Rs.4,240/- for
determining just compensation.
9. So far as the second aspect with regard to the amount
awarded towards the Pain, Shock and Sufferings of Rs.10,000/-,
is concerned, it is a meager amount since the appellant has
C/FA/1507/2020 JUDGMENT DATED: 16/02/2023
suffered various injuries and fracture and was hospitalized for
a period of 13 days as per the injury certificate issued below
Exh.26. Hence, the amount awarded by the Tribunal towards
pain, shock and suffering of Rs.10,000/- is enhanced to
Rs.15,000/-. Further, the amount awarded towards the Special
Diet, Attendant and Transpiration of Rs.5,000/- is also less
amount since looking to the injuries received to the appellant
and total disability of 13% which he has suffered. The same is
also enhanced to Rs.10,000/-. The final compensation, which
would be just and proper, looking to the facts of this case, is
determined as under : -
S.No. Particulars Amount
1. Actual income Rs.4,240/- p.m.
2. Prospective Income 40% Rs.5,936/- p.m.
(Rs.4240/- + Rs.1696/-)
Disability 13%
3. Future loss of income Rs.1,38,902/-
(5,936x12x15x13%)
4. Medical Expenses Rs.46,233/-
5. Pain, Shock and Suffering Rs.15,000/-
6. Actual loss of income Rs.4,240/-
7. Special Diet, Attendant and Transportation Rs.10,000/-
Total Compensation Rs.2,14,375/-
10. Thus, the total compensation is fixed to Rs.2,14,375/-,
however, the Tribunal has awarded an amount of Rs.1,46,633/-
which is required to be deducted from the compensation
arrived at by this Court. Thus, the appellant would be entitled
to an additional amount of Rs.67,742/- with 6% interest from
the date of filing of the claim petition till the realization of the
amount. Accordingly, the impugned judgment and award
passed by the Tribunal is modified to the aforesaid extent. The
C/FA/1507/2020 JUDGMENT DATED: 16/02/2023
additional amount along with the interest shall be deposited
before the Tribunal within a period of twelve weeks, which
shall be disbursed to the claimant after due verification.
11. In view of the above, the First Appeal is partly allowed.
Record and proceedings shall be returned to the concerned
Tribunal forthwith.
sd/-
(A. S. SUPEHIA, J)
MB/14
