Gujarat High Court

Prafulbhai Manibhai Patel vs Arjunbhai Maganlal Solanki on 22 February, 2023

Bench: Hemant M. Prachchhak

     C/FA/1972/2012                               JUDGMENT DATED: 22/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1972 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                            Sd/-

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

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 ?

==========================================================
                       PRAFULBHAI MANIBHAI PATEL
                                Versus
                  ARJUNBHAI MAGANLAL SOLANKI & 2 other(s)
==========================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HARDIK C RAWAL(719) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 22/02/2023

                             ORAL JUDGMENT

1. Present appeal is filed by the original claimant for

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

enhancement of the compensation amount.

2. Feeling aggrieved and dissatisfied with the

impugned judgment and award dated 27.2.2012 passed

by the learned Motor Accident Claims Tribunal (Auxi.)

Vadodara, in Motor Accident Claim Petition No.494 of

1994, whereby the learned Tribunal has partly allowed

the claim petition and awarded Rs.68,000/- towards

compensation to the original claimant.

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

under:-

3.1 On 13.1.1994 at about 7.15 p.m. the claimant was

going by driving his scooter bearing registration No. GJ-6-

C-2494. At that time, from opposite side, one Jeep bearing

registration No. GJ-01-9622 came in full speed and in

rash and negligent manner and dashed with the scooter

while overtaking another vehicle. The said accident

resulted into serious injuries on various parts of the

original claimant. The driver of the Jeep did not stop the

Jeep and ran away from the spot after the accident.

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

3.2 Due to the said accident, the claimant sustained

multiple fractured injuries on his right leg, on the right

wrist and also on the various parts of the body. He took

treatment, first in the Hospital of Dr. Arvind Patel.

Therefore, the claim petition being Motor Accident Claim

Petition No.494 of 1994 came to be filed before the

learned Motor Accident Claim Tribunal (Auxi) Vadodara

for compensation of the amount.

3.3 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 awarded Rs.68,000/- towards

compensation to the original claimant. Therefore, the

original claimant has filed present appeal for

enhancement of the compensation.

4. Heard learned Counsel Mr. MTM Hakim appearing for

the appellant - original claimant, learned Counsel Mr.

Hardik Raval appearing for the respondent No.2 and Mr.

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

Mazmudar, learned Counsel for the respondent No.3.

5. Learned Counsel Mr. MTM. Hakim, for the appellant

has submitted that the learned Tribunal has committed an

error in calculating the income of the injured claimant

and determining the loss of income to the claimant, while

passing impugned judgment and award of compensation.

Learned Tribunal has also committed an error by

considering 50% negligency on the part of the claimant

himself, though, there was no evidence on record or there

was no examination of the driver by the insurance

company. Therefore, learned Tribunal has committed an

error while considering negligency of 50% on the part of

the claimant. He has also submitted that the learned

Tribunal has considered 25% income of the deceased,

however, at the same time learned Tribunal has applied

multiplier of only 5, which is contrary to the settled

principle of law. He, therefore, submitted that present

appeal may be allowed and the amount of compensation

awarded by the learned Tribunal may be enhanced

appropriately.

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

6. On the contrary, Mr. Mazmudar, learned Counsel for

the respondent No.2 and Mr. Raval, learned Counsel for

the respondent No.3 have vehemently opposed and

objected the appeal. They have submitted that

considering the injury and considering the fact that even

after receiving such injury, the original claimant

appellant herein continued his service upto the age of his

retirement. Therefore, he has not sustained any economic

loss and therefore, learned Tribunal has rightly passed

the impugned judgment and award and learned Tribunal

has not committed any error in passing the impugned

judgment and order. He submitted that present appeal

may not be interfered with.

7. I have perused the material available on record as

well as the impugned judgment and award passed by the

learned Tribunal. It appears that the insurance company

has not examined the driver of the offending vehicle i.e.

truck and therefore, considering settled principle of law,

the issue of negligency cannot be gone into, unless and

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

until there is cogent and material evidence on record.

Further, this Court is of the view that learned Tribunal

has not properly appreciated the and considered this part

while considering the issue of negligency. I am of the

opinion that learned Tribunal ought to have considered

75% negligency on the part of the insurance company and

25% negligency on the part of the claimant.

8. Considering the settled legal position and after

hearing the learned Counsels appearing for the

respective parties, present appeal is required to be

allowed in part and the impugned judgment and award is

required to be modified to the extent.

9. 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 the just and adequate compensation

to the present appellant. In that view of the matter, the

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

present appellant is entitled to the enhanced

compensation.

10. Hence, in my view, the appellant is entitled for

enhanced compensation in following terms:-

      Rs. 4,754                     Income p.m.

      Rs. 1,188                     1/4 income p.m.
x               12                  Months
      ------------------
      Rs. 14,256                    Income p.a.
x                16                 (Multiplier considering as 34
                                    years)
      ------------------
      Rs. 2,28,096                  Future loss of income/ loss of
                                    amenities of life
+     Rs.       34,738              Medical Expenditure
+     Rs.       20,000              Pain, shock and suffering
+     Rs.       10,000              Special diet, attendant charges
                                    and transportation
      --------------------
=     Rs. 2,92,843                  Total Compensation
-     Rs.       73,211              (25% negligence deduction)
      --------------------
      Rs. 2,19,632
-     Rs.       68,000              Awarded by learned Tribunal
      --------------------
      Rs.     1,51,632              Additional amount of
                                    compensation.


11. Therefore,           the    appellant         is        entitled         to      get

Rs.1,51,632/- as enhanced compensation with 6% simple

interest from the date of application till realization.

C/FA/1972/2012 JUDGMENT DATED: 22/02/2023

12. The impugned judgment and award dated 27.2.2012

passed by the learned Motor Accident Claims Tribunal

(Auxi.) Vadodara, in Motor Accident Claim Petition

No.494 of 1994, is hereby modified to the aforesaid

extent.

13. The insurance company is hereby directed to deposit

the enhanced amount of compensation of Rs.1,51,632/-

within period 8 weeks from the date of receipt of the

present order with 6% interest before the concerned