Gujarat High Court

Jayantibhai Atmarambhai vs Veerpalsinh Gyansinh Chauhan on 1 February, 2023

Bench: Aniruddha P. Mayee

     C/FA/2409/2020                              JUDGMENT DATED: 01/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2409 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
==========================================================

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 ?

==========================================================
                      JAYANTIBHAI ATMARAMBHAI
                               Versus
               VEERPALSINH GYANSINH CHAUHAN & 4 other(s)
==========================================================
Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
HEMALI R PANDYA(7773) for the Defendant(s) No. 1
MR ANKIT V DIXIT(10019) for the Defendant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 2,3,4
==========================================================

    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 01/02/2023
                             ORAL JUDGMENT

1. This First Appeal is preferred by the appellant against

the impugned judgment and award dated 31.08.2020

passed in Motor Accident Claims Petition No.15 of 2016 by

C/FA/2409/2020 JUDGMENT DATED: 01/02/2023

the 3rd MACT, Limbdi district Surendranagar, whereby the

learned Tribunal has awarded the compensation of

Rs.5,50,380/- along with interest @ 9% per annum.

2. The Brief facts leading to the case are as follows:

2.1 On 03.12.2015 at about 7:45 p.m. in the evening, the

appellant herein was travelling as a pillion rider on a

motorcycle being driven by respondent No.4 herein. The

accident occurred due to a car which was being driven in a

rash and negligent manner and which rammed into the said

motorcycle from behind due to which the appellant received

serious injuries.

2.2 The appellant suffered fracture of skull, sever bleeding,

fracture in right leg and in the right feet. After getting

medical treatment and undergoing operations, the appellant

suffered permanent disability.

2.3 Aggrieved the appellant preferred MACP No.15 of 2016

C/FA/2409/2020 JUDGMENT DATED: 01/02/2023

praying for a compensation of Rs.10,00,000/- under Section

166 of the Motor Vehicles Act, 1988. The learned Tribunal

issue summons. The parties appeared and led evidence in

support of their case. After assessing the evidence on

record, the learned Tribunal was pleased to award a

compensation of Rs.5,50,380/- with interest @ 9% per

annum.

2.4 Aggrieved the appellant has preferred this appeal.

3. Ms. Amrita Ajmera, learned advocate appearing for the

appellant submits that the learned Tribunal has grossly

erred in assessing the income of the appellant at Rs.3,000/-

per month. She submits that the appellant was a tailor by

profession and was earning Rs.15,000/- per month, and

therefore, the learned Tribunal ought to have assessed a

reasonable amount towards monthly income. In any case,

the learned Tribunal has erred in assessing the income at

Rs.3,000/- per month, which is even less than the

minimum wages as prescribed for a skilled worker since the

C/FA/2409/2020 JUDGMENT DATED: 01/02/2023

appellant was a tailor by profession.

4. She further submits that it is also brought on record

that after the accident, the appellant is left with disability of

88.5%. 33.5% towards the disability in the hand and leg

and 55% disability towards neurological injuries as per the

disability certificates produced by the appellant before the

learned Tribunal. She submits that the learned Tribunal

ought to have considered the disability in total instead of

assessing the same at 47% as accepted by the learned

counsel for the Insurance Company in the Tribunal.

5. She further submits that even on the other counts like

pain, shock, suffering attendance, Special diet,

transportation, etc, the amounts awarded to the appellant is

abysmally low and ought to be enhanced. She submits that

the income of the appellant should be held at least as that

of skilled worker prescribed under the Minimum Wages Act

in absence of any cogent evidence.

C/FA/2409/2020 JUDGMENT DATED: 01/02/2023

6. Per contra, Ms. Kirti Pathak, learned advocate

appearing for respondent No.5 -Insurance Company

submits that the compensation as awarded by the learned

Tribunal is just and proper. She submits that in absence of

any evidence brought on record with respect to monthly

income being earned by the appellant, the amount of

monthly income as assessed at Rs.3,000/- for the tailoring

job is just and proper. She submits that even on the other

heads, it has come on record that the appellant has

undergone treatment as indoor patient for 18 days, and

therefore, the compensation as awarded under the various

heads are also just and proper and that the impugned

judgment and award need not be interfered with and the

First Appeal be dismissed.

7. Heard the learned counsel for the parties and perused

the documents on record as well as the Record &

Proceedings of the case.

8. In the present case, it is not disputed that the

C/FA/2409/2020 JUDGMENT DATED: 01/02/2023

appellant was a tailor by profession and earning his income

by doing tailoring job. The learned Tribunal has assessed

the income of the appellant at Rs.3,000/- per month

without assessing any specific reasons. This Court is of the

opinion that in absence of any evidence on record with

respect to monthly income being earned by the appellant,

the learned Tribunal ought to have assessed the income as

per the Minimum Wages Act as applicable to a skilled

worker and as per the minimum wages as declared by the

Assistant Labour Commissioner Government of Gujarat.

The minimum wages as payable to a skilled worker was

Rs.7,886/- per month at the time of accident. Rounding of

the same, this Court is of the opinion that the monthly

income of the injured appellant be assessed at Rs.8,000/-

per month which be just and proper as he was doing

tailoring work.

10. In the present case, the appellant has suffered

disability of 47%,. Therefore, assessing the loss of future

prospects, the income of the appellant would be

C/FA/2409/2020 JUDGMENT DATED: 01/02/2023

Rs.10,000/- per month. Applying appropriate multiplier and

the disability incurred, the amount of the compensation

towards future loss of income would come to Rs.7,89,600/-.

Rounding of the same, it can be held to be Rs.8,00,000/-.

Since the appellant has suffered skull fracture as well as

fracture at the hand and leg, the compensation towards

pain, shock and suffering is enhanced to Rs.25,000/- and

the compensation towards attendance, special diet and

transportation costs are also enhanced to Rs.25,000/-.

Learned Tribunal has correctly awarded all the medical bills

as incurred at Rs.2,87,500/- as per the bills produced.

11. Adding above mentioned amounts, the appellant is

entitled for the following compensation:

Sr.No. Head                                       Amount
  A         Towards compensation towards          Rs.8,00,000/-
            future loss of income
  B         Towards actual loss of income (for    Rs.16,000/-
            two months)
  C         Towards medical expenses              Rs.2,87,500/-
  D         Towards pain, shock and suffering     Rs.25,000/-
  E         Towards attendance, special diet and Rs.25,000/-
            transportation
            Total                                 Rs.11,53,500/-







       C/FA/2409/2020                          JUDGMENT DATED: 01/02/2023

12. Therefore, this Court is of the opinion that the just and

proper compensation in the present case is Rs.11,53,500/-.

The amount of compensation as awarded by learned

Tribunal along with interest is confirmed. The appellant is

entitled for an additional compensation of Rs.6,03,120/-

along with 6% interest per annum from the date of filing of

the claim petition till its realization. The respondent No.5 is

directed to deposit the additional amount of compensation

along with interest @ 6% per annum within a period of six

weeks from the date of receipt of the order of this Court.

Upon depositing of such additional compensation, the

learned Tribunal is directed to release the entire amount of