Jyotindrabhai Chhaganbhai ... vs Pradeepkumar Natvarlal Shah
2023 Latest Caselaw 147 Guj

     C/FA/2533/2008                               CAV JUDGMENT DATED: 06/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2533 of 2008


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
=============================================

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 ?

============================================= JYOTINDRABHAI CHHAGANBHAI PATE(DECD)THR'HEIRS Versus PRADEEPKUMAR NATVARLAL SHAH & 2 other(s) ============================================= Appearance:

MR MTM HAKIM(1190) for the Appellant(s) No. 1,1.1,1.2,1.3

MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3 MR MEHUL SHARAD SHAH(773) for the Defendant(s) No. 3

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

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 06/01/2023

CAV JUDGMENT

1. Present First Appeal under Section 173 of the Motor

Vehicles Act, arising out of Motor Accident Claims Petition No.

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

1370 of 1992 is filed for the purpose of seeking enhancement of

award of compensation then what has been awarded by the

learned Motor Accident Claims Tribunal (Main) Vadodara vide

judgment and award dated 02.11.2001.

2. The brief facts leading to rise of the present appeal are

that deceased injured Jyotindrabhai Chhaganbhai Patel along

with brother Shaileshbhai was standing near the board of

Vadsala village and both there waiting for bus to travel further

and at that point of time, original opponent no. 1 without

hooting the horn and observing the traffic rules came from

Vadsala village for going towards Por by taking a sudden turn

and on account of such, he lost control and the front portion of

his scooter dashed against the leg of deceased injured and on

account of such accident, the injured applicant fell down and

sustained grievous injuries. He was admitted in the nearby

hospital of Dr. Ashok Patel for a considerable long time, where

number of operations were carried out and during such

operations, blood was also transfused, but the said applicant

could not recovered and then succumbed to the injuries on

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

30.08.1995.

2.1. Initially the said deceased Jyotindrabhai Chhaganbhai

Patel had filed claimed petition during his lifetime being Motor

Accident Claim Petition No. 1370 of 1992, but then on account

of death of said injured claimant, legal heirs were brought on

record and the claim petition was processed further. It was the

assertion of the claimants at the relevant point of time that the

deceased was earning an amount of Rs.32,000/- per year and

cultivating the land and in addition thereof he was also getting

supervision charges, amounting to Rs.18,000/- from his brothers

and as such, his overall net income was to the tune of

Rs.50,000/- per annum. On account of said accidental injuries,

one labourer was required to be engaged for supervision of

cattle and they were paying Rs.600/-. On account these injuries,

and then death, huge medical expenditure was required to be

incurred and as such, the claim petition was filed for seeking

compensation of Rs.6 lakhs under various heads.

2.3. Pursuant to the notices having been served upon the

opponents, opponent no. 3 Insurance Company appeared and

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

filed its written statement denying all the averments and

allegations and it has been contended that the petition is filed

for seeking exaggerated quantum of compensation and,

therefore, requested to dismiss the claim petition. Pursuant to

the pleadings having been completed, Motor Accident Claims

Tribunal (Main), Vadodara (hereinafter referred to as the

"Tribunal") before whom the claim petition was registered has

framed the issues at Exhibit-34 in the following manner:

"(1) Whether it is proved that the claimant sustained injuries and died on account of rashness or negligence in driving on the part of the driver of the vehicle involved in the accident ?

(2) What amount, if any, the claimant is entitled to by way of compensation and from which of the opponents ? (3) What order ?"

2.4. After framing of the issues, both the sides have led their

respective evidence in which one of the applicant - Premilaben

wife of the injured deceased has examined herself at Exhibit-40

and to substantiate the claim and the factum of accident, one

Shaileshbhai was also examined as witness no. 2 at Exhibit-50

who happened to be eye witness to the occurrence since he

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

being brother has visualized the accident which took place. With

a view to substantiate further, documentary evidence has also

been led to justify the claim made in the petition. Originally the

petition was filed by the injured applicant - Jyotindrabhai who

died during the pendency of the claim petition and as such, by

bringing necessary amendment, legal heirs were brought on

record at Exhibit-27 and Exhibit-35 and the original claim of

Rs.2 lakhs came to be enhanced to Rs.6 Lakhs as indicated

above. Both the sides led their respective evidence and after

examining the material on record, documentary as well as oral

testimony, learned Tribunal was pleased to pass an order on

02.11.2001 whereby, the claim petition came to be partly

allowed by ordering to pay compensation of Rs.1,25,000/- with

9% interest as indicated in the order and since the said amount

which has been awarded is too meager as compared to the

claim, present first appeal has been filed for seeking

enhancement of the said award. The operative part of the said

award dated 02.11.2001 is reproduced hereunder :-

"The claim Petition is partly allowed.

               The   opponents     are      hereby    directed         to     pay





   C/FA/2533/2008                              CAV JUDGMENT DATED: 06/01/2023

Rs.1,25,000/- (Rs. One Lakh Twenty Five Thousand) to the claimant together with interest @ 9% p.a., from the date of application till realization with proportionate costs.

The interest amount of compensation, if any, paid or deposited under the principle of "No fault liability" shall be adjusted from the aforesaid amount of compensation awarded in this final adjudication.

Necessary orders as regards safe investment, apportionment, deficit court fees, if any, will be passed later on.

The liability of the opponents shall be joint and several.

Award be drawn up accordingly.

Opponents to bear their own costs."

2.5. Mr. M.T.M. Hakim, learned advocate appearing for the

applicants - claimants has vehemently contended that the

amount which has been awarded under the order passed by the

learned Tribunal is too meager as compared to the original

claim and as such, same deserves to be enhanced. It has been

submitted that though the learned Tribunal has awarded certain

amount under different heads, but the said amount and

quantification thereof is quite inadequate and as such, it is

against the principle of fair compensation. In fact, learned

advocate Mr. Hakim has vehemently contended that the learned

Tribunal has not properly construe the nexus of injuries vis-a-vis

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

the death. The death has occurred on account of serious injuries

which have been sustained and it is quite clear from the

evidence on record that prior to the accident, the deceased was

not suffering from HIV, it might be during the treatment, on

account blood transfusion such issue might have cropped up,

but then, has submitted that the injuries have occurred solely on

account of accident which took place. From the evidence on

record, learned advocate Mr. Hakim has submitted that with a

view to prove nexus with the accident and the death, medical

papers were also submitted and in addition thereof, one Dr.

Ashok Patel - Medical Practitioner was examined at Exhibit-51,

and who clearly deposed that while transfusing blood, he was

not symptomatic of having HIV positive. The deceased was

admitted on 21.09.1992 and discharged on 17.12.1992 as per

his version, but then, has submitted that lastly when he

examined the patient i.e. deceased who was found to be normal,

but it has been indicated that virus of aids can be caused on

account of transfusion of blood and then has submitted that he

has no knowledge about the criterion of compulsory HIV test at

the relevant point of time and as such, keeping overall

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

circumstances in mind and the documentary evidence, the

learned Tribunal found that the deceased breathed his last after

prolonged treatment of 17 months since several operations were

undertaken. The learned Tribunal categorically found that in his

opinion there is no proximate connection between the injuries

and cause of death and as such, according to learned advocate

Mr. Hakim, the learned Tribunal has not properly examined the

material on record.

2.6. Apart from that learned advocate Mr. Hakim has

submitted that the quantum which has been determined while

awarding compensation is on very lower side without keeping

the circumstances in mind the issue about his income at the

relevant point of time. As per the applicants' say, the deceased

was having agricultural income to the tune of Rs.5,000/- per

month and since he was tilling the land of his brothers as well,

he was having a further amount of Rs.1,500/- per month, but

then, for some interval, he was required to keep labourer at

monthly salary of Rs.1,200/- since he physically could not

supervise the land and as such, the learned Tribunal has

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

erroneously considered the income of the deceased and as per

the say of learned advocate Mr. Hakim the same is at much

lower side. Learned advocate Mr. Hakim has further submitted

that the judgment which has been relied upon and considered

by the learned Tribunal is quite on the distinct facts and the

same could not have been given any weightage. According to

learned advocate Mr. Hakim, the injuries have resulted into

death and same having been caused on account of accident

which is proved beyond reasonable doubt, there appears to be

an error in awarding the amount of compensation.

2.7. Learned advocate Mr. Hakim has then submitted the

calculations and prima facie come to a conclusion that on the

basis of income of Rs.1,500/- per month, if calculation is to be

made by applying multiplier of 15 keeping the age of deceased

as below 40 years, total addition deserves to be made in the

amount which has already been quantified and awarded by the

learned Tribunal.

3. As against this, Mr. Dakshesh Mehta, learned advocate

appearing on behalf the Insurance Company has submitted that

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

the deceased had died during the pendency of adjudication of

the claim and has failed to indicate the exact cause of death.

The claim has been drafted in a clever manner just to seek high

amount of compensation and under the circumstances when the

nexus has not been established, lump sum amount could not

have been awarded. In respect of pain, shock and suffering,

doctor's version ought to have been substantiated, which is

missing and the deceased has expired almost after a period of

four and half years from the date of accident. The decision

which is tried to be relied upon by the claimants as indicated in

the order impugned, same has no applicability. It has been

submitted that looking to the peculiar background of facts

especially when the report dated 11.05.1995 is indicating the

factum of HIV being caused to the deceased. At the best, on

pain, shock and suffering, the compensation may be awarded,

but not lump sum compensation at all. Be that as it may. The

award which has been passed by the learned Tribunal,

according to learned advocate Mr. Mehta is after due

consideration of the material on record and after perusing the

relevant oral as well as documentary evidence and that being

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

so, a well reasoned order may not be disturbed in the interest

of justice.

4. Having heard the learned advocates appearing for the

respective parties and having gone through the material on

record, it appears that the factum of accident is established

before the learned Tribunal and for that purpose not only the

deposition of deceased wife reflects at Exhibit-40 has been

substantiated and in addition thereto brother Shaileshbhai who

was standing at the relevant point of time on the spot had also

been examined at Exhibit-50 and keeping the said testimony of

both the witnesses and in view of the other documentary

evidence, the learned Tribunal has rightly come to the

conclusion that opponent no. 1 was driving the vehicle in

question in rash and negligent manner and on account of such,

the deceased sustained serious injuries.

4.1. Additionally, in addition to the documentary evidence

about the treatment meted out to the deceased one Dr. Ashok

Patel - Medical Practitioner has been examined at Exhibit-51

and considering the said testimony as well, it was opined by the

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

learned Tribunal that the amount of compensation deserves to

be awarded. From the said evidence, it was noticed by the

learned Tribunal that viral infection of aids can possibly be

caused on account of transfusion of blood and as such,

irrespective of such issue, reasonable amount deserves to be

awarded and for that purpose, the learned Tribunal has

analyzed the evidence led by the claimants. As indicated above,

the deceased was having agricultural income of Rs.5,000/- per

month and additionally was getting Rs.1,500/- per month from

his brother since he was tilling the land of this brother as well.

However, the medical bills were also produced to justify the

claim on expenditure caused and further, it has been found that

certain operations were also undertaken on the deceased and as

such, keeping overall circumstances in mind, it appears that

the amount which has been awarded of Rs.1,25,000/- is on the

lower side and the same deserves to be enhanced. Though

learned advocate Mr. Hakim has tried to indicate some more

amount of compensation ought to have been awarded according

to him, but the stand of learned advocate also appears to be on

higher side and as such, same does not deserves to be

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

considered in its entirety and as against this, learned advocate

Mr. Mehta has tried to initially oppose the claim of

enhancement, but then considering the totality of

circumstances, has left it to the discretion of the Court. Hence,

on the basis of the material on record, it appears to this Court

that considering the assertion of the applicants at least claim of

deceased being earning Rs.1,500/- per month deserves to be

accepted and accordingly, on that basis applying the factors

related to loss of dependency, loss of consortium, loss of estate,

funeral expenditure and the prospective rise, by applying

multiplier of 15, it appears that the amount deserves to be

enhanced then what has been awarded by the learned Tribunal.

5. Considering the overall circumstances prevailing on

record, if the Court considers the income of Rs.1,500/- per

month of the deceased, then, 40% prospective rise deserves to

be given, which comes to around Rs.600/- per month, which

means income to be derived is Rs.2,100/- and out of them 1/3 rd

personal expenditure if to be deducted, i.e. an amount of

Rs.1,400/- per month (1400 x 12), it comes to Rs.16,800/- and by

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

applying multiplier of 15, since deceased was below the age of

40 years (approximately 34 years ), loss of dependency comes

to Rs.2,52,000/-.

5.1. In addition thereto, loss of consortium for spouse and two

minor children would come to Rs.1,20,000/- and so far as loss of

estate and the funeral expenditure is concerned, in view of the

settled proposition of law, Rs.15,000/- deserves to be awarded

which comes to Rs.4,02,200/- to be payable to the applicants

claimants out of which the amount which has already been

awarded of Rs.1,25,000/- if to be deducted an amount of

Rs.2,77,000/- deserves to be awarded by way of additional

amount of compensation and as such, to that extent impugned

award dated 02.11.2001 deserves to be suitably modified. The

said additional amount of compensation as indicated above of

Rs.2,77,000/- deserves to be paid not @ 9% per annum, but

same shall be paid @ 6% per annum from the date of application

till realization with proportionate cost and to the aforesaid

extent the present, present appeal deserves to be allowed in

part. Rest of the award is unaltered.

C/FA/2533/2008 CAV JUDGMENT DATED: 06/01/2023

5.2. The aforesaid additional amount of compensation with

interest as indicated above to be deposited before the

concerned learned Tribunal within a period of six weeks from

the date of receipt of writ of this order and upon such deposit,

the applicants are at liberty to withdraw the same upon

completion of proper formalities.

6. With the aforesaid observation, present appeal stands

allowed in part.

(ASHUTOSH J. SHASTRI, J) phalguni