Mohmedyusuf Musabhai Pada vs Ramjani Mohmed Yusuf Alias Yakub ...
2023 Latest Caselaw 283 Guj

     C/FA/3639/2019                                    JUDGMENT DATED: 11/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3639 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SANGEETA K. VISHEN                                    Sd/-

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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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                     MOHMEDYUSUF MUSABHAI PADA
                                Versus
                RAMJANI MOHMED YUSUF ALIAS YAKUB KAMLI
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                              Date : 11/01/2023
                              ORAL JUDGMENT

1. The captioned appeal, has been filed challenging the judgment and award dated 27.3.2017 passed by the Motor Accident Claims Tribunal (Aux.7) and court of 7 th Ad-hoc Additional District

C/FA/3639/2019 JUDGMENT DATED: 11/01/2023

Judge, Panchmahals at Godhra in Motor Accident Claim Petition no.533 of 1994.

2. In the captioned appeal, as quantum and not liability is in dispute, the respondent no.3 insurance company would be the only contesting party. The presence of other respondents would not be necessary.

3. Mr Makbul I. Mansuri, learned advocate appearing for the appellant, submitted that the Tribunal, has committed an error in awarding total compensation of Rs.33,496/- against the total claim of Rs.1,50,000/-. The Tribunal, ought to have awarded just compensation under the respective heads as per the principle laid down by the Apex Court in the case of Nagappa v. Gurudayal Singh & Ors. reported in 2003 (2) SCC 274 as well as in the case of Ibrahim v. Raju & Ors. reported in 2011 (10) SCC 634. It is submitted that the Tribunal has committed an error in awarding only Rs.3,000/- towards special diet, attendant and transportation. In fact, the Tribunal, ought to have awarded Rs.8,000/-.

3.1 It is further submitted that the Tribunal, ought to have assessed the income of the appellant, at least, at the rate of Rs.4,000/- per month as the appellant, was engaged in the business of fruit selling. It is submitted that the rates of minimum wages applicable at the relevant point of time with respect to the skilled labourer in the category 'A' was Rs.1,000/- whereas, minimum wages in the category 'B' of unskilled labourer was Rs.900/-. It is therefore urged that the judgment and award is illegal and unreasonable.

4. On the other hand, Mr Rathin P. Raval, learned advocate appearing for the insurance company i.e. respondent no.3, has

C/FA/3639/2019 JUDGMENT DATED: 11/01/2023

opposed the entertainment of the first appeal. It is submitted that so far as the income aspect is concerned, in absence of any evidence led, it cannot be said that the Tribunal has committed any error. In fact, the minimum wages at the relevant point of time with respect to the unskilled labour was Rs.900/- and the business of fruit selling, cannot be considered to be a skilled labour and therefore, the Tribunal, has rightly applied the rate of minimum wages as per the notification with respect to unskilled labour. It is also submitted that so far as the head of pain, shock and sufferings is concerned, the injury sustained was a fracture in the finger and therefore, Rs.10,000/- was just and proper. With respect to the medical expenses and actual income, no documents were produced and therefore, the said amount has been properly assessed. So is the position, with respect to the amount of compensation awarded under the head of special diet, attendant and transportation.

5. Heard the learned advocates. This Court, has perused the documentary evidence and considered the submissions made by the learned advocates appearing for the respective parties and on the basis whereof, the issue which arises for consideration of this Court, is "as to whether the appellant is entitled for enhancement of the amount under the heads of special diet, attendant and transportation so also the actual loss?"

6. It is the case of the appellant that on 6.8.1993 at about 0-15 hours at midnight, the appellant, when was returning with his two friends, the opponent no.1, while driving the autorickshaw in rash and negligent manner and with an excessive speed, dashed the appellant and his friends, as a result the appellant and one another were thrown off the road, sustaining grievous injuries. The appellant, therefore, had lodged the claim with the Motor Accident

C/FA/3639/2019 JUDGMENT DATED: 11/01/2023

Claims Tribunal claiming the compensation to the tune of Rs.1,50,000/- under the different heads.

7. The Tribunal, after hearing the parties and considering the documents available on record, has framed the issues namely, whether it is proved that the claimant has sustained injuries on account of negligence on the part of the driver of the vehicle and what amount the claimant is entitled. The Tribunal, on the basis of the evidence on record and more particularly, the applicable minimum wages which were prevalent at the relevant point of time, assessed the income at Rs.900/- for 26 working days. The Tribunal, considered the age of the appellant as 18 years and applying the principles laid down by the Apex Court in the case of Sarla Verma & Others v. Delhi Transport Corporation & Another reported in 2009 (6) SCC 121, determined the income of the appellant at Rs.33.70 per day. The monthly income was assessed at Rs.875.20/- paisa and the same was rounded to Rs.900/-.

8. The learned advocate appearing for the appellant, could not point out any error committed by the Tribunal in fixing the wages and therefore, it cannot be said that the Tribunal, has committed any error in assessing the income. So far as the disability is concerned, the appellant and opponent no.3, have filed the consent purshis - Exhibit 42 and the disability, was determined at 9%. So is the position with respect to the medical expenses as well as pain, shock and sufferings. In the opinion of this Court, it cannot be said that any error has been committed by the Tribunal in assessing the income under the head of future economic loss; pain, shock and sufferings and medical expenses.

9. So far as the head, special diet, attendant and transportation

C/FA/3639/2019 JUDGMENT DATED: 11/01/2023

is concerned, this Court, is of the opinion that the same is on a lower side and cannot be said to be just and proper. Under the circumstances, the amount awarded of Rs.3,000/- under the head of special diet, attendant and transportation is enhanced by Rs.5,000/- making it to Rs.8,000/-.

10. So far as the actual loss is concerned, as per the affidavit of examination-in-chief of the appellant, the appellant could not undertake any engagement for a period of six months and the Tribunal, has on the basis of the injury certificate, considered only 4 to 5 weeks. In the cross examination, nothing comes out dislodging the fact that the appellant, could not undertake the work for a period of six months. In absence of any evidence, it would be appropriate and reasonable to consider four months for the purpose of recovery. Accordingly, the actual loss be considered as Rs.900 x 4 months i.e. Rs.3,600/- less Rs.1,500/- it having already been awarded by the Tribunal. Therefore, additional amount of Rs.2,100/-, the appellant is entitled to receive.

11. Therefore, in view of the abovementioned discussion, the judgment and award of the Tribunal dated 27.3.2017 rendered in Motor Accident Claim Petition no.533 of 1994, is modified to the following extent:

Future economic loss                                                 Rs.17,496
Pain, shock and sufferings                                           Rs.10,000
Special diet, attendant & transportation                               Rs.8,000
Medical                                                                Rs.1,500
Actual loss                                                            Rs.3,600
Total compensation                                                   Rs.40,596







       C/FA/3639/2019                                     JUDGMENT DATED: 11/01/2023

The total amount to be awarded would come to the tune of Rs.40,596/-.

12. Under the circumstance, the appellant, is entitled to enhancement of the amount under the heads of special diet, attendant and transportation so also actual loss, as indicated in the above referred tabular form. The appellant, shall be entitled for total compensation of Rs.40,596/- less Rs.33,496/- already awarded by the Tribunal. The appellant, shall be entitled for additional enhanced compensation of Rs.7,100/- at the rate of 6% interest from the date of filing of the claim petition till realisation. The insurance company is directed to deposit addiitional enhanced amount of compensation i.e. Rs.7,100/- with interest at the rate of 6% before the Tribunal within a period of eight weeks' from the date of receipt of the copy of this judgment. After deposit of the amount, let the Tribunal disburse the same in favour of the claimant, after following the due procedure.

13. With the above modification, the appeal stands partly allowed. Record and proceedings be sent back to the court concerned.

Sd/-

(SANGEETA K. VISHEN,J) RAVI P. PATEL