Gujarat High Court
Dhruvit Jashwantbhai Patel vs Kamalbhai B Patel (Owner Of Jeep ... on 11 January, 2023
Bench: Ashokkumar C. Joshi
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5671 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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 ? Yes
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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DHRUVIT JASHWANTBHAI PATEL
Versus
KAMALBHAI B PATEL (OWNER OF JEEP NO. GJ. 18.BB.6126)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1,3
RULE UNSERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 11/01/2023
ORAL JUDGMENT
1. Being aggrieved and dissatisfied with the impugned judgment
and award passed by the learned Motor Accident Claims Tribunal
(Aux-II), Kalol, District Gandhinagar in M.A.C.P. No. 43 of 2014 dated
11.7.2019, by which the learned Tribunal has partly allowed the
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
Claim Petition and directed the Opponents to pay jointly and
severely a sum of Rs.4,36,000/- to the the Appellant / Original
Claimant along with simple interest @ 9% p.a. from the date of the
claim petition till its realization, the Appellant - Original Claimant
has preferred this Appeal under Section 173 of the Motor Vehicle
Act, 1988 for enhancement of the award with interest and
proportionate costs, on the ground that the judgment and award
passed by the learned Tribunal is on lower side, and therefore, the
judgment and award passed by the learned Tribunal is absolutely
unjust, illegal and improper and contrary to law and facts of the
case and evidence.
2. Heard learned Advocate Mr. Hiren M. Modi for the Appellant
and learned Advocate Mr. Tanmay B. Karia for Respondent No. 2 -
The New India Assurance Company Ltd. Though the respondent
Nos. 1 and 3 are served, they have chosen not to remain present
before this Court.
3. Learned Advocate for the Appellant submitted that the
Appellant is the original claimant, who has filed MACP under Section
166 of the Motor Vehicle Act being MACP No. 43 of 2014 before the
learned MACT (Auxi-II) Kalol, District Gandhinagar and Respondent
Nos. 1, 2 and 3 are the original opponents.
4. The learned Advocate for the Appellant has submitted that the
impugned judgment and award passed by the learned MACT (Auxi-
II) Kalol, District Gandhinagar is contrary to law and the impugned
judgment and award is bad in law. It is submitted that the judgment
and award is diametrically against the evidence on record and the
learned Tribunal has erred in drawing highly unjustified and
unwarranted inference from the evidence on record and it is
submitted that the learned Tribunal ought to have drawn just and
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
fair inference from the same. It is submitted that the learned
Tribunal has committed material irregularity and illegality and the
same has resulted in gross miscarriage of justice. Learned Advocate
for the Appellant has further submitted that the learned Tribunal has
committed an error while considering the income of the Appellant at
Rs.3000/- per month. That the learned Tribunal ought to have
considered the income of the Appellant at Rs.5500/- per month and
the learned Tribunal ought to have appreciated the fact that the
accident took place in the year 2013 and at that time the minimum
wages was of Rs.5500/- per month and therefore the income is
required to be considered at Rs.5500/-. It is further submitted that
the learned Tribunal has committed an error while not considering
the future prospective income of the Appellant. That the learned
Tribunal ought to have considered the fact that the Appellant was
aged 18 years and therefore, as per the settled ratio laid down by
the Hon'ble Supreme Court as well as this Hon'ble High Court, 40%
of rise is required to be considered in the income of the Appellant as
prospective income of the Appellant and therefore it is submitted
that the learned Tribunal ought to have considered such and
awarded the compensation under the head for future loss of income.
It is further submitted that the learned Tribunal has committed an
error while awarding actual loss for 3 months only and therefore it is
submitted that the learned Tribunal ought to have awarded actual
loss of 12 months considering the seriousness of the injuries.
Learned Advocate for the Appellant has further submitted that the
learned Tribunal has committed an error while awarding only
Rs.30,000/- under the head of the pain shock and suffering and that
the learned Tribunal ought to have considered the fact that the
Appellant has sustained serious fracture injuries and considering his
duration of the treatment as an indoor as well as outdoor patient,
the learned Tribunal ought to have considered and awarded
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
Rs.1,00,000/- for the pain shock and suffering. The learned
Advocate for the Appellant has further submitted that the learned
Tribunal has committed error while awarding Rs.20,000/- towards
special diet and attendant changes and submitted that the learned
Tribunal ought to have awarded Rs. 50,000/- towards special diet
and attendant charges considering his nature of injuries. It is also
submitted that the learned Tribunal has committed an error while
awarding only Rs.40,000/- towards the expenses of artificial leg
which was necessity of the Appellant after the accident and
therefore it is submitted that the learned Tribunal ought to have
considered that the Appellant deposed about the expenses
regarding the artificial leg and it was not opposed by the respondent
Insurance Company. It is submitted that the learned Tribunal ought
to have considered the fact that the leg of the Appellant has been
amputed and without artificial leg the Appellant could not walk or
could not do his daily work and it is also to be considered by the
learned Tribunal that after every two years the artificial limb is
required to be replaced and looking to the age of the Appellant, the
same is required to be changed not less that seven times and
therefore the learned Tribunal ought to have awarded at
Rs.2,00,000/- for the expenses regarding the artificial limb. It is also
submitted that the learned Tribunal has committed an error in not
awarding any amount towards the loss of amenities. The learned
Tribunal ought to have considered the fact that now after the
injuries the Appellant cannot live a regular life and the Appellant has
to face day to day frustration and also has lost the enjoyment of his
life. It is therefore it prayed for enhancement in the amount of
compensation on different heads.
5. On all such counts, the learned Advocate for the Appellant has
submitted that the impugned judgment and award passed by the
learned Tribunal deserves to be modified and the Appellant is
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
entitled for the enhanced amount of compensation.
6. Per contra, learned Advocate Mr. Tanmay karia for
Respondent No. 2 - The New India Assurance Company Ltd. has
heavily contended that the learned Tribunal has rightly arrived at
the compensation which is awarded and therefore, prayed that this
Hon'ble Court may not interfere with the same.
7. Heard learned Advocates for the respective parties. On
perusal of the award by the Tribunal and in view of the submissions
made by the learned Advocate for the Appellant, it is seen that
learned Tribunal has awarded compensation towards different heads
at Rs.4,36,000/-, which, in the opinion of this Court seems to be on
lower side, in view of the arguments made by the learned Advocate
for the Appellant before this Court and also in view of of the
averments made in the memo of Appeal.
8. This Court has gone though the oral as well as documentary
evidence produced by the Appellant before the Tribunal. This Court
has gone through the injury certificate issued by Vinayak Hospital,
Kalol produced at Exh.26 and 30 and the injury certificate issued by
VS Hospital, Ahmedabad produced at Exh.27 and 28. this Court has
also gone through the original medical bills placed on record at
Exh.29. As per the complaint produced at Exh.42, it is seen that on
24.10.2013 at about 8:30 am the Appellant was going to Bharat
High School on the bike driving by Opponent No.3 Kartikbhai as a
pillion rider and the motorcycle was in a moderate speed, following
traffic rules and on the correct side, and when passing near
Jyoteshwar Mahadev at that time the driver of the Jeep of Opponent
No.1 bearing Registration No. GJ-18-BB-6126 came in a rash and
negligent manner, ignoring traffic rules, endangering human life,
lost his control over the vehicle and dashed the bike on which the
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
Appellant was travelling as pillion rider. In the accident the
Appellant has sustained fractures and severe bodily injuries and his
left leg was amputed from the knee and therefore the Appellant has
preferred Appeal before the Tribunal for awarding compensation of
Rs.8,00,000/- along with 18% compound interest per annum from
the opponents jointly and severally on account of the grievous
injuries sustained by the Appellant. The learned Tribunal on
considering the various evidences on record has awarded
compensation at Rs.4,36,000/-. Therefore, on the basis of the
different evidences produced on record the Tribunal has considered
the break-up of quantum of compensation under the various heads
as follows:
Sr. Heads Compensation (In Rs.)
No.
1 Future Loss of Income 3,24,000.00
2 Medical charges 13,000.00
3 Pain, shock and suffering 30,000.00
4 Actual loss of income (three months) 9000.00
5 Special diet, attendant charges and 20,000.00
Transportation
6 For artificial leg 40,000.00
Total 4,36,000.00
9. Against the aforesaid calculation by the Tribunal, the learned
Advocate for the Appellant has placed on record a Chart stating
therein that the Tribunal ought to have calculated the compensation
as per the figures mentioned in the chart and submitted that
learned Tribunal ought to have awarded the compensation to the
Appellant under heads as per the figures shown and calculated in
the chart. For the sake of brevity the chart placed by the learned
Advocate for the Appellant on record is reproduced herein as under:
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
Sr.No Different Heads As per the As per the
impugned award submission of the
learned Advocate
for the Appellant
1. Future loss of
income
Income 3,000 x 12 = 5,000 x 12 = 60,000/-
36000/-
Prospective --- +40% = 84000/-
X___% of disability 50% 50%
18000/- 42000/-
Total 3,24,000.00 7,56,000.00
2. Actual loss of 9000.00 15000.00
Income (3 months) (3 months)
3. Pain shock and 30,000.00 1,00,000.00
suffering
4. Special diet, 20,000.00 50,000.00
transportation,
attendant charges
5. Loss of Amenities - 1,00,000.00
6. Medical Expenses 13,000.00 13,000.00
7. Future Medical Exp. 40,000.00 40,000.00
Total 4,36,000.00 10,74,000.00
Negligence - --
Grand Total 10,74,000.00
-The awarded 10,74,000 (-)
amount 4,36,000 =
6,38,000.00
Enhanced Amount 6,38,000.00
Rate of Interest 9% 6%
10. Considering the ratio laid down by the Hon'ble Apex Court in
the case of Pappu Deo Yadav v. Naresh Kumar & Ors. reported
in 2020 SCC Online SC 752 so far as the prospective income of
the Appellant is concerned the prospective income of the Appellant
is required to be calculated as above. Considering the minimum
wages prevailing at the relevant time, it is appropriate to consider
C/FA/5671/2019 JUDGMENT DATED: 11/01/2023
the monthly income of the claimant at Rs.5000/- instead of
Rs.3000/-. Further, the learned Tribunal has considered Rs.20,000/-
and Rs.30,000/- for special diet, transportation and attendant
charges and for pain shock and suffering respectively, which are on
lower side and therefore, considering the nature of injuries,
enhanced to Rs.50,000/- and Rs.1,00,000/- respectively. As per the
latest dictum of the Hon'ble Apex Court, compensation under the
head of loss of amenities is required to be awarded, thus,
Rs.1,00,000/- is awarded for the same. Further, this Court has also
considered the ratio laid down by the Hon'ble Apex Court in case of
National Insurance Company Ltd. v. Pranay Sethi & Ors.
reported in (2017) 16 SCC 680. Therefore, considering the
aforesaid facts and circumstances of the case as well considering
the various decisions by the Hon'ble Apex Court, the claimant is
entitled for enhancement of Rs.6,38,000/- towards different heads
as stated above.
11. The difference amount i.e. Rs. 6,38,000/- shall be deposited
within a period of eight weeks.
12. The Appellant - Claimant shall be entitled to interest at the
rate of 6% per annum on such enhanced amount of compensation
from the date of claim petition till realization.
13. The rest of the award is not disturbed. The R&P be sent back
forthwith.
(A. C. JOSHI,J)
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