Gujarat High Court
Harendrakumar Shri Paras Bhagat vs Mafatbhai Kalubhai Solanki on 18 January, 2023
Bench: Nirzar S. Desai
C/FA/1515/2017 JUDGMENT DATED: 18/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1515 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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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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HARENDRAKUMAR SHRI PARAS BHAGAT
Versus
MAFATBHAI KALUBHAI SOLANKI & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 18/01/2023
ORAL JUDGMENT
1. Heard learned advocate Mr.Hiren Modi for the
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appellant and learned advocate Mr.Gadhia for the
respondent Insurance Company.
2.1 By way of this First Appeal, the appellant has
challenged the judgment and order passed by the
Motor Accident Claims Tribunal, Surat in Motor
Accident Claim Petition No.239 of 2001 dated
07.10.2015 and has prayed for further compensation to
the tune of Rs.5,00,000/-.
2.2 The Motor Accident Claims Tribunal (Aux.), Surat
in its judgment dated 07.10.2015 passed below Exh.48
in Motor Accident Claim Petition No.239 of 2001 has
awarded total compensation of Rs.2,13,000/- to the
original claimant with 9% interest from the date of
order till realisation along with proportionate cost of
the petition.
3. When the matter was called out, learned advocate
Mr.Modi appearing for the appellant submitted that he
is restricting his claim only to the amount awarded
under certain heads i.e. future loss, pain, shock and
suffering, loss of amenities and medical expenses as the
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quantum of amount awarded by the Tribunal is not in
consonance with settled principles of law and not in
line with the judgments of the Hon'ble Supreme Court
as well as this Court.
4. The brief facts giving rise to the filing of the
present First Appeal are stated as under:
4.1 It is the case of the appellant that, on 23.01.2000,
the appellant who was serving as Driver of a Truck
bearing Registration No.GJ-01-V-4689 was driving his
truck from Rajkot to Maharashtra slowly and by
following the rules of the traffic and when the
appellant at about 4:30 pm reached on National
Highway No.8, near Umiya Hotel at Maji Village,
District Valsad, one Truck bearing Registration No.GJ-
18-T-723 owned by opponent no.2 and driven by
opponent no.1 in very rash, negligent and in a manner
endangering the human life dashed with the truck of
the appellant and the appellant sustained serious
injuries and the appellant had fracture on his right
thigh, right knee and the appellant was taken to New
Civil Hospital, Surat where the appellant was provided
C/FA/1515/2017 JUDGMENT DATED: 18/01/2023
medical treatment as indoor patient from 23.01.2000 to
18.03.2000.
4.2 It is the case of the appellant that the accident
in question has occurred solely due to the negligent
driving of opponent no.1 and for the said act the
complaint had been registered with Chikhali Police
Station vide I Cr No.11 of 2000 under sections 279,
337, 338 and 427 of the Indian Penal Code and under
Sections 177 and 184 of the Motor Vehicle Act. It is
the case of the appellant that, at the time of accident,
the appellant was of 22 years old and was serving as
Driver in Ahmedabad and was earning Rs.3000/- per
month and due to the accident, the appellant had to
take a long and advance medical treatment for the
injuries on right thigh and knee and despite that, the
appellant has become incapacitated in as much as
treating Doctor has certified that, the appellant has
permanent partial physical disability in lower limb as a
result of which today the appellant ins not in position
to drive truck or any heavy vehicle which has affected
his earning propsects substantially. It is the case of the
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appellant that for hospital's heavy expenditure for a
long medical treatment, transportation charges, special
diet and attendant charges was incurred by the
appellant and the appellant has sustained serious
mental agony and hence for the future loss of income,
pain, shock and suffering and actual loss of income,
transportation and attendant charges, medical charges
incurred by the appellant and other losses suffered and
expenditure incurred by the appellant, the appellant
has been constrained to prefer the present application
to receive compensation from the opponents who are
with the offending vehicle in capacity as owner, driver
and insurance company.
4.3 Upon presentation of the claim the notices /
summons have been issued upon the opponents and
same have been duly served. The opponent no.1 and 2
have note filed any reply to the claim petition.
Opponent No.3 Insurance Company has filed its reply
at Exh.10. It is contended by the opponent Insurance
Company that the petition of the appellant is not
tenable and the same needs to be dismissed. It is
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submitted that, the opponent Insurance Company
denies the factum narrated in the application that the
accident in question has arisen due to the negligent
driving by opponent no.1 of the offending truck
bearing Registration No.GJ-18-T-723. It is the say of
the opponent insurance company that even for the
stake of arguments if the negligence of offending
vehicle is to be considered the same shows the case of
contributory negligence and hence, the appellant is not
entitled to receive entire compensation from the
opponent insurance company. Age, income and nature
of injuries narrated in the petition have been denied
by the opponent insurance company and on all the
above grounds it is contended by the opponent
insurance company that, the petition of the appellant
needs to be dismissed.
5. After considering the aforesaid facts ultimately
Motor Accident Claims Tribunal passed an order
directing the respondent holding that the appellant to
recover sum of Rs.2,13,000/- towards total
compensation.
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6. On perusal of the judgment of the Tribunal, it
transpires that the Tribunal has considered future loss
of income by taking into consideration disability @
30% of the whole body whereas for pain, shock and
suffering the Tribunal has awarded sum of Rs.30,000/-,
for loss of amenities and towards medical expenses
Tribunal has not awarded any compensation and,
therefore, being aggrieved by the said, the appellant
has preferred this appeal for enhancement of
compensation under above heads.
7.1 Learned advocate Mr.Modi pointed out from the
record that as per the deposition of the doctor as well
as the certificate issued by the concerned doctor in
respect of disability as the petitioner has fracture on
his hip and had injury in the form of CLW @ his right
leg and according medical certificate as well as
deposition of doctor, the whole body disability was
38%. However, the Tribunal did not take into
consideration the aforesaid evidence and considered the
future loss of income by treating whole body disability
@ 38% and thereby committed an error.
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7.2 Learned advocate Mr.Modi also drew attention of
this Court that towards pain, shock and suffering only
Rs.30,000/- is awarded which is inadequate and,
therefore, considering overall facts and circumstances
of the case, some higher amount towards pain, shock
and suffering is required to be awarded. As far as loss
of amenities and medical expenses are concerned,
learned advocate Mr.Modi submitted that reasonable
amount should be awarded to the present appellant
though there are no bills on record indicating any
expenditure incurred by appellant towards loss of
amenities and medical expenses. However, by taking a
lenient view and considering the injuries suffered by
the appellant some reasonable amount be awarded.
8. Learned advocate Mr.Gadhia vehemently opposed
the appeal and submitted that the Tribunal has
considered overall facts and circumstance and evidence
was examined at length. After considering the evidence
on record, the Tribunal has rightly awarded future loss
by treating the whole body disability @ 30%.
However, learned advocate Mr.Gadhia could not reply
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why the future loss of income should not be
considered by treating whole body disability @ 30% as
per deposition of doctor and medical certificate and
should be considered @ 30% as per impugned
judgment.
9. Further, as far as pain, shock and suffering, future
expenses and loss of amenities, learned advocate
Mr.Gadhia for Insurance Company submitted that in
absence of there being any justifying material on
record, this Court may not consider the prayer in
respect of any enhancement or award of any
compensation under aforesaid three heads and prayed
for dismissal of this First Appeal.
10. However, I have considered the submissions made
by the learned advocates for respective parties and
perused the record. The record indicates that the
concerned doctor who was examined as well as
medical certificate indicate that appellant has suffered
disability of whole body @ 38% and, therefore, there
is no reason for Tribunal to disbelieve the same and
hence the Tribunal was not justified in calculating the
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future loss of income by treating whole body disability
@ 30% which as per the evidence is @ 38% and,
therefore, the same is required to be enhanced by
treating the whole body disability @ 38%.
11. As far as pain, shock and suffering, loss of
amenities and medical expenditure are concerned, it is
true that there is nothing on record about the expenses
incurred towards medical expenditure or loss of
amenities. However, considering the fact that litigation
towards motor accident claim is benevolent litigation
and, therefore, a person who has suffered on account
of accident is required to be awarded some reasonable
amount towards medical expenditure considering the
disability suffered by him and, therefore I deem it
appropriate to direct the respondent company to
enhance the compensation towards pain, shock and
suffering to Rs.50,000/- from Rs.30,000/- as already
awarded by the Tribunal and to pay an additional
amount of Rs.50,000/- and Rs.15,000/- towards loss of
amenities and medical expenditure. Therefore, after the
aforesaid enhancement the calculation of the amount
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recoverable from the insurance respondent company by
the present appellant would be as under:
Compensation As per impugned As per submission of
award claimant
1 Future Loss of
Income
Income 2500/- 2500/-
X 12 X 12
Total 30,000/- 30,000/-
X Prospective +
Total
X __% of disability 30% 38%
Total 9,000/- 11,400/-
Total 1,53,000/- 1,93,800/-
2 Actual Loss of 15,000/- 15,000/-
Income 6 Month
3 Pain Shock Suffering 30,000/- 50,000/-
4 Special Diet 15,000/- 15,000/-
Transportation
Attendant Charges
5 Loss of Amenities - 50,000/-
6 Medical Expenses - 15,000/-
7 Future Medical
Total 2, 13, 000/- 3, 38, 800/-
Negligence
Grand Total - 3, 38,000/-
Awarded Amount 2,13,000/-
Enhanced Amount 1, 23, 800/-
Rate of Interest
12. The judgment of the Tribunal is modified to the
above extent. The respondent insurance company is
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also directed to pay an interest @ 7.5% on enhanced
amount from the ate of application till the date of
realisation within a period of twelve weeks from the
date of receipt of copy of writ of this Court. The
appeal is partly allowed. Rule is made absolute to the
aforesaid extent.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
