Narendrabhai Haribahi Waghela vs Jashodaben Vinodbhai Parmar
2023 Latest Caselaw 86 Guj

     C/FA/439/2019                               JUDGMENT DATED: 04/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 439 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

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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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                     NARENDRABHAI HARIBAHI WAGHELA
                                 Versus
                      JASHODABEN VINODBHAI PARMAR
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Appearance:
MR.KARNA H DHOMSE(6684) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 04/01/2023

                            ORAL JUDGMENT

1. The present First Appeal impugns judgment and order dated 24.08.2018 passed by Chairman, Motor Accident Claims Tribunal (Main), Vadodara in Motor Accident Claim Petition No.529

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of 2009.

2. The brief facts leading to filing of the present First Appeal are as follows :-

2.1 On 14.01.2009, the appellant was riding as a pillion on the motorcycle driven by his friend. The motorcycle developed some technical problems and it was hit by the tempo leading to fatal accident. The driver of the motorcycle expired in the said accident. The appellant suffered head and spinal injuries. The appellant preferred an application under Section 166 of the Motor Vehicles Act to get the compensation of Rs.7,00,000/- with interest @ 18% p.a.

2.2 The appellant led oral as well as documentary evidence in support of his case. The appellant also examined the doctor who had treated him for his injuries.

2.3 By the impugned judgment and order, the learned Tribunal came to the conclusion that the appellant was entitled to the compensation of Rs.3,85,189/- with interest @ 9% p.a. from the date of the petition till realization along with proportionate cost. After assessing the compensation under the various heads, the said application came to be partly allowed in favour of the appellant.

2.4 Aggrieved by the said judgment and order, the appellant has preferred the present First Appeal.

3. Learned advocate Mr. Karna Dhomse appearing on behalf of the appellant submitted that the learned Tribunal has committed an error in assessing the income of the appellant of Rs.3000/- per month. He submitted that the appellant had produced on record the salary certificate showing the income of Rs.5000/-

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per month which the learned Tribunal ought to have taken into account while calculating the compensation. He further submitted that looking to the injuries suffered by the appellant, the learned Tribunal ought to have considered the loss of future prospective income of the appellant. He submitted that the same has been totally ignored by the learned Tribunal and looking to the injuries sustained, the appellant is entitled to the compensation towards future prospective income.

3.1 Learned advocate also disputed the compensation as awarded by way of pain, shock and suffering and submitted that at least, Rs.1,00,000/- should have been granted by the learned Tribunal instead of Rs.25,000/- towards the said head. He also submitted that the learned Tribunal ought to have awarded Rs.1,50,000/- towards future medical expenses of the appellant. He submitted that the learned Tribunal has also erred in not awarding any amount towards loss of amenities in life to the appellant. He therefore submitted that the compensation as awarded by the learned Tribunal is not just and proper and it is inadequate. The amount of compensation ought to be enhanced and the appellant should be granted the amount as claimed for.

4. Per contra, learned advocate Ms. Kirti Pathak appearing on behalf of the respondent Insurance Company submitted that the learned Tribunal, by giving cogent reasons and referring to the evidence on record, has assessed the income of the appellant, which is just and proper in the present case. She further submitted that after appreciating the evidence on record, the learned Tribunal has rightly assessed the compensation as arrived at. She submitted that though the medical certificate has been produced and the doctor has been examined, the disability is assessed on higher side. However, she submitted that the

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compensation as has been granted is just, proper and should not be interfered with. She prayed to dismiss the present First Appeal.

5. Heard learned advocates for the respective parties, perused the documents on record and also perused the record & proceedings.

6. In the present case, the appellant has produced the salary certificate from the private firm indicating that his income was Rs.5000/- per month, however the said document has not been proved. The person who has issued the certificate has not given any evidence. In view thereof, the income of the appellant is correctly assessed on the basis of the minimum wages as applicable to the skilled worker at the relevant point of time. The learned Tribunal has correctly assessed the income of the appellant at Rs.36000/- p.a. Further, with respect to disability certificate produced by the appellant before the learned Tribunal, there is no serious dispute to the same which has come on record in the Tribunal below as well as in this Court. Therefore, the disability assessed at 53.4% is also proper in the present case. There is also no dispute with respect to multiplier of 17 which has been applied. Therefore, the loss of income as calculated by the learned Tribunal at Rs.3,26,808/- is proper. However, in the present case, the appellant has suffered head as well as spinal injuries, due to which, there is disability in his both the hands and legs as also there is some recurring pain. In view thereof, this Court is of the opinion that there will be loss of future prospective income. In the present case, going by the disability certificate produced on record, the appellant has suffered disability of 30% in his both the hands. Since it is brought on record that the appellant is a specialized worker in theater furniture, the future loss of income can be assessed at 30%. Taking into account the same, the total loss of income would be

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Rs.4,24,850/- and rounding of the same, the same can be held to be Rs.4,25,000/- towards total future loss of income including loss of prospective future income.

7. In the present case, since the injuries suffered are neurological, the same would have persisted for certain period of time even after treatment. The compensation towards pain, shock and suffering is therefore enhanced from Rs.25,000/- to Rs.50,000/-.

8. In view thereof, the present First Appeal is partly allowed. The appellant claimant is entitled to total compensation of Rs.4,50,000/-. The enhanced compensation amount shall be deposited within a period of four weeks before the learned Tribunal. The amount of compensation be released to the appellant claimant within a period of three weeks after deposit of enhanced amount of compensation after due verification.

9. It is clarified that in the facts and circumstances of the present case, the rate of interest is confirmed. The impugned judgment and order stands modified to the aforesaid extent.

10. The record & proceedings be sent back to the concerned court below forthwith.

(ANIRUDDHA P. MAYEE, J.)

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