Gujarat High Court
Mohammadrais Alias Mohammadrauf ... vs Manojbhai Sureshbhai Humble on 3 March, 2023
Bench: Gita Gopi
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3432 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=======================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
MOHAMMADRAIS ALIAS MOHAMMADRAUF MOHAMMADROF
SHAIKH
Versus
MANOJBHAI SURESHBHAI HUMBLE & 3 other(s)
======================================
Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 4
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
======================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/03/2023
ORAL JUDGMENT
1. Admit. Learned advocates Mr. Palak Thakkar and
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
Mr. Shivang Mehta waive service qua respective respondents.
With the consent of the learned advocates for the parties
present, the matter is taken up for final hearing today.
2. Challenge in this appeal under Section 173 of the Motor
Vehicles Act, 1988 (MV Act) is given to the judgment and award
dated 26.04.2018 passed in Motor Accident Claim Petition No.
1033 of 2010 (claim petition) by learned Motor Accident Claims
Tribunal (Auxiliary), Ahmedabad (Rural), Ahmedabad (the
Tribunal) on the ground that quantum is not considered in right
perspective and that, no rise in future prospective income has
been granted.
3. It was the case of the appellant - claimant that on
24.06.2005 at about 7:00 a.m., he was going to Mundra driving
Truck bearing registration No. GJ-12-W-8887 following traffic rules
and while passing through Moti Khakhar village, at that time, one
Truck bearing registration No. GJ-3-V-9649 came in excessive
speed and in negligent manner in breach of traffic rules and
regulations and dashed with claimant's truck from front side.
Resultantly, the claimant suffered serious multiple injuries
including fracture on his right leg femur bone and tibula and
fibula bone fracture and other bodily injuries.
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
3.1 The appellant - claimant, at the relevant time, was aged 31
years and as per his say, he was earning Rs.4,500/- per month
being a Driver. After the accident, he was immediately taken to
the Mundra Government Hospital for treatment. Thereafter, was
shifted to V.S. Hospital for further treatment, where he remained
hospitalized as an indoor patient. Doctor performed operation on
his leg. Thereafter, he was taken to Bombay Hospital Research
Center, Mumbai for further treatment.
4. Learned advocate Mr. M. I. Mansuri for the appellant -
claimant submitted that because of the accident, the appellant -
claimant is unable to do hard work. He has incurred huge
expense for medical treatment, attendant charges, special diet
and transportation charges and also suffered lot of pain and
shock.
4.1 Learned advocate Mr. Mansuri for the appellant - claimant
further stated that learned Tribunal has considered income of the
appellant - claimant as Rs.3,000/- per month but has failed to
grant future rise in income in accordance with decision of the
Apex Court in National Insurance Company Limited v.
Pranay Sethi & Ors., (2017) 16 SCC 680. The disability
assessed as 18% was agreed upon by both the parties and thus,
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
he states that he would not make any submission for
reconsidering the same.
4.2 Considering the treatment undergone by the appellant -
claimant, Mr. Mansuri, learned advocate for the appellant stated
that the amount under the head of Pain, Shock and Suffering
requires reconsideration.
5. While learned advocate Mr. Shivang Mehta for the
respondent No. 4 and learned advocate Mr. Palak Thakkar for the
respondent No. 2 - insurance company submitted that learned
Tribunal has considered the evidence and has granted just and
reasonable amount under all the heads and thus, it is submitted
that there would be no ground for enhancing the compensation.
6. The learned Tribunal has considered the income of the
appellant - claimant at Rs.3,000/- per month for the Driver which,
taking into consideration the date of accident, is just and
reasonable, however, the prospective rise in income has not been
granted by the Tribunal. At the time of accident, the appellant -
claimant was aged 31 years. Thus, 40% rise in income should be
considered as per the decision of the Apex Court in Pranay
Sethi and Ors. (supra). 18% functional disability has been
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
agreed upon by the parties and a multiplier applicable would be
16. Thus, loss of future income would come to Rs.756/- per
month (Rs.3000 + 40% x 18% ). Thus, the amount under the
head of loss of future income would come to Rs.1,45,152/-
(Rs.756 x 12 x 16). The learned Tribunal has granted Rs.10,000/-
only towards Pain, Shock and Suffering. The appellant - claimant
has undergone treatment at various hospitals. He was also taken
to Mumbai for further treatment and was operated and suffered
18% disability for the body as a whole. Thus, the amount under
the head of Pain, Shock and Suffering is required to be enhanced.
This Court considers it just and proper to award Rs.30,000/- under
such head, while under the head of Special Diet too, the amount
is required to be enhanced, which is considered to be
Rs.15,000/-. Taking into consideration the treatment undergone,
the claimant could have taken at least four months for recovery
and hence, under the head of actual loss of income, Rs.12,000/-
(Rs.3,000 x 4) is granted.
6.1 The learned Tribunal has considered 60% negligence on the
part of the appellant - claimant. However, it has been brought to
the notice that it was a 'Package Policy' and premium was paid
for the Driver and hence, the insurance company would be liable
to compensate the amount. 60% of the amount is deducted
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
considering 60% negligence of claimant, which is erroneous in
view of the policy produced on record.
6.2 Thus, in view of the aforesaid discussion, the appellant -
claimant would be entitled for the compensation as under:
Head Amount (Rs.)
Future loss of income (Rs.756 x 12 x 16) 1,45,152/-
Actual loss of income (Rs.3,000 x 4) 12,000/-
Pain, Shock and Suffering 30,000/-
Special Diet 15,000/-
Medical Expenses 49,600/-
Total 2,51,752/-
Difference (Rs.2,51,752 - 70,912) 1,80,840/-
6.3 The Tribunal has considered 60% liability of the National
Insurance Co. Ltd., respondent No. 4 herein, and 40% of the New
India Assurance Co. Ltd., respondent No. 2 herein. No dispute
has been raised in that regard and hence, the conclusion arrived
at by the learned Tribunal regarding the liability requires no
interference. Accordingly, the enhance amount of Rs.1,80,840/-
would be required to be paid by the respective insurance
companies in accordance with the liability apportioned by the
Tribunal, as aforesaid, within six weeks from the date of receipt
of writ of this order.
C/FA/3432/2018 JUDGMENT DATED: 03/03/2023
6.4 The claimant shall be entitled to interest at the rate 7.5%
on such enhanced amount of compensation.
6.5 The appeal is, thus, allowed to the aforesaid extent and the
impugned judgment and award shall stand modified accordingly.
R&P, if received, be transmitted back to the Tribunal concerned
forthwith.
[ Gita Gopi, J. ]
hiren
/13
