Gujarat High Court
Khimaram Dhanaram Prajapati vs Jagdishkumar Prajapati on 6 March, 2023
Bench: Mauna M. Bhatt
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5490 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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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KHIMARAM DHANARAM PRAJAPATI
Versus
JAGDISHKUMAR PRAJAPATI & 3 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 4
MR SHASHIKANT S GADE(1706) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/03/2023
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act,
1988 (for short "the Act 1988"), is filed by the appellant-
Original claimant, challenging the judgment and award dated
22.11.2007, passed by the learned Motor Accident Claims
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
Tribunal (Auxi.), Fast Track Court No. 2, Vadodara in Motor
Accident Claim Petition No.1062 of 2004, wherein, the
Tribunal awarded total compensation of Rs. 7 lacs with
running interest @ 7.5% from the date of claim petition till
realization with proportionate cost. The Tribunal further held
that all the opponents are jointly and severally liable for the
payment of aforesaid compensation.
2. Following facts emerged from the record of the appeal:
2.1. That on 24.05.2004, the appellant - original claimant
was travelling in a luxury Bus bearing registration No. RJ-07-
P-4247. The said bus met with an accident with the Truck
bearing registration No. GJ-10-V-5109. It was case of the
appellant- original claimant that both the drivers i.e. driver of
the luxury bus as well as the driver of the Truck, were driving
their respective vehicles in rash and negligent manner. Because
of rash and negligent driving, the truck dashed with the luxury
bus and because of heavy impact, the bus turned turtle and
many passengers along with present appellant sustained serious
injuries. For the injuries sustained the appellant right limb was
amputed through surgery.
2.2. In respect of the said accident, the appellant as original
claimant filed claim petition under Section 166 of the Act
before the tribunal, seeking compensation of Rs. 20 lacs.
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
Before the tribunal owner of the luxury bus No. RJ-07-P-4247
was joined as opponent No1, Insurance- Company of the
luxury bus was joined as opponent No 2, owner of the Truck
No. GJ-10-V-5109 was joined as opponent No 3 and Insurance
- Company of the Truck as opponent No 4. Upon claim
petition being filed notices were issued and opponents filed
their respective written statements.
3. The Tribunal after hearing the parties and upon
appreciation of evidence on record decided the issues as under:
(i) In relation to negligence, the Tribunal held drivers of
both the vehicles (driver of luxury bus No. RJ-07-P-4247 and
the driver of the Truck No. GJ-10-V-5109, equally negligent
(50% - 50%) for occurrence of the accident.
(ii) In relation to compensation, the Tribunal awarded total
compensation of Rs. 7 lacs as under:
Sr.No. Particulars Amount in Rs.
1 Towards Future Loss of Income 5,98,500/-
2 Towards Pain, Shock and Suffering 40,000/-
3 Towards Medical Expenses 20,000/-
4 Towards Special Diet 12,500/-
5 Towards Attendant loss 5,000/-
6 Towards Transportation 4,000/-
7 Towards actual loss of income 20,000/-
Total Compensation 7,00,000/-
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
The above compensation was directed to be paid with
interest @ 7.5% per annum from the date of filing of the claim
petition till realization with proportionate cost.
4. Aggrieved by the amount of the compensation awarded,
present appeal is filed by the appellant - original claimant
seeking enhancement.
5. Heard learned advocate Mr. Hiren Modi for the appellant
- original claimant, learned advocate Mr. Shashikant Gade for
the respondent No.2 - Insurance Company of the luxury bus
No. RJ-07-P-4247 and learned advocate Mr. Rituraj Meena for
the respondent No.4- Insurance Company of the Truck No. GJ-
10-V-5109. As liability has not been denied, presence of other
respondents is not necessary and is dispensed with. The
Record and Proceedings of the aforesaid appeal is secured and
placed before this Court for perusal.
6. Learned advocate Mr. Hiren Modi for the appellant -
original claimant submitted that the Tribunal has erred and not
properly assessing the disability of the original claimant.
Relying upon the disability certificate at Exh.51 as also
deposition of the Doctor at Exhi-50, he submitted that as the
claimant's right limb was amputated eight inches below the
shoulder, the disability assessed by the Doctor to the extent of
80% is appropriate. He further submitted that the Doctor in his
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
deposition at Exh. 50 had clearly stated that because of his
permanent disability, now the claimant would not be able to
drive any vehicle and in future he is to perform all his work
by his one hand and therefore, disability assessed by the
Tribunal of 70% is erroneous. Considering the nature of work
the appellant was doing, as he was not in a position to do
work of loading - un-loading, he lost his job which amounts
to 100% loss in earning capacity. Relying upon the decision of
Hon'ble Apex Court in the case of Pappu Deo Yadav Vs.
Nareshkumar reported in AIR 2020 SC 4424, he submitted that
the original claimant is entitled for future loss of income,
which the Tribunal had not considered. He also relied upon
the decisions of Hon'ble Supreme Court in the case of Sarla
Verma (Smt) & Ors. vs. Delhi Transport Corporation & Anr.
reported in (2009) 6 SCC 121 and in the case of National
Insurance Company Ltd vs. Pranay Shetty reported in (2017) 16
SCC 680 and submitted that the tribunal had not awarded
appropriate compensation under the head of Pain, shock and
suffering and it needs enhancement. Considering the kind of
disability, the appellant sustained the tribunal further erred in
not awarding compensation for loss of amenities of life. He
also prayed for enhancement of compensation for
transportation, special diet and attendance charges. He also
prayed for enhancement of actual loss of income as the
appellant lost his employment. He thus submitted to allow this
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
appeal and enhance the compensation accordingly.
7. On the other hand, learned advocate Mr. Shashikant
Gade for respondent No.2 -Insurance Company of the luxury
bus supported the judgment and award passed by the Tribunal.
He submitted that the disability assessed by the Tribunal is
appropriate as the limb of the original claimant was amputated
above elbow. In relation to other heads of compensation, he
submitted that there being no error in the judgment and award
of the Tribunal does not call for any interference.
8. Supporting the submissions of learned advocate Mr. Gade,
learned advocate Mr. Rituraj Meena for respondent No.4 -
Insurance Company of the Truck, submitted that the Tribunal
had awarded the compensation on the basis of the disability
possessed by the appellant. There being no error in the
judgment and award of the Tribunal no interference is called
for. In relation to special diet and loss of amenities of life, he
submitted that these compensations are to be awarded in
certain special circumstances and for which the present
appellant is not eligible. He submitted that appeal filed by the
appellant - original claimant being merit-less deserves to be
dismissed.
9. No other and further submissions made by the learned
advocates appearing for the respective parties.
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
10. Having heard the learned advocates for the respective
parties and upon re-appreciation of the evidence on record, it
is noticed that the Doctor in his deposition at Exh.50, had
stated that the appellant was admitted in the hospital for the
surgical treatment and on account of injuries sustained, his
right limb was amputated eight inch below shoulder. The
appellant had remained as indoor patient for considerable time.
The Doctor in his deposition had further stated that on account
of amputation of his right limb, he in future would not be in
a position to drive any vehicle and he is to work with one
hand for rest of his life. Based on the Government Guideline,
the doctor had assessed his disability as 80%. In the medical
certificate disability has been assessed to the extent of 80%.
Considering these two evidences in my opinion, the disability
of the appellant is required to be assessed as at 80% instead of
70%. Therefore, the tribunal is in error in assessing the
disability of the appellant at 70%.
11. It is not in dispute that the original claimant was of 23
years of age at the time of accident and was employee of the
Thakkar Bakery at Surat. He was driving rickshaw and doing
work of loading and unloading of goods of the firm and by
which he was earning Rs.4750/- per month. In support of his
income, the salary certificate was produced at Exh. 48.
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
Further, in support of his salary income, Income Tax Returns
filed by the firm were produced and considered by the
Tribunal. Therefore, in my opinion, the income of the original
claimant assessed by the Tribunal of Rs.4750/- is appropriate.
However, in view of the decisions of the Hon'ble Apex Court
in cases of the Pappu Deo Yadav Vs. Nareshkumar, (Supra)
Sarla Verma (Smt) & Ors. vs. Delhi Transport Corporation &
Anr. (Supra) and National Insurance Company Ltd vs. Pranay
Shetty (Supra), the original claimant would be entitled to 40%
rise towards future prospective income. As claimant was 23
years of age, the multiplier of 18 would be appropriate.
Therefore, the dependency loss would be as under.
"Rs.4750 + 1900 (40% future prospective income) = Rs.6650 x
80% (disability) = Rs.5320 x 12 p.a. = Rs.63,840 x 18
(multiplier) = Rs.11,49,120."
12. From the record, it is noticed that the appellant shall
remained as indoor patient for a period of four months,
therefore, Rs.20,000/- considered towards actual loss of income
in my opinion is appropriate. Moreover, the claimant at the
young age of 23 years lost his one limb for no fault of him.
Moreover, on account of his disability, he would not be able
to drive and shall have to perform his work with one hand for
rest of his life. It cannot be ignored that the at the young age
of 23 years, he underwent multiple surgeries including skin
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
grafting and he is expected to compromise at various stages of
life. Therefore, in my opinion Rs. 1 lac each would be
appropriate towards pain shock and sufferings and loss of
amenities of life. Further in my opinion, Rs.50,000/- would be
appropriate towards special diet, transportation and attendant
charges. Thus, the appellant - original claimant would be
entitled to total compensation as under:
Future loss of income 11,49,120/-
Actual loss 20,000/-
Pain, shock & suffering 1,00,000/-
Medical expenses 20,000/-
Special diet, Transportation and Attendant 50,000/-
Amenities of life 1,00,000/-
Total 14,39,120/-
Therefore, following order is passed
O R D E R
(i) Appeal is partly allowed.
(ii) Thus, the appellant - claimant
would be entitled to total compensation
of Rs.14,39,120/-. As the Tribunal has
awarded an amount of Rs.7,00,000/-,
respondent Nos. 2 and 4 - Insurance
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
companies shall deposit the balance
additional amount of compensation of
Rs.7,39,120/-, (Rs.14,39,120 -
Rs.7,00,000) in their respective
proportionate liability with 6% interest
p.a. from the date of filing of the claim
petition till its realization with the
Tribunal within a period of 8 weeks
from the receipt of the order.
(iii) The original claimant is entitled for
the compensation and the same shall be
disbursed to the original claimant
through RTGS, after due verification.
(iv) The rest of the judgment and
award passed by the learned Tribunal
shall remained unaltered.
(v) Deficit Court Fees, if any, is to be
paid by the appellant within a period of
four weeks, failing which the amount
shall be recovered from the amount to
be deposited by the Insurance Company.
(vi) Registry is directed to transmit
C/FA/5490/2008 JUDGMENT DATED: 06/03/2023
back the Record and Proceedings of the
case to the concerned Tribunal forthwith.
However, there shall be no order as to
costs.
(MAUNA M. BHATT,J)
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