Gujarat High Court

Ramsinh Dhulsinh Zala vs Kamleshbhai Dhulabhai Prajapati on 4 May, 2023

Bench: Gita Gopi

     C/FA/1866/2023                                JUDGMENT DATED: 04/05/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1866 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                          RAMSINH DHULSINH ZALA
                                   Versus
                      KAMLESHBHAI DHULABHAI PRAJAPATI
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Appearance:
MR ANKIT SHAH(6371) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 04/05/2023

                              ORAL JUDGMENT

1. Draft amendment is granted. To be carried

out forthwith.

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

2. The injured claimant is challenging the

judgment and award passed by the learned

Tribunal dated 11.4.2022 passed in MACP

no.679/11 by the MACT (Main), Mehsana. With

the consent of both the advocates on record,

the matter is taken up for final hearing.

3. Mr. Jay Shah along with Mr. Ankit Shah

submitted that the learned Tribunal has

failed to consider the aspect of prospective

rise in income, which has been considered by

the Hon'ble Apex Court. Referring to the

decision in the case of Pappu Deo Yadav v.

Naresh Kumar & Ors, AIR 2020 SC 4424, it is

submitted that the learned Tribunal has

erred in not considering the addition to the

rise in prospective income. It is stated

that though 17% disability has been

assessed, the learned Tribunal has failed to

appreciate that over and above the physical

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

disability, the claimant had suffered

neurological permanent disability of 12% and

because of that, he is suffering from memory

loss and also has speech impediment and

thus, stated that amount under the head of

pain, shock and suffering has not been

appropriately granted. It is further stated

that the medical condition of the claimant

would require an attendant and the learned

Tribunal could have also granted amount

under the head of loss of amenities.

4. While Mr. Palak Thakkar stated that the

learned Tribunal has granted reasonable and

just amount under the head of pain, shock

and suffering. Taking into consideration the

mental and physical disability of the

claimant, total medical charges of

Rs.2,70,000/- has been granted and under the

head of special diet, attendance charges and

transportation charges, reasonable amount

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

has been awarded by the Tribunal and has

also stated that the income per month is

assessed as per the evidence and thus,

submitted that interference of this Court is

not warranted at this stage.

5. On the facts of the case as can be

succinctly noted that on 13.2.2011, the

claimant who was a paid driver of jeep no.

GJ-02 AP-9028 along with other persons was

heading towards Varana Village and while

returning back home at about 1:30 p.m. near

Sarval Village, suddenly one Nilgay

(bluebuck) came in the way and the claimant

who was driving the vehicle lost control

over the jeep and the jeep turned turtle.

The claimant as well as other occupants

received bodily injuries. The claimant was

taken to Sai Krishna Hospital, Mehsana and

he sustained mental and physical injury. The

age of the claimant at the time of the

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

accident was 47 years. The learned Tribunal

has considered the income at Rs.4,500/- per

month while considering income from

agricultural work and driving work. This

Court finds that the said monthly income so

assessed is in accordance to the evidence

produced on record. However, no assessment

has been made regarding the prospective rise

in income.

6. In the case of Pappu Deo Yadav (supra), it

has been held as under:-

17. In K. Suresh v. New India Assurance Co. Ltd. [K. Suresh v. New India Assurance Co. Ltd., (2012) 12 SCC 274 : (2013) 2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638] , this Court held as follows : (SCC p. 276, para 2)

"2. ...There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation.

Therefore, Section 168 of the

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."

******* ******** ********* Loss of earnings

20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs 15,000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4846 per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

to Rs 14,66,000."

12. In view of the above decisive rulings of this court, the High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earnings (based on a determination of the income at the time of accident), the appellant is also entitled to compensation for loss of future prospects, @ 40% (following the Pranay Sethi principle)."

7. Thus, keeping in view the proposition as

laid down in the case of Pappu Deo Yadav

(supra), considering the age and that he was

a self-employed person, 25% addition is to

be made towards future prospective rise in

income. Thus, considering the salary of

Rs.4,500/- adding 25% prospective rise, the

monthly income could be assessed is

Rs.5,625/-.

8. Hence, applying 17% disability with

multiplier of 13 to the income of Rs.5,625/-

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

annually, the claimant would be entitled for

an amount of Rs.1,49,175/- (Rs.67,500/- X

17% X 13) towards future loss of income.

9. The Tribunal has granted Rs.50,000/- under

the head of pain, shock and suffering. The

evidence on record suggests that Neuro

Surgeon Dr. Mahesh Trivedi, Champa Hospital,

Mehseana has issued the disability

certificate and under the consent of both

the parties for considering neurological

disability for the body as a whole, 12% has

been considered and another disability

certificate issued by Dr. Mahesh Khandelwal,

M.S. Ortho, Mehsana, 5% disability has been

considered. So in total, the learned

Tribunal has assessed 17% functional

disability, but the claimant has suffered

neurological injury and is suffering from

memory loss and also facing difficulty in

his speech. Because of this injury, he would

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

have suffered pain, shock and suffering more

than any person who had only physical

disability. Thus, under the head of pain,

shock and suffering, the amount is enhanced

to Rs.75,000/-.

10. Considering the physical situation of the

claimant, he would be in need of an

attendant as he would not be in a position

to continue with his activity as would have

been carried as usual earlier prior to the

accident. The mental condition and the

difficulty in his speech along with physical

disability, he must have spent for the

attendant. The learned Tribunal has granted

Rs.20,000/- under the head of attendant

charges, special diet and transportation.

Hence, under the said head, the amount of

Rs.30,000/- is granted.

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

11. Considering the neurological defect and the

effect on the speech and the loss in the

memory, appropriate amount is required to be

granted under the head of loss of amenities

and thus, an amount of Rs.30,000/- would be

appropriate under the said head. Actual loss

of income has been assessed by the Tribunal

and medical bills have been granted by the

learned Trial Court.

12. Thus, in view of the above, the compensation

can be computed as under:-

Rs.1,49,175/- Future loss of income Rs.75,000/- Pain, shock and suffering Rs.27,000/- Actual loss of income Rs.2,70,000/- Medical bills Rs.30,000/- Special diet, attendant and

transportation Rs.30,000/- Loss of amenities of life Rs.5,81,175/- Total compensation

13. As the Tribunal has granted compensation of

C/FA/1866/2023 JUDGMENT DATED: 04/05/2023

Rs.4,86,400/- with interest at the rate of

7% per annum, the appellant would be

entitled to the enhanced amount of

compensation of Rs.94,775/- with interest at

the rate of 7% per annum from the date of

filing of the claim petition till its

realization. The insurance Company is

directed to deposit the said amount within

eight weeks from the date of receipt of writ

of this Court.