Ahmedabad Municipal Transport ... vs Rekhank Baldevbhai Khambhu
2023 Latest Caselaw 6446 Guj

                                                                                NEUTRAL CITATION




    C/FA/740/2010                             JUDGMENT DATED: 04/09/2023

                                                                                undefined




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 740 of 2010


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE UMESH A. TRIVEDI                              Sd/-

and

HONOURABLE MRS. JUSTICE M. K. THAKKER                                Sd/-

======================================

1   Whether Reporters of Local Papers may be                        No
    allowed to see the judgment ?

2   To be referred to the Reporter or not ?                         No

3   Whether their Lordships wish to see the fair                    No
    copy of the judgment ?

4   Whether this case involves a substantial                        No
    question of law as to the interpretation of the
    Constitution of India or any order made
    thereunder ?

======================================
        AHMEDABAD MUNICIPAL TRANSPORT SERVICE
                          Versus
               REKHANK BALDEVBHAI KHAMBHU
======================================
Appearance:
MR DEVANG BHATT for MR HS MUNSHAW(495) for the
Appellant(s) No. 1
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1
======================================

CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
      and
      HONOURABLE MRS. JUSTICE M. K. THAKKER



                                Page 1 of 6

                                                    Downloaded on : Sat Sep 16 15:59:48 IST 2023
                                                                                 NEUTRAL CITATION




      C/FA/740/2010                           JUDGMENT DATED: 04/09/2023

                                                                                undefined




                         Date : 04/09/2023
                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)

1. This appeal is filed under Section 173 of the Motor

Vehicles Act, 1988 (hereinafter referred to as "the Act"),

challenging the judgment and award passed by Motor Accident

Claims Tribunal (Auxillary), City Civil Court No. 9, Ahmedabad

in M.A.C. Petition No. 913 of 2000, whereby respondent -

claimant was awarded a compensation of Rs. 11 Lacs, with

cost and interest at the rate of 8% per annum from the date of

filing of the petition till realization.

2. The Ahmedabad Municipal Transport Service, who is the

owner of the vehicle which caused the accident by rash and

negligent driving of the driver of its bus, has challenged the

judgment and award as aforesaid.

3. Heard Mr. Devang Bhatt, learned advocate for Mr. H.S.

Munshaw, learned advocate for the appellant. According to his

submission, the earning believed by the Tribunal in absence of

any documentary proof in support thereof, at the rate of

Rs. 3,000/-, is on a higher side.

3.1 He has further submitted that for the amputation of one

lower limb, the disability to the extent of 100% believed by the

NEUTRAL CITATION

C/FA/740/2010 JUDGMENT DATED: 04/09/2023

undefined

Tribunal cannot be considered, as two different disability

certificates are produced by the claimant, one showing

disability to the extent of 100% and another showing the

disability to the extent of 85%.

3.2 Drawing attention of the Court to the endorsement

below Exhibit-27, whereby claimant produced vide Exhibit-31

the disability certificate issued by Dr. Manjul Joshipura,

Consultant Ortheopedic Surgeon, where loss of disability in

right lower limb is assessed to be 100%, whereas the

certificate issued by the Medical Board to the claimant issuing

certificate for physically handicapped where partial permanent

disability is assessed at 85%, which is produced by the

claimant vide Exhibit-32, and therefore, it should have been

relied on by the learned Judge in preference to the certificate

Exhibit-31 issued by a private Doctor. Therefore, he has

submitted that the award passed by the Tribunal is required to

be interfered with by allowing the appeal.

4. As against that, Mr. Vilav K. Bhatia, learned advocate for

the respondent - claimant, submitted that though claimant

stated in his deposition about his earning to be Rs.5,000/-, the

Tribunal has only considered his monthly earning to be

NEUTRAL CITATION

C/FA/740/2010 JUDGMENT DATED: 04/09/2023

undefined

Rs.3,000/- and based thereon, the amount of compensation is

determined, which is on a much lower side.

4.1 He has further submitted that despite Tribunal itself

concluding that maximum multiplier of 18 is to be applied,

without assigning any reasons, it granted multiplier of only 17,

which has caused a great loss to the claimant, who has

suffered a lot for his lifetime diminishing his prospects of

getting good bride as also the attractive safe Government job

because of loss of lower limb.

4.2 He has further submitted that as such this award passed

by the Tribunal is not required to be interfered with for the

simple reason that while considering his monthly earning, it

has not taken into consideration the proper earning that he

might have earned if accident had not occurred. Therefore,

despite there is difference, in disability certificate given by the

private Doctor as also certificate issued assessing physical

handicap, to the extent of 15% only, non-consideration of

compensation based on monthly earning claimed and proved,

amount of compensation would even cross Rs. 11 Lacs and in

that set of circumstances, he requests this Court not to

interfere with the judgment and award passed by the Tribunal.

NEUTRAL CITATION

C/FA/740/2010 JUDGMENT DATED: 04/09/2023

undefined

5. Having heard the learned advocates for the appearing

parties and going through the impugned judgment and award

as also the deposition and the documents produced and

proved, it emerges that the respondent - claimant was aged

22 years at the time of accident, just entering his youth and

started earning his livelihood, he met with an accident which

had diminished his lifetime dream.

Though Tribunal considered disability to the extent of

100%, as certified by Dr. Manjul Joshipura, vide Exhibit-31, it

requires no interference for the reason that if Tribunal would

have considered the proved proper earning, while determining

the compensation and the correct multiplier was to be applied,

the compensation would come to, if not more but equal to Rs.

11 Lacs, and therefore, even if disability certificate Exhibit-32

is to be accepted in preference over the disability certificate at

Exhibit-31, ultimate calculation of compensation would not be

that different to compel this Court to entertain this appeal.

6. Considering his age as also long hospitalization for a

period of nearly more than 2 months, and diminishing his

marriage prospects of his choice, we do not wish to interfere

with the impugned judgment and award as no compensation is

NEUTRAL CITATION

C/FA/740/2010 JUDGMENT DATED: 04/09/2023

undefined

awarded under that head by the learned Judge while

determining the compensation if at all change in percentage of

disability, as argued by the learned advocate for the appellant,

is considered, there would only be a meager reduction in the

award which we would not like to do while exercising the

appellate jurisdiction for the reasons as aforesaid.

Hence, this appeal is dismissed with no orders as to cost.

Sd/-

(UMESH A. TRIVEDI, J.)

Sd/-

(M. K. THAKKER, J.) Raj