Gujarat High Court

Arunkumar Kishorsinh Thakor vs Mukeshkumar Gajanand Chauhan on 25 September, 2023

Bench: Devan M. Desai

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      C/FA/567/2012                                       JUDGMENT DATED: 25/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 567 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DEVAN M. DESAI

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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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                   ARUNKUMAR KISHORSINH THAKOR
                              Versus
              MUKESHKUMAR GAJANAND CHAUHAN & 2 other(s)
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Appearance:
MR.M.R.PRAJAPATI FOR MR. NISHIT A BHALODI(9597) for the
Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                 Date : 25/09/2023

                                 ORAL JUDGMENT

[1] The present First Appeal, under Section 173 of

the Motor Vehicles Act, 1988, is preferred by the

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appellant, being aggrieved and dissatisfied with the

judgment and award dated 11.11.2011 passed by the

Motor Accident Claims Tribunal (Main), Dahod in

M.A.C.P. No.653 of 2005.

[2] The claim petition was for seeking

compensation of Rs.8,00,000/- with 18% interest. The

present respondents No.1 & 2 i.e. original opponents

No.1 & 2, appeared but did not file any written

statement. The present respondent No.3 i.e. opponent

No.3 - Insurance Company, appeared and filed its

written statement at Ex.18.

[3] Though served, none appears for respondents No.1 & 2.

[4] Heard the learned advocate Mr.M.R.Prajapati

for the appellant and the learned advocate

Mr.V.C.Thomas for respondent No.3 - Insurance

Company.

[5] The brief facts of the case are as under:-

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5.1 The appellant was traveling on a scooter

bearing registration No.GJ-20E-1220 with one

Maheshkumar Bhagat as a pillion rider on 25.03.2005.

The appellant had gone to Jesawada. At around 4.30

p.m. on Dahod Jesawada road, the driver of the

motorcycle bearing Registration No.GJ-20E-296, came with

high speed and with careless and negligent driving,

dashed with the scooter bearing Registration No.GJ-20E-

1220 and resultantly, the appellant sustained serious

injury on the left leg and sustained fracture. The

appellant was admitted in Dr.Amar Soni Hospital at

Dahod and due to the said accident, he sustained

disability.

5.2 As per the appellant's case, the appellant was 25 years of age at the relevant point of time, and was

serving at Narmada Industries, Belsar at Dahod, and

drawing Rs.2,500/- as salary.

5.3 The Insurance Company i.e. the present

respondent No.3 filed its written statement and denied

the claim of the claimant and prayed for dismissal of

the claim petition.

5.4 The issues were framed vide Ex.16 by the

Tribunal. The oral and documentary evidences were led

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by the parties before the Tribunal. After considering the

evidences on record, the Tribunal has partly allowed the

claim petition against the opponent Nos.1 to 3 and

directed the Opponents to pay Rs.3,02,500/- with 7.5%

with proportionate cost to the appellant from 24.08.2005

till realization.

5.5 Being aggrieved by the said findings of the

Tribunal, the appellant has preferred the present First

Appeal for enhancement of compensation only on the

issue of multiplier.

[6] Learned advocate for the appellant has

submitted that the claimant would be restricting the

claim in the present First Appeal towards the award of compensation by adopting the multiplier of 18, instead of

5. It is submitted by the learned advocate for the

appellant that the appellant would not claim any future

loss of income, looking to the disability assessed at 30%.

It is further submitted by the learned advocate for the

appellant that so far as assessing disability at 30%,

there is no dispute amongst the parties.

[7] I have perused the papers and the evidence on

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record. Upon perusal of the case papers, it is found that

the claimant was aged about 25 years at the time of

accident i.e. 25.03.2005 and was drawing salary of

Rs.2,500/- per month. He was a pillion rider on the date

of accident. While considering the compensation, the

Tribunal has considered the age of the appellant,

injuries sustained and the disability Certificate issued by

Sanchi Hospital in the year 2007. It is also observed by

the Tribunal that due to the accident, the appellant

sustained fracture on the left leg and had also taken

treatment in the hospital of Dr.Amar Soni, where he was

admitted as an indoor patient, and thereafter, he was

transferred to Baroda for further treatment. At Baroda,

the claimant was admitted as indoor patient from 25.03.2025 to 28.03.2005 and took treatment of Dr.Ajit

Patil, an Orthopedic Surgeon. The claimant was also

operated on 30.03.2005 and 3 rods and 5 to 6 clips were

inserted in the left leg and he had to take rest for more

than 9 months. The claimant was discharged on

19.04.2005. The Tribunal has also considered the injuries

sustained to the claimant and has also considered the

injury Certificate Ex.31 issued by Dr.Amar Soni, wherein

it has been observed that due to the accident, the

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claimant has sustained compound fracture shaft femur

lower third left with bone less and close fracture lower

and radius left lower. The Tribunal has also considered

the disability of 30%.

[8] The Tribunal after considering the documentary

evidence on record has determined the income of

Rs.20,980/- per month but adopted multiplier of 5 and

has determined the compensation.

[9] As noticed hereinabove, the learned advocate

for the appellant has confined his submission only with

regard to the multiplier issue. It is thus submitted that

accordingly, the compensation may be enhanced.

[10] Per contra, the learned advocate Mr.Thomas,

appearing for respondent No.3, has vehemently argued

and has submitted that the award passed by the

Tribunal is proper and the same may not be interfered

with. It is further submitted by the learned advocate for

respondent no.3 that looking to the disability of the

appellant, age of the claimant and looking to the nature

of work, the Tribunal has properly adopted the multiplier

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of 5 while determining the compensation.

[11] Since the short issue involved in the present

appeal with regard to the multiplier, I am examining

determination of the compensation with regard to the

multiplier adopted by the Tribunal.

[12] It is an established fact from the record that

when the accident occurred, the appellant was aged

about 25 years and as per the judgments of the Hon'ble

Apex Court in the case of National Insurance Co.Ltd. Vs.

Pranay Sethi reported in 2017 ACJ 2700 (SC) as well as

Sarla Verma Vs. Delhi Transport Corporation reported in

2009 ACJ 1298 (SC), for the age group of 15-25 years, the

multiplier has to be considered as 18. In the present

case, it appears that the Tribunal has determined the

multiplier of 5 instead of 18.

[13] In the case of Erudhaya Priya Vs. State of

Express Transport Corporation Ltd. 2020 ACJ 2159, wherein

the Hon'ble Apex Court has observed thus:-

"6. We heard learned counsels for the parties. They have also filed short synopses of their respective claims

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and rebuttals thereof, with the appellant enlisting the principles which can apply to her case, the law being now well settled in like cases.

7. There are three aspects which are required to be examined by us:

(a) the application of multiplier of '17' instead of '18'; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others1. In para 42 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others. v. Delhi Transport Corporation and Another. 2. In the age group of 15- 25 years, the multiplier has to be '18' along with factoring in the extent of disability.

The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'.

(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others3 and 1 (2017) 16 SCC 680 2 (2009) 6 SCC 121 3 (2018) 4 SCC 571 Sandeep Khanuja v. Atul Dande & Another4. We extract below the principle set out in the Jagdish case (supra) in para 8:

"8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:

(i) Pain, suffering and trauma resulting from the accident;

(ii) Loss of income including future income;

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(iii) The inability of the victim to lead a normal life together with its amenities;

           (iv)   Medical  expenses            including          those    that
           the    victim  may   be            required       to       undertake
           in future; and
           (v)     Loss of expectation of life."
                                                [emphasis supplied]

The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident.

In the factual contours of the present case, if we examine the disability certificate, it shows the admission/ hospitalization on 8 occasions for various number of days over 1 ½ years from August 2011 to January 2013. The nature of injuries had been set out as under:

"Nature of injury:

(i) compound fracture shaft left humerus

(ii) fracture both bones left forearm

(iii) compound fracture both bones right forearm

(iv) fracture 3rd, 4th & 5th metacarpals right hand

(v) subtrochanteric fracture right femur

(vi) fracture shaft left femur

(vii) fracture both bones left leg"

We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.

We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must

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also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. V. Pranay Sethi, 2017 ACJ 2700 (SC),, more specifically para 59.3, considering the age of the appellant, would be 50% of the actual salary in the present case."

[14] In the present case, the appellant has

sustained fracture on the left leg and had also

undergone surgeries as found from the record of the

case. As per the say of the appellant and also as per

the Certificate of the Doctor, he is unable to run and

facing difficulty in walking and sitting cross legged.

[15] It is noteworthy to mention that the provisions

of the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation.

It is a beneficial legislation which has been framed with

the object of providing relief to the victims or their

families. Section 168 of the Motor Vehicles Act deals

with the concept of 'just compensation' which ought to be

determined on the foundation of fairness, reasonableness

and equitability. Although such determination can never

be arithmetically exact or perfect, an endeavor should be

made by the Court to award just and fair compensation

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irrespective of the amount claimed by the claimants.

[16] Thus, as per the law enunciated by the

Hon'ble Apex Court in the aforementioned judgments, the

Tribunal has committed an error while determining and

adopting the multiplier of 5, instead of 18. Hence, the

compensation awarded by the Tribunal is altered and

determined as Rs.2,43,000/- towards Future Loss of

Income.

16.1 The Tribunal has granted compensation to the

appellant an amount of Rs.3,02,500/- under the different

heads as under:-

                 Sr.No.                     Head                      Compensation

                1.          Future loss of dependency               Rs.67,500/-

                2.          Pain, Shock and Suffering               Rs.30,000/-

                3.          Medical Bills                           Rs.2,00,000/-

                            Attendant Charges                       Rs.5,000/-

                            Total Compensation of                   Rs.3,02,500/-



16.2              As        per     the         altered       and         determined

compensation, the appellant is entitled to an amount of

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Rs.2,43,000. [Rs.3750x30%x12x18]. Now, the appellant -

claimant would be entitled to get the compensation as

follows:

Sr.No.                            Head                           Compensation

                                                                 Amount in Rs.

1           Future loss of dependency                           Rs.2,43,000/-

2.          Pain, Shock and Suffering                           Rs.30,000/-

2.          Medical Bills                                       Rs.2,00,000/-

3.          Attendant Charges                                   Rs.5,000/-

            Total Compensation of                               Rs.4,78,000/-

            Awarded Amount of                                   Rs.3,02,500/-

            Enhanced Amount of                                  Rs.1,75,500/-




[17]              Thus,   the     total     compensation         is     fixed        to

Rs.4,78,000/-,         however,    the     Tribunal      has     awarded            an

amount of Rs.3,02,500/- which is required to be deducted

from the compensation arrived at by this Court. Thus,

the claimant would be entitled to an additional amount

of Rs.1,75,500/- with 6% interest from the date of filing

of the claim petition till realization of the amount.

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17.1 The enhanced amount along with the interest

shall be deposited before the Tribunal within a period of

12 weeks from the date of receipt of this order, which

shall be disbursed to the claimant after due verification.