Naynaben Dipakbhai Desai vs Resamsing & Co. Pvt Ltd
2024 Latest Caselaw 7749 Guj

Gujarat High Court

Naynaben Dipakbhai Desai vs Resamsing & Co. Pvt Ltd on 1 August, 2024

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      C/FA/3696/2008                               ORDER DATED: 01/08/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3696 of 2008

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                         NAYNABEN DIPAKBHAI DESAI
                                   Versus
                       RESAMSING & CO. PVT LTD & ANR.
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Appearance:
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1
DS AFF.NOT FILED (R) for the Defendant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 01/08/2024

                                ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant, being aggrieved and dissatisfied with the judgment and award dated 09.01.2002 passed by the Motor Accident Claims Tribunal (Main), Valsad at Navsari, in Motor Accident Claim Petition No.238 of 1993, by which the Tribunal has awarded compensation of Rs.2,35,000/- with 10% per annum interest to the claimant from the date of claim petition, holding Opponents liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 The appellant is the original claimant who had filed Motor Accident Claim Petition No.238/1993 before the Motor Accident Claim Tribunal, Valsad at Navsari, the injuries sustained by the appellant in a vehicular accident on 15.3.1993 involving Motor Truck No.MH-04-5189 in which the appellant sustained injuries. The Motor Accident Claim Tribunal by way of its judgment and award dated

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9.1.2002 partly allowed the claim petition by holding the respondents No.1 and 2 as jointly and severally liable directed them to pay a sum of Rs.2,35,000/- as compensation.

2.2 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant for enhancement.

3. Learned advocate for the appellant - claimant has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. He has submitted that amount awarded is on lower side as the Tribunal has not properly considered the various aspects; like income of the injured, injuries received, disability, future loss of income and attendant as well as transportation charges, etc., keeping in mind, the decisions of the Hon'ble Apex Court in the case of : (i) National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680 and (ii) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130, he has submitted that the tribunal has committed error in considering the income of the appellant, which should be considered as Rs.2100/- p.m., considering the nature of the work of the injured and the minimum wages prevalent in the year of the accident and accordingly, future loss of income is required to be considered. He has further submitted that considering the income of the injured, the actual loss of income should be considered as Rs.9000/- and the same may be awarded. He has further submitted that looking to the nature of injuries and the circumstances of the facts of the case, tribunal ought to have awarded higher amount under the heads of transportation and

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attendant charges. Therefore, appropriate enhancement be made by modifying the award impugned and he has submitted that the appeal may be allowed.

4. Per contra, learned advocate for respondent No.2 - insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the compensation towards pain, shock and suffering and the amount of compensation has rightly been awarded under various heads. He has submitted that the Tribunal has assessed the disability certificates issued by the doctor and awarded just and proper compensation to the claimant. He has submitted that, if the appeal is taken into consideration, the interest should be awarded on a lower side looking to the facts and circumstances of the present case. He has submitted that no interference is required in the impugned award. He has submitted that this appeal may be dismissed.

5. 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 irrespective of the amount claimed by the claimants.

6.1    I have considered the submissions made by the rival parties. I





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      C/FA/3696/2008                                        ORDER DATED: 01/08/2024

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have gone through the impugned judgment and award passed by the Tribunal.

6.2 It transpires that the Tribunal has considered the income of Rs.1200/- p.m., as the injured was doing agricultural work and housework, and therefore, considering the income of the claimant and the income prevalent in the year of accident, Rs.2100/- p.m. is required to granted. Therefore, actual loss of income shall be considered at Rs.9000/-.

6.3 Furthermore, considering the various decisions of the Hon'ble Apex Court and taking into account the age of the injured at the time of accident, i.e. 36 years, the amount towards future loss of income would come to Rs.2100/- X 20% X 15 (multiplier) X 12 (annual) = Rs.75,600/-.

6.4 Moreover, under the head of pain, shock and suffering, Rs.40,000/- would be proper to be awarded as compensation to the claimant considering the injury suffered by the claimant.

Furthermore, it is submitted that the Tribunal has committed error in not properly considering the amount towards attendant charges, which should be Rs.20,000/- instead of Rs.10,000/-, considering the treatment and injury. Towards the transportation charges, Rs.22,000/- is required to be considered instead of Rs.12,000/- awarded by the tribunal.

6.5 Except above, the Tribunal has rightly awarded compensation under the other heads, which need not be enhance.

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6.6    Thus, the appellant - claimant is entitled to get the following
final amount as compensation :


                            Particulars                      Amount (Rs.)
        Pain, shock and suffering                                        40,000/-
        Actual loss of income                                              9,000/-
        Future loss of income                                            75,600/-
        Transportation charges                                           22,000/-
        Medical Expenses                                              1,17,600/-
        Special diet                                                       5,000/-
        Attendant Charges                                                20,000/-
                                                  Total...              2,89,200/-
                       Amount awarded by the tribunal...                2,35,000/-
                                    Enhanced amount...                     54,200/-




6.7    Thus, the Tribunal has committed an error in awarding total

compensation of Rs.2,35,000/- under various heads. The appellant - original claimant is entitled to the additional amount of compensation of Rs.54,200/- over and above the amount of Rs.2,35,000/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.54,200/- to the appellant - original claimant together with interest @ 8% per annum from the date of the claim petition till realization. Rest of the direction(s) if any, shall remain same.

7. For the reasons recorded above, the following order is passed.

7.1 The present appeal is partly allowed.

7.2 The judgment and award dated 09.01.2002 passed by the Motor Accident Claims Tribunal (Main), Valsad at Navsari, in Motor

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Accident Claim Petition No.238 of 1993 shall stand modified to the aforesaid extent by enhancing the amount of compensation as above.

7.3 The Insurance Company is directed to pay the enhanced amount of Rs.54,200/- with the interest @ 8% per annum before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.

7.4 The Tribunal shall disburse the entire awarded amount (including the enhanced amount) lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimant, by account payee cheque, after proper verification and after following due procedure.

7.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.

7.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) SLOCK BAROT