Dinesh Jitiya Chandana vs Kanubhai Mansingbhai Damor (Driver)
2024 Latest Caselaw 7756 Guj

Gujarat High Court

Dinesh Jitiya Chandana vs Kanubhai Mansingbhai Damor (Driver) on 1 August, 2024

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      C/FA/1971/2012                               ORDER DATED: 01/08/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1971 of 2012

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                      DINESH JITIYA CHANDANA
                               Versus
            KANUBHAI MANSINGBHAI DAMOR (DRIVER) & ORS.
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
for the Defendant(s) No. 3
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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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 25.01.2012 passed by the Motor Accident Claims Tribunal (Aux.), Dahod in Motor Accident Claim Petition No.2787 of 2004 (Old MACP No.1491/1999), by which the Tribunal has awarded compensation of Rs.74,820/- with 7.5% per annum interest to the claimant, holding Opponents liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 The original claimant was doing labour work on Dumper bearing No.GJ.05.T.3031 and on 02.07.1999 the claimant was travelling in said Dumper as a labourer and the said Dumper was going to village Kaliarai. The original Opponent No.1 was driving the said Tanker in rash and negligent manner and with an excessive and

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uncontrollable speed. When the said Dumper was passing near Tank of village Thala, at about 7:00 a.m., at that time, the opponent No.1 lost control over his Dumper due to exceesive speed and the Dumper left the road and came on side then turned turtle, as a result, an accident took place, wherein, claimant and others sustained severe injuries.

2.2 The notices were served to the opponents. The original opponent Nos. 1 & 2 did not appear before the Tribunal, hence, the matter has been proceeded ex-parte against them. Whereas, the Ld.Adv.Mr.D.P. Mehta appeared on behalf of the opponent No.3. the Oriental Insurance Company Ltd. and filed written statement at Exh.18, wherein, the defence of denial has been taken by the opponent No.3.

It has also been denied the age, occupation & income of the claimant. It is contended that, there was no negligence on the part of the driver of the vehicle alleged to be involved in the accident. The amount claimed in claim petition is alleged to be highly exaggerated and lastly, it has been prayed for the dismissal of the claim petition against the opponent No.3.

2.3 After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.

2.4 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

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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 actual income of the injured, loss of future income, multiplier, injuries, loss of dependency and special diet charges, attendant as well as transportation charges, etc. He has submitted that the Tribunal has committed an error by not considering the compensation properly under the head of pain, shock and suffering, looking to the injuries sustained by the claimant and considering 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 further submitted that looking to the nature of injuries and the circumstances of the facts of the case, tribunal ought to have awarded amount under the head of special diet, attendant and transportation charges, which the tribunal has not awarded properly. He has further submitted that the tribunal has not properly considered the multiplier and the tribunal ought to have to considered the multiplier of 18 instead of 16, as the injured claimant was aged 20 years at the time of the accident and therefore, appropriate enhancement be made by modifying the award impugned. He has submitted that the appeal may be allowed.

4. Per contra, learned advocate for respondent No.3 - 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

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certificates issued by the doctor and awarded just and proper compensation to the claimant. 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 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.1500/- p.m., as the injured was working as labourer and considering the income of the claimant and the income prevalent in the year of accident, the concerned tribunal ought to have considered the income at Rs.2,000/- p.m. and the same is hereby required to be considered.

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

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of accident, i.e. 20 years, prospective income should be considered 40%. Therefore, it would come to Rs.2,000/- + Rs.800/- = Rs.2,800/- p.m. Furthermore, looking to 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. 20 years, multiplier of 18 is required to be awarded. Thus, amount towards future loss of income would come to Rs.2800/- X 14% X 18 (multiplier) X 12 (annual) = Rs.84,672/-.

6.4 Furthermore, amount under the head of actual loss of income should be considered at Rs.6,000/-, looking to the aspect of monthly income of the injured in the present case. Moreover, under the head of pain, shock and suffering, Rs.15,000/- would be proper to be awarded as compensation to the claimant considering the injury suffered by the claimant. Furthermore, the Tribunal has committed error in not properly considering the amount towards special diet, transportation and attendant charges, which should be Rs.10,000/- instead of Rs.5,000/-, considering the treatment and injury.

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

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

                          Particulars                         Amount (Rs.)
        Pain, shock and suffering                                         15,000/-
        Future loss of income                                             84,672/-
        Actual loss of income                                              6,000/-
        Special diet, Transportation and Attendant                        10,000/-
        charges





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      C/FA/1971/2012                              ORDER DATED: 01/08/2024

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        Medical Expenses                                               15,000/-
                                               Total...               1,30,672/-
                       Amount awarded by the tribunal...                 74,820/-
                                  Enhanced amount...                     55,852/-


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

compensation of Rs.74,820/- under various heads. The appellant - original claimant is entitled to the additional amount of compensation of Rs.55,852/- over and above the amount of Rs.74,820/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.55,852/- to the appellant - original claimant together with interest @ 7.5% 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 25.01.2012 passed by the Motor Accident Claims Tribunal (Aux.), Dahod in Motor Accident Claim Petition No.2787 of 2004 (Old MACP No.1491/1999) 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.55,852/- with the interest @ 7.5% per annum before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.

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      C/FA/1971/2012                             ORDER DATED: 01/08/2024

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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