Gujarat High Court
Jayantilal Haridas Patel vs Abdulla Lalmohmmad Sunni Muslim on 1 August, 2024
NEUTRAL CITATION
C/FA/1622/2019 ORDER DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1622 of 2019
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JAYANTILAL HARIDAS PATEL
Versus
ABDULLA LALMOHMMAD SUNNI MUSLIM & ORS.
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Appearance:
MR AMIT C NANAVATI(1384) for the Appellant(s) No. 1
MR UM SHASTRI(830) for the Appellant(s) No. 1
MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Defendant(s) No. 2
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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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
29.09.2018 passed by the Motor Accident Claims Tribunal (Aux.),
Mahisagar at Lunawada, in Motor Accident Claim Petition No.46 of
2017 (Old MACP No.1350 of 1994), by which the Tribunal has
awarded compensation of Rs.1,58,450/- 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 On 18.07.1994, at about 13-00 hours, the claimant was walking
towards his home with bullocks and agriculture instruments, on the
side of the road. At the time he was passing S. T. Stop of village
Naroda, the opponent no.1 came by driving a truck no.HR-38-1031 in
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rash and negligent manner with an excessive speed and dashed with
the applicant. As a result thereof the applicant sustained serious
injuries on various parts of the body resultant permanent disability.
Therefore, the applicant has filed the present petition to get
Rs.7,50,000/- from the opponents under all heads.
2.2 The opponents are duly served. The original opponent nos.1
and 2 have not appeared personally or through duly instructed
counsel to resist present claim petition. The original opponent no.3
insurance company appeared through the Ld. Advocate and resisted
this claim petition by filing written statement at Exh.13 inter alia
denying most of the facts of claim petition and requested to dismiss
present claim petition.
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 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, disability, actual loss of
income, Special diet, attendant and transportation charges, Pain
shock and suffering, loss of enjoyment of life, disfigurement, etc. He
has submitted that the Tribunal has committed an error by not
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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 submitted that the Tribunal has committed gross
error by not properly considering the disability of the claimant. He
has submitted that the Tribunal has not properly considered the
injury and disability certificates at Exh.24 and Mark 21/4, wherein,
the claimant had sustained permanent partial disability of 60% of the
body, but the tribunal ought to have considered 50% considering the
injuries suffered by the appellant.
3.1 He has further submitted that income of the injured ought to
have been considered Rs.2500/- as the injured was an agriculturist as
well as would serve as conductor if the accident had not occurred
and therefore, looking to the age of the injured at the time of
accident i.e. 38 years, prospective income of 40% ought to have been
granted by the tribunal, which was not granted. He has further
submitted that considering the various decisions in the case of (i)
Yusuf Mahammad Patel Vs. Akram Anvarkhan Pathan rendered in
First Appeal No.1422 of 2015, (ii) Mohd. Sabeer @ Shabir Hussain
Vs. Regional Manager, UP State Road Transport Corporation
reported in 2022 (0) AIJEL-SC 70212, (iii) Karshanbhai Sajanbhai
Maru Vs. Hirabhai Ramabhai Kodiyatar & Ors. reported in 2019 (3)
GLR 2052, whereby, it is held that just and reasonable compensation
under different heads in the case of amputation and for artificial limb
should be considered. He has further submitted that looking to the
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nature of injuries and the circumstances of the facts of the case,
tribunal ought to have awarded higher amount under the heads of
Special diet, attendant and transportation charges as well as loss of
enjoyment of life and disfigurement, which the tribunal has not
awarded on a lower side 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 injury
and disability certificates and thereby, 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.
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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.1250/- p.m., as the injured was working as agriculturist as well as
selling milk and if the accident had not taken place, he would be
serving as conductor and therefore, considering the age of the
claimant at the time of accident and prevalent income in that
respective year of accident, Rs.2,500/- is required to be considered
as income of the injured.
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. 38 years, prospective income is required to be
granted and the same should be considered 40%. Therefore, it would
come to Rs.2500/- + Rs.1000/- = Rs.3500/- p.m. Looking to the
injuries and the disability certificates at Exh.24 and Mark 21/4,
wherein, the claimant had sustained permanent partial disability of
60% of the body, the tribunal ought to have considered 50%
disability and therefore, it appears that the claimant has received
serious injuries on face in the accident. Due to the accident, the
claimant got permanent partial disability of right leg which was cut
below the knee and therefore, considering the same, 50% disability is
hereby considered. 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. 38 years, multiplier of 15 is
required to be awarded. Thus, amount towards future loss of income
would come to Rs.3500/- X 50% (Disability) X 15 (multiplier) X 12
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(annual) = Rs.3,15,000/-. Accordingly, under the head of actual loss
of income Rs.2500/- X 6 (months) = Rs.15,000/- is required to be
awarded.
6.4 On perusal of the judgments cited at the bar by the learned
advocate for the appellant relating to cases of amputation of a body
part, it transpires that the same are fruitful for consideration and for
awarding compensation. Also, considering the fact that the left leg of
the injured was cut below knee, more particularly, reliance made by
the learned advocate for the appellant on the judgments is helping
the case of the injured, wherein, compensation for amputation of a
body part is considered and therefore, considering the facts of the
present case as well as the injury received by the claimant, tribunal
has committed error in not awarding any amount towards future
medical expenses and therefore, amount of Rs.3,00,000/- is required
to be awarded under the head of Future Medical Expenses.
6.5 Moreover, under the head of pain, shock and suffering,
Rs.1,50,000/- 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, attendant and
transportation charges, which should be Rs.20,000/- instead of
Rs.10,000/-, considering the treatment and injury suffered.
Furthermore, considering the nature injuries suffered by the
claimant and agony of life, amount under the head of Loss of
Enjoyment of life and disfigurement is required to be enhanced from
Rs.50,000/- to Rs.1,00,000/- and the same is considered for awarding
compensation to the claimant.
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6.6 Except above, the Tribunal has rightly awarded compensation
under the other heads, which need not be enhanced.
6.7 Thus, the appellant - claimant is entitled to get the following
final amount as compensation :
Particulars Amount (Rs.)
Pain, shock and suffering 1,50,000/-
Future loss of income 3,15,000/-
Actual loss of income 15,000/-
Future medical expenses 3,00,000/-
Special diet, attendant charge and transportation 20,000/-
Loss of enjoyment of life and disfigurement 1,00,000/-
Total... 9,00,000/-
Amount awarded by the tribunal... 1,58,450/-
Enhanced amount... 7,41,550/-
6.8 Thus, the Tribunal has committed an error in awarding total
compensation of Rs.1,58,450/- under various heads. The appellant -
original claimant is entitled to the additional amount of compensation
of Rs.7,41,550/- over and above the amount of Rs.1,58,450/- as
awarded by the Tribunal. The opponents are jointly and severally
liable to pay the aforesaid additional amount of Rs.7,41,550/- 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.
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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 29.09.2018 passed by the
Motor Accident Claims Tribunal (Aux.), Mahisagar at Lunawada, in
Motor Accident Claim Petition No.46 of 2017 (Old MACP No.1350 of
1994) shall stand modified to the aforesaid extent by enhancing the
amount of compensation as above.
7.3 The respondent No.3 - Insurance Company is directed to pay
the enhanced amount of Rs.7,41,550/- 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.
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
