Gujarat High Court
Parabatbhai Maldebhai Thapalia vs Vaidyabhai Rajabhai Malam on 1 August, 2024
NEUTRAL CITATION
C/FA/2086/2012 ORDER DATED: 01/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2086 of 2012
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PARABATBHAI MALDEBHAI THAPALIA
Versus
VAIDYABHAI RAJABHAI MALAM & ANR.
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
MR R G DWIVEDI(6601) for the Defendant(s) No. 2
RULE SERVED 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 - claimant, being aggrieved
and dissatisfied with the judgment and award dated 06.03.2012
passed by the Motor Accident Claims Tribunal (Main), Junagadh in
Motor Accident Claim Petition No.136 of 1999, by which the Tribunal
has awarded compensation of Rs.2,55,000/- with 7.5% per annum
interest to the claimant/s, holding opponents liable, jointly and
severally.
2. Brief facts of the case are as under:
2.1 On 26.11.1998, the injured along with his friend Vikrambhai
was standing on the road near Sutrej village. The driver of tractor
bearing registration No.GJ-11-E-963 negligently drove his vehicle in
reverse and caused serious injury to the injured. Hence, claim
petition has been preferred.
2.2 After considering the documentary as well as oral evidence and
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submissions made at the bar, the Tribunal has partly allowed the
claim petition by awarding compensation as noted above.
2.3 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. It is 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 and
negligence, special diet, transportation and attendant charges, pain,
shock and suffering, actual loss, loss of amenities and enjoyment of
life, future medical expenses, etc. He has relied upon the decision of
the Hon'ble Apex Court in the case of Gurwinder Singh vs. Pirthi
Singh rendered in Civil Appeal No.5936 of 2021. He has relied
upon the decision of this Court in the cases of (i) Vijaykumar
Babulal Modi vs. State of Gujarat (Deleted) & Gujarat State
Road reported in 2012 (1) GLH 738, (ii) Govind Kana, Junagadh
vs. Kana Tida, Kokaria and Others reported in 1989 (1) GLH
163, (iii) Satvara Kankuben Dayabhai vs. G.S.R.T.C. and Others
reported in 1999 (1) GLH 232. It is submitted that the Tribunal has
committed error in considering the monthly income of the injured
Rs.3,500/-, which should be Rs.5,000/- considering the fact that he
was an agriculturist and having land. Accordingly, actual loss of
income may be increased considering the income of the injured.
Furthermore, looking to the disability certificate issued by doctor at
Exh.56, whereby it appears that the claimant has sustained
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permanent disability to the extent 46% due to injuries. However, the
Tribunal has considered disability to the extent 23%, as the appellant
is totally disabled so disability should be considered to the extent
100% considering the above decision of this Court as well as
considering the case of paraplegia. It is submitted that the Tribunal
has committed an error by not properly considering the
compensation properly under the head of pain, shock and suffering,
which should be Rs.4,00,000/-, instead of Rs.20,000/- awarded by the
Tribunal, looking to the injuries sustained by the claimant and
considering the decisions of the Hon'ble Apex Court in the case of :
(i) Pranay Shethi (supra) and (ii) Magma General Insurance
Company Limited versus Nanu Ram and others reported in
(2018) 18 SCC 130. It is submitted that the Tribunal has committed
error in not properly considering the amount towards special diet,
transportation and attendant charges, which should be Rs.1 lakh
instated of Rs.20,000/- considering the treatment of long time,
injuries as well as considering the decision above decisions. It is also
submitted that the Tribunal has committed error in not awarding
proper amount towards loss of amenities of life, which should be
Rs.1,50,000/- considering the treatment taken by the injured and
considering the injuries. Furthermore, the Tribunal has committed
error in not awarding any amount towards future medical expenses,
which should be Rs.1 lakh. It is submitted that the Tribunal has
rightly awarded the compensation under different heads, except the
above raised. It is submitted that the appropriate enhancement be
granted by modifying the award impugned. It is submitted that the
appeal may be allowed.
4. Per contra, learned advocate for respondent No.2 - insurance
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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. It is
submitted that the Tribunal has rightly awarded amount towards
special diet, attendant charges, and attendant charges. It is also
submitted that considering the facts and circumstances of the
present, the Tribunal has rightly now awarded any amount towards
loss of amenities of life. It is also submitted that no interference is
required in the impugned award. However, from the submissions
made by learned advocate for the appellant that the Tribunal has
committed certain errors, on this aspect, learned advocate for the
respondent/s has submitted that if this Court feels that there is some
error in calculation of the amount in view of settled position of law,
in awarding compensation by the Tribunal, then the Court may pass
appropriate order by considering the submissions made by him/her,
in the interest of justice.
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 claimant/s.
6.1 I have heard the learned advocates for the respective parties
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and considered the submissions made by the rival parties. I have
perused the record and proceedings of the Tribunal. I have gone
through the impugned judgment and award passed by the Tribunal.
It is noted that the claimant has by and large claimed enhancement
towards income of the injured, injuries, disability and negligence,
special diet, transportation and attendant charges, pain, shock and
suffering, actual loss, loss of amenities and enjoyment of life, future
medical expenses, etc.
6.2 I have perused the judgments cited at the bar by learned
advocate for the appellant. The judgment cited at the bar by learned
advocate for the appellant is helpful to the facts of the case.
6.3 In view of the above above, it transpires that the Tribunal has
taken into consideration the monthly income of the claimant
Rs.3,500/-. Considering the fact that the injured was an agriculturist
and having land, was earning Rs.5,000/- p.m. as per submission, and
considering the minimum wages prevailed in the year of occurrence
of accident, the monthly income of injured should be considered
Rs.5,000/-, instead of Rs.3,500/- as awarded by the Tribunal. Looking
to the injuries and the disability certificate issued by doctor at
Exh.56, whereby it appears that the claimant has sustained
permanent disability to the extent 46% due to injuries. However, the
Tribunal has considered disability to the extent 23%, as the appellant
is totally disabled so disability should be considered to the extent
100%, considering the above decision of this Court as well as
considering the case of paraplegia.
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The Tribunal has considered 15 multiplier looking to the age i.e. 36
years of the claimant at the time of accident, which is found just and
proper. Therefore, Rs.5,000/- x 100% x 12 (annual) x 15 (multiplier)
would come to Rs.9,00,000/- which would be the future loss of
income of the claimant.
6.4 Furthermore, actual loss of income should be Rs.15,000/-,
instead of Rs.10,500/- considering the monthly income Rs.5,000/- of
the claimant for three months. Furthermore, the Tribunal has erred
in awarding Rs.20,000/- towards pain, shock and suffering, which
should be Rs.4,00,000/- considering the injuries and treatment as
well as taking into account various aforesaid decisions. Furthermore,
the Tribunal has erred in awarding Rs.20,000/- only towards special
diet, attendant and transportation charges, which should be
Rs.1,00,000/- considering the injuries and period of hospitalization of
the claimant as well as taking into account various aforesaid
decisions. Furthermore, Rs.1,00,000/- is required to be awarded
towards future medical treatment considering the various decisions
of the Hon'ble Apex Court as well as injuries. Furthermore, in view of
the recent law laid down by the Hon'ble Apex Court, Rs.1,50,000/- is
required to be awarded towards loss of amenities of life.
Furthermore, under the other heads, the amount awarded by the
Tribunal are not disputed by the claimant in the present case.
Otherwise also, the Tribunal has rightly considered the amount of
compensation under other heads.
6.5 Thus, the appellant - claimant is entitled to get the following
final amount as compensation :
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Particulars Amount (Rs.)
Future loss of income 9,00,000/-
Actual loss of income 15,000/-
Pain, shock and suffering 4,00,000/-
Future medical expenses 1,00,000/-
Special diet, transportation, attendant charges 1,00,000/-
Loss of amenities of life 1,50,000/-
Total... 16,65,000/-
Less : Amount which is already awarded 2,55,000/-
Additional amount which is awarded 14,10,000/-
7. Therefore, I hold that the claimant/s are entitled to get the
total amount of compensation of Rs.16,65,000/- with 7.5% p.a.
interest from the date of filing the claim petition till its realisation,
which would meet the ends of justice. Rest of the direction(s) of the
Tribunal shall remain same. The Tribunal has already awarded
Rs.2,55,000/- and, therefore, remaining amount of Rs.14,10,000/-
would be the enhanced amount of compensation payable to the
claimant/s.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 06.03.2012 passed
by the Motor Accident Claims Tribunal (Main), Junagadh in Motor
Accident Claim Petition No.136 of 1999 is modified to the aforesaid
extent.
8.3 The respondent No.2 - Insurance Company is directed to
deposit the enhanced amount Rs.14,10,000/- with 7.5% p.a. interest
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from the date of claim petition till its realisation before the
concerned Tribunal, within a period of six weeks from the date of
receipt of this order.
8.4 The Tribunal shall disburse the entire awarded amount lying in
the FDR and/or with the Tribunal, with accrued interest thereon, if
any, to the claimants, by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure.
8.5 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
