Gujarat High Court
Patel Narottamdas Shankarlal vs Ashvinkumar B Chaudhary ( Driver Of ... on 9 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/731/2023 JUDGMENT DATED: 09/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 731 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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PATEL NAROTTAMDAS SHANKARLAL
Versus
ASHVINKUMAR B CHAUDHARY ( DRIVER OF MARUTI CAR NO. GJ-24-A-
4392) & ORS.
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1
for the Defendant(s) No. 5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/02/2024
ORAL JUDGMENT
1. The challenge is given to the judgment
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dated 06.07.2021 passed by Motor Accident Claims
Tribunal (Auxi.), Mahesana at Visnagar in
M.A.C.P. No.60 of 2013. The compensation amount
has been granted as Rs.27,680/- at 9% per annum.
The injured claimant has taken exception to it
raising the ground that the compensation amount
has not been appropriately granted.
2. Mr. A.V.Prajapati, learned advocate for
the claimant submitted that the income was
required to be assessed in accordance to the
evidence adduced before the Tribunal, where the
claimant has stated that he was earning
Rs.10,000/- per month.
2.1 Advocate Mr. Prajapati submitted that in
absence of any documentary evidence, and when the
applicant had produced his driving license, the
Tribunal should have considered his income as per
minimum wages schedule to assess the income, and
further stated that some amount under the head of
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medical expense was also required to be granted,
though bills could not be proved, but the factum
of treatment and injury was stated before the
Tribunal. Advocate Mr. Prajapati stated that the
amount under the head of pain, shock and
sufferings and special diet, attendance charges
and transportation are also on the lower side.
3. Learned advocate Mr. G.C. Mazmudar
submitted that the claimant was required to
produce the evidence on record to prove his
income, and further the medical bills were
required to be proved to claim for the same.
4. In accordance to the facts noted in the
judgment, on 17.03.2013, the applicant was
passing on his motorcycle bearing Registration
No.GJ-2-BG-2204, and when he reached at the place
of accident, he faced an accident, since,
opponent no.1 came in his car in full speed,
endangering the human life, in rash and negligent
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manner, breach of traffic rules, dashed the
motorcycle of the applicant; as a result, he
sustained grievous injuries. As per the claimant,
he was 57 years of age and was earning
Rs.10,000/- by transport business.
5. The certified copy of the complaint,
panchnama, driving license of the car driver,
R.C. Book of the car, insurance policy of the car
as well as medical discharge card of the claimant
were produced on record. The claimant had also
produced pan card, income tax returns of the
assessment year of 2006-2007 and 2008-2009, tax
payer counter foil at Exh.21 and 25 respectively
and the disability certificate at Exh.28.
5.1 The income could not be proved of the
year of accident; however, considering the fact
that his evidence of doing transport business
gets support from the income tax returns of the
earlier year. The fact could be believed that he
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was having his earning from transport business;
however, exact income could not be proved on
record, but the assessment of Rs.3,000/- by the
Tribunal would not be in correspondence to the
evidence on record; however, since the income at
the time of accident could not be proved by
cogent evidence, the assistance can be taken
about the standard of the wages being payable to
skilled person, and, accordingly Rs.5,100/- per
month could be considered as the income of the
claimant.
5.2 As per National Insurance Company Ltd.
v. Pranay Sethi and Ors., AIR 2017 SC 5157, 10%
prospective rise in income is granted, since self
employed person above the age of 50. Hence, the
amount would come to Rs.5,610/- [5,100 + 510
(10%)]. Annually, the amount would come to
Rs.67,320/- (5,610 x 12).
5.3 The disability, by consent, as 7% for
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body as a whole has been considered, by an
endorsement at Exh.27 before the Tribunal, hence,
accordingly applying the multiplier of 9, the
claimant would be entitled as Rs.42,408/- [67,320
x 7% (Rs.4712) x 9] under the head of future loss
of income.
5.4 Considering the injury and evidence on
record of the treatment, the claimant would not
have earned for about one month, hence, the
actual loss of income is considered as
Rs.5,100/-.
5.5 Under the head of pain, shock and
suffering, the amount of Rs.2,500/- granted by
the Tribunal is on a lower side, as the claimant
could produce the disability certificate, where
the Doctor had assessed 15% disability, hence,
the amount is enhanced as Rs.10,000/- under the
head of pain, shock and suffering.
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5.6 Though, medical bills could not be
proved, but taking into consideration the
injuries sustained and the factum of treatment,
under the head of medical expense, Rs.7,500/- is
granted.
5.7 In correspondence to the treatment and
the need of special diet to recover, the amount
is enhanced from Rs.2,500/- to Rs.5,000/- under
the head of special diet, transportation and
attendant charges.
6. In view of the above, compensation under
different heads would be:
Heads Tribunal has Amount
granted
Future loss of Rs. 22,680/- Rs. 42,408/-
income
Actual loss of --- Rs. 5,100/-
income
Pain, shock Rs. 2,500/- Rs. 10,000
and suffering
Medical ---- Rs. 7,500/-
expenses
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special diet, Rs. 2,500/- Rs. 5,000/-
transportation
and attendant
charges
Total Rs. 27,680/- Rs. 70,008/-
7. The Tribunal has awarded total
compensation as Rs.27,680/-. The claimant would
be entitled to get Rs.42,328/- (70,008 - 27,680)
as enhanced compensation at the interest rate of
7.5%.
7.1 The enhanced amount be deposited before
the concerned Tribunal within Eight weeks from
the date of receipt of writ of this order. The
total amount be paid to the claimant by way of
cheque or NEFT on verification of identity.
8. In the result, the appeal is partly
allowed. The impugned judgment and award dated
dated 06.07.2021 passed by Motor Accident Claims
Tribunal (Auxi.), Mahesana at Visnagar in
M.A.C.P. No.60 of 2013, stands modified to the
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aforesaid extent. No order as to costs. Record
and Proceeding be sent back to the concerned
Tribunal, if received.
(GITA GOPI,J)
Pankaj
