Gujarat High Court

Khushalbhai Karsanbhai Parmar vs Pravinbhai Zinabhai Gamit on 18 June, 2024

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       C/FA/3455/2009                                     ORDER DATED: 18/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3455 of 2009

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                 KHUSHALBHAI KARSANBHAI PARMAR & ANR.
                                  Versus
                    PRAVINBHAI ZINABHAI GAMIT & ORS.
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Appearance:
MR HARSHIT S TOLIA(2708) for the Appellant(s) No. 1,2
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1,2
DELETED for the Defendant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 18/06/2024

                                    ORAL ORDER

1. The present First Appeal, under Section 173 of Motor

Vehicles Act, 1988, is preferred by the appellants - original

claimants, being aggrieved and dissatisfied with the impugned

judgment and award dated 26.09.2007 passed by the Motor

Accident Claims Tribunal (Aux.), Surat at Vyara in M.A.C.P

No.509/2000, by which the Tribunal has awarded

compensation of Rs.1,75,000/- with 9% per annum interest to

the claimants, holding the opponents liable, jointly and

severally.

2. Brief facts of the case are as under:

2.1. On 12.12.1999, the injured appellant along with his

minor son Vipul aged 14 years and his wife Bhanuben were

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riding on a motor cycle to attend religious katha and they

were traveling from Village - Kholeshwar and proceeding

towards Mori Gam Via Bardoli. The appellant was driving

his motor cycle completely on the correct side of the road

and that also slowly and carefully. At that time, the

opponent no. 1 Pravinbhai Gamit who was driving truck

no.GJ-5-V-7897 was coming from the opposite direction in a

rash and negligent manner and also with an excessive and

uncontrollable speed and he dashed his public career with the

motor cycle. As a result, the motor cycle along with the

appellant, his wife and son who were riding on motor cycle

were thrown away on the road and out of which, Vipul was

seriously injured and ultimately succumbed to the injuries on

the spot. While the appellant sustained serious injuries on

his right leg and other part of his bodies. Bhanuben also

sustained injuries and thereafter, injured was moved in the

Sardar Smarak Hospital. One Narayanbhai Haribhai

Mayavanshi, who is the maternal uncle of Vipul was

informed regarding this incident by one Pradipbhai and

therefore, Shri Narayanbhai went at the scene of offence and

thereafter, he went at Sardar Smarak Hospital and from

Sardar Smarak Hospital went to Police Station at Bardoli

and lodged his complaint. The offence was registered against

the respondent no.1 in Bardoli Police Station for the offences

punishable u/s. 279, 338, 304(A) of IPC as well as offences

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punishable u/s. 177, 184, 134, etc. of M.V. Act. The offence

was registered vide C.R.No.1 252/99. Investigation was carried

out. Post mortem of the dead body of Vipul was performed.

The appellant and his wife Bhanuben were given treatment.

2.2 In this incident, the appellant sustained number of

fractures in his right leg. There was a fracture of sinus of

right leg and also fracture of shaft femur and compound

fracture of right tibia and fibula. There were also injuries on

other parts of the body. His right leg is shortened by 2

inches. Thereafter, he was moved in the Mahaveer General

Hospital, Surat where he was admitted as indoor patient and

spent huge amount behind his treatment. Disability certificate

were issued by Dr. Rajeev Chaudhary and Dr. M.N. Vasava.

Number of operations were performed on the right leg of the

appellant. The appellant was bed ridden for a considerable

period.

2.3 The process of this claim petition was duly served to

the respondent nos. 1 and 2 but they did not remain present

in the trial. The respondent no.3 filed its written statement

vide Ex.11 and raised several contentions.

2.4. Being aggrieved and dissatisfied with the impugned

judgment and award passed by the concerned Tribunal, the

present appeal has been preferred before this Court.

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3. Heard learned advocates appearing for the respective

parties.

4. Learned advocate Mr. Parth S. Tolia for the appellants

has submitted that the amount of compensation is required

to be enhanced as the tribunal has awarded the amount on

lower side and only Rs.1,75,000/- came to be awarded under

various heads. It is submitted that the tribunal ought ot

have awarded at least an amount of Rs.3,00,000/- with 12%

interest per annum. He has further submitted that the

tribunal has erred in assessing the income of the deceased at

Rs.15000/- per month and ought to have assessed the

monthly income at Rs.2000/- per month i.e. Rs.24,000/- per

annum in that case the appellants are entitled to get amount

of Rs.3,20,000/- towards the head of dependency. He has

further submitted that the tribunal has erred in awarding

only 15 multiplier to the deceased, which ought to have been

awarded 18.

4.1 Learned advocate Mr. Tolia has further submitted that

towards love and affection, Rs.25,000/- ought to have been

awarded by the tribunal and Rs.50,000/- towards the head of

loss of estate to be awarded by the tribunal and total of

Rs.75,000/- ought to have been awarded under both the said

heads. Therefore, the learned advocate for the appellants

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prays for enhancement of quantum of compensation under

various heads.

5. Learned advocate Mr. Nagesh C. Sood for the

Insurance Company has submitted that though there is some

reservation about the medical bills, he is not able to dispute

the factual aspect as the submissions made by the learned

advocate Mr. Tolia is based on the documentary evidence,

however, he has submitted that reasonable amount can be

awarded. He has further submitted appropriate enhancement

may be awarded by considering the judgments in the case of

Sarla Verma v. Delhi Transport Corporation, reported in

(2009) 6 SCC 121, National Insurance Company Limited Vs

Pranay Sethi reported in (2017) 16 SCC 680 as well as Magma General Insurance Company Limited Vs Nanu Ram and Ors reported in (2018) 18 SCC 130.

6. I have considered the submissions made by the rival

parties. I have gone through the impugned judgment and

award passed by the Tribunal and the material available on

record.

6.1 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

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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.

6.2 It transpires from material available on the record that

the age of the deceased was 14 years at the relevant point

of time and tribunal has awarded Rs.1,75,000/-. The present

appeal is filed for Rs.1,25,000/-. The prospective income is not

considered by the tribunal, therefore, Rs.15,000/- + Rs.6000/-,

which comes to Rs.21,000/- is required to be added and as

parents are claimants, 50% is required to be deducted,

therefore, Rs.10,500/- is required to be considered for the

purpose of prospective income, which is to be multiplied by

15 multiplier, therefore, towards the loss of prospective

income the amount comes to Rs.1,57,500/-. Loss of consortium

for father and mother comes to Rs.88,000/- in total. Towards

loss of estate and funeral expenses Rs.15,000/- each is to be

considered. So, the total calculation comes to Rs.2,75,500/-

and by deducting Rs.1,75,000/- which was awarded by the

tribunal, the enhanced amount is Rs.1,00,500/-. Therefore, the

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enhanced amount of Rs.1,00,500/- is awarded in the amount

already awarded by the tribunal with 9% interest per annum.

6.3 Thus, the appellants - claimants are entitled to get the

following final amount as compensation:

Sr.No.                   Particulars                         Amounts (Rs.)

1.         Future loss of income                                           1,57,500/-

2.         Loss of consortium                                                 88,000/-

3.         Loss of estate                                                     15,000/-

4.         Funeral expenses                                                   15,000/-

                                             Total....                       2,75,500/-


6.4    Therefore,      the   enhanced       amount      of     Rs.1,00,500/-            is

required to be deposited by the respondent No.3 - Insurance

Company before the concerned tribunal within a period of

five weeks from today with interest at the rate of 9% p.a.

from the date of claim petition till the actual realization.

6.5 On deposition of such amount, the Tribunal shall

immediately 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/s, by account payee cheque or by transferring the

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