Aiyubkhan Yusufkhan Pathan Deceased ... vs Pathan Ahmedkhan N
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Gujarat High Court

Aiyubkhan Yusufkhan Pathan Deceased ... vs Pathan Ahmedkhan N on 25 June, 2024

                                                                                    NEUTRAL CITATION




       C/FA/4066/2008                               ORDER DATED: 25/06/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4066 of 2008

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      AIYUBKHAN YUSUFKHAN PATHAN DECEASED LEGAL HEIRS OF
                       DECEASED & ORS.
                            Versus
                  PATHAN AHMEDKHAN N. & ORS.
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Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1.1,1.2,1.3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 25/06/2024
                                 ORAL ORDER

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellants - claimant, being aggrieved and dissatisfied with the judgment and award dated 23.03.2007 passed by the Motor Accident Claims Tribunal (Mail), Nadiad in Motor Accident Claim Petition No.2186 of 1996, by which the Tribunal has awarded compensation of Rs.2,80,100/- with 9% per annum interest to the claimants, holding Opponents i.e. driver, owner and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 23/2/1996 at about 7.00, when the claimant was traveling in truck no. GJ-7-X-1279 as cleaner while proceeding from Indore to Ahmedabad on its way near village Gunavad, the opponent no.1 lost control of its truck and dashed from behind with dumper bearing registration no. MP- 13-712. As a result, the claimant caused serious

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injuries over his body.

2.2 Notices were served to the opponents. None were present except Opponents No.3 - insurance company. Opponent No.3 -

insurance company has filed its written statement at Exh.27 by disputing all the averments made by the claimant in the claim petition and also disputed the liability.

2.3 The Tribunal has framed the issues at Exh.22. The oral as well as documentary evidence were led by the rival parties before the Tribunal. 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 appellants - claimant has submitted that the Tribunal has committed an 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 injuries, functional disability, multiplier, loss of amenities of life, 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

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others reported in (2018) 18 SCC 130. He has submitted that the Tribunal has committed gross error by not considering the disability to the claimant. He has submitted that the Tribunal has not properly considered the disability of the claimant, which should have been considered to the extent 100% for body as a whole considering the disability and amputation of the claimant. and the Tribunal ought to have granted compensation accordingly. He has submitted that the 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. He has submitted that the Tribunal has assessed the disability certificates issued by the doctor and awarded compensation to the claimant. He has submitted that no interference is required in the impugned award. However, from the submissions made by learned advocate for the appellants that the Tribunal has committed certain errors, on this aspect, learned advocates 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, 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

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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 heard the learned advocates for the respective parties 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, multiplier disability and negligence, pain, shock and suffering, special diet, transportation and attendant charges, etc to the claimant.

6.2 It transpires that the Tribunal has taken into consideration the monthly income of the claimant Rs.1,500/- considering the nature of work of the injured as conductor, which is found just and proper and the same is not disputed by learned advocate for the appellants. Looking to the injuries, whereby the claimant has received permanent partial disability to the extent of 60.8% and his left leg was required to be amputated and also three fingers of left hand were required to be amputated, therefore, to the extent of 100% disability is required to be considered for body as a whole in view of the various judgments of the Hon'ble Apex Court. The Tribunal has considered 15 multiplier, however, looking to the age i.e. 35 years of the claimant at the time of accident, multiplier of 16 is required to be

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awarded, which is found just and proper. Therefore, Rs.1,500/- x 100% x 12 x 16 multiplier would come to Rs.2,88,000/- which would be the future prospective income of the claimant.

6.3 Furthermore, actual loss of income should be Rs.4,500/-, which the Tribunal has rightly considered. Furthermore, the Tribunal has erred in not awarding anything towards loss of amenities of life. Considering the injuries and disability of the injured, Rs.60,000/- is required to be awarded.

6.4 Except above, the Tribunal has rightly awarded under different heads, which are found just and proper and, therefore, no interference is required in it.

6.5 Thus, the appellants - claimant are entitled to get the following final amount as compensation :

                         Particulars                            Amount (Rs.)
       Future loss of income                                               2,88,000/-
       Actual loss of income                                                    4,500/-
       Pain, shock and suffering                                           1,00,000/-
       Medical Expenses                                                         7,600/-
       Special diet, Transportation, Attendant                                  6,000/-
       Charges
       Loss of amenities of life                                                60,000
                                                  Total...                   4,66,100/-

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

compensation of Rs.2,80,100/- under various heads. The appellants - original claimant are entitled to the additional amount of compensation of Rs.1,86,000/- over and above the amount of Rs.2,80,100/- as awarded by the Tribunal. The opponents are jointly

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and severally liable to pay the aforesaid additional amount of Rs.1,86,000/- to the appellants - original claimant together with interest @ 9% 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 23.03.2007 passed by the Motor Accident Claims Tribunal (Mail), Nadiad in Motor Accident Claim Petition No.2186 of 1996 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.1,86,000/- with the interest @ 9% 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) DIWAKAR SHUKLA