Sugansinh @ Chhagansinh Baghsinh ... vs Jesingbhai Mahijibhai Tadvi
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Gujarat High Court

Sugansinh @ Chhagansinh Baghsinh ... vs Jesingbhai Mahijibhai Tadvi on 28 June, 2024

                                                                                   NEUTRAL CITATION




      C/FA/1079/2009                               ORDER DATED: 28/06/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1079 of 2009

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      SUGANSINH @ CHHAGANSINH BAGHSINH RAJPUT @ THAKUR
                            Versus
               JESINGBHAI MAHIJIBHAI TADVI & ORS.
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 2,5
SERVED BY AFFIX. (R) for the Defendant(s) No. 1,4
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  CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 28/06/2024
                                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 29.11.2005 passed by the Motor Accident Claims Tribunal (Main), Vadodara in Motor Accident Claim Petition No.1596 of 1991, by which the Tribunal has awarded compensation of Rs.2,18,000/- with 9% per annum interest to the claimants, holding all the opponents liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 22.10.1992, at the material time, the applicant with his unloaded tanker No. GTK 5940 was proceeding towards his house at Sayajipura from Fertilizer on his correct side of the road. When the said tanker reached near the place of occurrence, the opponent No. 1 driving his truck No. GJ-17-T-5718 came in rash and negligent

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manner from opposite direction without observing the traffic rules and while overtaking the foregoing truck No. GQY 4096 came on wrong side of the road and dashed against the applicant's tanker and caused the accident. That after causing the accident, the alleged truck turned turtle. Hence, the accident occurred due to rash and negligent driving by the opponent No.1, and the claimant sustained injuries. Therefore, the claim petition has been preferred.

2.2 Notices were served to the opponents. None were present except Opponents Nos.3, 4 and 5. Opponent No.3 - insurance company has filed its written statement at Exh.25 and opponent Nos.4 and 5 has filed their written statement at Exh.25, 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.26. 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 appellant - 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, and loss of amenities of life, etc. He has

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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 others reported in (2018) 18 SCC 130. 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. It is has submitted that the Tribunal has assessed the disability certificates issued by the doctor and awarded compensation to the claimant. It is 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, 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

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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.

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 injuries, and loss of amenities of life, pain, shock and suffering etc. to the claimant.

6.2 It transpires that the Tribunal has considered Rs.1,10,000/- towards future loss of income, which is not disputed in the present case, which is found just and proper. Furthermore, the Tribunal has erred in awarding Rs.35,000/- towards pain, shock and suffering, which should be Rs.135,000/-considering the injuries and treatment of the claimant. Furthermore, the Tribunal has erred in not awarding any amount towards loss of amenities of life. Considering the injuries, Rs.1,00,000/- should be awarded towards loss of amenities of life. Except the above, the Tribunal has rightly awarded the amount of compensation under different heads, which are found just and proper.

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      C/FA/1079/2009                                ORDER DATED: 28/06/2024

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6.4 Thus, the appellant - claimant is entitled to get the following final amount as compensation :

                           Particulars                        Amount (Rs.)
       Future loss of income                                           1,10,000/-
       Actual loss of income                                              48,000/-
       Pain, shock and suffering                                        135,000/-
       Loss of amenities of life                                       1,00,000/-
       Special diet, Transportation, Attendant Charges                    25,000/-
                                                 Total...                4,18,000/-

6.5 Thus, the Tribunal has committed an error in awarding total compensation of Rs.2,00,000/- under various heads. The appellant - original claimant is entitled to the additional amount of compensation of Rs.2,00,000/- over and above the amount of Rs.2,18,000/- as awarded by the Tribunal. The opponents are jointly and severally liable to pay the aforesaid additional amount of Rs.2,18,000/- to the appellant - 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 29.11.2005 passed by the Motor Accident Claims Tribunal (Main), Vadodara in Motor Accident Claim Petition No.1596 of 1991 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

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amount of Rs.2,18,000/- 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