Gujarat High Court

Devendra Dungarsinh Joshi vs Bhimsinh Devubha Sodha on 4 September, 2024

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                            C/FA/2609/2014                                         JUDGMENT DATED: 04/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2609 of 2014


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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                      1     Whether Reporters of Local Papers may be allowed                             No
                            to see the judgment ?

                      2     To be referred to the Reporter or not ?                                      No

                      3     Whether their Lordships wish to see the fair copy                            No
                            of the judgment ?

                      4     Whether this case involves a substantial question                            No
                            of law as to the interpretation of the Constitution
                            of India or any order made thereunder ?

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                                               DEVENDRA DUNGARSINH JOSHI
                                                          Versus
                                              BHIMSINH DEVUBHA SODHA & ORS.
                      ==========================================================
                      Appearance:
                      MR MAULIK J SHELAT(2500) for the Appellant(s) No. 1
                      MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
                      MR.HIREN M MODI(3732) for the Defendant(s) No. 1
                      RULE SERVED BY DS for the Defendant(s) No. 2
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 04/09/2024
                                                             ORAL JUDGMENT

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

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judgment and award dated 29.08.2013 passed by the

Motor Accident Claims Tribunal (Aux.) Kachchh at Bhuj

in Motor Accident Claim Petition No.808 of 2004, by

which the Tribunal has awarded compensation of

Rs.4,39,000/- with 10% 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 10.10.2004 at about 7:30 a.m. near Patiya of

Varsada village and the road goes from Tarapur to

Vataman. The accident is occurred, and the appellant

sustained injuries resulting into disability in the

vehicular accident. Hence, claim petition has been preferred.

2.2 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.

2.3 Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

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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 injuries, prospective income, disability and

special diet, transportation and attendant charges, loss of

amenities of life, future medical expenses, etc. It is

submitted that the Tribunal has rightly considered the

monthly income of the injured Rs.3,000/- after considering

the material available on the record and taking into

account the nature of work of the injured. It is submitted that considering decision of the Hon'ble Apex

Court in the case of National Insurance Company

Limited versus Pranay Shethi reported in (2017) 16 SCC

680, as well as taking into account the age of the

injured, addition to the extent of 40% may be granted in

monthly income of the injured. It is submitted that the

Tribunal has not properly considered the disability

certificates issued by doctor and injury certificate,

whereby it is clearly stated that the claimant has

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sustained permanent disability to the extent 77% of

upper limb and 27% lower limb. Hence, at least, for

body as a whole, disability to the extent 70% is required

to be considered and the Tribunal ought to have granted

compensation accordingly. It is submitted that the

Tribunal has committed an error by not properly

considering the compensation under the head of pain,

shock and suffering, which should be Rs.1,50,000/-,

instead of Rs.50,000/- 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.55,400/- instated of Rs.25,400/- considering the time of

treatment taken by the injured. It is also submitted that

the Tribunal has committed error in not awarding any

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,

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considering the various decisions of the Hon'ble Apex

Court and taking into account the facts and

circumstances of the case, Rs.50,000/- additionally is

required to be awarded towards future medical expenses.

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 advocates for respondents have submitted that the impugned judgment and award passed

by the Tribunal is just and proper. It is submitted that

the Tribunal has rightly considered the income of the injured as well as prospective income of the injured.

Furthermore, it is submitted that 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 not awarded any amount

towards loss of amenities of life. It is also submitted

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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.

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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, prospective income,

disability and special diet, transportation and attendant

charges, loss of amenities of life, future medical expenses,

etc. At the outset, I have considering the decision cited

at the bar by learned advocate for the appellant. The

judgments cited at the bar by learned advocate for the

appellant is helpful to the facts of the present case.

6.2 It transpires that the Tribunal has taken into

consideration the monthly income of the claimant

Rs.3,000/-, which the Tribunal has rightly considered

after considering the documentary evidences available on

the record, and the same is not disputed by learned

advocate for the appellant. Furthermore, considering

various above-mentioned judgments of the Hon'ble Apex

and taking into account the age of the claimant at the

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time of accident, i.e., 35 years, addition to the extent of

40% is required to be granted in the monthly income.

Therefore, it would come to Rs.4,200/- towards prospective

income. Looking to the disability certificates issued by

doctor and injury certificate, whereby it is clearly stated

that the claimant has sustained permanent disability to

the extent 77% of upper limb and 27% lower limb.

Hence, at least, for body as a whole, disability to the

extent 70% is required to be considered and the Tribunal

ought to have granted the same. Furthermore,

Considering the various decisions of the Hon'ble Apex

Court, and taking into account the age of the injured at

the time of accident i.e. 35 years at the time of

accident, multiplier of 16 is required to be granted. Therefore, Rs.4,200/- x 70% x 12 (monthly) x 16

(multiplier) would come to Rs.5,64,480/- which would be

the future loss of income of the claimant.

6.3 Furthermore, the Tribunal has erred in awarding

Rs.50,000/- towards pain, shock and suffering, which

should be Rs.1,50,000/- considering the injuries and

treatment as well as taking into account various

decisions of the Hon'ble Apex Court. Furthermore, the

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Tribunal has erred in awarding Rs.25,400/- only towards

special diet, attendant and transportation charges, which

should be Rs.55,400/- considering the injuries and period

of hospitalization of the claimant, as well as treatment

taken by the injured. 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, considering the various decisions of the

Hon'ble Apex Court and taking into account the facts

and circumstances of the case, Rs.50,000/- additionally is

required to be awarded towards future medical expenses.

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.

6.4 Thus, the appellant - claimant is entitled to get the

following final amount as compensation :

                                                   Particulars                     Amount (Rs.)

                            Future loss of income                                            5,64,480/-

                            Actual loss of income                                               39,000/-





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                            Pain, shock and suffering                                                  1,50,000/-

                            Medical expenses                                                           1,00,000/-

                            Future medical expenses                                                       50,000/-

                            Special diet, transportation,                                                 55,400/-

                            attendant charges

                            Loss of amenities of life                                                  1,50,000/-

                                                                                Total...               11,08,880/-

                            Less : Amount which is already                                             4,39,000/-

                            awarded

                             Additional amount which is awarded                                        6,69,880/-

7. Therefore, I hold that the claimant/s are entitled to

get the total amount of compensation of Rs.11,08,880/-

with 10% 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.4,39,000/- and, therefore, remaining amount of

Rs.6,69,880/- would be the enhanced amount of

compensation payable to the claimant/s.

8. For the reasons recorded above, the following order

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