Gujarat High Court

Pathan Liyakatali Anumiyan vs Dolbharthi Mahadevbharthi Goswami on 5 September, 2024

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                             C/FA/2015/2012                                  JUDGMENT DATED: 05/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 2015 of 2012


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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                                            PATHAN LIYAKATALI ANUMIYAN
                                                       Versus
                                     DOLBHARTHI MAHADEVBHARTHI GOSWAMI & ORS.
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                       Appearance:
                       MR R.K.MANSURI(3205) for the Appellant(s) No. 1
                       MR PALAK H THAKKAR(3455) for the Defendant(s) No. 5
                       MS HINA DESAI(1023) for the Defendant(s) No. 2
                       NOTICE UNSERVED for the Defendant(s) No. 4
                       RULE SERVED for the Defendant(s) No. 1,3
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                           CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                         Date : 05/09/2024

                                                        ORAL JUDGMENT

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1. The present appeal is filed by the appellant - claimant

under Section 173 of the Motor Vehicles Act, being aggrieved

by and dissatisfied with the judgment and award dated

31.3.2011 passed by the Motor Accident Claims Tribunal

(Aux.), Sabarkantha at Himmatnagar in Motor Accident Claim

Petition No.751 of 2000, by which, the Tribunal has partly

allowed the claim petition by awarding Rs.72,500/- with 7.5%

p.a. interest to be paid to claimant/s, by holding opponents

liable, jointly and severally.

2. The facts of the present appeal are as under :

2.1 The claimant filed the claim petition stating that on

30.6.1999, the claimant was coming from Idar to Himmatngar

by travelling in jeep bearing no.GRN-1129 driven by opponent

no.3 rashly and negligently and when the jeep reached near

spinning mill, at that time, at about 1.45 p.m., there was a

truck on the road in stationary condition and there was also

a ST bus bearing No.GJ1Z.4154 coming from behind driven

by opponent no.1 rashly and negligently and dashed with the

jeep resulting into the accident and the claimant suffered

serious injuries and therefore the claim petition was filed by

the claimant claiming compensation.

2.2 The notices were served to the opponents. Opponent

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nos.1 and 2-GSRTC appeared and opponent no.5-insurance

company also appeared and filed written statements. The

issues were framed by the Tribunal. Oral as well as

documentary evidence were led before the Tribunal. After

hearing the submissions made by the rival parties, the

Tribunal has partly allowed the claim petition(s) and awarded

compensation as noted above.

2.3 Hence, the appellant-claimant has filed the present

appeal before this Court for enhancement of compensation.

3. Learned advocate for the appellant - Insurance

Company has submitted that the learned Tribunal has erred

in taking Rs.1250/- per month as notional income, the

prospective income is not considered though the claimant was

aged 42 years on the date of accident; the functional

disability sustained by the claimant is not considered

properly; the amount awarded under the head of pain, shock

and suffering of Rs.10,000/-, under the head of actual loss of

Rs.2,500/- and under the head of medicine, special diet,

transportation of Rs.7,500/- is very less. In short, he has

submitted that the entire awarded amount under various

heads awarded by the learned Tribunal is on lower side,

which is required to be enhanced in this appeal. He

submitted that the claimant was earning Rs.3,000/-, he was

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indoor patient for 45 days, he had to take complete rest for

almost eight months, that the actual loss of income should

have been awarded for 12 months and therefore, the amount

awarded should be enhanced. He, therefore, prayed to allow

this appeal.

4. Per contra, learned advocate for the GSRTC and the

insurance company have submitted that no proof of claimant's

income was produced and his employer was not examined to

prove the income; that looking to the injuries sustained by

the claimant, the claimant would have taken rest for two

months and therefore the actual loss of income was

considered accordingly; further, the future loss of income was

considered on the basis of the disability agreed upon by

learned advocates before the learned Tribunal and the

learned Tribunal has awarded the compensation under the

head of pain, shock and suffering and transportation,

treatment and medicines after considering the injuries

sustained by the claimant and in absence of any proof

regarding the same, which is just and proper and is not

required to be enhanced. They, therefore, prayed to dismiss

this appeal.

5. I have considered the submissions made by the

respective parties. I have perused the record and proceedings.

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I have gone through the impugned judgment and award

passed by the Tribunal. I have also considered the pleadings

of the parties before the Tribunal.

6. It transpires from the record that no proof of income

was produced before the learned Tribunal though it was

claimed by the claimant that he was earning Rs.3,000/- per

month. Therefore, the learned Tribunal has considered the minimum wages as on the date of the accident and

considered Rs.1250/- income of the claimant. In the case of

Govind Yadav v. New India Insurance Company Limited, (2011) 10 SCC 683, normally, the Court should consider the income on the basis of the minimum daily wages in absence

of any material or document available with the Tribunal

regarding the proof of income and therefore, the learned

Tribunal has not committed any error in considering the

same. Further, the multiplier applied for calculating the

future loss of income of the claimant based on the disability

agreed upon by the parties and the nature of injuries

sustained by the claimant, the period of hospitalization and

treatment undergone by the claimant, the amount awarded is

just and proper, even in view of the ratio laid down in the

cases of Sarla Verma V/s Delhi Transport Corporation reported in (2009)6 SCC 121National Insurance Company Ltd. V/s Pranay Sethi & Ors. reported in (2017)16 SCC 680,

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which is not required to be interfered with as the said

compensation can be said to be just and proper compensation

looking to the nature of injuries sustained, and the treatment

undergone and the disability suffered by the claimant. This

appeal is, therefore, required to be dismissed.

7. In view of above, the following order is passed.

7.1 The present appeal is dismissed with no order as to

costs.

7.2 The amount lying with the Tribunal and/or in the FDR,