Gujarat High Court
Kamleshbhai Bachubhai Brahmbhatt vs Patel Amrutbhai Hirabhai on 6 September, 2024
NEUTRAL CITATION
C/FA/2732/2013 ORDER DATED: 06/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2732 of 2013
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KAMLESHBHAI BACHUBHAI BRAHMBHATT
Versus
PATEL AMRUTBHAI HIRABHAI & ANR.
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 06/09/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles
Act, 1988, is preferred by the appellant - original claimant, being
aggrieved and dissatisfied with the judgment and award dated
16.05.2013 passed by the Motor Accident Claims Tribunal (Aux.),
Anand, in Motor Accident Claim Petition No.503 of 2008, by which
the Tribunal has awarded compensation of Rs.68,153/- with 7.5% per
annum interest to the claimant, holding Opponent No.2 liable, jointly
and severally.
2. Brief facts of the case are as under:
2.1 On 10-09-2008, present applicant was returning back towards
Khambhat after selling halvasan-sutarpheni by travelling as
passenger in S.T.Bus No.GJ-18 Y-1214 and when they reached nearby
the place of offence, the driver of S.T.Bus has driven his S.T.bus in a
rash and negligent manner and at an excessive speed and turned
turtle under the bridge and thus, impugned accident taken place.
That in the impugned accident, appellant has caused fracture on his
internal part and some more or less injuries on his person.
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C/FA/2732/2013 ORDER DATED: 06/09/2024
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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 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 income of the injured, injuries received, future
as well as actual loss of income and special diet, attendant as well as
transportation charges, 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 due to the accident, the claimant had
to take medical treatment in the hospital of Dr. Nikhil Goradia and
the copy of injury certificate is produced on record at Exh.27 and the
disability @ 15% of body as a whole is to be considered and
considering the nature of injuries, which is in the nature of fracture
sustained and keeping in mind, 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) Govind Yadav
Vs. New India Insurance Company Limited reported in (2011) 10
SCC 683. He has further submitted that looking to the nature of
injuries and the circumstances of the facts of the case, tribunal ought
to have awarded higher amount under the head of Special diet,
transportation and attendant charges.
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C/FA/2732/2013 ORDER DATED: 06/09/2024
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3.1 He has further submitted that the income ought to have been
considered at Rs.2,900/- after taking into consideration the age and
work profile of the claimant, as the claimant was selling sweets for
his livelihood and at the time of the accident the claimant was aged
33 years and therefore, appropriate enhancement be made by
modifying the award impugned and keeping in mind, the decision
rendered in the case of Pappu Deo Yadav Vs. Nareshkumar and
others reported in 2020 ACJ 2695. He has submitted that the appeal
may be allowed.
4. Per contra, learned advocate for respondent No.2 -
S.T.Corporation 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 and the amount of compensation has rightly been awarded
under various heads. He has submitted that the Tribunal has
assessed the disability certificates and awarded just and proper
compensation to the claimant. He has submitted that no interference
is required in the impugned award. He has submitted that this appeal
may be dismissed.
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
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C/FA/2732/2013 ORDER DATED: 06/09/2024
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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 considered the submissions made by the rival parties. I
have gone through the impugned judgment and award passed by the
Tribunal.
6.2 It transpires that the Tribunal has considered the income of
Rs.1500/- p.m., as the injured was doing the work of a sweet seller
and therefore, considering the income of the claimant and the
income prevalent in the year of accident, Rs.2900/- p.m. is required
to considered for the amount of compensation. Accordingly,
considering the income, the actual loss of income would come to
Rs.2900/- X 2 (months) = Rs.5,800/- and the same is required to be
considered for awarding the amount of compensation.
6.3 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. 33 years, prospective income should be considered
40%. Therefore, it would come to Rs.2900/- + Rs.1160/- = Rs.4060/-
p.m. Looking to the injuries, it appears that the claimant has received
serious injuries on face in the accident and due to the accident, the
claimant got disability, therefore, considering the same, 15%
disability is considered. Furthermore, looking to 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. 33 years, multiplier of 17 is
required to be awarded. Thus, amount towards future loss of income
would come to Rs.4060/- X 15% X 17 (multiplier) X 12 (annual) =
Rs.1,24,236/-.
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6.4 Moreover, under the head of pain, shock and suffering,
Rs.15,000/- would be proper to be awarded as compensation to the
claimant considering injuries like fracture and due to the accident,
the claimant had to take medical treatment in the hospital of Dr.
Nikhil Goradia and the copy of injury certificate is produced on
record at Exh.27. Furthermore, the Tribunal has committed error in
not properly considering the amount towards Special diet,
transportation and attendant charges, which should be Rs.10,000/-
instead of Rs.5,000/-, considering the treatment and the seriousness
of the injury suffered by the claimant.
6.5 Except above, the Tribunal has rightly awarded compensation
under the other heads, which need not be reconsidered and
enhanced.
6.6 Thus, the appellant - claimant is entitled to get the following
final amount as compensation :
Particulars Amount (Rs.)
Pain, shock and suffering 15,000/-
Future loss of income 1,24,236/-
Actual loss of income 5,800/-
Special diet, attendant and Transportation 10,000/-
charges
Medical Expenses 4,253/-
Total... 1,59,289/-
Amount awarded by the tribunal... 68,153/-
Enhanced amount... 91,136/-
6.7 Thus, the Tribunal has committed an error in awarding total
compensation of Rs.68,153/- under various heads. The appellant -
original claimant is entitled to the additional amount of compensation
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C/FA/2732/2013 ORDER DATED: 06/09/2024
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of Rs.91,136/- over and above the amount of Rs.68,153/- as awarded
by the Tribunal. 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 16.05.2013 passed by the
Motor Accident Claims Tribunal (Aux.), Anand, in Motor Accident
Claim Petition No.503 of 2008 shall stand modified to the aforesaid
extent by enhancing the amount of compensation as above.
7.3 The respondent No.2 - Gujarat State Road Transport
Corporation is directed to pay the enhanced amount of Rs.91,136/-
with the interest @ 7.5% per annum from the date of the claim
petition till realization 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)
SLOCK BAROT
