Gujarat High Court

Kadvabhai Chanabhai Kakadia vs Surubhai Mansingbhai Vala on 10 September, 2024

                                                                                                                    NEUTRAL CITATION




                            C/FA/1720/2010                                         JUDGMENT DATED: 10/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 1720 of 2010


                      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 ?

                      ==========================================================
                                               KADVABHAI CHANABHAI KAKADIA
                                                          Versus
                                             SURUBHAI MANSINGBHAI VALA & ANR.
                      ==========================================================
                      Appearance:
                      UMARFARUK M KHARADI(8155) for the Appellant(s) No. 1
                      MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
                      MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
                      RULE SERVED for the Defendant(s) No. 1
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 10/09/2024
                                                             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 20.07.2007 passed by the

Motor Accident Claims Tribunal (Aux.), Rajkot in Motor

Accident Claim Petition No.258 of 2003, by which the

Tribunal has awarded compensation of Rs.1,95,600/- with

9% per annum interest to the claimant/s, holding

opponents liable, jointly and severally.

2. Brief facts of the case as per the case of the

appellant are as under:

2.1 On 04/01/2003 at about 07:30 morning, the accident

occurred. The appellant was doing his work of a garage

mechanic near his garage on Dhebarbhai road, Rajkot.

That, at that time, the driver of the rickshaw bearing registration no. GJ-3-X-9778, driving his rickshaw in

hectic speed, in rash and negligent manner and in full

speed without blowing the horn, endangering the human

life, climbed the footpath and dashed to the appellant, as

a result, the appellant fell down and accident in question

took place. As a result, the appellant sustained serious

injuries on his right leg, which was required to be

amputated below knee. Hence, claim petition has been

preferred.

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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. It

is submitted that amount awarded is on lower side as the Tribunal has not properly considered the various

aspects; like income of the injured, injuries, prospective

income, disability, pain, shock and suffering, actual loss,

medical expenses, expenses towards amputation of leg,

future medical expenses, etc. It is submitted that the

Tribunal has committed error in considering the monthly

income of the injured Rs.2,000/-, which should be

Rs.3,000/- considering the fact that he was doing

mechanic work of two wheeler vehicles, and taking into

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account the minimum wages prevailed in the relevant

time. Accordingly, actual loss of income may be increased

considering the income of the injured for 12 months

considering the amputation of left leg. 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 25% may be granted in monthly income of

the injured. Furthermore, it is submitted that the

Tribunal has rightly considered the disability, which is

not in dispute in the present case. Furthermore, the

multiplier should be 13 considering the various decisions

of the Hon'ble Apex Court and taking into account the age of the claimant. 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.40,000/- 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

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in (2018) 18 SCC 130, (iii) Govind Yadav vs. New India

Insurance Company Limited reported in (2011) 10 SCC

683. 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, it is submitted

that considering the documentary evidence and medical

papers, Rs.40,527/- is required to be awarded towards

medical expenses, instead of Rs.40,000/-, which is

awarded by the Tribunal. Furthermore, it is submitted

that considering the injuries; amputation of right leg

below knee and thereby, Rs.30,000/- is required to be

awarded towards artificial leg. Furthermore, it is submitted that considering all the above, and treatment

in future, and taking into account the decision in the

case of Govind Yadav (supra), Rs.2,00,000/- 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.

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4. Per contra, learned advocate for respondent No.2 -

insurance company has 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. 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 medical expenses, 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 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.

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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.

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,

prospective income, disability, pain, shock and suffering,

actual loss, medical expenses, expenses towards

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amputation of leg, 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 considered the

monthly income of the injured Rs.2,000/-, which should

be Rs.3,000/- considering the fact that he was doing

mechanic work of two wheeler vehicles, and taking into

account the minimum wages prevailed in the relevant

time. Furthermore, considering various above-mentioned

judgments of the Hon'ble Apex and taking into account

the age of the claimant at the time of accident, i.e., 48 years, addition to the extent of 25% is required to be

granted in the monthly income. Therefore, it would come

to Rs.3,750/- towards prospective income. It is required to

take note of the fact that learned advocate for the

appellant has not disputed multiplier and disability

considered by the Tribunal. Otherwise also, the Tribunal

has rightly considered those aspects. Therefore, Rs.3,750/-

x 30% x 12 (annual) x 13 (multiplier) would come to

Rs.1,75,500/- which would be the future loss of income of

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the claimant.

6.3 Furthermore, actual loss of income should be

Rs.36,000/-, instead of Rs.12,000/- considering the monthly

income Rs.2,000/- of the claimant for 12 months, instead

of 6 months after taking into account the injuries and

treatment. Furthermore, the Tribunal has erred in

awarding Rs.40,000/- towards pain, shock and suffering,

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

treatment as well as taking into account various above-

decisions of the Hon'ble Apex Court, more particularly, in

the case of Govind Yadav (supra). 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

documentary evidence and medical papers, Rs.40,527/- is

required to be awarded towards medical expenses, instead

of Rs.40,000/-, which is awarded by the Tribunal.

Furthermore, considering the injuries; amputation of right

leg below knee and thereby, artificial leg need,

Rs.30,000/- is required to be awarded towards artificial

leg. Furthermore, considering all the above, and

treatment in future, and taking into account the decision

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in the case of Govind Yadav (supra), Rs.2,00,000/- 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                                                1,75,500

                            Actual loss of income                                                36,000/-

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

                            Medical expenses                                                     40,527/-

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

                            Artificial leg                                                       30,000/-

                            Future medical expenses                                           2,00,000/-

                            Special diet, transportation,                                        10,000/-

                            attendant charges







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                            C/FA/1720/2010                                            JUDGMENT DATED: 10/09/2024

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                                                                                Total...                 7,92,027/-

                            Less : Amount which is already                                             1,95,600/-

                            awarded

                             Additional amount which is awarded                                        5,96,427/-

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

get the total amount of compensation of Rs.7,92,027/- with 9% 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.1,95,600/- and, therefore, remaining amount of

Rs.5,96,427/- would be the enhanced amount of

compensation payable to the claimant/s.

8. For the reasons recorded above, the following order

is passed.

8.1 The present appeal is allowed to the aforesaid

extent.