Gujarat High Court

Khalid Mohmadbhai Charkha vs Mehmudkha Sikandarkhan Pathan on 10 September, 2024

                                                                                                                  NEUTRAL CITATION




                            C/FA/514/2009                                        JUDGMENT DATED: 10/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 514 of 2009


                      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 ?

                      ==========================================================
                                           KHALID MOHMADBHAI CHARKHA
                                                      Versus
                                       MEHMUDKHA SIKANDARKHAN PATHAN & ORS.
                      ==========================================================
                      Appearance:
                      MR PARESH M DARJI(3700) for the Appellant(s) No. 1
                      MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 6
                      MS AVANI S MEHTA(1867) for the Defendant(s) No. 6
                      MS LILU K BHAYA(1705) for the Defendant(s) No. 3
                      RULE SERVED for the Defendant(s) No. 1,2.1,2.2,2.3,5
                      RULE UNSERVED for the Defendant(s) No. 4
                      ==========================================================

                          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 -

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claimant, being aggrieved and dissatisfied with the

judgment and award dated 27.06.2008 passed by the

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

Accident Claim Petition No.2539 of 1998, by which the

Tribunal has awarded compensation of Rs.1,16,000/- with

9% per annum interest to the claimant/s till 31.12.2002

and 7.5% per annum interest from 01.01.2003, 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 10/11/98, the petitioner was driving Jeep No.

GJ17 C254 from Dakor towards Thasra at a slow speed on the left side of the road and when the Jeep reached

the Rakhiyal stand at around 2.30 to 3.00 pm. Truck

No.GJ7.T.5177 hastily and negligently driven on the

wrong side and hit the front of the Jeep with great

force due to which the petitioner suffered serious injuries

first at Dakor. 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

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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, multiplier, special diet, transportation and attendant charges, pain, shock and suffering, actual loss,

etc. It is submitted that the Tribunal has committed

error in considering the monthly income of the injured

Rs.1,500/-, which should be Rs.3,000/- considering the fact

that he was doing driving work, and taking into account

the minimum wages prevailed in the relevant time.

Accordingly, actual loss of income may be increased

considering the income of the injured. It is submitted

that considering decision of the Hon'ble Apex Court in

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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. 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 18 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.50,000/-, instead of

Rs.25,500/- 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.25,000/- instated of

Rs.11,860/- considering the time of treatment taken by

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the injured. 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. Furthermore, it is submitted that the Tribunal

has rightly considered the compensation towards pain,

shock and suffering, actual loss of income. 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

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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.

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, multiplier, special diet, transportation

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and attendant charges, pain, shock and suffering, actual

loss, 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.1,500/-, which should

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

driving work, 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., 22 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. 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. 22 years at the time of accident, multiplier

of 18 is required to be granted. It is required to take

note of the fact that learned advocate for the appellant

has not disputed disability considered by the Tribunal.

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Otherwise also, the Tribunal has rightly considered those

aspects. Therefore, Rs.4,200/- x 28% x 12 (monthly) x 18

(multiplier) would come to Rs.2,54,016/- which would be

the future loss of income of the claimant.

6.3 Furthermore, actual loss of income should be

Rs.18,000/-, instead of Rs.9,000/- considering the monthly

income Rs.3,000/- of the claimant for six months.

Furthermore, the Tribunal has erred in awarding

Rs.20,500/- towards pain, shock and suffering, which

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

treatment as well as taking into account various

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

Tribunal has erred in awarding Rs.11,860/- only towards special diet, attendant and transportation charges, which

should be Rs.25,000/- considering the injuries and period

of hospitalization of the claimant, as well as treatment

taken by the injured. 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.

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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                                                 2,54,016/-

                            Actual loss of income                                                    18,000/-

                            Pain, shock and suffering                                                50,000/-

                            Medical expenses                                                      1,10,000/-

                            Special diet, transportation,                                            25,000/-

                            attendant charges

                                                                            Total...                4,57,016/-

                                                  Total entitled amount...                          2,28,508/-

                                        (-20% contributory negligence)

                            Less : Amount which is already                                        1,16,000/-

                            awarded

                             Additional amount which is awarded                                   1,12,508/-

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

get the total amount of compensation of Rs.2,28,508/-

with 9% per annum interest to the claimant/s till

31.12.2002 and 7.5% per annum interest from 01.01.2003

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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.1,16,000/-

and, therefore, remaining amount of Rs.1,12,508/- would

be the enhanced amount of compensation payable to the