Gujarat High Court
Vrundavanbhai Narandas Kakkad Legal ... vs Shankerlal Veljibhai Patel on 11 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1040 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 Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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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VRUNDAVANBHAI NARANDAS KAKKAD LEGAL HEIRS OF DECEASED &
ORS.
Versus
SHANKERLAL VELJIBHAI PATEL & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Appellant(s) No. 1
MR AMAR D MITHANI(484) for the Appellant(s) No. 1.1,1.2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 6
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of
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Motor Vehicles Act, 1988, is preferred by the appellant -
claimant, being aggrieved and dissatisfied with the
judgment and award dated 30.03.2011 passed by the
Motor Accident Claims Tribunal (Aux.), Junagadh in
Motor Accident Claim Petition No.765 of 1997, by which
the Tribunal has awarded compensation of Rs.4,63,000/-
with 7.5% per annum interest to the claimant/s, holding
opponent Nos.1 to 3 and Nos.4 and 5 liable, jointly and
severally to the extent 50:50.
2. Brief facts of the case as per the case of the
appellant are as under:
2.1 It is the case of the appellant in this appeal that
on 10/10/1997 at about 11-00 night, Vrundavanbhai, his
deceased son Dipendra and one Vrujlalbhai Damani were
coming from Rajkot to Junagadh in an Ambassador Car
No. GJH-1945 of the ownership of opponent no.5 and the
opponent no. 4 was driving the said ambassador. It is
the say of the appellant/s that when the said
ambassador car reached in between village Bhojpara-
Biliyala on Rajkot Gondal highway road, one truck
bearing no. GQY-4178 was parked by opponent no.1,
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without any side signals, reflectors or any other
precautions as per traffic rules, as a result of which, the
said ambassador car collided with the said stationary
truck and thereby caused the accident in which Dipendra
Vrundavanbhai was succumbed to the injuries and other
persions namely Vrundavanbhai Naranbhai Kakkad and
Vrujlal Shantilal Damani have received serious and
grievous injuries over their persons. 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
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
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the Tribunal has not properly considered the various
aspects; like income of the injured, injuries, prospective
income, multiplier, pain, shock and suffering, etc. It is
submitted that the Tribunal has committed error in
considering on the higher side the monthly income of the
injured Rs.19,115/-, which should be Rs.18,035/-
considering the fact that he was working as a Professor
in Commerce College, Junagadh, and considering the
documentary evidence at Exh.83 page 274. 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 15% 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 9 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.15,000/-,
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instead of Rs.10,000/- 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) Govind Yadav vs. New
India Insurance Company Limited reported in (2011) 10
SCC 683. 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 committed considered the income of the
injured, which is on the higher side. 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 no interference is
required in the impugned award. However, from the
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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 income of the injured, injuries,
prospective income, multiplier, pain, shock and suffering,
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 on
the higher side the monthly income of the injured
Rs.19,115/-, which should be Rs.18,035/- considering the
fact that he was working as a Professor in Commerce
College, Junagadh, and earning Rs.19,115/- and after
deducting tax of Rs.1080/- and considering the
documentary evidence at Exh.83 page 274. 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., 57 years, addition
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to the extent of 15% is required to be granted in the
monthly income. Therefore, it would come to
Rs.20,740.25/- 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. 57 years at the time of
accident, multiplier of 9 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. Otherwise also, the Tribunal has rightly
considered those aspects. Therefore, Rs.20,740.25/- x
27.5% x 12 (monthly) x 9 (multiplier) would come to
Rs.6,15,986/- which would be the future loss of income of
the claimant.
6.3 Furthermore, the Tribunal has erred in awarding
Rs.10,000/- towards pain, shock and suffering, which
should be Rs.15,000/- considering the injuries and
treatment as well as taking into account various
decisions of the Hon'ble Apex Court. 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
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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 6,15,816/-
Actual loss of income 76,000/-
Pain, shock and suffering 15,000/-
Medical expenses and special diet 59,000/-
Transportation, attendant charges 2,000/-
Total... 7,67,816/-
Less : Amount which is already 4,63,000/-
awarded
Additional amount which is awarded 3,04,816/-
7. Therefore, I hold that the claimant/s are entitled to
get the total amount of compensation of Rs.7,67,816/-
with 7.5% 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
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remain same. The Tribunal has already awarded
Rs.4,63,000/- and, therefore, remaining amount of
Rs.3,04,816/- 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.
8.2 The impugned judgment and award dated 30.03.2011
passed by the Motor Accident Claims Tribunal (Aux.),
Junagadh in Motor Accident Claim Petition No.765 of
1997 is modified to the aforesaid extent.
8.3 In light of the decision of the Hon'ble Apex Court
in the case of Khenyei vs. New India Assurnace Co. Ltd.
& Ors. reported in (2015) 9 SCC 273, I am of the
opinion that respondent No.3 - insurance company will
deposit the entire awarded amount, and it is open for
the respondent No.3 - insurance company to recover the
same from other tort-feasors.
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8.4 Hence, the respondent No.3 - Insurance Company is
directed to deposit the enhanced amount Rs.3,04,816/-
with 7.5% p.a. interest from the date of claim petition
till its realisation before the concerned Tribunal, within a
period of six weeks from the date of receipt of this
order.
8.5 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with
accrued interest thereon, if any, to the claimant/s, by
account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
8.6 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
8.7 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
