Gujarat High Court
Patel Rameshbhai Chhaganlal vs Rameshbhai Joitaram Patel on 11 September, 2024
NEUTRAL CITATION
C/FA/344/2009 ORDER DATED: 11/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 344 of 2009
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PATEL RAMESHBHAI CHHAGANLAL
Versus
RAMESHBHAI JOITARAM PATEL & ORS.
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Appearance:
MR MAYUR RAJGURU(1198) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1.1,1.2,1.3
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/09/2024
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
05.01.2008 passed by the Motor Accident Claims Tribunal (Aux.),
Mahesana, in Motor Accident Claim Petition No.1297 of 2002, by
which the Tribunal has awarded compensation of Rs.52,724/- with
8% per annum interest to the claimant, holding Opponents liable,
jointly and severally.
2. Brief facts of the case are as under:
2.1 On 05-06-2002 at about 07.30am the appellant while travelling
on a two wheeler and while entering the entrance gate of Visnagar
Market Yard, the scooter bearing registration no GJ-02-J-4074
Dashed from behind and the appellant sustained grievous injuries of
Fracture of Tibia - Fibula on left Leg and was taken to Gokul
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Hospital, Visnagar and availing primary treatment, shifted to Jay
Orthopedic Hospital at Mehsana, admitted as an Indoor patient and
was operated for surgery.
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
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 which are grievous injuries of Fracture of Tibia - Fibula on
left Leg and was taken to Gokul Hospital, Visnagar and availing
primary treatment, shifted to Jay Orthopedic Hospital at Mehsana,
admitted as an Indoor patient and was operated for surgery, 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
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awarded higher amount under the head of Special diet,
transportation and attendant charges.
3.1 He has further submitted that after taking into consideration
the age and work profile of the claimant, as the claimant was holding
50% partnership firm as well as was holding lands also and at the
time of the accident the claimant was aged 46 years and therefore,
appropriate enhancement be made by modifying the award
impugned. He has further relied on the decisions of the Hon'ble Apex
Court reported in (1) 2015 (6) SCC 374, (2) 2011 (1) SCC 343, (3)
2009 (6) SCC 121 and 2023 Livelaw (SC) 528, to substantiate the
claim for enhancement of the compensation and therefore, prayed
that the appeal may be allowed.
4. Per contra, learned advocate for respondent No.3 - insurance
company 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. She has submitted that the Tribunal has assessed the
disability certificates and awarded just and proper compensation to
the claimant. She has submitted that no interference is required in
the impugned award. She 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
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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 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 injured was having holding of 50% in
partnership firm as well as was holding lands also and at the time of
the accident the claimant was aged 46 years and therefore,
considering the income prevalent in the year of accident, Rs.3000/-
p.m. is required to be considered for the amount of compensation.
6.3 Furthermore, considering the various decisions of the Hon'ble
Apex Court and taking into account the age as well as vocation of the
injured at the time of accident, income is considered at Rs.3000/-,
whereby, 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,
7% disability is to be considered. Therefore, Rs.3000/- X 7% =
Rs.210/- p.m. income which is to be added, then, Rs.3000/- + Rs.210/-
= Rs.3,210/- p.m. and the same is to be considered as monthly
income of the claimant. Moreover, considering the various decisions
of the Hon'ble Apex Court and taking into account the age as well as
work profile of the injured at the time of accident, prospective
income should be considered 25%. Therefore, it would come to
Rs.3210/- + Rs.802/- = Rs.4012/- p.m. Furthermore, looking to the
various decisions of the Hon'ble Apex Court and taking into account
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the age of the injured at the time of accident, i.e. 46 years, multiplier
of 13 is required to be awarded. Thus, amount towards future loss of
income would come to Rs.4012/- X 13 (multiplier) = Rs.52,156/-.
6.4 Moreover, under the head of pain, shock and suffering,
Rs.10,000/- would be proper to be awarded as compensation to the
claimant considering injuries sustained by the claimant which are
grievous injuries of Fracture of Tibia - Fibula on left Leg and was
taken to Gokul Hospital, Visnagar and availing primary treatment,
shifted to Jay Orthopedic Hospital at Mehsana, admitted as an Indoor
patient and was operated for surgery. 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.2,000/-, 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 10,000/-
Future loss of income 52,156/-
Special diet, attendant and Transportation 10,000/-
charges
Medical Expenses 18,500/-
Total... 90,656/-
Amount awarded by the tribunal... 52,724/-
Enhanced amount... 37,932/-
6.7 Thus, the Tribunal has committed an error in awarding total
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compensation of Rs.52,724/- under various heads. The appellant -
original claimant is entitled to the additional amount of compensation
of Rs.37,932/- over and above the amount of Rs.52,724/- 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 05.01.2008 passed by the
Motor Accident Claims Tribunal (Aux.), Mahesana, in Motor Accident
Claim Petition No.1297 of 2002 shall stand modified to the aforesaid
extent by enhancing the amount of compensation as above.
7.3 The respondent No.3 - Insurance Company is directed to pay
the enhanced amount of Rs.37,932/- with the interest @8% 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
