Gujarat High Court
Parulkant Davsibhai Desai vs Dhudsinh Lalsinh Zala on 12 September, 2024
NEUTRAL CITATION
C/FA/2241/2008 ORDER DATED: 12/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2241 of 2008
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PARULKANT DAVSIBHAI DESAI
Versus
DHUDSINH LALSINH ZALA & ORS.
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Appearance:
MR HM PARIKH(574) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
MR VC THOMAS(5476) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/09/2024
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
26.04.2007 passed by the Motor Accident Claims Tribunal (Aux.),
Kheda at Nadiad, in Motor Accident Claim Petition No.1477 of 1998,
by which the Tribunal has awarded compensation of Rs.58,700/- with
9% per annum interest to the claimant, holding Opponent Nos.1,2,4
and 5 liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 1.2.98 at 9.00 night hours, claimant was traveling in a S.T.
Bus No. GJ 18V 2771 towards Vadodara after attending Hindi
Literature Function at Ahmedabad and when the said S.T. Bus was
driven by the opponent No. 1 slowly and cautiously on the correct
side of road, reached near Pragati Hotel, in the sim of village Bareja,
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at that time the said S.T. Bus driver overtook another S.T. Bus which
was going ahead and dashed with a truck No. RJ 07 G. 0216. Thereby
the alleged accident took place, in which driver side of S.T. Bus was
tear and it dashed with a tree, whereas the said truck was turned
turtle, and thereby the accident took place due to rash and negligent
driving on the part of the both the drivers, in which the claimant
sustained serious injuries including fracture on his person. Hence, he
was immediately taken to hospital of S.S.G. Hospital, Vadodara,
where he was admitted as an indoor patient for 40 days and
operation was performed on his person. Plate and screw were
inserted in his left hand.
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,
disability, 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 which are of the
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C/FA/2241/2008 ORDER DATED: 12/09/2024
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nature of open GR.II segmental fracture M/3 radius and closed
fracture M/3 ulna left alongwith other bodily injuries and the
claimant took treatment as an indoor patient at S.S.G, Hospital,
Vadodara, and the tribunal ought to have keep 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 medicines, special diet, transportation and attendant
charges. He has further submitted that the tribunal has erred while
grating the total amount of compensation by deducting Rs.25,000/-
as per order below Exh.5 dated 05.10.1999 and the same is not
required to be considered and accordingly, the total amount of
compensation is required to be considered of Rs.58,700/-, only for
calculating and awarding amount of compensation.
3.1 He has further submitted that after taking into consideration
the age and work profile of the claimant, as the claimant was
working as a professor in the M.S.Univesity and the claimant had
mentioned monthly salary of Rs.19,300/- (round figure) before the
tribunal and the same is required to be considered accordingly. He
has further submitted that at the time of the accident the claimant
was aged 54 years and keeping in mind all the aspects, tribunal
ought to have awarded compensation under the head of actual loss of
income. Therefore, he has prayed that appropriate enhancement be
made by modifying the award impugned. He has submitted that the
appeal may be allowed.
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4. Per contra, learned advocates for the contesting respondents
have 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
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 working as a professor and
therefore, considering the income of the claimant and the income
prevalent in the year of accident, Rs.19300/- p.m. is required to
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considered for the amount of compensation. Accordingly, considering
the period where the claimant was not able to work for a period of 40
days and therefore, actual loss of income is to be considered at
Rs.5,550/- 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. 54 years, prospective income should be considered
15% for a salaried person. Therefore, it would come to Rs.19300/- +
Rs.2895/- = Rs.22195/- 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 permanent disability for one
limb and as per disability certificate at Exh.40, 25% disability of left
upper limb is there, but, looking to the fact that the disability is for
one limb, the disability is to be considered 12.5% of body as a whole
instead of 6.25%, which was considered by the tribunal.
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. 54 years, multiplier of 11 is required to be awarded.
Thus, amount towards future loss of income would come to
Rs.22195/- X 12.5% = Rs.2775/- (round figure) and thereafter,
applying multiplier, Rs.2775/- X 11 (multiplier) X 12 (annual) =
Rs.3,66,300/-.
6.4 Moreover, under the head of pain, shock and suffering,
Rs.25,000/- would be proper to be awarded as compensation to the
claimant considering injuries like open GR.II segmental fracture M/3
radius and closed fracture M/3 ulna left alongwith other bodily
injuries and the claimant took treatment as an indoor patient at
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S.S.G, Hospital, Vadodara. Furthermore, the Tribunal has committed
error in not properly considering the amount towards medicines,
special diet, transportation and attendant charges, which should be
Rs.15,000/- instead of Rs.5,000/-, considering the treatment
undergone 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 25,000/-
Future loss of income 3,66,300/-
Actual loss of income 5,550/-
Medicines, Special diet, attendant and 15,000/-
Transportation charges
Total... 4,11,850/-
Amount awarded by the tribunal... 58,700/-
Enhanced amount... 3,53,150/-
6.7 Thus, the Tribunal has committed an error in awarding total
compensation of Rs.58,700/- under various heads. The appellant -
original claimant is entitled to the additional amount of compensation
of Rs.3,53,150/- over and above the amount of Rs.58,700/- 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.
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C/FA/2241/2008 ORDER DATED: 12/09/2024
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7.2 The judgment and award dated 26.04.2007 passed by the
Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad, in Motor
Accident Claim Petition No.1477 of 1998 shall stand modified to the
aforesaid extent by enhancing the amount of compensation as above.
7.3 The respondent Nos.2 and 4 are directed to pay the enhanced
amount of Rs.3,53,150/- to the extent of their respective liability of
50% each, with the interest @ 9% 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
