Gujarat High Court

Jiteshbhai Jivanbhai Vadgama vs Salimbhai Navajibhai Malek on 13 September, 2024

                                                                                                                    NEUTRAL CITATION




                            C/FA/2613/2014                                         JUDGMENT DATED: 13/09/2024

                                                                                                                     undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 2613 of 2014


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                      ==========================================================

                      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 ?

                      ==========================================================
                                               JITESHBHAI JIVANBHAI VADGAMA
                                                            Versus
                                             SALIMBHAI NAVAJIBHAI MALEK & ANR.
                      ==========================================================
                      Appearance:
                      MR.HIREN M MODI(3732) for the Appellant(s) No. 1
                      MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
                      RULE SERVED for the Defendant(s) No. 1
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 13/09/2024
                                                             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

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

judgment and award dated 30.09.2013 passed by the

Motor Accident Claims Tribunal, Vadodara in Motor

Accident Claim Petition No.450 of 2010, by which the

Tribunal has awarded compensation of Rs.6,00,000/- with

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

opponents liable, jointly and severally. The appellant was

held liable to the extent of 25% towards contributory

negligence in the entire awarded amount of Rs.8,00,000/-

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

appellant are as under:

2.1 On 06/03/2010, the claimant was passing through

the road of Sahyog Society by driving Motorcycle No.GJ-

3-AE-1467. At that time, the Motorcycle No.GJ-6-BG-

1074, being driven by opp.no.1, came in full speed,

dashed with the Motorcycle of claimant at his right side,

causing accident and the present appellant got injured.

Hence, the present 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

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

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, pain, shock and suffering, actual loss, loss of

amenities of life, etc. It is submitted that the Tribunal has committed error in considering the monthly income

of the injured Rs.2,500/-, which should be Rs.5,000/-

considering the fact that he was working at turner and

considering the documentary evidence at Exh.30, and

taking into account the minimum wages prevailed in the

relevant time. Furthermore, it is submitted that

considering the injuries and treatment taken by the

injured, Rs.50,000/- towards actual loss of income for 10

months of actual loss is required to be awarded. It is

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

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. 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.75,000/- 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. Furthermore,

considering the medical treatment and need of money

towards artificial leg in future, at least, Rs.1,00,000/- is

required to be awarded, instead of Rs.50,000/- awarded

by the Tribunal. It is also submitted that the Tribunal

has committed error in not properly awarded the amount

towards loss of amenities of life, which should be

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

Rs.1,50,000/- considering the treatment taken by the

injured and considering the injuries and need of artificial

leg. 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 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, loss of

amenities of life and future medical expenses in absence

of any documentary evidence. 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 submissions made

by learned advocate for the appellant that the Tribunal

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

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.

6.1 I have heard the learned advocates for the

respective parties and considered the submissions made

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

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, pain, shock and suffering, actual loss,

loss of amenities of life, 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 committed error

in considering the monthly income of the injured Rs.2,500/-, which should be Rs.5,000/- considering the fact

that he was working at turner and considering the

documentary evidence at Exh.30, 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., 40

years, addition to the extent of 25% is required to be

granted in the monthly income. Therefore, it would come

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

to Rs.6,250/- 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.6,250/-

x 100% x 12 (monthly) x 15 (multiplier) would come to

Rs.11,25,000/- which would be the future loss of income

of the claimant.

6.3 It is required to be taken note of the fact that the

artificial leg has been implanted to the injured.

Furthermore, considering the injuries and treatment

taken by the injured, Rs.50,000/- towards actual loss of

income for 10 months of actual loss is required to be awarded. Furthermore, considering the medical treatment

and need of money towards artificial leg in future, at

least, Rs.1,00,000/- is required to be awarded, instead of

Rs.50,000/- awarded by the Tribunal. Furthermore, the

Tribunal has erred in awarding Rs.75,000/- towards pain,

shock and suffering, which should be Rs.1,50,000/-

considering the injuries and treatment as well as taking

into account various decisions of the Hon'ble Apex Court.

Furthermore, in view of the recent law laid down by the

NEUTRAL CITATION

C/FA/2613/2014 JUDGMENT DATED: 13/09/2024

undefined

Hon'ble Apex Court, Rs.1,50,000/- is required to be

awarded towards loss of amenities of life. 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                                                11,25,000/-

                            Actual loss of income                                                     50,000/-

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

                            Medical expenses                                                          70,000/-

                            Future medical expenses                                                1,00,000/-

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

                            Special diet, transportation,                                             55,000/-

                            attendant charges

                                                                              Total...             17,00,000/-

                                                             Entitled amount...                    12,75,000/-






                                                                                                                        NEUTRAL CITATION




                            C/FA/2613/2014                                            JUDGMENT DATED: 13/09/2024

                                                                                                                        undefined




                                        (-25% contributory negligence)

                            Less : Amount which is already                                             6,00,000/-

                            awarded

                            Additional amount which is awarded                                         6,75,000/-

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

get the total amount of compensation of Rs.12,75,000/- 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.6,00,000/- and, therefore, remaining amount of

Rs.6,75,000/- 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.