Gujarat High Court

Rajkali Chanduram Chodhary vs Shamshersingh Gurdevsingh Sikh on 17 September, 2024

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                            C/FA/1753/2018                                       JUDGMENT DATED: 17/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/FIRST APPEAL NO. 1753 of 2018


                      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 ?

                      ==========================================================
                                           RAJKALI CHANDURAM CHODHARY
                                                       Versus
                                       SHAMSHERSINGH GURDEVSINGH SIKH & ORS.
                      ==========================================================
                      Appearance:
                      MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
                      MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
                      MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
                      RULE SERVED for the Defendant(s) No. 1,4
                      RULE UNSERVED for the Defendant(s) No. 2
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 17/09/2024
                                                             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 30.12.2017 passed by the

Motor Accident Claims Tribunal (Aux.), Kachchh at Bhuj

in Motor Accident Claim Petition No.327 of 2001, by

which the Tribunal has awarded compensation of

Rs.85,660/- with 7.5% per annum interest to the

claimant/s, holding opponent Nos.1 to 3 liable, jointly and

severally.

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

appellant are as under:

2.1 On 20.10.2000, the appellant was proceeding from

Sandhav to Kothara on Motorcycle No.GJ-12-L-4865 alongwith her brother Rampal Chanduram Chaudhari.

The appellant was pillion rider. Her brother Rampal was

driving the Motorcycle. He was driving the Motorcycle on

the left hand side of the road with moderate and

controllable speed. Around 12:15 hours they had reached

about 4 k.m. away from Kothara, in the sim of Village:

Sandhav. At that time, respondent No.1, suddenly came

out from Kachha road alongwith Tractor No.PB-31-A-

3502. The Tractor driver while in employment of

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respondent No.2 was driving the Tractor rashly,

recklessly, negligently and at excessive speed, without

observing the rules of the road and without carrying for

the safety of the users of the road. He lost control over

the steering. Tractor dashed with the Motorcycle, the

appellant and her brother Shri Rampal. They fell down

alongwith the Motorcycle. The appellant sustained serious

injuries. She has become permanently and partially

disabled because of the injuries suffered by her in the

above accident which took place because of sheer

negligence of respondent No.1.

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

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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, etc. It is

submitted that the Tribunal has committed error in

considering the monthly income of the injured Rs.2,000/-,

which should be Rs.3,000/- considering the fact that he

was doing agriculture 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

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

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has committed an error by not properly considering the

compensation under the head of pain, shock and

suffering, which should be Rs.15,000/-, instead of

Rs.7,500/- 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) 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 respondentshave 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. It is submitted that the Tribunal

has rightly awarded amount towards special diet,

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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

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

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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, 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.2,000/-, which should

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

agriculture 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., 25 years, addition

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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. 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.4,200/- x 13% x

12 (monthly) x 18 (multiplier) would come to

Rs.1,17,936/- 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.12,000/- considering the monthly

income Rs.3,000/- of the claimant for 6 months, instead of four months considering the nature of the injuries.

Furthermore, the Tribunal has erred in awarding

Rs.7,500/- 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                                                1,17,936/-

                            Actual loss of income                                                   18,000/-

                            Pain, shock and suffering                                               15,000/-

                            Medical expenses                                                          5,000/-

                            Special diet, transportation,                                             5,000/-

                            attendant charges

                                                                            Total...               1,60,936/-

                            Less : Amount which is already                                          85,660/-

                            awarded

                            Additional amount which is awarded                                      75,276/-

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

get the total amount of compensation of Rs.1,60,936/-

with 7.5% p.a. interest from the date of filing the claim

petition till its realisation, which would meet the ends of

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justice. Rest of the direction(s) of the Tribunal shall

remain same. The Tribunal has already awarded

Rs.85,660/- and, therefore, remaining amount of

Rs.75,276/- would be the enhanced amount of

compensation payable to the claimant/s.