Gujarat High Court

Kanubhai Punambhai Solanki vs Riyajbhai Sirajbhai Vora on 18 September, 2024

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                            C/FA/3423/2018                                         JUDGMENT DATED: 18/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 3423 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 ?

                      ==========================================================
                                                KANUBHAI PUNAMBHAI SOLANKI
                                                            Versus
                                               RIYAJBHAI SIRAJBHAI VORA & ORS.
                      ==========================================================
                      Appearance:
                      MR.HIREN M MODI(3732) 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. 6
                      RULE SERVED for the Defendant(s) No. 1,2,5
                      ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 18/09/2024
                                                             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

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judgment and award dated 14.02.2017 passed by the

Motor Accident Claims Tribunal (Main), Vadodara in

Motor Accident Claim Petition No.628 of 2014, by which

the Tribunal has awarded compensation of Rs.1,82,300/-

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

opponent Nos.1, 2 and 4 to 6 liable, jointly and

severally.

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

appellant are as under:

2.1 On 27.01.2014, he along with his brother-in-law,

Manubhai Ishwarban were going to Anand from Sojitra

to purchase spare parts of sewing machine. They were traveling in Auto Rickshaw bearing RTO registration

No.GJ.12.X.6510, the driver - opponent No.1 of the 1st

Rickshaw was driving Rickshaw at moderate speed on

left edge of the road and at that time, at around 9.30

in the morning, another Rickshaw bearing RTO

registration No.GJ.6.YY.0378 driven at excessive speed by

opponent No.4 came from Anand and collided with head-

on collision manner with 1st Rickshaw and therefore

vehicular accident took place and during which applicant

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Kanubhai sustained open graded commuted displaced

fracture right lower 3rd shaft femur and extension into

right knee femoral condial. Therefore, he was

immediately taken to Krishna Hospital, Karamsad and

was further moved to SSG Hospital, Vadodara where he

was treated as indoor patient upto 18.1.2014. 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

the Tribunal has not properly considered the various

aspects; like income of the injured, injuries, prospective

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income, disability, multiplier, special diet, transportation

and attendant charges, 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.4,000/-, which should be Rs.6,000/- considering

the fact that he was doing tailoring 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 25% may be granted in monthly income of the injured. It is submitted that the

Tribunal has not properly considered the disability

certificates issued by doctor at Exh.37 and injury

certificate, whereby it is clearly stated that the claimant

has sustained permanent disability to the extent 58%.

Therefore, the disability should be considered for body as

a whole to the extent 29%, instead of 24%, which is

considered by the Tribunal. Furthermore, the multiplier

should be 14 considering the various decisions of the

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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.25,000/-, instead of

Rs.15,000/- 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

committed error in not properly considering the amount

towards special diet, transportation and attendant

charges, which should be Rs.15,000/- instated of Rs.7,500/- considering the time of treatment taken by the

injured. 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

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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, multiplier. 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

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

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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

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, disability, multiplier, special diet,

transportation and attendant charges, 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.

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6.2 It transpires that the Tribunal has considered the

monthly income of the injured Rs.4,000/-, which should

be Rs.6,000/- considering the fact that he was doing

tailoring 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., 45 years, addition

to the extent of 25% is required to be granted in the

monthly income. Therefore, it would come to Rs.7,500/-

towards prospective income. Looking to the the disability

certificates issued by doctor at Exh.37 and injury

certificate, whereby it is clearly stated that the claimant has sustained permanent disability to the extent 58%.

Therefore, the disability should be considered for body as

a whole to the extent 29%, instead of 24%, which is

considered by the Tribunal. 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. 45 years at the time of accident, multiplier

of 14 is required to be granted. Therefore, Rs.7,500/- x

29% x 12 (monthly) x 14 (multiplier) would come to

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Rs.3,65,400/- 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.4,000/- considering the monthly

income Rs.6,000/- of the claimant for 3 months after

taking into account the injuries and treatment.

Furthermore, the Tribunal has erred in awarding

Rs.15,000/- towards pain, shock and suffering, which

should be Rs.25,000/- considering the injuries and

treatment as well as taking into account various

decisions of the Hon'ble Apex Court. Furthermore, the

Tribunal has erred in awarding Rs.7,500/- only towards

special diet, attendant and transportation charges, which should be Rs.15,000/- considering the injuries and period

of hospitalization of the claimant, as well as treatment

taken by the injured. 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

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following final amount as compensation :

                                                  Particulars                                 Amount (Rs.)

                            Future loss of income                                                       3,65,400/-

                            Actual loss of income                                                          18,000/-

                            Pain, shock and suffering                                                      25,000/-

                            Medical expenses                                                                 6,040/-

                            Special diet, transportation,                                                  15,000/-

                            attendant charges

                                                                                Total...                  4,29,440/-

                            Less : Amount which is already                                              1,82,300/-

                            awarded

                             Additional amount which is awarded                                         2,47,140/-

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

get the total amount of compensation of Rs.4,29,440/-

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.1,82,300/- and, therefore, remaining amount of

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Rs.2,47,140/- would be the enhanced amount of

compensation payable to the claimant/s.