Gujarat High Court

Puriben Bharatbhai Parmar vs Rajubhai Jinabhai Dangar on 18 September, 2024

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                            C/FA/3922/2019                                         JUDGMENT DATED: 18/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/FIRST APPEAL NO. 3922 of 2019


                      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 ?

                      ==========================================================
                                                PURIBEN BHARATBHAI PARMAR
                                                           Versus
                                              RAJUBHAI JINABHAI DANGAR & ORS.
                      ==========================================================
                      Appearance:
                      JENIL M SHAH(7840) for the Appellant(s) No. 1
                      MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
                      RULE SERVED for the Defendant(s) No. 1,2
                      ==========================================================

                          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 30.11.2017 passed by the

Motor Accident Claims Tribunal (Main), Bhavnagar in

Motor Accident Claim Petition No.126 of 2004, by which

the Tribunal has awarded compensation of Rs.1,67,625/-

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

opponents liable, jointly and severally.

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

appellant are as under:

2.1 On 25.6.2003, the applicant was going towards

village Jalia by walking on the side of the road and

when he reached Jalia, opponent No.1 drove his Tractor

No.GJ 4 H 4660 and Trailer No.GJ 4 U 3618 in a rash and negligent manner, in full speed and dashed with the

applicant. As a result of this accident, the applicant

sustained serious injuries. 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.

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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 prospective income, special diet,

transportation and attendant charges, pain, shock and

suffering. It is submitted that the Tribunal has rightly

considered the monthly income of the injured Rs.2,500/- after considering the material available on the record

and taking into account the nature of work of the

injured, and considering the minimum wages prevailed at

the relevant time, which is not disputed by learned

advocate for the appellant. 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

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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. 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.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

committed error in not properly considering the amount towards special diet, transportation and attendant

charges, which should be Rs.25,000/- instated of

Rs.5,000/- 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. In support of his submissions, he has

relied upon the decision of the Hon'ble Apex Court in

the case of Mohd. Sabeer alias Shabir Hussain vs.

Regional Manager, U.P. State Road Transport Corporation

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reported in AIR 2023 SC 186. 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.3 -

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. It is

submitted that the Tribunal has rightly awarded amount

towards special diet, attendant charges, and attendant charges. It is also submitted that considering the facts

and circumstances of the present, the Tribunal has

rightly not awarded any amount towards loss of

prospective income. 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

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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

by the rival parties. I have perused the record and

proceedings of the Tribunal. I have gone through the

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impugned judgment and award passed by the Tribunal.

It is noted that the claimant has by and large claimed

enhancement towards prospective income, special diet,

transportation and attendant charges, pain, shock and

suffering. 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 taken into

consideration the monthly income of the claimant

Rs.2,500/-, which the Tribunal has rightly considered

after considering the documentary evidences available on

the record, and the same is not disputed by learned advocate for the appellant. Furthermore, considering

various above-mentioned judgments of the Hon'ble Apex

and taking into account the age of the claimant, addition

to the extent of 40% is required to be granted in the

monthly income. Therefore, it would come to Rs.3,500/-

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

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considered those aspects. Therefore, Rs.3,500/- x 30% x

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

Rs.2,26,800/- which would be the future loss of income of

the claimant.

6.3 Furthermore, the Tribunal has erred in awarding

Rs.7,500/- 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.5,000/- only towards

special diet, attendant and transportation charges, which

should be Rs.25,000/- 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

following final amount as compensation :

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Particulars Amount (Rs.)

Future loss of income 2,26,800/-

                            Actual loss of income                                                              5,000/-

                            Pain, shock and suffering                                                        25,000/-

                            Medical expenses                                                                 24,861/-

                            Special diet, transportation,                                                    25,000/-

                            attendant charges

                                                                                  Total...                  3,06,661/-

                            Less : Amount which is already                                                1,67,625/-

                            awarded

                            Additional amount which is awarded                                            1,39,039/-