Gujarat High Court
Surmabhai Mansingbhai Baria (Koli) vs Babubhai Ismailbhai Vohra on 27 September, 2024
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C/FA/2050/2019 ORDER DATED: 27/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2050 of 2019
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SURMABHAI MANSINGBHAI BARIA (KOLI)
Versus
BABUBHAI ISMAILBHAI VOHRA & ORS.
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR HS MUNSHAW(495) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/09/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of the Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant - the present appellant, being aggrieved and
dissatisfied with the impugned common judgment and award
dated 04.01.2018 passed by the Motor Accident Claims Tribunal
(Aux.), Dahod in Motor Accident Claim Petition No.781 of 2004,
by which the Tribunal has awarded compensation of
Rs.16,159/- with 9% per annum interest to the claimant,
holding opponent Nos. 1 and 2 liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 That On 09.11.1992, the applicant was traveling in S.
T. Bus No. GJ-1-Z-2046, as a bonafide passenger. The S. T. Bus
was driven by its driver in rash and negligent manner, when the
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said bus was passing the place of accident i.e. slop near Asayadi
Village on Godhra Dahod highway, at that time opponent No. 3
came from the opposite direction i.e. from Dahod side driven
private bus No. GJ-17-T-1053 in rash and negligent manner and
therefore the said bus dashed with the S.T Bus, as a result the
applicant and other passengers of both the buses sustained
grievous injuries on all over their body. The complaint was
lodged with Devgadh Baria police station vide 1 st C.R. No.
159/1995 against the opponent No. 3 -- private bus driver.
Therefore, the claimant has filed claim petition seeking
compensation of Rs.50,000/- with cost against the present
respondents before the Tribunal.
3. Learned advocate for the appellant has submitted
that the Tribunal has committed an error in not properly
calculating the amount of income, the compensation under the
heads of pain, shock and suffering, special diet / transportation
expenses and actual loss for one month. He has fairly submitted
that the Tribunal has rightly considered the disability to the
extent 10% while awarding compensation. He has submitted
that amount of award is on lower side as the Tribunal has not
properly considered the various aspects; like nature of accident,
injuries and period of hospitalisation as well as the duration of
recovery. He has submitted that the appellant was aged about
only 35 years at the time of accident and was doing agricultural
and labour work. He has submitted that at the relevant point of
time, his monthly income was Rs.3000/- as per the rates of
minimum wages prevailing in the State and as per the Minimum
Wages Act in view of the decision of this Court in the case of
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Geetaben Wd/o. Sardarbhai Dharubhai Ninama versus
Durgashankar Kaniram Shankar reported in 2023 (0) ACJ 2586.
He has submitted that therefore, considering the loss of
dependency, it would be calculated as Rs.900/- as monthly
income multiplied by 12 months, multiplied by 16 multiplier
plus 40% prospective income would come to Rs.24,192/- total
future loss, which should be awarded to the claimant by the
learned Tribunal.
3.2 He has further submitted that in view of the catena of
decisions of the Hon'ble Apex Court, the Tribunal ought to have
awarded compensation under the heads of actual loss, pain,
shock and suffering as Rs.10,000/- and other expenses.
3.3 He has submitted that the compensation is required
to be enhanced by modifying the award impugned accordingly
and this appeal may be allowed.
4. Per contra, learned advocates Mr. GC Majmudar for
respondent - Insurance Company has submitted that the
impugned judgment and award passed by the Tribunal is just
and proper. The Tribunal has rightly considered the income of
the deceased, the age of the deceased, the dependency and
future aspect of income. He has submitted that the the applicant
has not examined the person issuing the certificate about the
salary. He has submitted that under the head of pain, shock and
suffering, the Tribunal has rightly awarded compensation. He
has submitted that this appeal may be dismissed and no
interference be made by this Court.
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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 perused the record and proceedings of the
Tribunal. I have gone through the impugned judgment and
award passed by the Tribunal. From the record, it transpires
that the Tribunal has considered the age of the deceased as 35
years and was working as a labour and his monthly income was
Rs.900/- at the relevant point of time, as per the minimum wage
prevailing in the State of Gujarat, keeping in mind the ratio laid
down by this Court in the case of Geetaben Wd/o. Sardarbhai
Dharubhai Ninama (supra) as well as by the Hon'ble Apex Court
in the case of Govind Yadav versus New India Insurance Co.
Ltd., reported in (2011) 10 SCC 683. It is required to be noted
that on one hand, the Tribunal has observed that the claimant
was a labour and on the other hand, the Tribunal has failed to
consider the minimum wage prevailing in the State of Gujarat at
that time. The Tribunal has committed an error to that extent
only, which is required to be corrected in this appeal. Therefore,
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looking to the minimum wages prevailing in the State of Gujarat
at the relevant time, it should be considered as monthly income
of the deceased. Hence, it would be Rs.900/- per month as
minimum wage of a cleaner and by adding 40% prospective
income, as not calculated by the learned Tribunal, it would come
to Rs.360/- and therefore, total income comes to Rs.1260/- per
month. Since the deceased is aged about 35 years and there is
disability to the extent 10% as observed by the Tribunal,
therefore, Rs.1260/- would come which is to be considered,
Hence, Rs.1260/- per month multiplied by 12 months and
applying 16 multiplier as per the schedule of the Motor Vehicles
Act as well as the ratio laid down by the Hon'ble Apex Court in
the case of Sarla Verma versus Delhi Transport Corporation
reported in (2009) 6 SCC 121, it would come to Rs.24,192/- as
future loss of income, which is required to be awarded to the
claimant.
6.2 Further, as noted above, the monthly minimum wage of the
claimant was Rs.1260/-, therefore, actual loss for a month of the
claimant would be Rs.2700/- instead of Rs.1103/-, which
should be awarded to the claimant. Further, under the head of
pain, shock and suffering and attendant charges /
transportation expenses, as per the various decisions of the
Hon'ble Apex Court, it should be Rs.10,000/- and Rs.5000/-,
respectively, which should be awarded to the claimant.
6.3 Under the circumstances, and in view of the ratio laid
down by the Hon'ble Apex Court noted above, the claimant is
entitled to get more compensation as noted above. Hence, total
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compensation would be as under, which the claimant/s is/are
entitled to get.
Particulars Amount (Rs.)
Future loss of income 24,192/-
Special diet, Attendant Charges and 5,000/-
Transportation Expenses
Medical Expenses 5,000/-
Pain, shock and suffering 10,000/-
Loss of Actual income 2,700/-
Total... 46,892/-
Less : Amount which is already awarded 16,159/-
Additional amount which is awarded 30,733/-
7. Therefore, I hold that the claimant is entitled to get
the total amount of compensation of Rs.46,892/- 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 remain same. The Tribunal has
already awarded Rs.16,159/-, therefore, remaining amount of
Rs.30,733/- would be the enhanced amount of compensation
payable to the claimants.
8. For the reasons recorded above, the following order is
passed.
8.1 The appeal is partly allowed.
8.2 The Insurance Company is directed to deposit the
enhanced amount Rs.30,733/- with 9% p.a. interest from the
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date of claim petition till its realisation before the concerned
Tribunal, within a period of four weeks from the date of receipt of
this order.
8.3 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimant, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
8.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
8.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
