Gujarat High Court
Anilkumar @ Babubhai Somchand Sheth ... vs Mominkumar Husenkhan on 15 April, 2025
NEUTRAL CITATION
C/FA/4262/2009 ORDER DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4262 of 2009
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ANILKUMAR @ BABUBHAI SOMCHAND SHETH SINCE DECD.THRO HIS
HEIRS & ORS.
Versus
MOMINKUMAR HUSENKHAN & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1.1,1.2,1.3,1.4
MR HEMANT S SHAH(756) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 15/04/2025
ORAL ORDER
1. Heard learned advocate Mr.Kirtidev R Dave for the appellants and
learned advocate Mr.Hemant S Shah for respondent no.3. Though served,
respondent nos.1 and 2 have not appeared. Perused the record.
2. The challenge in the present appeal is by the original claimant
challenging the judgment and award passed by the Learned Motor
Accident Claims Tribunal (Aux.) Viramgam dated 05/01/2008 in M.A.C.
Petition No.63 of 1994 whereby the tribunal has dismissed the claim
petition of the claimant seeking compensation of Rs.2.00 Lakh.
3. The brief facts of the case are that on 01/11/1993 deceased -
Anilkumar @ Babubhai Somchand Sheth alongwith other passengers
were going to Himmatnagar for post death rituals in matador bearing
Registration No.GJ-13-T-1175 being driven by opponent no.1. At around
1:30 to 2:00 p.m., because of rash and negligent driving of opponent no.1,
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the said matador turned turtle resultantly claimant sustained serious
injuries and filed the claim petition seeking compensation of Rs.2.00
Lakh from the opponents.
3.1 Notices were served to opponents. Opponent nos.1 and 2 being the
driver and owner of the matador respectively though served neither
remained present nor contested the claim petition. Opponent no.3 -
insurance company appeared and filed written statement. The claimant
examined himself at Exh.33 and produced the medical bills at Exh.53 and
also produced the disability certificate at Exh.39. After considering the
evidence on record, the learned tribunal dismissed the claim petition.
3.2 Being aggrieved and dissatisfied with the impugned judgment and
award, the claimant has preferred the captioned appeal.
4. Learned advocate for the appellant - claimant has submitted that
the learned tribunal has wrongly dismissed the claim application. It is
submitted that on 01/11/1993, the claimant was travelling as passenger in
matador being driven by opponent no.1 alongwith other passengers and
when it reached at the Viramgam Sokli Road, opponent no.1 lost control
over the matador and went on the heap of grit and turned turtle. Other
injured persons also filed claim petition alongwith the present appellant;
however the other claim petitions were allowed while claim petition filed
by the present appellant came to be dismissed. It is submitted that
pending the appeal, the appellant - original claimant passed away on
26/12/2022 and legal heirs of the deceased are brought on record. It is
submitted that the insurance company never raised any objection with
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regard to the expenses of medical bills and were exhibited as admitted. It
is further submitted that though disability certificate states 33% body as a
whole, the applicant filed a pursis at Exh.38 and agreed for disability to
be reduced to 15% body as a whole. It is submitted that after the accident,
the claimant had taken treatment for three years and has expended nearly
Rs.4.00 Lakhs for such treatment. It is submitted that under the
mediclaim policy, the insurance company has paid Rs.1.00 Lakh to the
claimant and hence the claimants are now entitled to Rs.3.00 Lakh
towards the medical bills; however the learned tribunal did not consider
the medical bills and dismissed the claim petition. It is submitted that on
the material available on record, the occurrence of the accident and the
involvement of the vehicle and negligence of opponent no.1 are not
disputed and therefore merely on the basis of non-proving of medical
bills, the entire claim petition cannot be dismissed.
4.1 It is further submitted by learned advocate for the appellant that the
claimant has produced the assessment order/s dated 14/10/1992 (Exh.68)
and 09/11/1990 (Exh.69). It is submitted that as per the said orders the
claimant was earning Rs.26,000/- (Exh.68) and Rs.19,470/- (Exh.69) per
annum; however the learned tribunal has not considered the such
documentary evidence and has wrongly dismissed the claim petition. It is
submitted that considering the documentary evidence yearly income of
claimant would come to Rs.26,000/-. Thus, monthly income of the
claimant would come to Rs.2,250/- per month. Claimant was aged about
57 years of age.
4.2 By making above submissions, learned advocate for the appellant
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would submit to allow this appeal.
5. Per contra, learned advocate for respondent No.3 - Insurance
Company has submitted that since the claimant has expired pending the
first appeal, no amount of compensation under the head of future loss of
income is to be awarded and the original claimant is entitled to the
compensation only under the head of pain, shock and suffering, special
diet, transportation and attendant charges, etc. It is further submitted that
so far as the claim of expenses under the medical bills are concerned, in
absence of any documentary evidence, the claimants are not entitled to
any amount. It is submitted that insofar as the disability is concerned, the
claimant himself has agreed disability to be considered at 15% body as a
whole and therefore no further enhancement of compensation is required
to be awarded. It is further submitted that documentary evidence in
support of proving the income are not established by the claimant and
therefore no interference is required to be made in the impugned
judgment and award.
6. I have considered the submissions made by the rival parties. I have
perused the record and proceedings. From the record, it transpires that the
accident has occurred because of the negligence of the driver of the
matador. It appears that the claim petition is dismissed only on the ground
that the medical bills which are produced by the claimant at Exh.54
pertains after one year of the occurrence of the accident. The ground for
dismissal of the entire claim petition is unreaonable. When in other claim
petition, which were arising out of same accident, the learned tribunal has
found the driver of the matador negligent and has awarded compensation,
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the same principle would be applied in the facts of the present appellant.
The learned tribunal has failed to appreciate the documentary evidence
with regard to the income of the claimant which is in the nature of
assessment order for the assessment year 1992-93 and 1990-91. The
claimant had undergone six surgeries which is revealed from the oral
deposition of the claimant. The income of the claimant would be
considered at Rs.3,000/- per month and after adding 10% towards the
prospective income, in view of National Insurance Company Ltd Vs
Pranay Sethi & Ors., reported in (2017) 16 SCC 680, the income would
come to Rs.3,300/- per month; where-from 15% disability would
deducted and thereby total income would come to Rs.495/- per month.
To be noted that as per 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, the multiplier of 09 would be made applicable as
the claimant was aged 57 years. It also appears from the record that
claimant has received Rs.1.00 Lakh under the mediclaim; however in
absence of any documentary evidence with regard to medical bills, the
only material available is nature of injuries and the treatment undertaking
for such injuries. The claimant had sustained serious fracture and
therefore considering the nature of injuries sustained to the claimant, it
would be reasonable to award an amount of Rs.1.00 Lakh for the medical
expenses.
7. Therefore, total compensation would be as under, which the
claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 53,460/-
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Income per month : Rs.3,000/-
Prospective Income (10%) : Rs.3,300/-
(Rs.3,000/- + 10% )
Disability (15%) : Rs.495/-
(Rs.3,300/- x 15%)
(495x12x9)
Medical Expenses 1,00,000/-
Pain shock and suffering 1,00,000/-
Attendant and Special Diet 1,00,000/-
Total 3,53,460/-
8. Therefore, I hold that the claimants are entitled to get the total
amount of compensation of Rs.3,53,460/- with 6% 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.
9. For the reasons recorded above, the following order is passed.
10. The present appeal is partly allowed.
11. The Insurance Company is directed to deposit the enhanced
amount Rs.3,53,460/- with 6% p.a. interest from the date of claim petition
till its realization before the concerned Tribunal, within a period of six
weeks from the date of receipt of this order.
11.1 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
claimants, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure. Since the pendency of the
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appeal, the original claimant has expired and heirs of the deceased
claimant are now on record, the tribunal shall disburse the amount of
compensation after passing the order of apportionment.
11.2 While making the payment, the Tribunal shall deduct the courts
fees, if not paid, in accordance with rules/law.
11.3 Record and proceedings be sent back to the concerned Tribunal,
forthwith.
(D. M. DESAI,J)
sompura
