Gujarat High Court
Hansuben Vasabhai Rabari vs Edmund Mascarachas on 21 April, 2025
NEUTRAL CITATION
C/FA/548/2013 JUDGMENT DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 548 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HANSUBEN VASABHAI RABARI & ANR.
Versus
EDMUND MASCARACHAS & ANR.
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1,2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/04/2025
ORAL JUDGMENT
1. This Appeal is filed challenging the judgment and award
dated 30.10.2012 passed by learned Motor Accident Claims
Tribunal (Aux-2) Kachchh at Bhuj in M.A.C.P No.311 of
1997.
2. Heard learned advocate Mr. Samee A. Uraizee for
learned advocate Mr. Mehul S. Shah for the appellants and
learned advocate Mr. Sunil B. Parikh for respondent No.2.
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3. The brief facts of the case are as under:
3.1. On 13.10.1996 deceased-Vasabhai Bhurabhai Rabari
was grazing buffaloes in Sector No.3 in Gandhidham Town at
around 4 p.m. When deceased was sitting under a tree situated
near Plot No.16 in Sector No.3, at that time, opponent No.1
came near plot No.16 in Sector No.3 in car bearing
Registration No.GJ-01-9558 in full speed as well as in rash
and negligent manner due to which, he lost control over car,
car came in reversed direction and dashed with deceased.
Resultantly, deceased sustained serious head injuries with
Hemiplegia. Deceased was taken to Dr. Hemang Patel's
Hospital at Kutch, Bhuj. Thereafter, deceased was shifted to
Rajkot for further treatment and during the course of
treatment, deceased expired on 25.12.1996 at Gandhidham.
FIR was lodged against driver of car. Heirs of deceased being
widow and son filed claim petition claiming compensation of
Rs.5 lakhs. Opponent No.1 and 2 being the owner and the
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Insurance Company of the offending vehicle were served with
the summons of the claim petition. Opponent No.1 remained
absent. Opponent No.2-Insurance Company appeared and
filed Written Statement at Exhibit-15-B. Claimant examined
herself at Exhibit-23 and produced documentary evidence
such as FIR, charge-sheet, panchnama, statement of witness,
certificate issued by Arjan Ramji Vaghadiya at Exhibit-39 and
injury certificate in support of claim petition. After
considering the evidence on record, learned Tribunal partly
allowed the claim petition awarding compensation of
Rs.2,46,200/- to the claimants to be recovered from opponents
@7.5% interest from the date of filing the claim application
till realization.
3.2. Being aggrieved and dissatisfied with the quantum of
compensation, the appellants-original claimants have filed the
present appeal for enhancement of compensation.
4. Learned advocate for the appellant has submitted that on
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the date of accident, deceased was selling milk and earning
Rs.3,000/- per month. Deceased was aged about 55 years. It is
further submitted that appellants have examined a witness
Arjan Ramji Vaghadiya at Exhibit-39, who has stated that
deceased was selling milk to him and was earning Rs.3,000/-
per month. A certificate Exhibit-40 was also produced by the
said witness. However, learned Tribunal did not consider oral
deposition of the said witness and without appreciating
Exhibit-40, learned Tribunal assessed the income of deceased
at Rs.1,800/- per month. It is further contended that
compensation under the head of pain, shock and suffering and
loss of consortium is awarded on a lower side. It is further
submitted that injury certificate issued by Dr. Hemang Patel at
Exhibit-28 is sufficient evidence to grant more compensation
under the head of pain, shock and suffering. Considering the
nature of injuries and treatment taken by deceased and more
particularly, deceased died after almost two months of taking
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treatment, compensation under the head of pain, shock and
suffering is required to be enhanced. Except above
submissions, no other submissions are canvassed by the
learned advocate for the appellants.
5. Per contra, learned advocate for the respondent No.2-
Insurance Company has supported the impugned judgment
and award and has submitted that in absence of any
convincing evidence with regard to income of deceased,
learned Tribunal has considered income of deceased more
than the rates of minimum wages prevailing at the relevant
point time and therefore, the income aspect may not be
disturbed. It is further contended that learned Tribunal has
failed to appreciate the fact that deceased was aged about 55
years and added 30% as prospective income. At the most as
per the settled position of law, addition of 10% may be
considered looking to the age of deceased. So far as the
compensation under the head of pain, shock and suffering is
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concerned, learned advocate for the Insurance Company has
submitted that except a certificate Exhibit-28, there is no other
medical papers which can establish a fact that deceased had
taken treatment till his date of death. In absence of any
medical papers, it cannot be presumed that deceased was
taking treatment till the date of death and thereby, suffered
pain, shock and suffering. The amount of Rs.10,000/- under
the head of pain, shock and suffering which has been granted
by learned Tribunal is just and reasonable.
6. I have considered the submissions canvassed by learned
advocates for the parties and has perused record and
proceedings. Deceased on the date of accident was aged about
55 years and was selling milk. In the claim petition, it is a
specific case of claimants that deceased was earning
Rs.3,000/- per month. In support of the contention of income,
claimants have examined a witness at Exhibit-39. The said
witness has deposed that he was purchasing milk from
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deceased to the extent of Rs.12,000/- and after deducting
expenses, deceased was earning Rs.3,000/- per month. The
said witness has also produced a certificate at Exhibit-40,
which also supports the claim of claimants with regard to
income. If the cross-examination of the said witness is perused
except a simple bare denial on income, respondent could not
extract any contradictory fact. However, in the cross-
examination, the said witness has stated that he was earning
Rs.10,000/- per month in the year 1996. Considering the
statements of the witness which can be found out from the
record, it transpires that the said witness was not maintaining
any account materials he was earning Rs.10,000/- per month.
The theory of paying Rs.3,000/- per month to deceased in the
year 1996 does not sync with the fact of earning of
Rs.10,000/- per month. Considering the evidence on record, I
am of the view that deceased could be said to be earning
Rs.2,500/- per month instead of Rs.1,800/- per month. Though
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a strict proof of evidence is not required for considering the
income of deceased, Court cannot shut its eyes from
appreciating the prima facie evidentirary value of the
deposition and the documentary evidence produced by
claimants. Resultantly, the awarded amount is required to be
modified. No medical material is found whereby it can be seen
that deceased has taken further treatment. Hence, award under
pain, shock and suffering is reasonable.
7. In view of the above facts, claimants are entitled to the
following amount of enhanced compensation;
Sr. Name of the Head Amount in Rs.
1 Future Loss of Income
Income per month Rs.2,500/-
Prospective Income (10%)
Rs.2,500/- + Rs.250/- Rs.2,750/-
1/3rd Deduction towards
personal expenses Rs.917/-
Rs.2,750/- less Rs.917/- Rs.1,833/-
Rs.1,833/- x 12 x 11 2,41,956/-
2 Pain, shock and suffering 10,000/-
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3 Loss of estate 18,150/-
4 Funeral expenses 18,150/-
5 Loss of consortium
Rs.48,400/- x 2 96,800/-
Total 3,85,056/-
Amount awarded by tribunal 2,46,200/-
Enhanced amount of compensation 1,38,856/-
8. The Insurance Company is directed to deposit the
enhanced amount of compensation of Rs.1,38,856/- with 7.5%
per annum interest within a period of six weeks from the date of
receipt of the copy of this order.
9. The present First Appeal is partly allowed accordingly.
The judgment and award dated 30.10.2012 passed by learned
Motor Accident Claims Tribunal (Aux-2) Kachchh at Bhuj in
M.A.C.P No.311 of 1997, is modified to the aforesaid extent.
10. Once the enhanced amount is deposited by the Insurance
Company, the learned Tribunal shall disburse the same in favour
of the claimants through RTGS by following the prevailing
procedure and due identification.
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11. While making the payment, the Tribunal shall deduct the
Courts Fees, if not paid, in accordance with rules / law.
12. Record and proceedings, if any, be sent back to the
concerned Court/Tribunal.
(D. M. DESAI,J)
RINKU MALI
