Gujarat High Court

Patel Prakashkumar Rashikbhai vs R K Engle on 21 February, 2025

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                             C/FA/3389/2011                                     JUDGMENT DATED: 21/02/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                 R/FIRST APPEAL NO. 3389 of 2011


                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE DEVAN M. DESAI

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                                    Approved for Reporting                        Yes                  No


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                                               PATEL PRAKASHKUMAR RASHIKBHAI
                                                             Versus
                                                       R K ENGLE & ORS.
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                       Appearance:
                       MR ANKUR KIRI for MR AV PRAJAPATI(672) for the Appellant(s) No. 1
                       MS AMI N BHATT(3372) for the Defendant(s) No. 3
                       RULE SERVED for the Defendant(s) No. 3
                       RULE UNSERVED for the Defendant(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                            Date : 21/02/2025

                                                            ORAL JUDGMENT

1. Heard learned advocate Mr. Ankur Kiri for learned

advocate Mr. A. V. Prajapati for the appellant and

learned advocate Ms. Ami N. Bhatt for respondent

No.3 - Insurance Company at length. The cause-title

indicates that the rule could not be served upon

respondent No.1. Perused the record.

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2. The challenge in the present appeal is by the original

claimant challenging the judgment and award dated

30.11.2009 passed by learned 1st Fast Track Court and

Motor Accident Claims Tribunal (Aux.), Mahesana in

M.A.C.P. No.189 of 2003.

3. The brief facts of the case are as under:

* On 16.11.2002, the claimant was

proceeding in Maruti Car No.GJ-2K-9557 from Surat to

Mahesana. The said car was being driven by Thakor

Babuji Shankerji. At around 10.30 am, when a car

reached near Baroda National Highway, opponent

No.1 driving Maruti Car No. GJ-1-BP-3382 in a very

rash and negligent manner lost control over the car

and jumped the divider and dashed with the Maruti

Car in which the claimant was travelling. The

claimant Mr.Patel Prakash Rasikbhai sustained severe

injuries out of the vehicular accident. The claimant

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sustained fracture on left thigh and also sustained

fracture on the jaw and right leg knee. The claimant

claimed compensation of Rs.20,00,000/- against the

opponents.

* Opponents were served with the notice and

driver and owner of the Maruti Car bearing

registration No.GJ-1-BP-3382 did not remain present

and did not contest the claim petition. Insurance

Company of the said Car appeared and filed Written

Statement and denied its liability to pay

compensation.

* After framing of issues, the claimant

submitted examination-in-chief at Exh.29 and

produced documentary evidence before the learned

Tribunal. After considering the evidence, learned

Tribunal partly allowed the claim petition and

awarded Rs.2,66,600/- as compensation with interest

@ 7.5% p.a. with proportionate cost from the date of

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claim petition till realization against opponents Nos.2

and 3 - owner and insurance company respectively.

* Being aggrieved and dissatisfied with the

impugned award of compensation, the appellant -

original claimant has filed the present appeal for

enhancement of compensation.

4. Learned advocate for the appellant - original claimant

submitted that learned Tribunal has not considered

the settled principle of law by not considering

prospective income while calculating the

compensation. Reliance is placed upon National

Insurance Company Limited Vs. Pranay Sethi

and others reported in (2017) 16 SCC 680 and

submitted by learned advocate for the appellant that

learned Tribunal has awarded Rs.1,75,406/- as future

loss of income and given a complete go-by with regard

to the prospective income. Looking to the nature of

injuries, learned Tribunal has awarded very less

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amount of compensation under the head of Pain,

Shock and Suffering, Special Diet and Transportation

Charges. Except the above submissions, no other

submissions are canvassed by learned advocate for

the appellant.

5. Per contra, learned advocate for the respondent No.3

- Insurance Company has supported the judgment and

award and submitted that learned Tribunal has rightly

considered the evidence on record and awarded just

and reasonable compensation. It is further submitted

that as the learned Tribunal has considered

documentary evidence placed by the claimant, and

after assessing said evidence, has arrived at a

conclusion that future loss of income would be

Rs.1,75,406/- is just and proper and no interference is

required under the head of future loss of income. Rest

of the award passed by the learned Tribunal does not

require any interference looking to the facts and

circumstances of the case.

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6. Having considered the submissions and Record &

Proceedings, it transpires that learned Tribunal has

considered the Income Tax Returns produced at

Exhs.63,64 and thereafter, arrived at a conclusion that

the income of the claimant would be Rs.57,322/- per

year. However, while considering the future loss of

income, learned Tribunal has failed to consider the

important addition of prospective income as laid down

in the case of Pranay Sethi (Supra). Therefore, in

my view and in view of the injuries sustained to the

claimant, the award under Pain, Shock and Suffering is

also required to be enhanced and considering the

nature of surgeries underwent by the claimant,

compensation under the head of Special Diet,

Attendant Charges and Transportation Charges is also

required to be modified.

7. In view of the above facts and circumstances, the

claimant is entitled to following amount of

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compensation under the different heads:

Sr. Name of the Head Compensation No. Amount (In Rs.) 1 Future loss of Income 2,45,565/-

(Rs.57,322/- + (40%) = Rs.22,928/- = Rs.80,250/-

X 18% disability X 17 multiplier

2. Actual loss of income 9,500/-

3. Pain, shock and suffering 25,000/-

4. Medical Expenses 61,683/-

5. Special Diet, Attendant and 25,000/-

                                              Transportation Charges
                                                   Total Compensation                   3,66,748/-
                                                     (-) Awarded Amount             Rs.2,66,600/-
                                                    Enhanced Amount               Rs.1,00,148/-

8. Therefore, total amount of compensation would come

to Rs.3,66,748/-, which is required to be awarded

with 7.5% p.a. interest from the date of claim petition

till its realisation, which would meet the ends of

justice. It is pertinent to note that learned Tribunal

has awarded Rs.2,66,600/- to the claimant, therefore,

Rs.1,00,148/- (Rs.3,66,748 - Rs.2,66,600/-) is

required to be enhanced with 7.5% p.a. interest.

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9. For the reasons recorded above, the following order

is passed:

[A]. The present appeal is allowed

accordingly in above terms.

[B]. The Insurance Company is directed to

deposit the enhanced amount Rs.1,00,148/- with

7.5% p.a. interest from the date of claim

petition till its realisation before the concerned

Tribunal, within a period of six weeks from the

date of receipt of this order.

[C]. 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', after proper verification and after

following due procedure.

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[D]. While making the payment, the

Tribunal shall deduct the Courts fees, if not paid,

in accordance with the Rules.