Gujarat High Court
Devjibhai Alabhai Kateja vs Pankajbhai Ravindrabhai Kotak on 25 February, 2025
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C/FA/4092/2023 ORDER DATED: 25/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4092 of 2023
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DEVJIBHAI ALABHAI KATEJA
Versus
PANKAJBHAI RAVINDRABHAI KOTAK & ORS.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Appellant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 25/02/2025
ORAL ORDER
1. Upon request of learned advocates for the respective
parties, the First Appeal is taken up for final hearing
forthwith.
2. Heard learned advocate Mr. Vishal C. Mehta for the
appellant and Mr. Chirayu A Mehta for the respondent No.3.
Though served, none appears for respondent No.2 and Rule
could not be served upon respondent No.2.
3. The brief facts of the case is as under:
On 30.08.2010, claimant was travelleing in Chhakada
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Rickshaw bearing registration No. GJ1 XX 7295 in the
morning hours. Said Chhakada Rickshaw dashed with the
tree and resultantly, the claimant sustained serious injuries.
The claimant sustained injuries over his left eye, right hand
and leg. Claimant filed claim petition before learned Motor
Accident Claims Tribunal (Auxi.) Gandhidham, Kutch for
claiming compensation of Rs.24 lakhs against opponents.
Despite the summons of claim petition being served to
opponent Nos.1 and 2, namely the driver and owner of
Chhakada Rickshaw, they did not contest the claim petition.
Insurance Company - opponent No.3 appeared and filed
written statement at Ex-12 and denied the liability of
compensation. Issues were framed at Ex-18. Claimants
submitted examination-in-chief at Ex-21 and produced
documentary evidence in support of his claim.
4. After considering the evidence and material placed on
record, learned Tribunal partly allowed the claim petition by
granting compensation of Rs.4,29,714/- with proportionate costs
and interest @9% per annum from the date of claim petition
till realisation against all opponents.
5. Being aggrieved and dissatisfied with the impugned
judgment and award, the claimant - appellant filed the
appeal for enhancement of compensation.
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6. Learned advocate for the appellant submitted that the
accident occurred on 30.08.2010 when the claimant was
travelling in Chhakada Rickshaw and said vehicle dashed
with the tree. The accident occurred because of rash driving
of the Chhakada Rickshaw. FIR was filed against the driver
of Chhakada Rickshaw and the driver was charge-sheeted
thereafter.
7. It is submitted that claimant has sustained grievous
injuries over his left eye, right hand and leg resulting into
decrease in vision and difficulties in doing daily activities.
The claimant was at the time of accident serving in Mashal
Global Wiring Company as an electrician and was earning
Rs.5,000/- per month as salary.
8. It is further submitted that learned Tribunal in absence
of any proof with regard to income considered the notional
income as per the minimum wages prevailing at the relevant
point of time and assessed income of claimant at Rs.4,210/-
per month. The claimant has also produced disability
certificate at Exh.-31 wherein the physical impairment has
been assessed at 47% however, in absence of any contrary
evidence, learned Tribunal has assessed 40% disability for the
body as a whole. It is submitted that when the documentary
evidence is available on record with the Tribunal, there was
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no reason to reduce the disability from 47% to 40%. Looking
to the nature of injury, learned Tribunal ought to have
considered disability to 47%.
9. While calculating the compensation,, learned Tribunal
has failed to appreciate that claimant is entitled to future
rise in income as held in the case of National Insurance
Company Limited versus Pranay Shethi reported in (2017) 16
SCC 680. Looking to the age of the claimant, who was 18
years at the relevant point of time, learned Tribunal ought to
have added prospective income. So far as pain, shock and
suffering are concerned, learned Tribunal has awarded less
amount of compensation. The nature of injury was such that
claimant had suffered great pain, shock and suffering and
learned Tribunal ought to have awarded more amount under
the head of pain, shock and suffering. The award of
Rs.5,000/- under the head of special diet, attendant and
transportation charges is too megre and learned Tribunal
ought to have awarded higher amount of compensation under
such head.
10. Per contra, learned advocate for the respondent No.3
insurance company has vehemently objected against the
submissions canvassed by the learned advocate for the
appellant. Learned advocate for the respondent had supported
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the judgment and award and has submitted that in absence
of any cogent and convincing evidence, learned Tribunal has
awarded just and reasonable compensation to the claimant.
So far as disability is concerned, if any marginal reduction of
disability has been considered by learned Tribunal, it does
not require any interference.
11. Having considered the submissions and the material
placed on record, the claimant was serving at Mashal Global
Wiring Company and was earning out of the said
employment. However, in absence of any documentary
evidence with regard to the income, learned Tribunal has
taken into consideration the rates of minimum wages
prevailing at the relevant point of time.
12. On perusal of the award, it is noticed that while
awarding compensation, learned Tribunal has not awarded the
prospective income which as per the settled principle of law,
Tribunal ought to have added in the income of the claimant.
The claimant was aged about 18 years at the relevant point
of time and looking to the nature of injuries he has
sustained and disability suffered by the claimant, the
claimant is entitled to addition of 40% under the head of
prospective income as held in the case of Pranay Shethi
(supra). The award of compensation under the head of pain,
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shock and suffering is required to be increased from
Rs.10,000/- to Rs.25,000/- which would serve the purpose of
just and reasonable compensation. The accident has occurred
in the year 2010, normally when the claimant is injured in a
vehicular accident and sustained injuries, the claimant had to
take medical treatment. It is understood that the claimant
must have undergone the expenses of special diet, attendant
charges and transportation. Instead of Rs.5,000/- which has
been awarded by the learned Tribunal, it would be just and
reasonable if the same amount is increased to Rs. 15,000/-.
Since there is no contrary material pointed out by the
respondent - insurance company whereby the claimant can be
non-suited for enhancement of compensation, it would be just
and reasonable if the claimant is awarded following amount
of compensation:
Head Amount (Rs.)
Future loss of Income 5,98,320/-
Monthly Income - 4210/-
Future rise in Income - (40%)
(4210 + 40% = 5894/-)
Disability (47%)
(5894 x 47% = 2770/-)
2770 x 12 x 18 = 5,98,320/-
Medical expenses 42,550/-
Pain, Shock & Suffering 25,000/-
Special diet, Attendant and 15,000/-
Transportation charges
Actual loss 8,420/-
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Total 6,89,290/-
Less Awarded Amount by Tribunal 4,29,714/-
Enhanced Compensation 2,59,576/-
13. The appellant - claimant is entitled to recover
Rs.2,59,576/- as enhanced amount of compensation @ 9% p.a.
from the date of petition till realisation. The respondent No.3
- Insurance Company shall deposit the enhanced amount of
compensation within a period of six weeks from the date of
receipt of the order.
14. On deposit of the enhanced amount of compensation, the
learned Tribunal shall disburse the compensation in favour of
the claimant after following the due process. R & P to be
sent back to the concerned Court/Tribunal. First Appeal is
partly allowed accordingly.
(D. M. DESAI,J)
MAYA
