Gujarat High Court
Patel Vipul Shantilal vs Patel Pareshkumar Kantilal on 10 January, 2025
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 283 of 2011
==========================================================
PATEL VIPUL SHANTILAL
Versus
PATEL PARESHKUMAR KANTILAL & ORS.
==========================================================
Appearance:
MR KAIVAL PATEL FOR MR JIGAR G GADHAVI(5613) for the Appellant(s)
No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant being aggrieved and dissatisfied with the judgment and
award dated 29.03.2010 passed by the Motor Accident Claims
Tribunal, Mehsana in Motor Accident Claim Petition No.1208 of
2003.
2. Brief facts of the case are as under:
2.1 On 20.08.2003, the claimant was going as pillion
rider on the motorcycle, and when the said motorcycle rached
near the place of incident, the driver of motorcycle lost control,
as a result, the claimant received serious injuries.
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
3. Learned advocate for the appellant - claimant has
submitted that learned Tribunal has assessed compensation on
lower side by adopting income at Rs.21,000/- per year and same
is below minimum rate of wages. It is submitted that the
claimants have led evidence of Rameshbhai Raichandbhai at
Exh.19 who owned factory of policing rough diamond, wherein,
the claimant was working at the time of road accident. According
to deposition of Rameshbhai being employer at Exh.19 and
certificate issued by him at Exh.20, the claimant was earning
Rs.5000/- per month as labourer for policing rough diamond. It
is submitted that learned Tribunal has not considered this issue
properly. It is also submitted that learned Tribunal has
committed less compensation for loss of future prospects as in
the present case, the claimant has suffered permanent disability
of 13% which is accepted by both the parties on volition. It is
submitted that learned Tribunal has committed error in granting
Rs.7500/- under the head of pain, shock and suffering and
other heads are also compensated meagerly. Therefore, he
submits to enhance the amount of compensation.
3.1. Secondly, it is submitted by learned advocate for the
appellant that though policy of the vehicle was comprehensive
policy, learned Tribunal limits insurance company's liability to
Rs.25,000/- on the ground that policy was taken for personal
accident. It is submitted that since there is comprehensive
policy, risck of the pillion rider is purchased, insurance complay
is liable to satisfy entire amount of compenation which is
assessed by learned Tribunal under section 166 of MV Act.
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
3.2. On above submissions, it is submitted to allow the appeal.
4. On the other hand, learned advocate Ms. Hina Desai for
Insurance Company supports reasoning, observation and finding
of impugned judgment and submitted that risk of pillow rider is
purchased for Rs.25,000/- and therefore, insurance company
cannot be held liable to pay more than Rs.25,000/-, which is
rightly done by learned Tribunal. It is submitted that though
claimant has led evidence of employer, but documents are
produced to substantiate oral evidence that he is employer of
claimant and was giving Rs.5000/- towards salary to the
claimant. Learned advocate Ms. Desai submitted that if
deponent is employer of claimant, he would have easily produced
on record register showing name of the claimant as his
employee, also copy of cash book to show that he his owner of
Vimal Diamond - employer of claimant. Since no such
documents are produced on record, certificate at Exh.20
certifying income of the claimant to be Rs.5000/- cannot be
believed and rightly discarded by learned Tribunal. In nutshell,
learned advocate Ms.Desai submits to sustain impugned
judgment and award.
5. Having heard learned advocates for the parties and going
through evidence on record, adoption of Rs.21,000/- yearly
income of the claimant is by no means justified approach of
learned Tribunal. Minimum rate of wages of skilled labourer at
the relevant time was Rs.2300/- per month. Claimant has
examined one Rameshbhai Raichandbhai claiming him as
employer and also produced certificate stating that claimant was
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
getting monthly salary of Rs.5000/-. However, this evidence
cannot be believed as gospel truth in absence of any
documentary evidence to suggest that Rameshbhai was employer
of claimant and owned Vimal Diamond factory. To prove this
aspect, deponent could have produced documentary evidence
that he is proprietor of Vimal Diamond factory, factory is
registered under the Factory Act, also could have produced cash
book to show that claimant was paid salary of Rs.5000/-. Rate
of minimum wages could be taken as lump-sum amount to
calculate loss of future prospects. I fix income of claimant to
Rs.2500/- per month. The claimant was 21 years at the time of
road accident as per medical evidence on record. Therefore, in
the view of judgment of Hon'ble Apex Court in the case of Sarla
Verma versus Delhi Transport Corporation [(2009) 6 SCC 121],
multiplier of 18 is attracted which is also awarded by learned
Tribunal. On own volition contesting parties admitted certificate
at Exh.43 stating permanent disability to 13% and same has
been admitted. Upon this parameters, loss of earning is
calculated.
6. Medical evidence is produced on record at Exh.43. It shows
swelling over left shoulder and clavicle, deformity of left shoulder
and clavicle, tenderness of left shoulder over clavicle. Learned
Tribunal has assessed Rs.7500/- towards pain, shock and
suffering, it is on lower side, I enhance to Rs.20,000/-. Injury
sustain by the claimant and various documents claimant has
placed on record, medical bills disclose amount of Rs.1,31,413.
48 paise. Learned Tribunal has awarded Rs.1,32,000/- towards
medical expenses. I grant Rs.1,50,000/- towards medical
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
expenses. Considering injury of the claimant, six months
compensation is required to be granted i.e. Rs.2500/- x 6. Other
heads also deserve to be rationalized. Attendant charge has been
granted at Rs.4000/- while taking such amount, learned
Tribunal has ignored advise of Dr.Visvambar Vithaldas Sharma,
I enhance the same to Rs.15,000/-. Compensation under head of
special diet is also enhanced to Rs.10,000/-. Compensation
under the head of transportation expenses is also enhanced to
Rs.10,000/-
7. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 7,56,000/-
Rs.2500/- pm + 40% rise = Rs.3500/- pm x
12 x applying 18 multiplier, the total amount
would be Rs.5,40,000/-
Pain, shock and suffering 20,000/-
Medical expenses 1,50,000/-
Actual loss of income for six months 15,000/-
(Rs.2500/- x 6)
Attendant charge 15,000/-
Special diet, 10,000/-
Transportation expenses 10,000/-
Total... 9,76,000/-
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
8. Learned Tribunal committed error in limiting liability of
insurance company to Rs.25,000/-. It is improper reading of the
policy. Risk of personal accident of pillion rider cannot be treated
as limited risk under the Motor Accident cases. Since the
insurance company has taken risk of pillion rider, it is
vicariously liable to take liability of owner. Thus, insurance
company is liable to pay compensation.
9. Therefore, I hold that the claimant is entitled to get the
compensation of Rs.9,76,000/-, instead of Rs.2,03,890/-
awarded by learned Tribunal, with 7.5% 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.
10. For the reasons recorded above, the following order is
passed.
11.1 The present appeal is partly allowed.
11.2 The Insurance Company is directed to deposit the
amount Rs.9,76,000/- with 7.5% 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.
11.3 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.
NEUTRAL CITATION
C/FA/283/2011 ORDER DATED: 10/01/2025
undefined
11.4 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
11.5 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
