Gujarat High Court
Kokilaben Rajubhai Nayak vs Raghubhai Jemabhai Ghadavi on 29 January, 2025
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C/FA/1804/2021 ORDER DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1804 of 2021
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KOKILABEN RAJUBHAI NAYAK
Versus
RAGHUBHAI JEMABHAI GHADAVI & ANR.
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Appearance:
MR PARTH R KIKANI(10767) for the Appellant(s) No. 1
MR SANJIV N KIKANI(2606) for the Appellant(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant challenging the judgment and award passed by the
Learned Motor Accident Claims Tribunal (Aux.) Ahmedabad
dated 22.12.2020 in M.A.C. Petition No. 683 of 2016, by which
the tribunal awarded compensation of Rs.6,09,800/- with 9%
interest to the claimants from the date of application till its
realization, holding insurance company liable.
2. The brief facts of the case are that On 17-04-2016 injured
Kokilaben Rajubhai Nayak, aged 33 years old was pillion rider on
motorcycle with her husband and at that time driver of Dumper
No. GJ-13-X-121 had dashed his vehicle from behind with said
motorcycle and she sustained injuries and ultimately her left leg
below knee was amputated and sustained disability of 65%.
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3. The claim petition came to be filed by the present
appellants claiming compensation of Rs.10,00,000/- from the
respondents wherein the tribunal was considering oral as well as
documentary evidence led by the parties and submissions made
at the bar partly allowed the claim petition by awarding
compensation as noted above.
4. Heard learned advocates for the parties.
5. Learned advocate Mr.Kikani for the appellant - claimant
has submitted that in the case on hand lady 33 years received
injuries and below knee was amputated however the learned
tribunal did not assess the compensation on lower side and did
not consider the rate of minimum wage while taking up the
monthly income of the claimant. He would submit that tribunal
has also granted very lower amount under the head of PSS, as
also not granted any amount for future medical treatment and
future amenities and therefore the amount of compensation may
be enhanced.
5.1 He has submitted that the compensation is required to be
enhanced by modifying the award impugned accordingly and
this appeal may be allowed.
6. Per contra, Ms.Rehvar, learned advocate for respondent -
Insurance Company has submitted that the impugned judgment
and award passed by the Tribunal is just and proper. The
Tribunal has rightly considered the income of the injured, the
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age of the injured and the dependency. He has submitted that
considering the nature of injury, the tribunal has awarded just
and fair compensation and this appeal may be dismissed and no
interference be made by this Court.
7. It is noteworthy to mention that the provisions of the Motor
Vehicles Act, 1988 which gives paramount importance to the
concept of 'just and fair' compensation. It is a beneficial
legislation which has been framed with the object of providing
relief to the victims or their families. Section 168 of the Motor
Vehicles Act deals with the concept of 'just compensation' which
ought to be determined on the foundation of fairness,
reasonableness and equitability. Although such determination
can never be arithmetically exact or perfect, an endeavor should
be made by the Court to award just and fair compensation
irrespective of the amount claimed by the claimants.
8. I have considered the submissions made by the rival
parties. I have perused the record and proceedings of the
Tribunal. I have gone through the impugned judgment and
award passed by the learned Tribunal. From the record, it
transpires that the injured lady was aged about 33 years married
lady lost her leg below knee in a killer road accident. The
tribunal in absence of proof of income has assessed the income
at Rs.4,500/- including future prospect; to the contrary as per
the Notification, the rate of minimum wage comes to Rs.8,133/-
and since the services of the homemaker is valuable for 24X7, in
the opinion of this Court, the income of the victim would be
assessed at Rs.9,000/- per month. In every such case where the
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claimant has no permanent source of income or self-employed is
required to be granted compensation for future loss of income
and considering the role of the injured victim 40% future
prospect is granted as per the decision in case of National
Insurance Company Ltd. v. Pranay Sethi & Ors., [(2017) 16 SCC
680] while maintaining the multiplier of 16.
8.1 To be noted that, in volition of both the parties, physical
disability is assessed at 45% as per certificate produced at Mark
27/6. Therefore, it would meet the ends of justice if 40%
prospective income is added per month 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, it would come to Rs.10,88,640/- as future loss, which is
required to be awarded to the claimants. The compensation
under the head of PSS is also on lower side. Considering the
trauma of amputation it is increased to Rs.2.00 Lakh and
likewise the actual loss of income is also increased for six
months at Rs.9,000/-. The medical expenses granted by the
tribunal is maintained, as also the special diet, etc. The victim
lady 33 years lost her left leg below knee which attracts the
compensation under the head of loss of amenities and loss of
marital life and therefore compensation of Rs.1.00 Lakh under
the said head is also granted. As looking to the nature of injury
amputation below knee, further amount of Rs.50,000/- for
future medical expenses is also granted as the victim would
require medical examination.
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11. Therefore, total compensation would be as under, which
the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 10,88,640/-
Actual loss of income 54,000/-
Pain shock and suffering 2,00,000/-
Medical Expenses 50,000/-
Attendant and Special Diet 50,000/-
Future Medical Expenses 50,000/-
Loss of Amenities and loss of marital life 1,00,000/-
Total 15,92,640/-
Already awarded by the tribunal 6,09,800/-
Enhanced amount of compensation 9,82,840/-
12. Therefore, I hold that the claimants are entitled to get the
total amount of compensation of Rs.15,92,640/- with 9% 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.
13. For the reasons recorded above, the following order is
passed.
14. The present appeal is partly allowed.
14.1 The Insurance Company is directed to deposit the
enhanced amount Rs.9,82,840/- with 9% 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
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this order.
14.2 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.
14.3 While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in accordance with rules/law.
14.4 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(J. C. DOSHI,J)
sompura
