Gujarat High Court
Anand Jayendrabhai Shah vs Kiran Rasiklal Thakkar & 4 on 8 August, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1275/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1275 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ANAND JAYENDRABHAI SHAH....Appellant(s)
Versus
KIRAN RASIKLAL THAKKAR & 4....Defendant(s)
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Appearance:
MR VILAV K BHATIA, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 2
MR RATHIN P RAVAL, ADVOCATE for the Defendant(s) No. 4 - 5
SERVED BY AFFIX.-(R) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 08/08/2017
ORAL JUDGMENT
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1. Being aggrieved by the judgment and award dated 28.8.2014 passed by the MACT (Aux.), Mirzapur, Ahmedabad in MACP no.168 of 2000, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").
2. The facts as can be culled out from the record of the appeal are as under: It is the case of the appellant that the appellant was a pillion rider of motorcycle bearing registration no. GJ3 BB2999. That, on 26.6.1999, while they were passing through Shivranjini Society abutting on 132 ft. Ring Road at 9:50 p.m., at that time, the car bearing registration no. GJ1 BP2870 belonging to respondent no.1 herein dashed with the motorcycle and it is further the case of the appellant that the car was being driven in a rash and negligent manner.
3. Record further indicates that the appellant was then 19 years old and was pursuing his studies in the first semester in Diploma in Plastic Engineering in Nirma University. It is further the case of the appellant that he was earning Rs.24,000/ and the appellant filed a claim petition under Section 166 of the Act and Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Aug 18 23:43:10 IST 2017 C/FA/1275/2015 JUDGMENT claimed total compensation of Rs.3 lacs. The Tribunal, while partly allowing the claim petition, awarded total compensation of Rs.1,46,440/ along with 9% interest and cost. Being aggrieved by the said judgment and award, the present appeal is preferred by the appellant for enhancement of compensation.
4. Heard Mr. Vilav K. Bhatia, learned advocate for the appellant and Mr. R.P. Raval, learned advocate for respondent nos.4 and 5. Though served, no one appears for the other respondents.
5. Mr. Vilav K. Bhatia, learned advocate for the appellant has contended as under: That, the Tribunal has erred in considering the income of the appellant being notional income at Rs.2,000/ per month. It was contended that even considering the fact that the accident is of the year 1999, the notional income should have been determined at least as Rs.3,000/. It is further contended that in view of the fact that there is no challenge even to the disability which is determined as permanent disability being 16.9%, the appellant had to undergo extensive treatment and therefore, the Tribunal has erred in awarding amount of Rs.10,000/ only under the pain, shock and Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Aug 18 23:43:10 IST 2017 C/FA/1275/2015 JUDGMENT suffering. It is contended that even the diet compensation awarded under the head of special diet, transportation, attendant charges etc. is just meager and it should be at least Rs.10,000/. It is therefore contended that the appeal be allowed as prayed for and the compensation be enhanced accordingly.
6. Per contra, Mr. R.P. Raval, learned advocate for respondent nos.4 and 5 has supported the impugned award and has submitted that as a 19 years old boy, the appellant cannot be expected to earn more than Rs.2,000/ per month and therefore, the Tribunal has rightly came to the conclusion that the notional income of the appellant was Rs.24,000/. It was further contended that the Tribunal has rightly awarded respective amounts towards each of the heads, more particularly, even considering the price index which was therein in the year 1999 and therefore, no enhancement is necessary. It was therefore contended that the appeal be dismissed and it is not a fit case for exercise of appellate jurisdiction by this Court.
7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
8. Having heard the learned advocates appearing Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Aug 18 23:43:10 IST 2017 C/FA/1275/2015 JUDGMENT for the respective parties and on perusal of the record and proceedings and upon reappreciation of the evidence on record, it clearly transpires that the appellant was a student, with a promising career at the age of
19. While considering the notional income, even in the year 1999, in the facts and circumstances of the case, the same is much less and the same should be at least Rs.3,000/ per month. Even taking into consideration the judgments of notional income of the Apex Court, it can safely be arrived at Rs.3,000/ per month even in 1999. As far as other heads are concerned, on reappreciation of evidence, the Tribunal has taken into consideration the evidence on record and even oral testimony of the appellant - claimant. It is a matter of fact that the insurance Company has not disputed the extent of disability and therefore, considering the same as well as the conclusion arrived at by the Tribunal, the Tribunal has also erred in applying multiplier of 16 as the age of the appellant was 19 years on the date of accident. The said fact has also come out of the documentary evidence and the same is not disputed by the learned advocate for the appellant. Following the ratio laid down by the Apex Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 as Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Aug 18 23:43:10 IST 2017 C/FA/1275/2015 JUDGMENT the age of the appellant was admittedly 19 years, multiplier of 18 should have been applied.
8. In view of the aforesaid conclusion therefore, the claimant would be entitled to Rs.1,03,680/ under the future loss of income (considering Rs.3,000/ per month X 12 = Rs.36,000/ per annum and applying 18 multiplier, after considering 16% disability). Though Mr. Bhatia has contended that the compensation awarded under the head of special diet as well as pain, shock and suffering is less even on reappreciation of evidence, this Court finds that the same does not require any alteration. In light of the aforesaid findings therefore, the claimant would be entitled to the following: Rs.1,03,680/ Towards future loss of income Rs.10,000/ Towards pain, shock and suffering Rs.25,000/ Towards loss of expectation of his future career Rs.45,000/ Towards medical expenses Rs.5,000/ Towards special diets, transportation, attendant charges, etc. Rs.1,88,680/ TOTAL Therefore, the claimant would be entitled to Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Aug 18 23:43:10 IST 2017 C/FA/1275/2015 JUDGMENT additional compensation of Rs.42,240/ along with 9% proportionate interest and cost. The appeal is thus partly allowed. The insurance Company shall deposit the additional amount as expeditiously as possible. Record and proceedings be transmitted to the Tribunal forthwith.
(R.M.CHHAYA, J.) mrp Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Aug 18 23:43:10 IST 2017