Gujarat High Court
Rameshbhai Mohanbhai Soni vs Ranchhodbhai Dayabhai Patel on 24 July, 2024
NEUTRAL CITATION
C/FA/3939/2018 ORDER DATED: 24/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3939 of 2018
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RAMESHBHAI MOHANBHAI SONI
Versus
RANCHHODBHAI DAYABHAI PATEL & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
NOTICE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/07/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - claimant, being aggrieved and dissatisfied with the judgment and award dated 01.05.2018 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claim Petition No.771 of 2010, by which the Tribunal has awarded compensation of Rs.7,34,500/- with 8% per annum interest to the claimant/s, holding opponents liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 8/4/2010, the appellant was travelling as passenger in cruser car bearing no. GJ 5-CH-855 and while going to Gondal near Shapar village, at that time the driver of the said vehicle drove the car in rash and negligent manner and dashed with the tractor running ahead of the said car. The said tractor had no tail light or no Page 1 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024 NEUTRAL CITATION C/FA/3939/2018 ORDER DATED: 24/07/2024 undefined signal and thus both the vehicle dashed thereby causing grievous injuries to the present appellant. The appellant at the time of the accident was 41 years of age and was running shop by the name of "Laxmi Jewellers". Due to the said accident the present appellant suffered paraparesis and partial paralysis in both of his legs as the appellant suffered fracture on D12 digit of the spinal cord that made him disabled for the lifetime. Further the appel'ant also suffered injuries that is fracture on other parts of the body too. Thus the appellant filed the MACP no. 771/2010 initially for compensation of Rs. 3,00,000/- which was later on amended for Rs. 15,00,000/- under section 166 of MV Act.
2.2 Notices were served to the opponents. None were present except Opponents Nos.2 and 4 - insurance company. Opponent Nos.2 and 4 - insurance company has filed its written statement at Exh.14 and 23 respectively by disputing all the averments made by the claimant in the claim petition and also disputed the liability.
2.3 Issues have been framed by the Tribunal. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.4 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant for enhancement.
3. Learned advocate for the appellant - claimant has submitted that the Tribunal has committed an error in not properly calculating Page 2 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024 NEUTRAL CITATION C/FA/3939/2018 ORDER DATED: 24/07/2024 undefined the amount of compensation. It is submitted that amount awarded is on lower side as the Tribunal has not properly considered the various aspects; like income of the injured, injuries, prospective income, disability and negligence, special diet, transportation and attendant charges, pain, shock and suffering, etc. It is submitted that the Tribunal has committed error in considering the monthly income of the injured Rs.10,917/-, which should be Rs.11,000/- considering the fact that he was nature of the work of the injured as well as taking into account the shop; Shree Laxmi Jewellers of the injured. It is submitted that considering decision of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, as well as taking into account the age of the injured i.e. 25%, addition to the extent of 25% may be granted in monthly income of the injured. It is submitted that the Tribunal has not properly considered the disability certificates issued by the doctor at Exh.50. He has clearly stated that the claimant has sustained sustained serious injuries like fracture mainly in ankles and fracture injuries in both the arms, legs, mouth, waist and both hip joints, and thereby sustained permanent disability to the extent 60% and, therefore, the Tribunal has considered the disability for body as a whole to the extent of 30%, but which be 40% considering the treatment and injuries sustained by the claimant, and the Tribunal ought to have granted compensation accordingly. It is submitted that the Tribunal has committed an error by not properly considering the compensation properly under the head of pain, shock and suffering, which should be Rs.1,00,000/-, instead of Rs.25,000/-
awarded by the Tribunal, looking to the injuries sustained by the claimant and considering the decisions of the Hon'ble Apex Court in the case of : (i) Pranay Shethi (supra) and (ii) Magma General Page 3 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024 NEUTRAL CITATION C/FA/3939/2018 ORDER DATED: 24/07/2024 undefined Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130. It is submitted that the Tribunal has committed error in not properly considering the amount towards special diet, transportation and attendant charges, which should be Rs.50,000/- instated of Rs.25,000/- considering the treatment of long time. It is submitted that the Tribunal has rightly awarded the compensation under different heads, except the above raised. It is submitted that the appropriate enhancement be granted by modifying the award impugned. It is submitted that the appeal may be allowed.
4. Per contra, learned advocates for respondent No.2 and 4 - insurance company have submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the compensation towards pain, shock and suffering. It is submitted that the Tribunal has assessed the disability certificates issued by the doctor and awarded compensation to the claimant. It is also submitted that no interference is required in the impugned award. However, from the submissions made by learned advocate for the appellant that the Tribunal has committed certain errors, on this aspect, learned advocate for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order by considering the submissions made by him/her, in the interest of justice.
5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept Page 4 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024 NEUTRAL CITATION C/FA/3939/2018 ORDER DATED: 24/07/2024 undefined 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 claimant/s.
6.1 I have heard the learned advocates for the respective parties and 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 Tribunal. It is noted that the claimant has by and large claimed enhancement towards income of the injured, injuries, prospective income, disability and negligence, special diet, transportation and attendant charges, pain, shock and suffering, etc. 6.2 It transpires that the Tribunal has committed error in considering the monthly income of the injured Rs.10,917/-, which should be Rs.11,000/- considering the fact that he was nature of the work of the injured as well as taking into account the shop; Shree Laxmi Jewellers of the injured. Furthermore, considering various above-mentioned judgments of the Hon'ble Apex and taking into account the age of the claimant at the time of accident, i.e., 41 years, addition to the extent of 25% is required to be granted in the monthly income. Therefore, it would come to Rs.13,750/- towards prospective income. Looking to the injuries and the issued by the doctor at Exh.50, whereby it is stated that the claimant has sustained Page 5 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024 NEUTRAL CITATION C/FA/3939/2018 ORDER DATED: 24/07/2024 undefined sustained serious injuries like fracture mainly in ankles and fracture injuries in both the arms, legs, mouth, waist and both hip joints, and thereby sustained permanent disability to the extent 60% and, therefore, the Tribunal has considered the disability for body as a whole to the extent of 30%, but it should be considered 40% considering the treatment and injuries sustained by the claimant, and the Tribunal ought to have granted compensation accordingly. The Tribunal has considered 14 multiplier looking to the age i.e. 40 years of the claimant at the time of accident, which is found just and proper. Therefore, Rs.14,080/- x 40% x 12 x 14 multiplier would come to Rs.9,24,000/- which would be the future loss of income of the claimant.
6.3 Furthermore, the Tribunal has erred in awarding Rs.25,000/- towards pain, shock and suffering, which should be Rs.1,00,000/- considering the injuries and treatment. Furthermore, the Tribunal has erred in awarding Rs.25,000/- only towards special diet, attendant and transportation charges, which should be Rs.50,000/- considering the injuries and period of hospitalization of the claimant. Furthermore, under the other heads, the amount awarded under different heads are not disputed by the claimant in the present case. Otherwise also, the Tribunal has rightly considered the amount of compensation under other heads.
6.4 Thus, the appellant - claimant is entitled to get the following final amount as compensation :
Particulars Amount (Rs.)
Future loss of income 9,24,000/-
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NEUTRAL CITATION
C/FA/3939/2018 ORDER DATED: 24/07/2024
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Actual loss of income 43,668/-
Pain, shock and suffering 1,00,000/-
Medical Expenses 90,500/-
Special diet, Transportation, Attendant Charges 50,000/-
Total... 12,08,168/-
Less : Amount which is already awarded 4,90,468/-
Additional amount which is awarded 7,90,468/-
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.12,08,168/- with 8% 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 shall remain same. The Tribunal has already awarded Rs.4,90,468/- and, therefore, remaining amount of Rs.7,90,468/- would be the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 01.05.2018 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in Motor Accident Claim Petition No.771 of 2010 is modified to the aforesaid extent.
8.3 The Insurance Company is directed to deposit the enhanced amount Rs.7,90,468/- with 8% 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.
Page 7 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024 NEUTRAL CITATION C/FA/3939/2018 ORDER DATED: 24/07/2024 undefined 8.4 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.
8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 8 of 8 Downloaded on : Fri Aug 02 23:10:01 IST 2024