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2018 DIGILAW 581 (GUJ)

Ramsinh Harisinh Rajput v. Paba Deva Rabari

2018-03-01

A.G.URAIZEE, S.R.BRAHMBHATT

body2018
JUDGMENT : A.G.Uraizee, J. The appellant in this appeal under Section 173 of Motor Vehicle Acts, 1988 is seeking enhancement in the compensation awarded by 7th (Adhoc) Additional District Judge, Kachchh at Bhuj by his judgment and award dated 18.08.2015 rendered in M.A.C.P. No.173 of 2001. 2. The brief facts necessary for the disposal of this appeal are that on 08.01.2001, the appellant was standing alongwith his handcart near the office of Harish Transport situated near Bhid Bazar Post Office when Truck No.GJ-02-T-7837 was parked at some distance, around 11.25 hours. The respondent no.1, while in the employment of respondent no.2 without giving any signals or without blowing horn and in the absence of his cleaner, took the Truck in reverse abruptly and collided his Truck with the appellant. Due to this accident, appellant has sustained injuries over left leg, thigh and other parts of the body. Initially the appellant was admitted in Government Hospital, Bhuj and thereafter he was referred to the Government Hospital, Ahmedabad, where the left leg of the appellant had been amputated during the course of treatment. Due to this vehicular accident and injury caused to the appellant, he has been permanently and totally disabled because of rash and negligent driving of respondent no.1. The appellant has been hospitalized as indoor patient and has been advised rest, rich diet and long term treatment. The appellant has paid Rs. 2,00,000/- for the medicines and rich diet of till now. The appellant was working as labourer and used to earn Rs. 6,000/- per month but due to injuries caused in this vehicular accident, he was not able to attend his work for the period from 08.01.2001 till date. The appellant was not in a position to attend his work, the income of the appellant would be increase from time to time and he would have been earning Rs. 9,000/- per month, if he has not caused injuries due to this accident. Stating all these facts, the appellant has claimed Rs. 21,00,000/- by filing M.A.C.P. No.173 of 2001 before the Motor Accident Claim Tribunal from all the respondents with the prayer that respondents were liable to pay this compensation jointly and/or severally to the appellant. 3. The Tribunal by the impugned judgment and award partly allowed the claim petition and awarded a sum of Rs. 21,00,000/- by filing M.A.C.P. No.173 of 2001 before the Motor Accident Claim Tribunal from all the respondents with the prayer that respondents were liable to pay this compensation jointly and/or severally to the appellant. 3. The Tribunal by the impugned judgment and award partly allowed the claim petition and awarded a sum of Rs. 8,67,500/- with 9% interest at proportionate costs to be recovered jointly and severely from the respondents. The appellant is not happy with the quantum of compensation and therefore, he is before this Court with this appeal. 4. We have heard Mr. Vishal Mehta, learned advocate for the appellant and Mr. Plak Thakkar, learned advocate for respondent no.3 Insurance Company. Since the appeal is on the question of quantum, in our view, the presence of respondent nos.1 and 2, driver and owner respectively of the offending vehicle is not required. 5. Mr. Mehta, learned advocate for the appellant has contended that the Tribunal ought to have been considered the prospective income at the rate of 40% instead of 30%, in view of the recent decision of the Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi And Ors., (2017) 3 GLH 536 . He would further submit that left leg of the appellant is amputated above the knee as is very clear from the medical evidence laid by the appellant and therefore, the appellant is unable to do any gainful work. Under the circumstances, the Tribunal has committed an error in assessing disability 60% which ought to have been considered 100%. He further submits that the compensation of Rs. 1 Lakh awarded under the head of loss of enjoyment of life is on lower side, which ought to have been Rs. 2 Lakh and therefore, he urges that the appeal may be allowed and the compensation awarded by the Tribunal may be enhanced appropriately. 6. Mr. Palak Thakkar, learned advocate for the respondent no.3 Insurance Company has invited Court's attention to the order impugned and submitted that the Tribunal has awarded just and reasonable compensation on the basis of the pleadings and evidence on record and the compensation awarded by the Tribunal does not warrant any enhancement. He, therefore, urged that the appeal may be dismissed. 7. We have gone through the impugned judgment and award and we have given our thoughtful consideration to the submissions canvassed at the bar. 8. He, therefore, urged that the appeal may be dismissed. 7. We have gone through the impugned judgment and award and we have given our thoughtful consideration to the submissions canvassed at the bar. 8. The undisputed fact as emerges is that the appellant was working as a labourer and because of the serious injuries sustained by him in the accident, his left leg above the knee is amputated. Though, according to the medical evidence, he has suffered disability to the extent of 60%, but in our opinion the appellant who was working as a labourer is rendered completely useless to do any work as a labourer and therefore, in view of catena of decisions of the Supreme Court, we are inclined to accept the submission of Mr. Vishal Mehta, learned advocate for the appellant that the Tribunal ought to have been considered the disability at 100% in place of 60% on the basis of the medical evidence. 9. So far as monthly income assessed by the Tribunal, in our view, is just and proper in light of the evidences available on record. However, in view of the recent decision of the Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi And Ors. and the age of the labourer, who was aged around 26 years at the time of the accident, the prospective income is required to be considered at the rate of 40% instead of 30% as per the impugned award. The appellant, who was working as a labourer has lost left leg above his knee at a very young age and is now unable to do the labour work and is deprived of the normal life and therefore the compensation awarded under the head of loss of enjoyment of life is required to revise. In our view the ends of justice would be served if the same is enhanced to Rs. 2 Lakh from 1 Lakh. 10. Offshoot of the above discussion is that the appellant is entitled to the enhancement in compensation as per the following table: Particulars Tribunal Awarded Claim Monthly Income 3,900/- 3,900/- Add: Future Rise in Income 1,170/- (30%) 1,560/- (40%) Monthly Income 5,070/- 5,070/- Yearly Income 61,000/- 65,520/- Disability 36,600/- (60%) 65,520/- (100%) Multiplies 17 17 Future Loss of Income 6,22,200/- 11,13,840/- Add: Actual Loss 70,200/- 70,200/- Add: Medical Expenses, Transportation, Diet and Attendant Charges. 75,000/- 75,000/- Add: Loss of Enjoyment of life, Disfigurement, etc. 1,00,000/- 2,00,000/- Total 8,67,400/- 14,59,040/- Rounded Off 8,67,500/- 14,59,000/- Enhancement 5,91,500/- 11. Accordingly, the appellant is entitled to Rs. 5,91,500/- (Rupees Five Lakh Ninety One Thousand Five Hundred Only) as enhanced compensation which shall carry 9% interest as awarded by the Tribunal. 12. For the foregoing reasons the appeal succeed in part. The judgment and award dated 18.08.2015 rendered in M.A.C.P. No.173 of 2001 by 7th (Ad-hoc) Additional District Judge, Kachchh at Bhuj, is hereby modified and the appellant is held entitled to Rs. 14,59,000/- as compensation in place of Rs. 8,67,500/- as awarded by the Tribunal and the appellant is now entitled to Rs. 5,91,500/- as enhanced compensation. 13. The respondent no.3 Insurance Company is directed to deposit the amount of enhanced compensation in the Tribunal within eight weeks from the date of receipt of copy of this order with 9% interest. Parties to bear their own costs.