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2021 DIGILAW 939 (GUJ)

Kasam Jivankhan Jat v. Kantilal Premji Chavda

2021-10-13

ARAVIND KUMAR, R.M.CHHAYA

body2021
JUDGMENT : R.M. Chhaya, J. 1. Feeling aggrieved and dissatisfied by the judgment and award dated 30.12.2017 passed by the Motor Accident Claims Tribunal, Gandhidham at Kutch in MACP no.317 of 2013, the appellant-original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”). 2. Following facts emerge from the record of the appeal:- That the accident took place on 25.6.2013. It is the case of the appellant-original claimant that on the date of the accident, he was sitting as a pillion rider on a motorcycle bearing registration no. GJ-12 BJ-7529 which was being driven by the deceased-Buddhubhai Hajabhai Jat. It is the case of the appellant that when they reached near the place of the accident, at that time, the original respondent no.1 came by driving his tanker bearing registration no. GJ-12 G-1189 in a rash and negligent manner and dashed with the motorcycle because of which the claimant fell down. It is the case of the appellant that because of the impact of the accident, the appellant sustained serious injuries, which has resulted into permanent disability to the tune of 90%. Record indicates that FIR came to be lodged with the jurisdictional Police Station. The appellant-original claimant filed the present claim petition under Section 166 of the Act and claimed compensation of Rs.25,00,000/-. It was the case of the appellant that the accident occurred because of the sole negligence of the driver of the offending vehicle i.e. the tanker. It was the case of the appellant that he was earning Rs.10,000/- per month. The appellant was examined at Exh.36. The appellant also relied upon the documentary evidences, such as, copy of FIR at Exh.38, copy of the Panchnama of the place of accident at Exh.39, copy of insurance policy of tanker bearing registration no.GJ-12 G-1189 at Exh.42, copy of MLC certificate at Exh.43, copy of discharge card issued by Rajasthan Hospital, Ahmedabad at Exh.44, copy of discharge summary by Nanavati Hospital at Exh.45, copy of the disability certificate issued by the Chief Medical Officer-cum-Civil Surgeon, Bhuj at Exh.46 and 47, copy of village form no.8-A at Exh.48, copy of the medical bills at Exh.49, copy of charge-sheet at Exh.51 and copy of the driving license at Exh.52. 3. 3. The Tribunal after appreciating the evidence on record came to the conclusion that the appellant has not adduced any evidence to prove his income and by a guesswork, determined the income of the appellant at Rs.2,500/- per month. Applying the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , the Tribunal applied multiplier of 14. It is a matter of record that the Tribunal considered permanent disability of the body as a whole to the extent of 90% and assessed the compensation under the head of loss of future income at Rs.3,78,000/-. The Tribunal considered the documentary evidence Exh.49 and awarded a sum of Rs.1,03,365/- towards medical expenses. Over and above the same, the Tribunal awarded Rs.10,000/- under the head of pain, shock and suffering, Rs.5,000/- as compensation under the head of special diet, transportation and attendant charges and Rs.15,000/- towards loss of income and thus, awarded total compensation of Rs.5,11,365/- along with 9% interest per annum with proportionate costs and interest. The Tribunal was pleased to partly allow the claim petition and awarded Rs.5,11,365/- with proportionate cost and interest at the rate of 9% per annum. Being aggrieved by the same, the appellant has preferred this appeal. 4. Heard Mr. Hiren Modi, learned advocate for the appellant, Mr. Shrijit Pillai, learned advocate for respondent no.1 and Mr. Vibhuti Nanavati, learned advocate for the respondent no.3 – insurance Company. Though served, no one appears for the other respondent. We have also perused the original record and proceedings. By an order dated 7.8.2018, the Coordinate Bench of this Court was pleased to issue notice for final disposal and hence, the learned advocates were heard for final disposal of the appeal. 5. Mr. Hiren Modi, learned advocate for the appellant contended that though the evidence shows that the appellant belonged from shepherd community and was earning by business of milk and animal husbandry, the Tribunal has assessed income by guess work at Rs.2,500/- per month only. Mr. Modi contended that the Tribunal has thus committed an error in assessing the income. Mr. Modi further contended that Tribunal erred in considering the disability of the body as a whole to the extent of 90%. Mr. Mr. Modi contended that the Tribunal has thus committed an error in assessing the income. Mr. Modi further contended that Tribunal erred in considering the disability of the body as a whole to the extent of 90%. Mr. Modi also contended that the Tribunal has also committed an error in appreciating the evidence on record and more particularly, the extent of treatment which the appellant was required to take because of the accident and has wrongly awarded a meager amount of Rs.5,000/- as compensation under the head of special diet, transportation and attendant charges which deserves to be suitably enhanced. Mr. Modi also contended that the Tribunal has not properly appreciated the medical evidence on record and has wrongly discarded permanent disability of the body as a whole sustained by the appellant and has not awarded any amount towards the loss of amenities as the appellant has lost his one hand from shoulder joint. On the aforesaid grounds, it was therefore contended that the appeal deserves to be allowed and the impugned judgment and award deserves to be modified accordingly. 6. Per contra, Mr. Vibhuti Nanavati, learned advocate for the insurance Company has supported the impugned judgment and award. Mr. Nanavati contended that the appellant has not been able to prove the income as claimed in the claim petition. Mr. Nanavati contended that considering the date of accident to be 25.6.2013, the Tribunal has rightly assessed income of the appellant at Rs.2,500/- per month as he was doing animal husbandry work. Mr. Nanavati further contended that the Tribunal has rightly appreciated the evidence on record and has awarded just compensation under different heads including pain, shock and suffering and special diet, transportation and attendant charges. According to Mr. Nanavati, the same does not require any modification and the appeal, being meritless, deserves to be dismissed. 7. No other or further submissions, averments, grounds and/or contentions are made by the learned advocates appearing for the respective parties. 8. Having appreciated the evidence on record and considering the submissions made, it is a matter of fact that the appellant has not adduced any evidence to prove the income. However, the record clearly establishes the fact and the appellant has been able to prove that he was doing animal husbandry work. 8. Having appreciated the evidence on record and considering the submissions made, it is a matter of fact that the appellant has not adduced any evidence to prove the income. However, the record clearly establishes the fact and the appellant has been able to prove that he was doing animal husbandry work. Even considering the minimum wages standard as applicable in the State of Gujarat on the date of the accident i.e. 25.6.2013, the income of Rs.2,500/- as determined by the Tribunal is less and following the minimum wages standard, in opinion of this Court, income of the appellant can safely be assessed at Rs.5,400/-. Considering the ratio laid down by the Hon'ble Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 as well as National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 , as the age of the appellant was 43 years on the date of the accident and as he was self-employed person, the appellant would be entitled to prospective income to the tune of 25%. As the Tribunal has rightly considered the permanent disability of the body as a whole at 90%, the same does not require any alteration. However, in view of the aforesaid, the appellant would be entitled to compensation under the head of future loss of income as under:- Rs.5,400/- income + Rs.1,350/- (25% prospective income) = Rs.6,750/- X 90% disability = Rs.6,075/- X 12 = Rs.72,900/- X 14 = Rs.10,20,600/- future loss of income. 9. Having come to the aforesaid conclusion, the appellant would also be entitled to Rs.5,400/- as actual loss of income for one month. Due to the accident, the appellant got multiple fracture injuries and he lost his one hand from shoulder joint and therefore, he is unable to do any work without one hand and has to face difficulties in day to day life. Upon reappreciation of the evidence on record, this Court is of the opinion that the amount of Rs.75,000/- deserves to be awarded under the head of loss of amenities. Upon reappreciation of the evidence on record, this Court is of the opinion that the amount of Rs.75,000/- deserves to be awarded under the head of loss of amenities. Upon reappreciating the same set of evidence and considering the gravity of injury and ultimate effect and impact of the accident upon the physical condition of the appellant, in opinion of this Court, the Tribunal has committed an error in awarding a meager amount of Rs.10,000/- towards pain, shock and suffering and Rs.5,000/- towards special diet, transportation and attendant charges. The Tribunal has also committed an error in not awarding any amount towards loss of amenities. Upon reappreciation of the evidence as a whole, this Court is of the opinion that the amount of compensation under the head of pain, shock and suffering should be Rs.75,000/-, Rs.75,000/- towards loss of amenities to life and Rs.25,000/- as special diet, transportation and attendant charges to arrive at just compensation which is the soul of the Act. 10. In view of the aforesaid therefore, the appellant would be entitled to compensation as under :- Future loss of income Rs.10,20,600/- Medical expenses + Rs.1,03,365/- Actual loss of income + Rs.15,000/- Pain, shock and suffering + Rs.75,000/- Special diet, transportation and attendant charges + Rs.25,000/- Loss of amenities + Rs.75,000/- Total compensation = Rs.13,13,965/- 11. Thus, the appellant would be entitled to total compensation of Rs.13,13,965/- along with 9% interest per annum and costs as awarded by the Tribunal from the date of filing of the claim petition till its realization. As the Tribunal has awarded Rs.5,11,365/-, the appellant would be entitled to an additional amount of Rs.8,02,600/- as additional compensation along with 9% interest per annum and proportionate cost from the date of filing of the claim petition till its realization. The impugned judgment and award stands modified to the aforesaid extent. The insurance Company shall deposit the additional/enhanced amount along with the interest as provided in this judgment within a period of three months from the date of receipt of this judgment. 12. The appeal is thus partly allowed. However, there shall be no order as to costs in this appeal. Registry is directed to remit the record and proceedings back to the Tribunal forthwith.