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2022 DIGILAW 1089 (GUJ)

Rakeshkumar Maganlal Parekh v. Mohmadyunus A. S. Memon

2022-09-28

HEMANT M.PRACHCHHAK

body2022
JUDGMENT : 1. Present First Appeal is filed by the original claimant for enhancement of the amount of compensation awarded by the learned Motor Accident Claims Tribunal (Main) Valsad vide order dated 19.8.2006 in M.A.C.P. No.1424 of 2002 whereby, the learned Tribunal has partly allowed the claim petition by awarding Rs.2,93,000/- towards compensation in favour of the original claimant. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 19.8.2006 passed by the learned Motor Accident Claims Tribunal (Main) Valsad in M.A.C.P. No.1424 of 2002, present appellant has preferred present First Appeal mainly on the ground that while determining the amount of compensation, learned Tribunal has not properly considered the income of the appellant-original claimant. 3. It is also further contented that the learned Tribunal has not properly awarded the just and adequate compensation in favour of the original claimant-appellant herein. The further grounds enumerated in the memo of appeal, the present appeal is filed. The only controversy involved in the present appeal is that the learned tribunal while awarding the compensation has committed an error for determining the income of the appellant-original claimant. 4. The short facts giving rise to the present first appeal are as under:- 4.1 On 17.2.1999 at about 22-15 hours, appellant was going by walk on M.G.Road, Valsad. He was walking on the extreme left side of the road. At that time, the opponent No.1 was coming with Maruti Van Motorcar bearing R.T.O registration No. GJ-15-K-4447 at an excessive speed. That, the opponent No.1 was driving the said motor car rashly, negligently carelessly and against the traffic rules. Due to rash and negligent driving on the part of the opponent No.1 the said Maruti Van Motor car dashed and collided with the body of the appellant which resulted into serious vehicular accident. As a result of vehicular accident, the appellant sustained very serious bodily injuries on right hand elbow, right hand writ, on both the lips, on right side eyelid, on right knee, on his chest and also on his head and other parts of his body. There were fractures of ribs. Because of injuries, the appellant has lost vision permanently in his right eye. Thereafter, he was admitted in Hospital at Valsad as an indoor patient and received medical treatment as an indoor patient from 17.2.1999 to 25.2.1999. He was treated by various doctors etc. There were fractures of ribs. Because of injuries, the appellant has lost vision permanently in his right eye. Thereafter, he was admitted in Hospital at Valsad as an indoor patient and received medical treatment as an indoor patient from 17.2.1999 to 25.2.1999. He was treated by various doctors etc. but even after the medical treatment the injuries sustained by him have resulted into permanent disablement and therefore, his earning capacity is reduced to the extent of permanent disablement. 4.2 Thereafter, the appellant has filed the claim petition before the Motor Accident Claims Tribunal (Main), Valsad. The Tribunal after evaluating the evidence on record passed judgment and award and granted compensation of Rs.2,93,000/- to the appellant. The present appeal is preferred by the appellant -original claimant for enhancement of the compensation. 5. Learned advocate for the appellant has submitted that the learned Tribunal has erred in holding that the appellant was earning only Rs.3,000/- p.m. He has further submitted that the learned Tribunal ought to have held that the appellant was earning Rs.6500/- to Rs.7,000/- p.m. He has further submitted that learned Tribunal erred in applying 40% disability to the appellant. He has further submitted that the tribunal failed to appreciate that the work of goldsmith is very delicate and requires vision of both the eyes. The Tribunal therefore, erred in applying 40% permanent disability to the appellant for calculating his future loss of income on the basis of 40% permanent disablement of body as a whole. He has further submitted that the learned Tribunal ought to have applied a higher percentage of disability than 40%. He has further submitted that the learned Tribunal has not considered the future prospects of increase in income and has calculated future income on the basis of earning of the appellant at the time of accident. He has further submitted that learned Tribunal ought to have determined the amount of future income after taking into consideration the future prospects of increase in the income of the appellant. He has further submitted that learned Tribunal ought to have awarded an amount of Rs.10,00,000/- to the appellant as future loss of income. He has further submitted that the tribunal erred in applying the multiplier of 15. The appellant at the time of accident was about 32 years of age. The Tribunal ought to have applied the multiplier of 18. He has further submitted that learned Tribunal ought to have awarded an amount of Rs.10,00,000/- to the appellant as future loss of income. He has further submitted that the tribunal erred in applying the multiplier of 15. The appellant at the time of accident was about 32 years of age. The Tribunal ought to have applied the multiplier of 18. He has further submitted that learned Tribunal erred in awarding only Rs.25,000/- towards the head of “pain, shock and suffering”. The Tribunal erred in not awarding any amount for loss of amenities of life, loss of enjoyment of life and loss of marriage prospects though claimed by the appellant in the claim application. Learned Tribunal ought to awarded at least Rs.2,00,000/- under the said head. He further submitted that in view of the aforesaid, present appeal requires to be allowed. 6. On the other hand learned advocate for the respondent has submitted after taking into account all the evidence and material placed on record, learned Tribunal has passed impugned judgment and award and therefore, no interference is required and present appeal may be dismissed. 7. I have heard Mr. Aspi Kapadia, learned advocate assisted by Ms. Delshad Kapadia, learned advocate appearing for the appellant and Mr. G.C. Mazmudar, learned advocate with Mr. H.G.Mazmudar, learned advocate for the respondent No.2- insurance company. Though rule is served to the respondent No.1, he has chosen not to appear before this Court. With the consent of the parties, present appeal is taken up for final hearing. 8. I have also gone through the record and proceedings of the present appeal and I have also perused the original record. 9. Considering the recent decision of the Hon’ble Apex Court in case of Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 and another decision in the case of Benson George Vs. Reliance General Insurance Co.Ltd. And another reported in 2022 SCC Online SC 238, it is appropriate to grant the just and adequate compensation to the present appellant. In that view of the matter the present appellant is entitled to the additional compensation. 10. Considering the fact that the original claimant is entitled to recover amount of compensation from the insurance company. The negligence which was considered by the tribunal that was remained as it is. In that view of the matter the present appellant is entitled to the additional compensation. 10. Considering the fact that the original claimant is entitled to recover amount of compensation from the insurance company. The negligence which was considered by the tribunal that was remained as it is. 11. Considering the facts and evidence on record, it would be appropriate to consider Rs.6,000/- per month as income of the claimant- appellant herein and also considering the age of the appellant is of 32 years at the time of accident, he is entitled to get 40% prospective income and appropriate multiplier would be 15. Thus, he is entitled to get Rs.6,04,000/- towards future economic loss. Therefore, the appellant-original claimant is entitled to further Rs. 25,000/- under the head of pain, shock and suffering and Rs.50,000/- under the head of loss of amenities and enjoyment of life. The insurance companies is directed to deposit the recalculated/enhanced amount of compensation in following terms:- 1. Rs. 6,04,800/- Loss of Future Income 2. Rs. 20,000/- Medical Bills 3. Rs. 5,000/- Special diet 4. Rs. 5,000/- Attendant charges 5. Rs. 10,000/- Travelling & transportation expenses. 6. Rs. 24,000/- Actual loss of income (Rs.6000x4 months) 7. Rs. 50,000/- Pain, shock & suffering 8. Rs. 50,000/- Loss of future amenities & happiness Total Rs. 7,68,800/- Compensation to the claimant - Rs. 2,93,000/- Awarded by the learned Tribunal. Rs. 4,75,800/- Enhanced compensation for claimant. 12. Considering the ratio laid down by the Hon’ble Apex Court, the insurance company is liable to pay enhanced amount of compensation to the tune of Rs.4,75,800/- with simple interest @ 6%. The said enhanced amount of compensation be deposited by the insurance company within 10 weeks from the date of receipt of certificate copy of the order with interest. 13. The impugned judgment and award passed by learned Motor Accident Claims Tribunal (Main) Valsad vide order dated 19.8.2006 in M.A.C.P. No.1424 of 2002 is hereby modified to the aforesaid extent. 14. After the amount is deposited by the insurance companies, the learned Tribunal shall disburse the amount in favour of the claimant after verifying bank details of the claimant through R.T.G.S. 15. The First Appeal is hereby partly allowed to the aforesaid extent. No order as to costs. 16. Accordingly the First Appeal stands disposed of. 17. The record and proceedings be sent back immediately to the concerned tribunal.