REKHABEN GIRISHBHAI PATEL THRO' LEGAL HEIRSversusDIVISIONAL CONTROLLER

     C/FA/3457/2012                               JUDGMENT DATED: 22/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                      R/FIRST APPEAL NO. 3457 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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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     REKHABEN GIRISHBHAI PATEL THRO' LEGAL HEIRS & 3 other(s)
                             Versus
                    DIVISIONAL CONTROLLER
==========================================================
Appearance:
MR SHUSHIL R SHUKLA(5603) for the Appellant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 22/04/2022

                             ORAL JUDGMENT


1.     The present First Appeal, under Section 173 of Motor Vehicles
Act, 1988, is preferred by the appellant - Insurance Company, being
aggrieved and dissatisfied with the common judgment and award
dated 21.01.2012 passed by the Motor Accident Claims Tribunal
(Aux.), Nadiad in Motor Accident Claim Petition No.497 of 2008, by


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      C/FA/3457/2012                              JUDGMENT DATED: 22/04/2022




which the Tribunal has awarded compensation of Rs.12,15,100/- with
8% per annum interest to the claimants, holding Opponent – The
Gujarat State Road Transport Corporation liable.

2.      Brief facts of the case are as under:

2.1     On 17.10.2007 at about 7:30 p.m., the claimant, along with his
husband and minor son, was going on his motorcycle bearing
registration No.GJ-7-AL-4947 from Anand to Dakor in moderate
speed and on correct side of the road. At that time, one CNG ST Bus
bearing registration No.GJ-18-V-9862, going towards Nadiad, in rash
and negligent manner endangering to human life and dashed with
the motorcycle. Due to that, the claimant sustained serious head
injuries, which has led to mild mental retardation and permanent
disability all over the body. In the said accident, the husband of the
claimant has expired on the spot. Complaint was lodged before the
Umreth Police Station by one Ranchhodbhai Ramjibhai Patel.
Therefore, the claim petition is filed by the claimants to get the
compensation of Rs.15 lakhs with interest. The minor son also
received serious injuries in the said accident.

2.2     Notices were served to the opponent – GSRTC. The ST
Corporation has has filed its written statement at Exh.8 by disputing
all the averments made by the claimant in the claim petition and also
disputed the liability.

2.3     The Tribunal has framed the issues at Exh.12. 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.




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      C/FA/3457/2012                            JUDGMENT DATED: 22/04/2022



2.4     Being aggrieved and dissatisfied with the impugned judgment
and award passed by the Tribunal, the present appeal is preferred by
the claimants for enhancement.


3.1     Learned advocate for the appellants – original claimants has
submitted that the Tribunal has committed an error in not properly
calculating the amount of compensation. He has submitted that
amount awarded is on lower side as the Tribunal has not properly
considered the various aspects; like income, negligence, injuries and
disability, etc. He has submitted that the Tribunal has not properly
considered the income of the claimant while awarding compensation.
He has further submitted that the Tribunal has not properly applied
multiplier looking to the age of the claimant. He has submitted that
looking to the decision of Hon’ble Apex Court in the case of National
Insurance Company Limited versus Pranay Shethi reported in
(2017) 16 SCC 680, future prospective income may be considered
and enhance the compensation to the claimants accordingly.


3.2     He has submitted that the Tribunal has not properly awarded
compensation under the head of pain, shock and suffering, which
may be awarded more, keeping in mind the decisions of Hon’ble
Apex Court in the case of Pranay Shethi (supra) as well as Magma
General Insurance Company Limited versus Nanu Ram and
others reported in (2018) 18 SCC 130.


3.3     He has fairly submitted that the Tribunal has properly awarded
compensation towards other heads, therefore, no interference qua
them is required by this Court.


3.4     He has submitted that the award impugned may be interfered
with and the amount may be enhanced looking to the facts and


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      C/FA/3457/2012                            JUDGMENT DATED: 22/04/2022



circumstances of the case as well as considering various decisions of
the Hon’ble Apex Court as noted above. He has submitted that this
appeal may be allowed.


4.      Per contra, none appears for the respondent – Corporation,
though served. Therefore, this Court has no option but to proceed
with the matter. Accordingly, matter is taken up for final hearing
today.


5.      It is noteworthy to mention that the provisions of the Motor
Vehicles Act, 1988 which gives paramount importance to the concept
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 claimants.


6.1     I have 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 a matter of record that the claimant was a partner in
the business of furniture. The Tribunal has considered Rs.1,06,300/-
as annual income of the deceased, which is undisputed. The age of
the deceased was 33 years at the time of accident. Therefore, if we
add 40% income as future rise considering the decision of Hon’ble
Apex Court in the case of Pranay Shethi (supra), it would be just
and proper. Therefore, total annually income Rs.1,06,300/- plus 40%
rise would come to Rs.42,520/- and thus, total would come to


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      C/FA/3457/2012                                JUDGMENT DATED: 22/04/2022



Rs.1,48,820/- future prospective income of the deceased. Looking to
the age of the deceased and considering the decision of Hon’ble Apex
Court in the case of Sarla Verma versus Delhi Transport
Corporation reported in (2009) 6 SCC 121, the multiplier of 16
would be proper. Therefore, Rs.1,48,820/- x 16 multiplier, it would
come to Rs.23,81,120/-, which would be the total future prospective
income, which would be just and proper.


6.2     Further, looking to the injuries sustained to the claimant, the
amount awarded by the Tribunal under the head of pain, shock and
suffering should be more. As per Exh.54, the claimant has sustained
head injuries, which has led to mild mental retardation and hence,
which may result in 100% earning loss. Further, there are other
permanent disabilities all over the body also. The Tribunal has not
properly appreciated the injuries sustained to the claimant.
Therefore, after considering the decisions of Hon’ble Apex Court in
the case of Syed Sadiq versus United India Insurance Company
Limited reported in 2014(2) SCC 735 and Raj Kumar versus Ajay
Kumar reported in (2011) 1 SCC 343, the amount of Rs.1 lakh
under the head of pain, shock and suffering would be awarded to the
claimants.        The   Tribunal   has    awarded   Rs.50,000/-,      therefore,
Rs.50,000/- more should be awarded under this head and 100%
disability towards loss of earning is required to be considered.


6.3     Thus, the appellants – claimants are entitled to get the
following final amount as compensation :


                            Particulars                       Amount (Rs.)
         Future loss of income                                       23,81,120/-
         Actual loss of income                                           50,000/-
         Special Diet, Transportation & Attendant charges                20,000/-


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      C/FA/3457/2012                                 JUDGMENT DATED: 22/04/2022



         Medical expenses                                              2,44,700/-
         Pain, shock and suffering                                     1,00,000/-
                                                   Total…..           27,95,820/-


6.4     Thus, the Tribunal has committed an error in awarding total
compensation of Rs.12,15,100/- under various heads. The appellant –
original claimant is entitled to the additional amount of compensation
of Rs.15,80,720/- over and above the amount of Rs.12,15,100/- as
awarded by the Tribunal. The opponent is liable to pay the aforesaid
additional amount of Rs.15,80,720/- to the appellants – original
claimants together with interest @ 8% per annum from the date of
the claim petition till realization. Rest of the direction(s) if any, shall
remain same.

7.      For the reasons recorded above, the following order is passed.

7.1     The present appeal is partly allowed.

7.2     The common judgment and award dated 21.01.2012 passed by
the Motor Accident Claims Tribunal (Aux.), Nadiad in Motor Accident
Claim Petition No.497 of 2008 shall stand modified to the aforesaid
extent by enhancing the amount of compensation as above.

7.3     The respondent – Gujarat State Road Transport Corporation is
directed to deposit the enhanced amount of Rs.15,80,720/- with the
interest @ 8% per annum before the concerned Tribunal, within a
period of six weeks from the date of receipt of this order.


7.4     The Tribunal shall disburse the entire awarded amount
(including the enhanced amount) lying in the FDR and/or with the
Tribunal, with accrued interest thereon if any, to the claimant, by
account payee cheque, after proper verification and after following



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      C/FA/3457/2012                       JUDGMENT DATED: 22/04/2022



due procedure, by deducting the courts fees, if not paid, in
accordance with rules/law.


7.5     Record and proceedings be sent back to the concerned
Tribunal, forthwith.


                                            (SANDEEP N. BHATT,J)
M.H. DAVE




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