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 ========================================================== 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 ? ========================================================== 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 ========================================================== 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 p. 2 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. Page 2 of 7 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 p. 4 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 p. 5 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/- p. 6 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 p. 7 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