Samir Anvarbhai Mathupotra vs Hanif Ishak Lakhani Malek & Ors

Hasmukh D. Suthar, J

1) Feeling aggrieved and dissatisfied with the judgment and award dated 20.04.2022 passed by learned Motor Accident Claims Tribunal (Auxi.), Jamnagar (which shall hereinafter be referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.70 of 2018, the appellant – original claimant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

2) Heard Mr. M. I. Mansuri, learned Advocate for the appellant – original Claimant and Mr. R. P. Raval, learned Advocate for the respondent no.3 – Insurance Company. Perused the original record and proceedings.

3) It is the case of the appellant – original claimant that his son namely Samir Anvarbhai (who shall hereinafter be referred to as “injured” for short) on 08.06.2017 at 08:00 AM in the morning, was driving his Hero Honda motorcycle bearing Reg. No.GJ-10-CL-0630 and was coming to Higher Secondary School at Navagam to fill up the examination form of Class-12, at that time the driver of the Alto Car bearing Reg. No.GJ-05-CD-0061 i.e. the opponent no.1 came in rash and negligent manner and collided with the motorcycle of the injured due to which the injured sustained serious head injury and also sustained fracture in his right leg. A complaint was lodged being I-C.R. No.31/2017 with Kalavad Police Station against the opponent no.1. Therefore, the appellant had filed MAC Petition seeking compensation, wherein, the learned Tribunal after appreciating the evidence produced on record the learned Tribunal has partly allowed the claim petition.

4) Learned Advocate for the appellant has submitted that the learned Tribunal has committed error in awarding compensation as the alleged incident took place in the year 2017 but rate of minimum wages of prevalent time is not considered. He has further submitted that the Tribunal erred in attributing 30% contributory negligence through charge-sheet is filed against the opponent no.1. He has further submitted that considering the nature of injuries and ever-since he is bedridden and not in position to do his routine work on his own and performs all his daily activities in bed, 100% disability is required to be considered. Hence, he has requested to allow the present appeal.

5) Learned Advocate for the respondent no.3 – Insurance Company has opposed the present appeal on the ground that the learned Tribunal has properly assessed the income of the injured and 90% disability is also considered, hence, question does not arise to enhance the compensation. The Tribunal has after appreciating the evidence produced on record held 30% contributory negligent on the part of the injured and therefore the said findings are not required to be disturbed and requested to dismiss the present appeal.

6) Having heard the learned Advocates for the respective parties and going through the record it appears that the learned Tribunal has considered the evidence on record and relied on the judgment in the cases of Bimla Devi Vs. H.R.T.C, reported in AIR 2009 SC 2819, and Parmeshwari Devi Vs. Amir Chand, reported in 2011 (11) SCC 635, and appreciated the evidence. The claimant has tendered the affidavit at Exhibit 33, wherein, all the facts of the accident have been narrated in the chief-examination and supported the claim petition. To prove his case he has further adduced the FIR at Exhibit 37, panchnama at Exhibit 39, charge-sheet at Exhibit 40 filed against the car driver, RC Book of offending vehicle at Exhibit 41, Medical Bills at Exhibits 48, 56 to 60, Disability Certificate at Exhibit 52.

7) So far issue of negligence is concerned, two vehicles are involved in the accident and the injured was riding the motorcycle. Going through the cross examination of the claimant it reveals that the car came from opposite direction and there was narrow road and while taking turn alleged incident took place and there was head on collision between the two vehicles. Further, the opponent no.1 – Hanifbhai Ishakbhai Malek i.e. the driver of car is examined and tendered his evidence at Exhibit 63, it appears that it was the duty of the motorcyclist – injured also to take care while taking the turn but due to rash and negligence he collided with the car. It further reveals that the driver of car has applied breaks from 25 feet away and he has taken care to avoid the accident. Further perusing the panchnama it appears that there was four track road and enough width and two vehicles could easily pass and the incident took place in the morning. Further driver of the car has stated that he was driving his car in moderate speed and accident took place due to sole negligence of the motorcyclist but considering the size of vehicle and evidence on record both the drivers contributed in the accident and considered negligence of both the drivers of the vehicles i.e. the injured – motorcyclist held negligent to the extent of 30% and driver of offending vehicle held 70% negligent in causing the accident. Perusing the evidence produced on record not merely based on presumption but the driver of car stepped into witness box and deposed before the learned Tribunal and based on documentary evidence the learned Tribunal has properly appreciated the evidence and considered contributory negligence in the apportion of 30%-70% considering size of vehicle and therefore no interference is required qua apportionment of negligence and hence findings of the Tribunal is maintained.

8) Now coming to the quantum part, as per the law laid down by the Hon’ble Supreme Court in the case of Govind Yadav Vs. National Insurance Co. Ltd., reported in 2012(1) TAC 1 (SC), that if no proof of income is produced on the record then Tribunal has to consider prevailing rate of minimum wages in absence of evidence of monthly income of the claimant. In the present case the accident occurred on 08.06.2017 and during that time the injured was doing agricultural work and earning Rs.2,00,000/- per annum, however, the Tribunal has assessed the income as Rs.5,000/- per month, whereas, the rate of unskilled person is Rs.7,946/- and hence hence the income of the injured is reassessed as Rs.8,000/- per month. It appears that the learned Tribunal has observed the age of injured as 20 years at the time of accident and the learned Tribunal has committed error in not considering future prospect, however, this Court is of the view that 40% addition towards future prospectus is required to be awarded.

9) It is undisputed fact that to prove disablement of the injured, the Disability Certificate produced at Exhibit 52, issued by Dr. Kant Jogani who is Neurosurgeon, wherein, he has assessed 90% neurological disability. As per his evidence the patient cannot speak much, can move arms and legs, can open eyes, but cannot perform his daily routine works on his own and patient performs all his daily routine in the bed and currently unable to speak or walk. Due to injuries operation was performed and removed the hemorrhage and performed a chromiotomy and assessed 90% disability. However, this Court is of the view that as the injured is bedridden and unable to walk and speak and perform his routine activities and requires life time attendant, 100% functional disability is required to be considered in view of the judgment of the Hon’ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar & Anr., reported in 2011 (1) SCC 343. Accordingly, disability of the injured is reassessed at 100% functional disability.

10) Further, considering the age of claimant as 20 years at the time of accident the Tribunal has considered multiplier of 18 which as per the judgment of the Apex Court in the case of Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121] is just and proper and no interference of this Court is required. Further, the Tribunal has awarded Rs.5,76,429/- towards Medical Expenses considering the medical bills produced at Exhibits 48, 56 to 60, and therefore the same is just and proper.

11) Therefore, recalculating the income of the injured as Rs.8,000/- and future prospect of 40% = Rs.3,200/- which comes to Rs.11,200/-. Now total income under the head of future economic loss is required to be considered as Rs.11,200/- x 12 x 18 x 100% / 100 = Rs.24,19,200/-. Therefore, the appellant is entitled to get additional amount of Rs.14,47,200/- towards future economic loss.

12) Similarly, considering the nature of injuries, period of treatment and recovery, younger age and disablement of the injured, this Court is of the view that the learned Tribunal has committed error while awarding Rs.1,00,000/- towards pain, shock and suffering which is required to be enhanced to Rs.2,50,000/- (i.e. additional amount of Rs.1,50,000/- towards pain, shock and suffering) in view of the ratio laid down in the cases of K.S.Murlidhara Vs. R. Subbulakshmi, reported in 2024 SCC Online SC 3385 and Reshma Vs. Dajiba Krishna Lad and Anr., reported in 2025 INSC 1320.

Further, considering the 100% disability of the injured and requirement of permanent attendant for the injured the amount of Rs.50,000/- awarded by the Tribunal is required to be enhanced in view of Reshma (supra) to Rs.5,00,000/- (i.e. additional amount of Rs.4,50,000/- towards attendant charges).

The Tribunal has also committed error in not awarded any compensation towards loss of enjoyment of life, however, considering the disablement and bedridden condition of the injured Rs.1,00,000/- is awarded towards loss of enjoyment of life. Further, as this Court has reassessed the disability of the injured and considered 100% functional disability, the claimant is not entitled for any amount towards actual loss of income.

13) As discussed above, the appellant – injured is entitled to get compensation computed as under:

Heads

Awarded by Tribunal

Reassessed by this Court

Future economic loss

Rs.9,72,000/-

Rs.24,19,200/-

including additional amount of Rs.14,47,200/-

Medical expenses

Rs.5,76,429/-

Rs.5,76,429/-

Pain, shock and suffering

Rs.1,00,000/-

Rs.2,50,000/-

including additional amount of Rs.1,50,000/-

Actual loss of income

Rs.60,000/-

NIL

(100% functional disability)

Transportation, special diet and attendant charges

Rs.50,000/-

Rs.5,00,000/-

including additional amount of Rs.4,50,000/-

Loss of enjoyment of life

NIL/-

Rs.1,00,000/-

including additional amount of Rs.1,00,000/-

Total compensation

Rs.17,58,429/-

Rs.38,45,629/-

including total additional amount of Rs.21,47,200/-

After deducting negligence

Rs.12,30,901/-

(after deducting 30% negligence of the injured)

Rs.26,91,941/-

(after deducting 30% negligence of the injured) (Rs.38,45,629/- -

Rs.11,53,688/-)

Enhanced amount

Rs.14,61,040/-

of compensation

(Rs.26,91,941/- - Rs.12,30,901/-)

14) The Hon’ble Supreme Court in case of Nagappa Vs Gurudayal Singh and others, reported in (2003) 2 Supreme Court Cases 274, has observed that there is no restriction that compensation could be awarded only up to the amount claimed by the claimant and in an appropriate case, where from the evidence brought on record if the Tribunal / Court considers that the claimant is entitled to get more compensation than claimed, the amount of compensation more than the claimed amount can be awarded.

15) In view of above, as the Tribunal has awarded total compensation of Rs.12,30,901/-, however, as discussed above the appellant is entitled to get additional amount of Rs.14,61,040/-(Rs.26,91,941/- - Rs.12,30,901/-) with proportionate costs and interest as awarded by the learned Tribunal.

16) Hence, present appeal is partly allowed. The judgment and award dated 20.04.2022 passed by learned Motor Accident Claims Tribunal (Aux.), Jamnagar, in MAC Petition No.70 of 2018 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. The respondent no.3 – Insurance Company shall deposit the said additional amount of Rs.14,61,040/- along with interest as awarded by the Tribunal, before the Tribunal within a period of four weeks from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.

17) The learned Tribunal is directed to recover or deduct the deficit court fees on enhanced amount and thereafter disburse the amount accordingly.

18) Interim application, if any, also stands disposed of.

19) Award to be drawn accordingly.