Sonalben Jashwantsinh Sodhaparmar vs Bharatbhai Bhurabhai Patel & Anr

Hasmukh D. Suthar, J

Though served, respondent No.1 has not appeared before this Court.

Admit. With the consent of learned advocate appearing for appellant and respondent No.2, appeal is taken up for final hearing.

[1.0] Present First Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “MV Act”) is filed by the appellant – original claimant challenging the impugned judgment and award dated 14.06.2024 by the learned Motor Accident Claims Tribunal (Main), at Nadiad, District Kheda (for short “learned Tribunal”) in Motor Accident Claim Petition No.128 of 2023, whereby the learned Tribunal was pleased to award compensation of Rs.6,69,900/- to the appellant – original claimant.

[2.0] The brief facts leading to filing of present appeal is as follows:

[2.1] On the fateful day of accident i.e. on 02.01.2023, the appellant – claimant was travelling by Rickshaw bearing No.GJ-23-Z-8092 which was owned by original opponent No.1 and at around 12.30 p.m., when the appellant – original claimant reached at the place of accident, due to rash and negligent driving, the said rickshaw turned turtle as a result of which the appellant – original claimant sustained seriuos multipler injuries and therefore, the appellant herein – original claimant filed MACP No.128/2023 seeking compensation of Rs.5,00,000/-.

[2.2] After considering the evidence produced and adduced, the learned Tribunal held the driver of offending rickshaw solely negligent for the accident and was pleased to award Rs.6,69,900/- to the original claimant. Hence, the appellant – original claimant has filed the present First Appeal seeking enhancement of compensation.

[3.0] Learned advocate Mr. Hiren Modi appearing for the appellant – original claimant has submitted that the learned Tribunal has committed an error in not considering the minimum wages of Rs.12,000/- per month prevailing at the time of accident i.e. in the year 2023 and considered only Rs.7500/- and learned Tribunal has also not considered the future prospects of the claimant though the claimant had sustained 28% disability in the accident. Hence, he has requested to allow the present appeal.

[4.0] Learned advocate Mr. Krunal Saksena appearing for the respondent No.2 – insurance company has submitted that the learned Tribunal has not committed any error in absence of any proof of income and has properly assessed the income in absence of any evidence or material. Not only that, though claimant had claimed compensation of Rs.5,00,000/-, the learned Tribunal has been kind enough to award compensation higher than the claimed amount. He has further submitted that there was admission on the part of the claimant which has come on record that claimant having no proof to show her income of Rs.10,000/- per month and hence, impugned judgment and award does not call for any interference by this Court. Therefore, he has requested to dismiss the present appeal.

[5.0] In the present appeal, negligence and liability is not challenged and present appeal only challenges the quantum of compensation awarded by the learned Tribunal and hence, present appeal is considered in narrow compass to that extent only.

[6.0] Having heard learned advocate for the appellant – original claimant and learned advocate for the insurance company and perusing the record, it appears that the bone contention on behalf of the appellant – original claimant is that the learned Tribunal has considered meager income at Rs.7500/-. It is an admitted fact that no evidence is produced on record to show the source of income of the claimant. Herein, the accident took place in the year 2023 and income of the claimant is assessed at Rs.7500/- per month. Even, as per the decision of Hon’ble Supreme Court in the case of Govind Yadav v. New India Insurance Company Ltd. [(2011)10 SCC 683] and Chandra @ Chanda @ Chandraram vs. Mukesh Kumar Yadav reported in (2022)1 SCC 198, considering the guess work and minimum wages prevailing in the year 2023, as the claimant was unskilled, her income ought to have been assessed at Rs.9237/-. To that extent, the learned Tribunal has committed an error. The claimant at the time of accident was aged 26 years and therefore, in view of decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Shethi reported in (2017) 16 SCC 680, Rs.3694/- (40% of Rs.9237/-) towards future prospect is required to be added which would come to Rs.12,931/-. Considering the disability certificate (Exh.24), it appears that the doctor has opined 39% disability body as a whole of the claimant and even the learned advocate for opponent No.2 has made an endorsement and parties have mutually agreed to consider the disability at 28% and therefore, the learned Tribunal has rightly considered the disability at 28%.

[6.1] The appellant – claimant was aged 26 years at the time of accident and therefore, in view of decision of the Hon’ble Supreme Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr. reported in 2009 ACJ 1298, multiplier of 17 would apply. Hence, the appellant – original claimant would be entitled to Rs.7,38,480/- [Rs.3620 (Rs.12,931 x 28%) x 12 x 17)] towards future loss of income.

[6.2] Further, the claimant remained under treatment for a period of five months and the learned Tribunal has awarded compensation for five months under the head of actual loss of income and hence, compensation is required to be reassessed as Rs.64,655/- (Rs.12,931 x 5 months) under the head of actual loss of income. Further, the learned Tribunal has awarded Rs.1,50,000/- under the head of medical expense which does not call for any interference. Further, so far as other heads are concerned, the learned Tribunal has awarded an amount of Rs.28,000/- under the head of pain, shock and suffering; Rs.23,000/- towards special diet, transportation and attendant charges, which in considered opinion of this Court is just and proper and does not call for any interference.

[7.0] Thus, now the appellant – original claimant is entitled to the compensation as under:

Heads

Amount awarded by the Tribunal

Reassessed by this Court

Future loss of income

Rs.4,28,400/-

Rs.7,38,480/-

including additional amount of Rs.3,10,080/-

Actual loss of income

Rs.37,500/-

Rs.64,655/-

including additional amount of Rs.27,155/-

Pain, shock and suffering

Rs.28,000/-

Rs.28,000/- NIL

Medical expenses

Rs.1,50,000/-

Rs.1,50,000/-

NIL

Special diet,

attendant and transportation charges

Rs.23,000/-

Rs.23,000/- NIL

Total...

Rs.6,66,900/-

Rs.10,04,135/-

including additional amount of Rs.3,37,235/-

Thus, total compensation of Rs.6,66,900/- as awarded by the learned Tribunal is on lower side, for the reasons recorded hereinabove, and therefore, same is required to be reassessed at Rs.10,04,135/- and therefore, the impugned judgment and award passed by the learned Tribunal is modified to the aforesaid extent.

[8.0] In view of ratio laid down by the Hon’ble Supreme Court in case of Nagappa vs. Gurudayal Singh and others, reported in (2003) 2 Supreme Court Cases 274, 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.

[9.0] In wake of aforesaid conspectus, present First Appeal is allowed. The impugned judgment and award dated 14.06.2024 by the learned Motor Accident Claims Tribunal (Main), at Nadiad, District Kheda in Motor Accident Claim Petition No.128 of 2023 is modified and respondent No.2 – Insurance Company is directed to deposit reassessed amount of compensation of Rs.10,04,135/- alongwith accrued interest as awarded by the learned Tribunal, with the learned Tribunal within a period of FOUR WEEKS from the date of receipt of the present judgment. Rest of the impugned judgment and award remains unaltered.

[10.0] After the aforesaid amount of reassessed compensation is deposited by the insurance company, learned Tribunal is directed to disburse the entire amount with accrued interest thereon, if any, to the original claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.

[11.0] While making the payment, the Tribunal shall deduct the courts fees, if not paid.

[12.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith.

Pending civil application, if any, stands disposed of.