MALTIBEN CHANDRAKANT MEHTA vs. MAHESH BABULAL TRIVEDI

C/FA/2542/2009 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2542 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ MALTIBEN CHANDRAKANT MEHTA....Appellant(s) Versus MAHESH BABULAL TRIVEDI & 1....Defendant(s) ================================================================ Appearance: MR VILAV K BHATIA, ADVOCATE for the Appellant(s) No. 1 MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA

Date : 09/09/2014 Page 1 of 6

C/FA/2542/2009 JUDGMENT ORAL JUDGMENT This appeal under section 173 of the Motor Vehicles Act is at the instance of a claimant in a proceeding under section 166 of the Motor Vehicles Act and is directed against an award dated 5th February 2008 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad in MAC Petition No.1224 of 2003 thereby partly allowing an application for compensation by awarding a sum of Rs.1,14,400/- with interest at the rate of 6% per annum from the date of filing of the claim-application till realisation for the injury suffered by the claimant. Being dissatisfied, the claimant has come up with the present appeal. It appears from the record that on 26th July 2003 at about 8.15 hours in the night, the claimant was returning from her beauty parlour by her own scooty bearing No.GJ-1-BQ-414 when one Maruti Wagon-R bearing No.GJ-2K-7433 came with full speed in a rash and negligent manner and violating traffic rules, dashed the right side front portion of the car with the said scooty at the right side, as a result, the claimant had fallen down on the road and sustained fracture on her right leg and other bodily injuries, including fractures. The claimant was immediately shifted to Samved Hospital and was admitted as an indoor patient from 26th July 2003 to 19th August 2003. An FIR was lodged by the claimant before Navrangpura Police Station Page 2 of 6

C/FA/2542/2009 JUDGMENT charging opponent No.1, the owner and driver of the vehicle for rash and negligent driving. Due to such accident, there were operations on her right leg twice and consequently, her right leg became shorter by one inch. The claimant lodged compensation of Rs.5 lakh for the injury suffered including financial loss suffered by her for one year. The claim-application was contested by the insurer of the Maruti vehicle but no evidence was adduced opposing the application, whereas the claimant herself gave evidence in detail regarding her income and expenditure for the treatment of the injury. The learned trial Judge accepted the case of the claimant that the owner of the Maruti vehicle was solely responsible and that she suffered 20% disability of the body and 40% of the disability of the leg in question. However, while assessing compensation in a cryptic manner, the Tribunal came to the following conclusion :- “8. Looking to the facts and circumstances of the case and verifying the various documents produced on record, this Tribunal is of the opinion that the petitioner would be entitled to the amount of compensation under various heads as under :- Rs. 30,000/- towards pain, shock and suffering; Rs. 35,000/- towards medical expenses; Rs. 12,000/- towards actual loss of income; Rs. .... towards attendant charges; Rs 2,000/- towards special diet; Rs. 5,000/- towards transport charges; Rs. 30,400/- towards future loss of income; ========== Page 3 of 6

C/FA/2542/2009 JUDGMENT Rs.1,14,400/- Total ========== The petitioner on that basis would be entitled to recover a sum of Rs.1,14,400/- as compensation.” After hearing the learned counsel for the parties and after going through the materials on record, I am of the view that the award passed by the Tribunal cannot be supported for non- consideration of the entire materials on record. It has been established from the income tax return produced by the victim that she runs a beauty parlour as the owner and at the relevant point of time, her professional income from the said beauty parlour was Rs.70,000/- per annum and she used to pay tax of Rs.4,000/-. Thus, after deduction of income tax, her net income from profession was Rs.66,000/-. By applying the principles laid down by the Supreme Court in the case of Sarla Verms vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, the prospective income should be treated by adding 30% in addition to the actual income and thus, the amount will come to Rs.66,000/- + Rs.19,800/- = Rs.85,800/-. Since the victim was aged 42 years, we can safely apply the multiplier of 14 to arrive at a figure of Rs.12,01,200/-. Since the disability has been found to be 20% in respect of the body, by making 20% of the said amount, the loss of future income should be treated to be Rs.2,40,240/-. Page 4 of 6

C/FA/2542/2009 JUDGMENT It appears that the Tribunal below, without considering the evidence on record, awarded Rs.35,000/- towards medical expenses, although it appears that she had produced documentary evidence showing expenditure of Rs.1,09,000/- towards treatment. Thus, in addition to the aforesaid amount towards loss of future income, Rs.1,09,000/- should be given for medical treatment. I do not disturb the assessment of Rs.2000/- towards special diet and Rs.5000/- towards transport charges. However, award of only Rs.30,000/- towards pain, shock and suffering granted by the Tribunal cannot at any rate be supported. It appears that twice operation was performed on her leg, for one year she could not attend her business and as a result of those operations, her right leg has become shorter by one inch which she will suffer till her death. Therefore, in the facts and circumstances of the case, where the victim is the owner of a beauty parlour, for the compensation towards pain, shock and suffering and loss of amenities of life, in my opinion, a sum of Rs. 1 lakh should be awarded. It has also been established that for one year she could not attend her business as a result, in the next year her income tax return disclosed only Rs.9000/- towards income from business whereas in the previous year it was Rs.70,000/-. Thus, Rs.60,000/- should be further added for the actual loss suffered by her for not attending the business for one year. The total amount, thus, comes to Rs.5,16,240/-. However, it appears that the claimant restricted her claim in Page 5 of 6

C/FA/2542/2009 JUDGMENT the claim-application to Rs.5 lakh and in this appeal has further restricted to Rs.3 lakh in addition to the amount awarded. Therefore, the total amount should be Rs.1,14,400/- + Rs.3,00,000/- = Rs.4,14,400/- with interest, which I assess at 9% per annum from the date of filing of the application till actual payment. Thus, the award is enhanced by Rs.3 lakh with interest at the rate of 9% per annum over the entire amount of compensation. In other words, the claimant will be entitled to get interest at the rate of 9% per annum from the date of filing of the application till actual receipt of the amount not only on the awarded amount but also on the enhanced amount. The appeal is, thus, allowed to the extent indicated above. (BHASKAR BHATTACHARYA, CJ.) zgs Page 6 of 6