PRAVINSINH B. ZALA vs. SURESH PURSHOTTAMBHAI GOSWAMI (DRIVER)

C/FA/348/2006 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 348 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE B.N. KARIA ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 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 ==================================================== PRAVINSINH B. ZALA Versus SURESH PURSHOTTAMBHAI GOSWAMI (DRIVER) ==================================================== Appearance: MR Y J PATEL(3985) for the PETITIONER(s) No. 1 MR DAKSHESH MEHTA(2430) for the RESPONDENT(s) No. 4 MR GC MAZMUDAR(1193) for the RESPONDENT(s) No. 2 MR HG MAZMUDAR(1194) for the RESPONDENT(s) No. 2 RULE SERVED(64) for the RESPONDENT(s) No. 1,3 ==================================================== CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 04/02/2019 ORAL JUDGMENT 1. This appeal is preferred by the appellant - original claimant of Page 1 of 14

C/FA/348/2006 JUDGMENT Motor Accident Claim Petition No. 19 of 1996. The Motor Accident Claims Tribunal (Main) at Surendranagar, (for brevity, 'the Tribunal') passed an award dated 21.11.2005 granting compensation to the original claimant to the tune of Rs.1,29,250/- with interest @ 9% per annum from the date of petition till realization, holding all the respondents therein jointly and severally liable to pay the compensation. Being dissatisfied with the aforesaid judgment and award passed by the Tribunal, the appellant has preferred this appeal. 2. Short facts of the present case are that the original claimant met with an accident on 07.09.1994 at about 7:30 p.m. near patiya of Varshamedi village on Anjar – Bhachau road within the jurisdiction of Anjar Police Station. The claimant was travelling in an Ambassador car bearing registration No. GJ12A-9181 of the ownership of the respondent No. 1 therein. The truck driver, without any reflector, stone barrier or any sign had stationed his truck, due to which, the driver of the ambassador car lost his control over the car due to reflection of the vehicles coming from the opposite direction and dashed with the truck from the backside. In the collision, the original Page 2 of 14

C/FA/348/2006 JUDGMENT claimant sustained grievous injuries of fracture. As per the averments made by the claimant in his petition, due to composite negligence on the part of both the drivers, the accident had occurred. It is further averred that the claimant was aged 28 years at the time of accident and was practicing as an Advocate and also having income from agriculture business. The yearly income of the original claimant was Rs.1 lakh. That, due to the accident, the claimant got permanent disability. He was primarily treated in the government hospital at Anjar and thereafter, was shifted to Patel Orthopedic Hospital at Gandhidham, thereafter, was treated at Surendranagar by Dr. Desai, at Ahmedabad by Dr. Sumant Shah, Dr. Pradhot Thakore and other orthopedic and neuro surgeons. That, he had to spent huge amount on medical treatment, special diet, attendant, transportation etc. as well as suffered great pain, shock and sufferings. He had requested to award an amount of Rs.8 lakh only from the respondents holding their liability to pay the compensation. 2.1 On issuance of notice by the Tribunal, the respondent No. 2 therein – New India Assurance Co. Ltd. filed written statement, Page 3 of 14

C/FA/348/2006 JUDGMENT Exh. 15, wherein, the contents of the petition filed by the original claimant were denied in general. It is also denied to have insured the ambassador car involved in the accident. The involvement of the ambassador car in the accident in question was also denied. It was submitted that the accident had occurred on account of negligence on the part of the driver of the truck, however, if the driver of the ambassador car was found to be negligent to any extent, the insurance company would be liable to pay the compensation to the said extent only. Further, the injuries, treatment and the permanent disability, medical expenses, age, income etc. qua the original claimant were not admitted by the respondent No. 2 therein. It was further submitted that the driver of the ambassador car was not holding the valid driving licence at the time of accident and therefore, no liability to pay the compensation can be fastened upon the insurance company by the Tribunal. Accordingly, it was requested to dismiss the petition. 2.2 The respondent No. 1 had filed his written statement vide Exh. 18, wherein, the contentions raised by the original claimant were denied. It was submitted that since the accident was Page 4 of 14

C/FA/348/2006 JUDGMENT occurred within the jurisdiction of Anjar Taluka Police Station, the Tribunal had no jurisdiction to entertain the said petition. The involvement of ambassador car in the accident was also denied and that, it was also denied that he was driving the vehicle rashly and negligently. It is further submitted that the insurance of ambassador car was taken from the respondent No. 2 insurance company and accordingly, it was requested to dismiss the petition. 2.3 The respondent No. 4 therein – National Insurance Co. Ltd. has filed written statement vide Exh. 41 denying the contents of the petition. It was denied that the accident was occurred on account of rash and negligent driving on the part of the driver of the truck. That, the truck was not in motion at the time of accident and therefore, the driver of ambassador car was solely negligent for the accident and hence, the respondent No. 4 would not be liable to pay any compensation to the original claimant. The averments in respect of injuries caused to the claimant, medical treatment and expenses, permanent disability, expenses on account of special diet, attendant, transportation, age of the applicant, income of the applicant Page 5 of 14

C/FA/348/2006 JUDGMENT etc. were denied by the respondent No. 4. It was also denied to have insured the truck in question so also the fact of driver of the truck was having valid driving licence. Eventually, it was requested to dismiss the petition. 2.4 The Tribunal, after recording the evidence and hearing the parties, was pleased to partly allow the petition granting compensation as per the order dated 21.11.2005. 3. Heard, learned counsel Mr. Y. J. Patel for the appellant - original claimant and Mr. Mehta for the respondent No. 4 and Mr. G. C. Majmudar for the respondent No. 2. No arguments were advanced by the respondent Nos. 1 and 3. 3.1 The learned advocate for the appellant has submitted that the judgment and award passed by the Tribunal is contrary to law and facts. The Tribunal has not considered or appreciated the evidence produced by the appellant in its true and proper perspective. That, the amount was not properly calculated while passing the impugned judgment and award. The learned counsel for the appellant has restricted his arguments on the Page 6 of 14

C/FA/348/2006 JUDGMENT count of enhancement of the amount awarded and has not disputed the negligence of both the drivers as decided by the Tribunal. Relying upon the decision in the case of Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121, the learned counsel for the appellant has submitted that at the time of accident, the appellant - claimant was practicing as an Advocate and was also engaged in agriculture business. However, the income earned by the appellant was not properly considered. Besides, the appellant was aged 28 years at the time of accident and as per the Schedule prescribed in the aforesaid decision, the applicable multiplier would be 17 years. It is further submitted that on the count of medical expenses, pain, shock and sufferings and special diet as well as the transportation, a very meager amount has been awarded by the Tribunal. It is further submitted that the Tribunal has committed a grave error in assessing the multiplier of 15 instead of 17, which is, prima facie, error on the part of the Tribunal. Accordingly, it is requested to enhance the amount of compensation, as prayed for. Page 7 of 14

C/FA/348/2006 JUDGMENT 4. On the other hand, the learned counsel Mr. Majmudar for the respondent No. 2 supported the judgment and award passed by the Tribunal and submitted that the appellant – claimant has admitted in his cross-examination his income of Rs.1000-1500 per month as a practicing lawyer. That, no further evidence of any income from the agriculture business was produced on record by the appellant before the Tribunal. He has further submitted that the Tribunal has committed no error or mistake in awarding the compensation considering the medical treatment, special diet, attendant charges, transportation and pain, shock and sufferings as no other documentary evidence was produced before the Tribunal. That, no medical treatment bills were produced by the appellant – claimant before the Tribunal. That, the amount awarded to the applicant was quite proper and therefore, it was requested by the learned counsel for the respondent No. 2 to dismiss the appeal. 5. Learned counsel Mr. Mehta for the respondent No. 4 also supported the impugned judgment and award passed by the Tribunal and submitted that the appellant – claimant himself has admitted that disability of 15% body as a whole as per the Page 8 of 14

C/FA/348/2006 JUDGMENT endorsement before the Tribunal. That, without any evidence of medical expenses produced before the Tribunal, no further amount, as claimed by the appellant, can be awarded to him. That, so far as income of the appellant is concerned, the appellant himself, in his cross-examination before the Tribunal, has admitted his income of Rs.1000-1500 per month only. That, practice as an Advocate was started by the appellant on 04.05.1994 when Sanad was issued and after four months, the accident in question had occurred on 07.09.1994 and accordingly, the Tribunal has rightly considered the income of the appellant – claimant at Rs.1,500/- per month, from starting of practice as an Advocate and Rs.1,000/- towards income from agriculture business. It is further submitted that the Tribunal has rightly considered the amount under different heads in favour of the appellant – claimant and hence, no interference would be warranted by this Court. Accordingly, it is requested to dismiss the present appeal. 6. Having considered the facts of the case and the submissions advanced by the learned counsel for the respective parties and the original record, it appears that on account of accident Page 9 of 14

C/FA/348/2006 JUDGMENT occurred on 07.09.1994, the claim petition was filed by the present appellant – original claimant before the Tribunal requesting to award a sum of Rs.8 lakh towards compensation, holding jointly liable the respondents. As per the averments made in the petition, he was aged 28 years at the time of accident and was practicing as an Advocate at Surendranagar. He was also engaged in agriculture business and was getting good crops from the land. As per the averments, his income capacity is reduced due to injuries sustained by him. It is true that Sanad was issued in favour of the present appellant on 04.05.1994 and as per the admission made in his cross- examination, there was no income proof produced on record. That, he was not maintaining any account of income relating to his practice as an Advocate. That, he was not paying the income tax as per his admission. The Tribunal has opined that after obtaining Sanad by the appellant, the accident had occurred within four months. It is further opined by the Tribunal that it was beginning of practice in the field of advocacy by the appellant and he had no much files and his income was Rs.1000–1500 per month only. The Tribunal has assessed the income of the appellant at Rs.1,500/- per month only from the Page 10 of 14

C/FA/348/2006 JUDGMENT practice as an Advocate and Rs.1,000/- from the agriculture business. This Court confirms the finding on the count of income of the appellant as calculated by the Tribunal and deems it proper not to disturb the same for want any documentary evidence produced by the appellant before the Tribunal showing higher income being earned by him. However, the age of the appellant – claimant at the time of accident was 28 years, which was never controverted by the respondents. The Tribunal has considered the multiplier of 15 and calculated an amount of Rs.1,01,250/- towards future loss of income. In the decision rendered by the Hon'ble Apex Court in the case of Sarla Verma (supra), a Schedule of entitlement of multiplier is provided. In the middle column No. 4, multipliers indicated in Susamma Thomas, Trilok Chandra and Charlies was considered by the Supreme Court, in which, for the age group of 26 to 30 years, the multiplier of 17 is considered. The same ratio is considered in the case of Reshma Kumari and Others V. Madan Mohan and Another, reported in (2013) 9 SCC 65. It appears that, the Tribunal has committed an error in considering the multiplier of 15 instead of 17. This Court is of the considered view that the multiplier, in the instant case, Page 11 of 14

C/FA/348/2006 JUDGMENT would be of 17 instead of 15 and therefore, this portion of the impugned judgment and award is required to be modified. This Court would also consider that an amount of Rs.5,000/- is awarded towards medical expenses, Rs.3,000/- towards special diet, attendant charges, transportation etc. and Rs.7,500/- towards pain, shock and sufferings totalling to Rs.15,500/-. This Court is of the view that for a considerable period, at different hospitals, treatment was taken by the appellant i.e. initially at government hospital, Anjar and thereafter, was shifted to Patel Orthopedic Hospital at Gandhidham, thereafter was treated at Surendranagar by Dr. Desai, at Ahmedabad by Dr. Sumant Shah, Dr. Pradhot Thakore and other orthopedic and neuro surgeon. However, no bills of medical expenses or any documentary evidence have been produced by the appellant before the Tribunal. However, considering the long treatment at various places and from various doctors, taken by the appellant so also considering the amount awarded towards other heads like pain, shock and sufferings, special diet, transportation and attendant charges, this Court is of the view that some higher amount is required to be awarded to the applicant and accordingly, a total Page 12 of 14

C/FA/348/2006 JUDGMENT some of Rs.50,000/- is required to be awarded against what is awarded by the Tribunal under these heads. 7. Thus, in view of the aforesaid discussion, the impugned judgment and award passed by the Tribunal is required to be modified to the following extent: Head Amount Awarded by the Tribunal Amount Modified by this Court Actual loss of income 12500 12500 Medical expenses 5000 50000 Special Diet, Attendant and Transportation Charges 3000 Pain, shock and sufferings 7500 Future loss of income 101250 114750 Total 129250 177250 8. The present appeal, accordingly, succeeds in part and the impugned judgment and award passed by the Tribunal is hereby modified to the extent as aforesaid. The respondents shall deposit the differential amount to the aforesaid with interest at the rate of 9% per annum from the date of filing of the petition till realization, within 08 weeks. Page 13 of 14

C/FA/348/2006 JUDGMENT 8.1 Registry to return back the R&P to the Tribunal concerned forthwith. [ B. N. Karia, J. ] hiren Page 14 of 14