Partly allowed

Girishkumar Babulal Shah v. Babu Vaz Kangad

Gujarat HC7 Feb 2012FA/2754/1997

Case brief

AI extract

What is this about?

The High Court allowed the first appeal partly, modifying the Motor Accident Claims Tribunal's award. Applying the Smt Sarla Dixit formula, the court calculated a higher future loss of income. No additional amount was granted for medical expenses as the appellant was covered under the ESI Scheme.

What did the court decide?

Award modified by adding Rs. 68,610/- for future loss of income with interest at 7.5%. No additional medical compensation awarded.

Girishkumar Babulal Shah Vs Babu Vaz Kangad — Medical Negligence | Gujarat HC (2012)

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FA/2754/1997

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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FIRST APPEAL No. 2754 of 1997

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For Approval and Signature:

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HONOURABLE MR.JUSTICE KS JHAVERI

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge}

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GIRISHKUMAR BABULAL SHAH - Appellant(s)

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Versus

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BABU VAZ KANGAD & 1 - Defendant(s)

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Appearance :

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MR BHARAT JANIfor Appellant(s) : 1,
RULE SERVED for Defendant(s) : 1,
MR HASMUKH THAKKER for Defendant(s) : 2,

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CORAM :HONOURABLE MR.JUSTICE KS JHAVERI

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Date : 07/02/2012

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ORAL JUDGMENT

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The appellant herein has challenged the award dated 07.04.1997 passed by the Motor Accident Claims Tribunal

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FA/2754/1997

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JUDGMENT

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(Aux.), Mehsana in Motor Accident Claims Petition No. 636 of 1991 so far as the Tribunal awarded only Rs. 1,40,650/- as compensation with interest at 15% and costs.

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It is the case of the appellant that on 24.01.1991, the appellant along with one Ashokbhai was riding a scooter bearing registration no. GJ-2 7039 when a tanker bearing registration No. GTY 6475 which was being driven by the original opponent no. 1 in a rash and negligent manner hit the scooter as a result of which the appellant sustained serious injuries and the scooter was damaged considerably. The appellant therefore filed claim petition for compensation to the tune of Rs. 5 lakhs. The Tribunal after hearing the parties passed the aforesaid award.

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Ms. Mohini Bhavsar, learned advocate appearing for Mr. Jani for the appellant submitted that the Tribunal erred in holding that the appellant's monthly income is only Rs. 1550/-. She submitted that the Tribunal has not considered the prospective increase in the income of the appellant while considering the future loss of income. She submitted that the Tribunal ought to have considered the decision of the Apex Court in the case of Smt Sarla Dixit & Anr Vs. Balwant Yadav & Ors, reported in 1996 AIR 1274 (=1996 SCC (3) 179) whereby the Apex Court has held that while calculating future loss of income the prospective income is required to be considered by doubling the present income and adding the same to present income and then dividing the same by 2.

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3.1 Ms. Bhavsar further submitted that the Tribunal has committed an error in not taking into consideration that the

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FA/2754/1997

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3/5

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JUDGMENT

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appellant had spent around Rs. 50000/- for medical expenses and the same ought to have been awarded to the appellant.

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Mr. Palak Thakkar, learned advocate appearing for Mr. Hasmukh Thakkar for the respondent insurance company supported the award of the Tribunal and submitted that no interference is called for by this Court as far as quantum is concerned. He submitted that however the rate of interest imposed is on higher side and the same may be reduced.

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Before proceeding further it is required to be noted that the issues with regard to income is already settled by the decision of Apex Court. In the case of Smt Sarla Dixit & Anr Vs. Balwant Yadav & Ors, reported in 1996 AIR 1274 (=1996 SCC (3) 179) it is held as under:

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“... Adopting the same scientific yardstick as laid down in the aforesaid judgement, the computation of compensation in the present case can almost be subjected to a well settled mathematical formula. Deceased in the present case, as seen above, was earning gross salary of Rs.1,543/- per month. Rounding it upto figure of Rs.1,500/- and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderables like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, i.e. upto Rs.3,000/- per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average future monthly income could be arrived at by adding the actual gross income at the time of death,

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FA/2754/1997

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4/5

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JUDGMENT

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namely, Rs.1,500/- per month to the maximum whichhe would have otherwise got had he not died a premature death, i.e. Rs.3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, i.e. Rs.2,200/-. Rs.2,200/per month would have been the gross monthly average income available to the family fo the deceased had he survived as a bread winner....”

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Thus considering the formula laid down in the case of Smt. Sarla Dixit (supra) the income of the deceased is to be calculated. In the present case the Tribunal has rightly assessed the income of the deceased at Rs. 1550/-. Nothing is pointed out to take a different figure in that regard. The said income should be doubled and actual present income should be added. By doubling, the amount would come to Rs. 3100/and by adding current income of Rs. 1550/- it would come to Rs. 4650/-. Average monthly income can be derived by dividing the same by 2. Therefore the average income would come to Rs. 2325/-.

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Considering the disability of 35%, the loss per month shall come to Rs. 813.75 which is rounded off to Rs. 815/- per month and Rs. 9780/- per annum. I am of the view that, looking to the age of the appellant, the multiplier of 17 awarded in the present case is just and proper. Therefore the future loss of income would come to Rs. 1,66,260/- (Rs. 9780 x 17). The Tribunal has awarded only Rs. 97,650/- and therefore an additional amount of Rs. 68,610/- is required to be awarded under the head of future loss of income.

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FA/2754/19975/5

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JUDGMENT

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As regards the rest of the awards under various heads are just and proper and no interference is required. The Tribunal has rightly not awarded any amount for medical treatment charges as the petitioner had received Rs. 1 lakh for medical treatment charges and he was covered under the ESI Scheme.

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Accordingly, appeal is partly allowed. The appellant shall be entitled to an additional amount of Rs. 68,610/- alongwith interest at 7.5% from the date of application till realisation. The award of the Tribunal is modified accordingly. No order as to costs.

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Divya//

Girishkumar Babulal Shah v. Babu Vaz Kangad

Case brief

What is this about?

What did the court decide?

Girishkumar Babulal Shah v. Babu Vaz Kangad

Case brief

What is this about?

What did the court decide?

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