Mustufabhai Valibhai Khanusia Vs Navnitlal Laxmanbhai Barot

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C/FA/694/1996 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 694 of 1996

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========================================================== MUSTUFABHAI VALIBHAI KHANUSIA

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Versus NAVNITLAL LAXMANBHAI BAROT

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==========================================================

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Appearance:

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MR JV JAPEE(358) for the PETITIONER(s) No. 1 HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 2 MR M D RAHEVAR(6268) for the RESPONDENT(s) No. 2 MR MD RANA(694) for the RESPONDENT(s) No. 3 RULE SERVED(64) for the RESPONDENT(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 26/06/2018 ORAL ORDER

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1.Heard learned advocate Ms.Archana Patel
appearing for Mr. J.V. Japee for the petitioner and
learned advocate Mr. M.D. Rahevar for the
respondent No.2.

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2.The First Appeal is pending since the year
1996. The order dated 21.6.2018 reads as under:-

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“Heard learned advocate Mr. Japee for the
appellant and learned advocate Mr. Rahewar
for the respondent No.2. Nobody is present
for respondent No.3 even after service of
fresh notice as per order dated 20.3.2018
upon respondents No.3 – Insurance Company.
Therefore, matter needs to be disposed of at
the earliest as it is pending since the year
1996, however, in the interest of justice,
let it be listed again on 26.6.2018.”

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3.Even after such order, nobody is present for
the respondent No.3 even today. Therefore, there is
no option, but to proceed further in appeal, which
is pending since the year 1996 for its final
disposal.

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Page 1 of 6

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C/FA/694/1996 ORDER

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4.The appellant herein is the original claimant
before the Motor Accident Claim Tribunal at
Himmatnagar in M.A.C.P. No.646 of 1989 wherein he
has claimed an amount of Rs.2 Lacs towards
compensation on account of permanent disability
received by him as a result of vehicular accident.
The respondents are driver, owner and insurer of
such vehicle.

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5.The brief facts of the accident is to the
effect that, on 11.9.1989, when the appellant was
driving his rickshaw bearing No.GRN-1233 from Jadar
to Daramali, respondent No.1 came from opposite
direction, driving his truck No.GQD-4864 in rash
and negligent manner and dashed the appellant’s
rickshaw causing damage to it and injuries to
different parts of the body of the appellant,
including face and neck. Thereupon, the appellant
was taken to Himmatnagar Civil Hospital for
treatment, but ultimately, the appellant has lost
vision of his right eye and some disability in
vision of left eye. For such injuries, the Tribunal
has, after allowing both the sides to adduce their
evidence, considered the rival submissions and
awarded an amount of Rs.1,62,000/- to the
appellant, which is to be paid by the respondents
jointly and severally with 12% interest thereon.
For awarding such compensation, the Tribunal has
considered the age of the victim as 30 years and
awarded 15 as suitable multiplier, for loss of

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Page 2 of 6

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C/FA/694/1996 ORDER

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earning capacity Rs.800 because of 40% disability
and considering Rs.2,000/- as monthly income of the
appellant, who was plying rickshaw for his
livelihood on the date of accident, otherwise, he
was doing mason work in other countries. Thereby,
the Tribunal has awarded Rs.1,44,000/- towards
future loss of income; whereas, Rs.5,000/- towards
medicine, transport and special diet, Rs.1,000/-
towards attendant, Rs.12,000/- towards loss during
treatment. However, Tribunal has considered the
prospective income of the appellant and even failed
to award any amount towards pain, shock and
suffering to the appellant.

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6.Considering the total claim is of Rs.2 Lacs,
the appellant herein has contended that Tribunal
has committed an error in not awarding any amount
towards pain, shock and suffering though
Rs.30,000/- was claimed by the appellant. The
Tribunal has also erred in considering 15 only as
suitable multiplier, though the appellant was aged
about 30 years at the time of accident and though
17 would be suitable multiplier as per the
statutory schedule as well as decision in the case
of Sarla Verma Vs. D.T.C. reported in (2009)6 SCC
121.

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7.On perusal of the record, it becomes clear
that appellant has received serious injuries as per
the certificate issued by Dr. B.K. Solanki, Medical
Officer of General Hospital at Himmatnagar, which

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Page 3 of 6

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C/FA/694/1996 ORDER

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confirms that there is loss of vision of right eye
with several other injuries. The appellant has also
produced on record contract of his employment in
Riyadh and stated that he was earning Rs.60,000/-
per month, but at the relevant time for renewing
his Visa and passport, he has came back to India
and purchased rickshaw for plying the same for
regular earning. It is also contended by the
appellant that he has suffered because of injuries
received by him and he has to spend huge amount for
his treatment. The driver of truck has pleaded
guilty before the criminal court and he was awarded
punishment and therefore, respondents have no
option, but to pay compensation to the appellant
that may be just and proper as per the decision of
the Tribunal. However, though appellant has
restricted his claim to Rs.2,00,000/- only, even
after confirming in pleading that he is entitled to
compensation of Rs.2,84,000/-. The Tribunal has
failed to consider just and proper compensation
that may be awarded to him. Though respondents have
defended themselves so far as quantum of
compensation is concerned, there is no evidence in
rebuttal of the evidence by the appellant to
confirm that appellant is neither earning as per
his statement on oath nor has he received any
injuries and disablement.

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8.The appellant has examined the Doctor at
Exh.51 as witness No.2 to prove the disability of
the appellant and confirmed that he has lost the

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Page 4 of 6

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C/FA/694/1996 ORDER

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vision of one eye, but assessed the disablement at
30% only even for loss of vision, which is 40% as
per the Workmen’s Compensation Act.

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9.In his written statement dated 14.6.1995
before the Tribunal, even appellant has considered
30% disablement and suggested to consider
Rs.1,600/- as monthly income and also suggested to
take 15 as suitable multiplier. That Tribunal has
considered Rs.2,000/- as monthly income and 40%
disablement. However, fact remains that Tribunal
has not awarded any amount towards pain, shock and
suffering and towards damages to the rickshaw. In
any case, appellant has explained the bifurcation
of Rs.2 Lacs claimed by him as against which the
Tribunal has awarded Rs.1,62,000/-. Therefore, in
any case, though the Tribunal has considered just
and proper compensation for loss of future
earnings, when Tribunal has erred towards not
awarding any amount towards pain, shock and
suffering and towards damage to the rickshaw, it
would be appropriate to modify the amount awarded
by enhancing the award and awarding just and
reasonable compensation on such heads.

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10.Consideringtheoverallfactsand
circumstances, the injuries, treatment and medical
expenditure etc. when there is loss of vision of
one eye, an amount of Rs.30,000/- towards pain,
shock and suffering would be just and proper, which
is required to be awarded in addition to what is

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Page 5 of 6

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C/FA/694/1996 ORDER

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awarded. Similarly, when there is no award towards
damage to the rickshaw and when panchnama and other
documents show the damage to rickshaw, there must
be some reasonable award towards such damages. When
except such prima facie evidence, the appellant has
failed to prove the actual damages to the rickshaw,
therefore, though the appellant has claimed
Rs.18,000/- towards damages to the rickshaw, an
award of Rs.8,000/- on such head would be just and
proper. Therefore, now, the appellant is entitled
to get an additional amount of Rs.38,000/-.

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11.In view of the above, the First Appeal is
partly allowed. Thereby, the impugned award is
modified by adding an amount of Rs.38,000/- as
additional compensation with 9% interest from the
date of application though the Tribunal has awarded
12% interest at the relevant time.

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(S.G. SHAH, J)

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BINOY B PILLAI

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Page 6 of 6

Mustufabhai Valibhai Khanusia v. Navnitlal Laxmanbhai Barot

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Mustufabhai Valibhai Khanusia v. Navnitlal Laxmanbhai Barot

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