Gulabsinh Ganpatsinh Rathod vs Ravaji Dahyaji Gamit

                                                                                        NEUTRAL CITATION




       C/FA/4499/2006                                    ORDER DATED: 25/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 4499 of 2006

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                         GULABSINH GANPATSINH RATHOD
                                     Versus
                         RAVAJI DAHYAJI GAMIT & 2 other(s)
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1
for the Defendant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 25/08/2023
                       ORAL ORDER

1. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant - original injured has filed present appeal seeking enhancement of compensation.

2. Appellant - Gulabsinh Rathod sustained grievous injuries in a road accident which took place on 04.08.1998. The appellant aged about 18 years was on duty as Conductor with luxury bus owned by respondent no.2 and insured with National Insurance Company - respondent no.3 herein. The bus in question rammed into stationary truck parked on the highway, as a result of which, the appellant

- injured sustained grievous injuries over his left leg resulted into permanent partial disability. The appellant - claimant filed claim petition no.148/1999 before MACT (Aux.), Ahmedabad claiming compensation on various heads. The claim Tribunal after considering the evidence Page 1 of 6 Downloaded on : Sun Sep 17 02:31:51 IST 2023 NEUTRAL CITATION C/FA/4499/2006 ORDER DATED: 25/08/2023 undefined on record awarded amount of compensation under the various heads;

     (i)      Rs.36,000/-      -      Future economic loss
     (ii)     Rs.12,500/-      -      Pain shock and suffering
     (iii)    Rs.25,000/-      -      Medical Treatment
     (iv)     Rs.6,000/-       -      Actual loss of income
     (v)      Rs.3,000/-       -      Special diet, etc.
             ---------------
              Rs.82,500/-             Total

3. The appellant - original claimant has preferred the present appeal on the ground that the learned Tribunal erred in calculating the monthly income and has ignored the medical evidence and wrongly assessed permanent partial disablement.

4. This Court has heard learned counsel Mr.A.V.Prajapati for the appellant and learned counsel Mr.Sunil Parekh, appearing for and on behalf of the National Insurance Company.

5. Mr.Prajapati, learned counsel assailing the impugned judgment and award, has stated that the findings of the Tribunal on the issue of quantum are contrary to the evidence on record and the Tribunal failed to appreciate the medical evidence and settled principle of law on the aspect of just and reasonable compensation.

6. Mr.Prajapati submitted that the appellant being a cleaner was earning Rs.2500/ salary with daily allowance of bhaththa and considering the nature of injury, the Tribunal did not have considered the prospective income in Page 2 of 6 Downloaded on : Sun Sep 17 02:31:51 IST 2023 NEUTRAL CITATION C/FA/4499/2006 ORDER DATED: 25/08/2023 undefined calculating the amount of future economic loss. He further submitted that it is a case of imputation of left foot and despite the sufficient evidence to this effect on record, the Tribunal by ignoring the said admitted facts, considered only functional disability to the extent of 25% and the same is contrary to the evidence on record. He submitted that for a considerable time, the appellant was admitted in hospital and despite of serious injuries and long period of treatment, the Tribunal has ignored the said aspects and granted meager amount towards the pain, shock and suffering and other heads.

7. In view of the aforesaid contentions, learned counsel Mr.Prajapati submitted that this is a fit case to enhance the amount of compensation and therefore, the Court, by allowing this appeal, may award just and equitable compensation to the appellant.

8. On the other hand, Mr.Parekh, countering the submissions, has contended that in absence of proof of income, learned Tribunal was right in considering the monthly income of the appellant. He submitted that the Tribunal has assigned sufficient reasons while determining the functional disability of the appellant, and therefore, the award impugned is just and equitable and no case is made out for enhancement of the compensation and present appeal may not be entertained.

9. Having heard learned counsels for the respective parties and on perusal of the judgment and award, the issue arose for determination is whether amount of compensation, as determined by the Tribunal, needs enhancement ?

NEUTRAL CITATION C/FA/4499/2006 ORDER DATED: 25/08/2023 undefined

10. Before adverting to the issue, it is necessary to keep in mind the settled principles in relation to computation of compensation in injury cases. In injury cases, the claimant is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages are also known as special damages and are generally designed to make good pecuniary loss which is capable of being calculated in terms of money. Non-pecuniary damages are those which are capable of assessed by arithmetical calculations. The amount of award in the case of injury cases should, to the extent possible, fully and adequately restored the claimant to the position prior to the accident. The Court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable (Rajkumar Vs. Ajaykumar (MANU/SC/1018/2010).

11. In the facts of present case, the Tribunal while calculating the amount under the head of future economic loss has considered monthly income of Rs.1500/- and after taking into account 25% of disablement, the reduction in earning capacity was assessed annually Rs.3600/-. It is the contention that in order to determine the amount under the future economic loss, the Tribunal ought to have considered monthly income of Rs.2500/- with prospective income. The witness Kapursingh Rathod Exh.45 has produced certificate showing the monthly salary given to the claimant which has not been accepted by the Tribunal as the evidence of salary was not produced in proper form.

NEUTRAL CITATION C/FA/4499/2006 ORDER DATED: 25/08/2023 undefined Thus, therefore, the Tribunal while computing the amount under the head of future economic loss has not committed any error in taking into account monthly income of Rs.1500/- per month. However, the Tribunal could have considered the prospective income, and therefore, under the head of future economic loss re-computation is necessary. It needs to be noted that the appellant injured sustained crushed injury over his left leg and sustained permanent disablement, which has been certified by Dr.Ashok Sajnani, who has deposed that there was a partial amputation of left foot, as a result of which, the assessment of the functional disability was assessed to the extent of 20% and thereafter, the appellant approached another Dr.Vishal Gupta, who has assessed 72% disablement. In these circumstances, the Tribunal, after considering the nature of injury and contradictory certificates, taken into account 25% disablement for calculating the amount of future economic loss. This Court does not find any ground to interfere with the findings recorded by the Tribunal on the aspect of assessment of disablement to the extent of 25%. Thus, under the head of future economic loss, the following amount is payable to the appellant:

Rs.1500/- + 40% = Rs.2100/- X 12 X 18 = 4,53,600/- of 25% i.e. Rs.1,13,400/-.

12. Having considered the other heads under which, the amount of compensation being awarded, the amount Page 5 of 6 Downloaded on : Sun Sep 17 02:31:51 IST 2023 NEUTRAL CITATION C/FA/4499/2006 ORDER DATED: 25/08/2023 undefined awarded under pain, shock and suffering is little bit on lesser side. Thus, under the head of pain, shock and suffering, the appellant is entitled to get Rs.25,000/-.

13. Except the aforesaid two heads, the claim Tribunal has not committed any error while awarding the amount under the various heads, as referred in Para-2 of this judgment and order.

14. For the foregoing reasons, the appeal is partly allowed.

The claimant appellant is entitled to get the enhanced amount Rs.89,900/-. The respondents shall pay the enhanced amount jointly and severally, within three months. The enhanced amount shall carry interest at the rate of 6% per annum. Decree be drawn accordingly. The Tribunal shall release and disburse the said amount without further investment in the FDR.

(ILESH J. VORA,J) Rakesh Page 6 of 6 Downloaded on : Sun Sep 17 02:31:51 IST 2023