C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1607 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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GIRISHKUMAR HARGOVINDAS PARMAR
Versus
NEW CHEM TRADERS & 1 other(s)
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/02/2023
ORAL JUDGMENT
1. Heard, learned advocate Mr. M. I. Mansuri for the appellant and learned advocate Mr. H. G. Mazmudar for the respondent No. Page 1 of 7 Downloaded on : Fri Feb 17 21:13:30 IST 2023 C/FA/1607/2019 JUDGMENT DATED: 16/02/2023 2 - insurance company at length. Though served, nobody appears for the respondent No. 1. Since, the liability was not in dispute, the Court proceeded with the matter.
2. Admit. Learned advocate Mr. Mazmudar waives service qua respondent No. 2.
3. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 arising out of the judgment and award dated 06.03.2017 rendered by the learned Motor Accident Claims Tribunal (Auxiliary) and 3rd Additional District Judge, Ahmedabad (Rural) at Mirzapur, (the Tribunal) in Motor Accident Claim Petition No. 1202 of 2001 (claim petition), whereby, the Tribunal was pleased to award compensation of Rs.1,26,000/- together with proportionate costs and interest at the rate of 9% per annum from the date of claim petition till realization against the total compensation of Rs.4 lakh with interest and cost as claimed by the appellant - original claimant towards injury sustained by him. The opponents therein are jointly and severally held liable to pay the compensation. Accordingly, the appellant has preferred this appeal for enhancement of compensation.
4. Since the facts of the accident are not in dispute, the Court Page 2 of 7 Downloaded on : Fri Feb 17 21:13:30 IST 2023 C/FA/1607/2019 JUDGMENT DATED: 16/02/2023 deems it proper not to discuss the same.
5. The learned advocate for the appellant submitted that the Tribunal has materially erred in awarding the compensation towards the injury sustained by the appellant - claimant inasmuch as the Disability Certificate issued by Dr. Pradip Seju, M.S. (Gen. Surg.) dated 01.10.2001, which was produced at Exh. 27 has not been properly appreciated by the Tribunal. He submitted that as per the said Certificate, the appellant - claimant has sustained 20% permanent partial disability body as a whole. He submitted that the Tribunal has failed to consider the fact that the Injury Certificate, Exh. 22 clearly goes to show that the appellant - claimant had sustained injuries on his leg, hand and there was rupture of kidney and his one kidney was removed. It is submitted that the Tribunal ought to have considered the future pain, shock and fear of life which the claimant would suffer and stated that appropriate amount is required to be granted under the head of pain, shock and suffering.
6. Countering the arguments, learned advocate Mr. Mazmudar for the insurance company submitted that it has been scientifically proved that a person who had sustained such injury Page 3 of 7 Downloaded on : Fri Feb 17 21:13:30 IST 2023 C/FA/1607/2019 JUDGMENT DATED: 16/02/2023 can lead a healthy life with one kidney. He submitted that the claimant would not have any sufferings in future to consider granting higher amount under the head of pain, shock and suffering and thus, justified the amount awarded by the Tribunal.
7. Mr. Mansuri, the learned advocate for the appellant - claimant has also challenged the monthly income of the claimant assessed by the Tribunal as Tanker driver and stated that the injuries would affect his earning capacity also. 7.1 Mr. Mazmudar for the respondent - insurance company submitted that the Tribunal has considered Rs.3,000/- per month and considering the date of accident, he submits that keeping in mind the Minimum Wages Schedule, the salary of the claimant is rather assessed on a higher side.
8. Mr. Mansuri, learned advocate for the appellant - claimant has further submitted that after the accident, the claimant was admitted in the hospital from 26.07.2001 to 08.08.2001 and lost movement of his body and suffered many problems and he was attended by one person during the treatment. It is submitted that the Tribunal has not taken this aspect into consideration. It was further submitted the Tribunal has not considered the Page 4 of 7 Downloaded on : Fri Feb 17 21:13:30 IST 2023 C/FA/1607/2019 JUDGMENT DATED: 16/02/2023 document at Exh. 22 which clearly shows that the appellant had lost normal bowel movement and suffered major abdominal surgery; his right kidney was badly damaged and was removed; he was young driver by profession. Mr. Mansuri further submitted that the appellant - claimant is not in a position to continue with his work as had been done earlier.
9. The claimant has produced the copy of FIR, Panchnama of Scene of Offence, Follow-up Card of L.G. Hospital at Exh. 21, Injury Certificate at Exh. 22 and Charge-sheet at Exh. 23 before the Tribunal. The Tribunal has perused the Injury Certificate, Exh. 22, however, has not appreciated the same in right perspective. The injury suffered in the accident and its after effects, which have resulted into abdominal surgery and since the kidney was damaged, it was removed. The Tribunal has granted only Rs.10,000/- under the head of Pain, Shock and Suffering, while has not even considered the loss which the claimant has sustained because of removal of the kidney. This Court considers that the amount under the head of Pain, Shock and Suffering is required to be increased and further, under the head of Loss of Amenities of Life, the amount is required to be granted. Taking into consideration the date of accident and the hospitalization and further treatment taken, further Rs.40,000/- is granted under Page 5 of 7 Downloaded on : Fri Feb 17 21:13:30 IST 2023 C/FA/1607/2019 JUDGMENT DATED: 16/02/2023 the head of Pain, Shock and Suffering. The removal of kidney would certainly affect the mental health of the claimant but at the same time, it could be noted that the appellant could lead with his daily life with single kidney but the mental agony would persist and hence, under the head of Loss of Amenities of Life, this Court considers grant of Rs.50,000/-.
9.1 The income factor does not require any interference of this Court as Rs.3,000/- is assessed as monthly income of the claimant as driver of the Tanker which is just and reasonable keeping in mind the Minimum Wages Schedule on the date of the accident. The Tribunal has considered 15% physical disability on the basis of the consent pursis, Exh. 26 moved by both sides. 9.2 The Tribunal has granted the amounts under different heads as under:
Head Amt. (Rs.)
Pain, Shock and Suffering 10,000/-
Future Loss of Income 91,800/-
Actual Loss of Income 9,000/-
Medical Expenses 5,200/-
Special Diet, Transportation and Attendant etc. 10,000/-
Total 1,26,000/-
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C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
9.3 For the reasons recorded herein above, the claimant would
be entitled to the following amount towards compensation:
Head Amt. (Rs.)
Pain, Shock and Suffering 50,000/-
Future Loss of Income 91,800/-
Actual Loss of Income 9,000/-
Medical Expenses 5,200/-
Special Diet, Transportation and Attendant etc. 10,000/-
Loss of Amenities of Life 50,000/-
Total 2,16,000/-
9.4 The Tribunal has granted Rs.1,26,000/- @ 9% per annum
from the date of petition till realization. The enhanced amount of Rs.90,000/- (Rs.2,16,000/- minus Rs.1,26,000/-) is required to be deposited by the insurance company, which shall be deposited within a period of 08 (eight) weeks from the date of receipt of writ of this order. The claimants shall be entitled interest at 7.5% on such enhanced amount.
9.5 The impugned judgment and award is modified to the aforesaid extent. Rest of the judgment and award shall remain intact. R&P, if received, be sent back forthwith.
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