C/FA/567/2018 JUDGMENT DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 567 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BABUBHAI TAPUBHAI RATHOD
Versus
SANOJKUMAR JAIN & 1 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/03/2023
ORAL JUDGMENT
1. Claimant, as an injured, has challenged the judgment and award dated 25.10.2017 passed Page 1 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023 C/FA/567/2018 JUDGMENT DATED: 15/03/2023 by the MACT (Main), Bhavnagar in MACP no. 579/09.
2. The case of the claimant was that he was going, driving his Luna bearing registration no. GJ-4 M-5595 to his service place on 6.1.2006 at about 10:00 a.m. in moderate speed and on correct side of the road. When he reached near the Atabhai Road, one car bearing registration no. GJ-4 D-5790 suddenly opened the door of the vehicle. As a result, the appellant lost control on his vehicle - Luna and dashed on the door of the car and in the result, he sustained about 23% disability of the body as a whole.
3. Learned advocate Mr. Shah along with learned advocate Mr. Modi submit that the learned Tribunal has granted lumpsum amount of Rs.45,000/- to the appellant, while the amount under the head of pain, shock and suffering, attendant charges, transportation Page 2 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023 C/FA/567/2018 JUDGMENT DATED: 15/03/2023 expenses, etc. have not been granted and further state that the loss of the amenities of life, considering the disability, has not been assessed by the Tribunal, which ought to have been in accordance with the evidence led on record.
4. While learned advocate Mr. Thakkar submits that the appellant is a Government servant and was serving in Central Salt and when he retired, he was drawing salary of Rs.35,000/- to Rs.40,000/- per month and thus, there was no loss in the future income and thus, submits that the learned Tribunal has rightly considered this aspect and the lumpsum amount with the medical bills so granted is just and reasonable.
5. The learned Tribunal has considered the fact that the claimant was 52 years at the time of the accident and he was drawing salary of Rs.15,758/- per month, while the claimant Page 3 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023 C/FA/567/2018 JUDGMENT DATED: 15/03/2023 was drawing salary of Rs.35,000/- to Rs.40,000/- per month while he retired in the year 2013. Hence, the Tribunal came to the conclusion that the there would not be any future loss of income. However, the Tribunal failed to consider the aspect that the claimant has sustained 23% permanent disability and both the parties had admitted to consider the disability of the body as a whole at 11.5%. The learned Tribunal has not considered this disability as functional disability and ought to have taken into consideration 23% physical disability to assess the loss of amenities of life and should have granted amount under the said head. To compute the loss to the life because of disability to bring certain degree of accuracy in computing the loss, thus, considering the income of Rs.15,758/- per month at the time of the accident and Page 4 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023 C/FA/567/2018 JUDGMENT DATED: 15/03/2023 the disability as consented as of 11.5% and applying multiplier of 5, keeping in view the age of the claimant at the time of the accident, this Court considering that the claimant would have sustained loss of amenities of life with permanent disability, so under the said head, it would be just and reasonable to grant an amount of Rs.1,10,000/- for loss of amenities of life. The medical bills have been produced on record amounting to Rs.27,270/-, but the learned Tribunal has not considered the fact that the appellant, because of his 23% permanent disability and the treatment, could have suffered pain, shock and suffering and during the treatment, the claimant would have received special diet and some person would have attended him and there would have been expenses for transportation charges. Thus, under the head Page 5 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023 C/FA/567/2018 JUDGMENT DATED: 15/03/2023 of pain, shock and suffering, Rs.15,000/- is granted and under the head of special diet, attendant and transportation charges, an amount of Rs.7,500/- is granted.
6. Thus, the compensation would be computed as under:-
Loss of amenities of life Rs.1,10,000/- Medical expenses + Rs.27,270/- Pain, shock and suffering + Rs.15,000/- Special diet, attendant and + Rs.7,500/- transportation charges Total compensation = Rs.1,59,770/-
7. As the Tribunal has awarded compensation of Rs.45,000/- with interest at the rate of 9% per annum, the appellant-claimant would be entitled to enhanced amount of compensation of Rs.1,14,770/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit Rs.1,14,770/- with interest at the rate of Page 6 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023 C/FA/567/2018 JUDGMENT DATED: 15/03/2023 7.5% per annum within eight weeks from the date of receipt of writ of this Court.
8. The appeal is partly allowed. The impugned judgment and award be modified accordingly. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 7 of 7 Downloaded on : Thu Mar 16 20:50:43 IST 2023