NEUTRAL CITATION
C/FA/435/2009 JUDGMENT DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 435 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PATEL HASMUKH GOVINDBHAI
Versus
RASHMIKANT BHIMJIBHAI PATEL & 3 other(s)
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
SERVED BY AFFIX. (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/11/2023
ORAL JUDGMENT
1. Perused the Note of the Registry which states that the respondent No.3 has remained un-served as not found at the given address.
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2. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 30.06.2008 passed by the learned Presiding Officer, Fast Track Court No.3, Ahmedabad (Rural) @ Mirzapur, Ahmedabad in M.A.C.P. No.130 of 1999.
3. The injured appellant-claimant has suffered due to a vehicular accident which occurred on 30.11.1997, when he was travelling as a pillion rider on a Scooter bearing Registration No.GJ-1-AJ-5865, which was being driven by his friend. While they were going to Drive-In Cinema at 8.30 pm, when they reached Karmachari Nagar, at that time, the respondent No.1 came from Bhuyangdev Cross Roads driving his Premier Car bearing Registration No.GJ-7-H-693 in full speed and in a rash and negligent manner dashed the Scooter as result of which, both the appellant and the driver of the Scooter sustained serious injuries. The appellant-claimant suffered from injuries of fracture on the spinal cord and movement of both the legs came to a stand still. The claimant was admitted in the Hospital of Dr. Jitubhai Patel where the Page 2 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023 NEUTRAL CITATION C/FA/435/2009 JUDGMENT DATED: 01/11/2023 undefined claimant remained as an indoor patient from 30.11.1997 to 02.12.1997. Thereafter the claimant remained as an indoor patient at the Hospital of Dr. Mukesh Patel for a period of 20-25 days during which an operation was performed on lumber spine and plates were fixed. Thereafter, the claimant was admitted to Dhanlaxmi Urological Hospital of Dr. Mukesh Desai. The claimant had also taken treatment for kidney problems at Kidney Hospital, Nadiad and also undertook neurological treatment.
4. The appellant-claimant at the time of accident was aged 21 years and way studying in Second Year B.Sc. and was also giving tuitions to the students of Standard X and XII. Learned Advocate for the appellant-claimant Ms. Amrita Ajmera submitted that because of the accident, the claimant suffered permanent disability. It is also submitted that the learned Tribunal failed to extend a considerate approach to the suffering undergone by the claimant, who was young. It is further submitted that the claimant has not been adequately compensated under the head of pain, shock and suffering.
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5. Learned Advocate Ms. Amrita Ajmera submitted that because of the spinal cord fracture, the claimant underwent an operation on the lumber spine and plates were inserted. The claimant had to undergo neurological treatment and for kidney problems, he had to undergo necessary treatment. Necessary documents to the effect were produced on record, were exhibited and read in evidence. Thus, the claimant had to undergo comprehensive treatment.
6. On the other hand, learned Advocate appearing for the Insurance Company Mr. G.C. Mazmudar submitted that the claimant has been adequately compensated and therefore, the judgment and award of the learned Tribunal does not warrant for any interference by this Court.
7. The deposition of the claimant at Exhibit 55 is referred to which gives the details of the various treatments. Initially the claimant was admitted in the hospital of Dr. Jitubhai Patel; however because of the injuries, the claimant was shifted to the hospital of Dr. Mukesh Patel where the claimant was operated Page 4 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023 NEUTRAL CITATION C/FA/435/2009 JUDGMENT DATED: 01/11/2023 undefined on the lumber spine and plates were inserted. Thereafter, the claimant took treatment as an indoor patient from 02.12.1997 to 20.12.1997. The treatment went on for a long period and the claimant also took treatment from Dr. Mukesh Desai at Dhanlaxmi Urological Hospital. The claimant took treatment at Nadiad for the kidney problem. The necessary Injury Certificate of all the Doctors have been produced on record which is reflected in the judgment and award. However, considering the lengthy treatment and the pain / suffering as also the inconvenience caused to a young person aged 21 years, the claimant would have to live with all the pain, which also includes neurological disorders.
8. Therefore, considering the pain undergone as well as the injuries which are grievous in nature and the fact that 60% disability has been assigned by the Doctors, the learned Tribunal has considered the same @ 50% and therefore, this Court considers that the amount granted by the learned Tribunal towards pain, shock and suffering @ Rs.25,000/- is on the very lower side. To compensate the claimant in a just and Page 5 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023 NEUTRAL CITATION C/FA/435/2009 JUDGMENT DATED: 01/11/2023 undefined reasonable manner, this Court is of the view that an amount of Rs.1,50,000/- would be just and proper under the head of Pain, Shock and Suffering.
9. Under the head of Loss of Amenities to life, considering the nature of suffering and physical disability as also the age of the claimant, an amount of Rs.1,00,000/- is required to be granted.
10. Medical expenses to the tune of Rs.74,671/- has already been granted by the learned Tribunal.
11. Under the head of Special Diet and Attendant Charges, the claimant has been granted @ Rs.15,000/-. This Court considers the same to be just and proper especially in absence of specific documents to pray for a higher amount.
12. The learned Tribunal has assessed Rs.1,500/- per month as Income. However, considering the length of the treatment and the operation undergone, the future loss of income for a period of 10 months & considering the income of Rs.1,500/- per month, Page 6 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023 NEUTRAL CITATION C/FA/435/2009 JUDGMENT DATED: 01/11/2023 undefined under the head of Actual loss of income, Rs.15,000/- is required to be granted. Considering the earning capacity of the claimant @ Rs.1,500/- per month and applying the multiplier of 16, with 50% disability, under the head of Future loss of income, the amount is assessed as Rs.1,44,000/- (Rs.1,500/- x 16 x 12 x 50%).
13. Thus, the computation can be made as under :-
Details Amount (Rs.)
Future loss of income 1,44,000/-
Pain, Shock and Suffering 1,50,000/-
Medical Expenses 74,671/-
Special Diet and Attendant Charges 15,000/-
Actual loss of income 15,000/-
Loss of Amenities of Life 1,00,000/-
TOTAL AMOUNT 4,98,671/-
14. The learned Tribunal has awarded an amount of Rs.2,58,671/- with rate of interest @ 9% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.2,40,000/- (Rs.4,98,671/- minus Rs.2,58,671/-). In the result, the present Page 7 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023 NEUTRAL CITATION C/FA/435/2009 JUDGMENT DATED: 01/11/2023 undefined respondent/s are directed to deposit the above/enhanced amount within a period of SIX (6) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ 7.5% per annum from the date of the application and the disbursement of the amount be made as per the judgment and award of the learned Tribunal.
15. After deposit of the above enhanced amount, it is directed that the appellant-claimant be paid 80% of the said amount, after carrying the necessary procedures for verification of his identity. The remaining 20% be kept in a Fixed Deposit Receipt (FDR) for a period of two years and on expiry of the period of two years, the said amount with the interest earned thereon be handed over to the claimant, after following the necessary procedures, without any further reference to the Court.
16. In view of the above, the Appeal is allowed and the judgment and award dated 30.06.2008 passed by the learned Presiding Officer, Fast Track Court No.3, Page 8 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023 NEUTRAL CITATION C/FA/435/2009 JUDGMENT DATED: 01/11/2023 undefined Ahmedabad (Rural) @ Mirzapur, Ahmedabad in M.A.C.P. No.130 of 1999 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J) CAROLINE Page 9 of 9 Downloaded on : Fri Nov 03 20:40:32 IST 2023