NEUTRAL CITATION
C/FA/692/2009 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 692 of 2009
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THAKOR AJMALJI PARBATJI
Versus
THAKOR AMARAJI RAJUJI & 2 other(s)
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 11/10/2023
ORAL ORDER
1. This enhancement appeal, under Section 173 of the Motor Vehicle Act, 1988, is filed by the original injured claimant assailing the judgment and award dated 04.01.2007 in MACP No. 619 of 2002, passed by the Tribunal at Mehsana.
2. The facts are that the appellant Thakor Ajmalji Parvatji aged about 36 years, met with an accident, when he was on duty as a Conductor with Tanker No. GJ-2X-1884. The alleged accident took place on 01.03.2002. The appellant claimant was taken to Civil Hospital, Mehsana and thereafter, was treated by Dr. Kirit Patel, at his private hospital, where, he was operated thrice for the fracture lower fibula and crush injuries over left ankle with exposed tibia however, the Doctor could not save his left leg, as a result, below knee his left leg was amputated. Doctor Patel vide Page 1 of 6 Downloaded on : Mon Oct 16 20:34:50 IST 2023 NEUTRAL CITATION C/FA/692/2009 ORDER DATED: 11/10/2023 undefined Exh. 27, had assessed 50% disablement. According to case of the claimant, due to amputation of the left leg, his life became miserable and would not in a position to work as a cleaner and his earning capacity reduced to the extent of 100%. Initially, the claim petition was filed to recover the amount of Rs.3 lakhs and it was increased upto Rs.6 lakhs by necessary amendment. The petition was opposed by the owner and insurance company of the involved truck. Learned Tribunal upon consideration of the oral as well as documentary evidence, taken into account 25% disablement, as admitted by the insurance company, awarded Rs.90,000/- towards future loss and also awarded amount under the various heads and in all Rs.3,00,000/- has been awarded by the Tribunal by its judgment and award dated 04.01.2007.
3. Being aggrieved by the said judgment, the appellant original claimant is before this Court.
4. Mr. Yogendra Thakore, learned counsel appearing for the appellant
- claimant herein, has contended that, the learned Tribunal erred in considering permanent partial disablement to the extent of 25%. That, the left leg below knee of the appellant was amputated and admittedly, at relevant time, he was serving as a conductor and considering the said job, now he would not be a position to perform his duty and thus, there is 100% loss in the earning capacity and same has not been appreciated by the learned Tribunal. That, there is no consent of both the sides on the issue of 25% disablement as it was the counsel of the insurance company who made endorsement below disablement certificate Exh. 27, that the Page 2 of 6 Downloaded on : Mon Oct 16 20:34:50 IST 2023 NEUTRAL CITATION C/FA/692/2009 ORDER DATED: 11/10/2023 undefined company is conceding 25% disablement. That, there was no consent or agreement of the claimant herein on this aspect and therefore, the learned Tribunal by overlooking the admitted facts, awarded a meager amount under the future loss.
5. Mr. Thakore, learned counsel further submitted under the head of non-peculiar damages, nothing was awarded by the Tribunal, despite, the facts that, the claimant suffer grievous injury and therefore, the amount awarded under the various heads does require enhancement and accordingly, by allowing this appeal, the reasonable and just amount may be awarded.
6. On the other hand, Ms. Heena Desai, learned counsel countering the submissions, has contended that, the learned Tribunal has awarded just and reasonable amount and there is no scope of enhancement of compensation and therefore, the contention raised by the claimant herein cannot be accepted and appeal may not be entertained and deserves to be dismissed.
7. Having heard the learned counsel for the respective parties and on perusal of the case records, the issue fall for consideration of this Court is to whether amount of compensation as determined by the Tribunal needs any enhancement?
8. There is no dispute as to occurrence of the accident, the liability of the insurer to pay the amount of compensation, It is settled position of law that, the provision of M.V. Act gives paramount importance to the concept of just and fair compensation. It is beneficial Page 3 of 6 Downloaded on : Mon Oct 16 20:34:50 IST 2023 NEUTRAL CITATION C/FA/692/2009 ORDER DATED: 11/10/2023 undefined legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the M.V. Act, deals with the concept of just compensation which ought to be determined on the foundation of fairness, reasonableness. It is no doubt true that, the determination of the amount can never be arithmetically exact or perfect. However, the endeavour should be made by the Tribunal to award just and fair compensation.
9. In light of the aforesaid settled law and considering the peculiar facts and circumstances of the present case, this Court is of the considered view that the learned tribunal erred in ignoring the injuries sustained by the appellant claimant. Before the Tribunal, the disability certificate Exh. 27 proved by examining the Dr. Kirit Patel, Exh. 25. The endorsement on the disability certificate made by the counsel appearing for the insurance company was not agreeable to the appellant and simply the insurance company unilaterally accepted and agreed the percentage of disablement to the extent of 25%. Thus, it was the duty of the Tribunal to minutely examined the endorsement made by the insurance company and therefore, the amount under the future economic loss computed by the Tribunal is against the evidence on record and same deserves to be interfere with.
10. In view of the above, under the head of future economic loss, the amount needs to be modified. The learned Tribunal did not consider the future income as well as failed to appreciate the impact of disability on the earning of the appellant. The appellant admitted was working as a cleaner. The Tribunal has mechanically Page 4 of 6 Downloaded on : Mon Oct 16 20:34:50 IST 2023 NEUTRAL CITATION C/FA/692/2009 ORDER DATED: 11/10/2023 undefined applied the percentage of disability without considering the impact of it on the earning of the claimant and therefore, considering the job of the appellant, the impact on the earning capacity can be said to be 100%, however, except, job as a cleaner, he can do other activities who has no further movement of his legs and thus, the earning capacity could be affected to the extent of 75%. In other words, though the percentage of disability assessed 50% by the doctor but considering the nature of work, the appellant totally disabled from earning of his livelihood from the job, which he was earlier doing. Accordingly, the amount under the head of future loss payable to the appellant is as under:
Future economic loss :Rs.3,78,000/-
(Rs.2000+800(40%)=2800X75%=2100
X12= Rs.25,200X15)
The Tribunal has awarded Rs.90,000/- under the head of future loss and therefore, by reducing the said amount, the enhanced amount under the head of future loss would come to Rs.2,88,000/-.
11. So far as the amount awarded under the various heads are concerned, this Court is of the considered view that, there is no further scope in the increment of the amount awarded by the Tribunal. However, it is not a routine case of personal injury and therefore, in a serious cases of injury, which has been proved by medical evidence, the compensation shall have to be granted under non-pecuniary damaged like loss of amenities loss of expectation of life etc. In the facts of present case, the Tribunal has awarded Page 5 of 6 Downloaded on : Mon Oct 16 20:34:50 IST 2023 NEUTRAL CITATION C/FA/692/2009 ORDER DATED: 11/10/2023 undefined Rs.75,000/- under the head of PSS, which is just and reasonable and does not require any modification. The facts remains that the Tribunal failed to consider to award the amount under the loss of amenities etc. as the claimants suffer the amputation of his left leg. Thus, Rs.1,00,000/- is being awarded under the loss of amenities and enjoyment of life and Rs.1,00,000/- under the loss of expectation of life.
12. For the reasons recorded, the appeal is allowed in part. The claimant appellant is entitled for the enhanced amount of compensation Rs.4,88,000/- in addition to the amount awarded by the Tribunal (Rs.3,00,000/-). The respondent insurance company is directed to deposit the enhanced amount with interest at the rate of 6% from the date of filing the claim petition. The claim Tribunal shall disburse the entire enhanced amount without further investment in the FDRs. The R&P be transmitted to the Tribunal concerned. Decree be drawn accordingly.
(ILESH J. VORA,J) P.S. JOSHI Page 6 of 6 Downloaded on : Mon Oct 16 20:34:50 IST 2023