Gujarat High Court
Rooplal Mavjibhai Prajapati vs Govindram C/O Vasant Ramji on 24 February, 2025
NEUTRAL CITATION
C/FA/3719/2009 JUDGMENT DATED: 24/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3719 of 2009
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 2 of 2022
In R/FIRST APPEAL NO. 3719 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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ROOPLAL MAVJIBHAI PRAJAPATI
Versus
GOVINDRAM C/O VASANT RAMJI & ORS.
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1,3
RULE SERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 24/02/2025
ORAL JUDGMENT
1. The present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 by the appellant - original claimant against the judgment and award dated 03.07.2008 passed by the learned Motor Accident Claims Tribunal, Court No.9, Ahmedabad in Motor Accident Claim Petition Page 1 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined No.298 of 2000.
2. Heard learned advocate Mr.Mehul Sharad Shah for the appellant - original claimant and learned advocate Mr.Rituraj Meena for respondent No.2. Though served, none appears for respondent No.4.
3. Brief facts narrated in the present appeal are as under:-
3.1 The appellant - claimant was travelling in a luxury Bus bearing registration No.RJ-PD-409 which was coming from village Kalyana (Udaipur-Rajasthan) to Ahmedabad. A truck, which was at an excessive speed attempted to overtake another truck. Resultantly, bus and truck collided with each other. The appellant sustained grievous injuries and fractures. Appellant was admitted in Himmatnagar Hospital and thereafter shifted to V.S.Hospital, Ahmedabad for further treatment. 3.2 The claimant filed a claim petition for Page 2 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined compensation of Rs.7,00,000/- against the opponents. The Insurance Company of Truck bearing registration No.RJ-27-
G-0125 appeared and filed a Written Statement at Ex.25 and denied its liability. The Insurance Company of Bus bearing Registration No.RJ-PD-409 appeared and filed a Written Statement at Ex.36 and denied its liability to pay compensation. Issues were framed vide Ex.42. The claimant examined himself at Ex.62 and produced documentary evidence such as complaint, Panchnama and disability certificate issued by Doctor. After considering the evidence and materials placed before the learned Tribunal, learned Tribunal partly allowed the claim petition granting compensation of Rs.2,60,000/- with interest at the rate of 9% from the date of claim petition till realization against opponent Nos.2 to 5.
3.3 Being aggrieved and dissatisfied with the quantum of compensation, appellant-claimant has filed present appeal for enhancement of compensation. Page 3 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025
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4. Learned advocate for the appellant submitted that because of rash and negligent driving of luxury bus and truck accident had occurred and therefore claimant sustained injuries such as closed fracture of mid shaft tibia, segmental fibula, head fibula, fracture patella, closed fracture of bimanlleolar ankle, fracture calcaneum, closed fracture - left calcaneum, open grade one fracture - left mid shaft tibia, fracture -bimalleollar ankle, chronic non healing ulcer on right foot, ulcer on left calf. The claimant had remained in V.S.Hospital from 10.03.2000 to 22.04.2000 in all for 42 days as an indoor patient. Thereafter, the claimant had to remain in the hospital of Dr.Manoj Joshi from 22.04.2000 to 13.05.2000 i.e. for around 21 days as an indoor patient where the claimant was operated. The claimant had remained bedridden for nine months. Thereafter, once again, claimant was admitted in the hospital of Dr.Santosh C. Raibagkar from 26.12.2009 to 08.02.2010 i.e. for around 44 days. Dr. Page 4 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined Pranav R. Shah of Kanchi Orthopedic Hospital, who has examined by claimant has given disability certificate at Ex.33 and has assessed 44.48% disability body as a whole. 4.1 At the time of hearing of claim petition, upon a joint consensus being arrived at between the parties, disability was reduced to 25% and consequently, the learned Tribunal assessed disability at 25%. At the time of hearing of First Appeal, learned advocate for the appellant urged to consider disability 44.48% body as a whole by submitting that the reduction of disability was arrived at upon legal advice given to the claimant. Since there is specific medical evidence regarding disability, the consensus between the parties regarding reduction of disability may not be considered, instead, the disability assessed by the medical examiner at 44.48% body as a whole should be taken into account.
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NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined 4.2 Pursuant to the said submission, the Co-ordinate Bench of this Court, vide order dated 05.02.2025, directed the Medical Board, Civil Hospital, Asarwa, Ahmedabad to conduct a medical examination of the claimant to reassess the disability. The said order was complied with the Medical Board, B.J.Medical College & Civil Hospital, Ahmedabad. After examining the claimant, the Medical Board arrived at the conclusion that claimant-appellant has sustained 40% bodily disability. Learned advocate for the appellant therefore prays that report dated 12.02.2025, which assessed the disability at 40%, may be considered in determining disability.
4.3 It is further submitted that learned Tribunal has not considered the oral deposition of the claimant while calculating the income. Learned Tribunal has considered Rs.3,000/- per month as notional income of the claimant. Claimant was serving in Mazda enterprises and was getting gross salary of Rs.2,650/- per month and was also earning Page 6 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined Rs.1,000/- per month in the Company of Manibhai Shah. Certificates issued by Manibhai Shah are produced which are marked at 44/12 and 44/13. It is further submitted that claimant was also getting Rs.100/- per day as a Tip by serving in Ellisbridge Gymkhana, Ahmedabad. Considering the said evidence, the claimant was earning Rs.6,650/- per month. However, a grave error has been committed by learned Tribunal in considering the income of claimant of Rs.3,000/- per month only. It is submitted that learned Tribunal has not considered the prospective income of the claimant while determining the compensation. It is further submitted that in the cases of similar type of employees, other employees are getting Rs.8,000/- to 10,000/- per month on the date of deposition.
4.4 It is further submitted by learned advocate for the appellant- claimant that in absence of specific cross- examination on income, learned Tribunal ought to have Page 7 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined considered the income stated in the Examination-in-chief. It is further submitted by learned advocate for the appellant that even after the judgment and award, the claimant had to undergo further treatment and incurred huge expenses. Therefore, the claimant has filed a separate application under Order XXXXI Rule 27 of the Civil Procedure Code and produced Bills showing the expenses for medical treatment incurred after the pronouncement of the judgment and award.
4.5 Looking to the nature of injuries and hospitalization, which totaled approximately 107 days, the claimant had to remain bedridden for almost 10 months. However, learned Tribunal awarded compensation only Rs.10,000/- under the head of pain, shocks and suffering, which is a very meager amount. Claimant sustained multiple fractures due to the vehicle accident. Additionally, the learned Tribunal has not properly considered the Page 8 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined compensation under the head of actual loss of income. Looking to the absenteeism in the services because of injuries sustained, only Rs.6,000/- was awarded under the head of actual loss of income.
5 Per contra, learned advocate for respondent No.2
- insurance company has supported the judgment and award. So far as question of disability is concerned, the claimant himself admitted in the Pursis submitted before the learned Tribunal and submitted that disability may be considered as 25%. Therefore, the claimant is now estopped from raising any grievance regarding the assessment of disability.
5.1 It is further submitted that report of the Medical Board of B.G.Medical College & Civil Hospital, Ahemdabad, which assessed the disability at 40% is irrelevant as claimant has already admitted reduction in disability at 25%. So far as the claimant's income is Page 9 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined concerned, the prevailing rates under minimum wages at the relevant point of time was Rs.2,900/-. However, the learned Tribunal has considered the income of claimant as Rs.3,000/- per month which is just and reasonable. It is further submitted that the certificates which were issued by Mazda Enterprises and Manibhai Shah have not been proved by examining the witnesses. Additionally, there is lack of evidence regarding claimant receiving Rs.100/- per day as Tip. Therefore, the claim of Rs.6,650/- as income of the claimant at the relevant point of time is misconceived and may not be considered.
6. Having considered the submissions and on perusal of record and proceedings, the facts emerge that, the claimant has sustained as many as six fractures on his body, more particularly, mentioned in Ex.33, which is a certificate issued by Doctor. The disability that has been assessed by Doctor is 44.48% body as a whole. I am of the Page 10 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined view that when a person has sustained injuries including fractures due to a vehicular accident, and the claimant is claiming compensation on the ground of disability, the best evidence is medical evidence. After examining the claimant, expert has assessed disability on the basis of nature of work and the functional disability.
In the present case, instead of examining the Doctor who issued disability Certificate, the parties to the Claim Petition agreed to reduce the disability by 25%. The claimant, who is an illiterate person, is not expected to understand the effect of reduction in disability. Merely on legal advice of Counsel signs a Pursis or application for reduction of disability, is not the best evidence to assess disability. When the learned Tribunal is assessing disability, it must consider the Doctor's Certificate and cannot rely upon a mere application signed by the claimant. Only a medical professional can opine on reduction or increase in disability.
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7. Vide order dated 05.02.2025, the Co-ordinate Bench of this Court has directed the Medical Board of Civil Hospital, Aswara, Ahmedabad to carry out a medical examination of claimant. After examining the claimant, the experts in the field opined in their report dated 12.02.2025 that claimant has a disability of 40% of the body as a whole. This medical opinion cannot be ignored. Accident has occurred on 10.03.2000 and after 25 years of the accident, the claimant's disability has remained almost the same as assessed by Dr.Pranav R. Shah on 11.04.2001 as stated in Ex.33. Learned advocate for respondent No.2 could not contradict the medical opinion dated 12.02.2025. Therefore, I am of the opinion that learned Tribunal erred in considering the reduction of disability by simply relying upon pursis/application for reduction of disability. Hence, I hold that claimant - appellant be awarded compensation on the basis of assessment of disability at 40% body as a whole.
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8. It is contended by learned advocate for respondent No.2 that deduction in disability by way of consent can only be interfered with if fraud has been practiced upon the claimant. In the present case, the claimant has not made any allegation in relation to the reduction of disability.
9. The contention of fraud which is missing in the present appeal regarding the determination of disability, is of no significance when the Medical Board of B.J.Medical College & Civil Hospital, Ahmedabad, after examining the claimant has arrived at conclusion that even after a period of 25 years, the claimant has a disability of 40%. I am of the view that such contention holds no merit in light of the facts of the case.
10. The next question which is to be addressed is the income of the claimant. The claimant has stated that he was earning Rs.2,650/- per month from serving in Page 13 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined Mazda Enterprises and Rs.1,000/- per month from working part-time for Manibhai Shah. Although claimant has submitted two certificates in support of his income, the record reveals that claimant has not been able to prove the contents of these certificates. When the claimant heavily relies on these certificates to establish his income, which is reflected in his service records, it raises questions. The claimant also claims that he worked as a Waiter at Ellisbridge Gymkhana and was earning Rs.100/- per day as Tips, however, this fact is denied by the other side. When the claimant worked as a Waiter in a hotel/restaurant, it is presumed that he would receive some Tips for service he rendered. Considering the conclusion arrived at by learned Tribunal an assessment of income at Rs.3,000/- per month seems reasonable, as per the rates prevailing as minimum wages at the relevant time. At that time, the minimum wage for unskilled labour was Rs.900/- per month. The non-examination of witnesses Page 14 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined of Mazda Enterprises and Manibhai Shah's company would not be fatal for the claimant for the reason that learned Tribunal has considered the notional income of Rs.3,000/- per month, including earnings from both concerns. Learned Tribunal has not awarded prospective income, which is the Rule of Law.
11. The age of the claimant at the relevant point of time was 35 years and in view of the settled law, 40% of his income is required to be added while calculating future loss of income. Considering the nature of injuries and the treatments undertaken by the claimant and his period of hospitalization, an award of Rs.1,50,000/-under the head of pain, shock and suffering would be appropriate. The evidence indicates that claimant was away from work for about 9-10 months. Furthermore, the claimant has produced medical bills for post-judgment and award treatment. The only challenge raised by the learned Page 15 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025 NEUTRAL CITATION C/FA/3719/2009 JUDGMENT DATED: 24/02/2025 undefined advocate for respondent No.2 regarding the claim for post medical expenses is that claimant has not been able to prove the credibility of bills, which are from 2009 onwards.
12. It is well settled principles of law that while deciding a claim petition, strict proof as per the Evidence Act is not required. As the proceedings are summary in nature, and considering the benevolent legislation, it is just and reasonable to award the actual amount incurred for treatment post award, as supported by discharge summary issued by Dr.Santosh C. Raibagkar dated 10.03.2010. The total medical bills are amounting to Rs. Rs.73,576.29. It would be in the larger interest of justice to allow the application for adducing the additional evidence. Hence, claimant is entitled to Rs.73,576.29 towards the medical bills.
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12. In the totality of the facts and circumstances of the case, the judgment and award of learned Tribunal is modified to the following extent.
Head Compensation in Rs.
Future loss of income 3,22,560/-
Monthly income (Rs.3,000/-)
Prospective Income 40%
(Rs.3,000 + 40%) = Rs.4,200/-
40% Disability
(Rs.4200 x 40%) = Rs.1,680/-
(Rs.1680 x 12 x 16) =
Rs.3,22,560/-
Actual loss of income 36,000/-
(Rs.3000 x 12)
Pain, shock and suffering 1,50,000/-
Medical expenses (Rs.90,000/-) 1,63,600/-
Additional amount of Medical
Bills (Rs.73,576/- which is
rounded off to Rs.73,600/-)
(Rs.90,000 + 73,600) =
Rs.1,63,600/-
Future Medical expenses done 1,00,000/-
during appeal
Transportation Charge 25,000/-
Grand Total 7,97,160/-
Less Awarded amount by 2,60,000/-
Tribunal
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NEUTRAL CITATION
C/FA/3719/2009 JUDGMENT DATED: 24/02/2025
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Enhanced amount 5,37,160/-
(Rs.7,97,160/- 2,60,000/-)
Interest @9%
13. For the reasons recorded hereinabove, following order is passed.
13.1 The appellant is entitled to enhanced amount of compensation of Rs.5,37,160/- at the rate of 9% per annum from opponent Nos.2 to 5 jointly and severally from the date of claim petition till realization from Insurance Company.
13.2 The opponents is directed to deposit the enhanced amount of compensation with interest as above within a period of Four Weeks from the date of receipt of this order. Upon such deposition, it will be open to the original claimant to approach the concerned Court/Tribunal for appropriate orders for withdrawal. Learned Tribunal shall disburse the same after due identification and verification.
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14. The present First Appeal is partly allowed accordingly. The impugned judgment and award dated 03.07.2008 passed by the learned Motor Accident Claims Tribunal, Court No.9, Ahmedabad in Motor Accident Claim Petition No.298 of 2000 is modified to the aforesaid extent. Record and proceedings, if any, be sent back to the concerned Court/Tribunal.
Order in Civil Application Considering the submissions and averments made in the application, present Civil Application is allowed and stands disposed of accordingly.
(D. M. DESAI,J) MANOJ Page 19 of 19 Uploaded by MANOJ KUMAR(HC01092) on Sat Mar 15 2025 Downloaded on : Fri Mar 21 22:00:21 IST 2025