Gujarat High Court
Maniram Santram Kapdi vs Janaksinh Merubha Zala on 5 May, 2025
NEUTRAL CITATION
C/FA/2711/2012 JUDGMENT DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2711 of 2012
With
R/CROSS OBJECTION NO. 132 of 2013
In
R/FIRST APPEAL NO. 2711 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MANIRAM SANTRAM KAPDI
Versus
JANAKSINH MERUBHA ZALA & ORS.
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Appearance:
MR HENIL M SHAH(10677) for the Appellant(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/05/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Henil M. Shah for the appellant and learned advocate Ms. Karuna V. Rahevar for respondent No.3 while Rule could not be served upon respondent Nos.1 and 2. Perused the record.
2. The challenge in the present appeal is with regard to the judgment and award dated 27.4.2012 passed by learned Page 1 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined Motor Accident Claims Tribunal (Main), Kutch @ Bhuj in M.A.C.P. No.76 of 2001.
3. The facts in brief of the case are as under:
* On 12.2.2001, Maniram Santram Kapdi with his family members were travelling in Luxury Bus bearing registration No.GJ-17-W-1827 which was coming from Bhuj. Opponent No.1 was driving bus in a rash and negligent manner with an excessive speed. When the bus reached near the place of accident around 10.45 hours, the bus turned turtled. Resultantly, claimant sustained serious permanent partial disabilities. * The claimant filed a claim petition u/S. 166 of the M.V. Act being MACP No.76 of 2001 before the learned Motor Accident Claims Tribunal claiming compensation of Rs.17,00,000/-. Opponents were served with the notice of claim petition. Opponent Nos.1 and 2 did not appear to contest the claim petition, however, opponent No.3 - insurance company of Bus appeared and filed Written Statement at Exh.13 and denied its liability. Page 2 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025
NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined Issues were framed.
* Claimant examined himself at Exh.56 and produced documentary evidence such as FIR, RC Book, Panchnama, Driving license, disability certificate, injury certificate and also examined two witnesses at Exhs.62 and 65 alongwith oral deposition of the Doctor. * After considering the evidence on record and considering the submissions, learned Tribunal partly allowed the claim petition granting compensation of Rs.6,08,500/- with interest @ 9% p.a. from the date of application till realisation.
* Being aggrieved and dissatisfied with the impugned judgment and award - the appellant - original claimant has filed this appeal while Insurance Company filed Cross Objections for reduction of compensation.
4. Learned advocate for the appellant submitted that on the date of accident, claimant was aged about 44 years and was doing labour work. In support of the claim of income, Page 3 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined claimant has examined the Talati cum Mantri of the village Chapredi at Exhibit 65C. The said witness has produced certificates at Exhibit 63C and Exhibit 64C and the claimant of the claim that he was earning Rs.200/- is supported by the said witness. Learned tribunal has considered the income @ Rs.5,000/- but failed to grant any compensation under the head of future prospective income. It is submitted that in the accident, the right leg below knee of claimant was amputated. Resultantly, Doctor has assessed disability at 47.95% - body as whole. Since the right leg below knee is amputated, learned tribunal ought to have considered 100% functional disability and ought to have considered that the claimant now in future will not be able to do the labor work.
5. The claimant in his examination in chief has specifically stated that he was initially admitted in Military Hospital, Bhuj and had taken treatment from 13-2-2001 to 30-3- 2001 as an indoor patient. It is also stated by the claimant in his oral deposition that after the accident he is not able to perform any activities. It is further contended that compensation under the head of pain, Page 4 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined shock and suffering is on lower side. There is no cross- examination by either of the opponents on this aspect. It is submitted that considering the amputation of right leg below knee, learned tribunal ought to have granted compensation for artificial limb which has not been granted. It is also contended that the assessment of income at Rs.5,000/- per month is just and proper. No other submissions are made except the above submissions.
6. Per contra, learned advocate for the respondent -
insurance company has submitted that in absence of any future medical expenses for the artificial limb, claimant is not entitled to any enhancement. It is further submitted that neither claimant nor any medical person has opined that the claimant would be needed artificial limb and, therefore, in absence of any medical evidence, claimant is not entitled to any compensation. Learned advocate for the respondent - insurance company has further contended that if there is no direct evidence with regard to income of the claimant and therefore rates of minimum wages is the yardstick. On the date of accident, Page 5 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined the rates of minimum wages prevailing for unskilled labourer was Rs.2,000/- per month. However, learned tribunal has awarded Rs.5,000/- per month and therefore there is no question of considering future prospective income. It is also contended that rest of the award is on a reasonable side and therefore prayed for rejection of the appeal.
7. I have considered submissions canvassed by learned advocates for the respective parties and perused the Record & Proceedings.
8. It is an undisputed fact which is coming out from the record that because of the vehicular accident, claimant has sustained serious injuries on his part of the body and more particularly his right lower leg below knee has been amputated. The medical papers which are produced on record establishes the fact that claimant was amputated in the hospital for the period mentioned hereinabove and has taken treatment for such injuries. The present is the case where the claimant being a labourer has sustained disability to the extent of 95% - body as a whole as Page 6 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined opined by Dr. Harjeevan M. Adhiya at Exhibit 69C and Exhibit 70. The said doctor has opined that because of the vehicular injuries, the claimant has sustained permanent physical disability of 90% of right lower limb.
9. On perusal of the cross-examination of the same doctor, nothing fruitful could be extracted by opponents and, therefore, considering the nature of injuries, it could be just and proper to assess the functional disability of claimant at 100%. The claimant being an illiterate person and more particularly was doing a work of labourer would not be able to perform the duties which he was doing prior to the accident.
10. So far as income aspect is concerned, learned tribunal has considered oral deposition of 2 witnesses and the documents in support of the oral deposition. Exhibit 65C is the oral deposition of Rajendra Ravishankar Thaker who was performing his duties as a Talati-cum-Mantri in the year 2001 and as per the certificate Exhibit 63C, claimant was doing masonry work and because of the vehicular accident, he would not able to perform his Page 7 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined work. The said witness has also produced a certificate which indicates that in the village and surrounding village, the rates of masonry is prevailing at Rs.200/- per day. The claimant has also examined another witness at Exhibit 62C who is a villager of Chapredi village. He has also stated that claimant was earning Rs.200/- per day as a mason. When ample evidence with regard to income is produced by claimant, rates of minimum wages are not to be looked into and, therefore, learned tribunal has reasonably assessed income of claimant at Rs.5,000/- per month. However, while calculating compensation, learned tribunal has failed to award compensation under the head of future prospective income. Considering the age of claimant who was 44 years of age at the relevant point of time, 25% to be added in the income.
11. Considering the medical evidence on record and the surgeries of amputation being undergone by claimant, the compensation under the head of pain shock and suffering is required to be enhanced from Rs.75,000/- to Rs.1,25,000/-.
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NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined
12. So far as medical expenses are concerned, in absence of any evidence, learned tribunal has considered reasonable amount of Rs.10,000/-.
13. Considering the aforesaid facts, the first appeal of claimant is partly allowed. Cross objections filed by insurance company are dismissed.
14. Considering the fact that the claimant has suffered amputation of right lower limb from knee, claimant is entitled to a lump sum amount of compensation for artificial limb and there is every possibility that the same may require change after a considerable period of time. Claimant is entitled to Rs.1,00,000/- under the head of expenses for artificial limb.
15. In view of the above facts and circumstances, the claimant is entitled to following amount of compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
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NEUTRAL CITATION
C/FA/2711/2012 JUDGMENT DATED: 05/05/2025
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(In Rs.)
1 Loss of Income
Rs.5000
+
Prospective income (25%
of 5000) = Rs.1250)
Rs.5000 + 1250 =
Rs.6250/-
+
Disability 100%
6250*12X14 10,50,000/-
2. Pain, Shock, Suffering 1,25,000/-
3. Medical Expenses 10,000/-
4. Attendant Charges 21,000/-
5. Transportation Charges 5,000/-
6. Actual Loss 60,000/-
7. Special Diet 10,000/-
8. Artificial Limb 1,00,000/-
Total Compensation 13,81,000/-
(-) Awarded Amount 6,08,500/-
Enhanced Amount 7,72,500/-
16. Therefore, total amount of compensation would come to Rs.13,81,000/-, which is required to be awarded with 7.5% p.a. interest from date of claim petition till its realisation, which would meet the ends of justice. It is pertinent to note that learned Tribunal has already awarded Rs.6,08,500/- to the claimant, therefore, Rs.7,72,500/- (Rs.13,81,000-6,08,500) is Page 10 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025 NEUTRAL CITATION C/FA/2711/2012 JUDGMENT DATED: 05/05/2025 undefined ordered to be enhanced with interest @ 7.5% p.a.
17. For the reasons recorded hereinabove, the following order is passed:
[A]. The present appeal is partly allowed accordingly in above terms.
[B]. The Insurance Company is directed to deposit the enhanced amount Rs.7,72,500/- with 7.5% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of Six Weeks from the date of receipt of this order.
[C]. The Tribunal shall disburse the entire awarded amount lying in the FDR and / or with the Tribunal, with accrued interest thereon if any, to the claimant, by `Account Payee Cheque' / RTGS / NEFT', after proper verification and after following due procedure.
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Tribunal shall deduct the Courts fees, if not paid, in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent back to the concerned Tribunal, forthwith.
(D. M. DESAI,J) vk Page 12 of 12 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed May 07 2025 Downloaded on : Thu May 08 00:19:21 IST 2025