Gujarat High Court
Thakor Parbatji Darsiji vs Gafarbhai Hasambhai on 2 December, 2021
Bench: R.M.Chhaya
C/FA/120/2019 JUDGMENT DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 120 of 2019
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2018
In R/FIRST APPEAL NO. 120 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
==========================================================
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 ?
==========================================================
THAKOR PARBATJI DARSIJI
Versus
GAFARBHAI HASAMBHAI
==========================================================
Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Defendant(s) No. 2
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 5
RULE SERVED(64) for the Defendant(s) No. 1,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 02/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
C/FA/120/2019 JUDGMENT DATED: 02/12/2021
Order in Civil Application
This civil application is filed by the appellant - original
claimant praying for amendment in First Appeal No.120 of
2019.
The learned advocate Mr. Kaash Thakkar, appearing for the
claimant submitted that he does not press this application and
therefore, the same is disposed of as not pressed.
Order in First Appeal
1. Feeling aggrieved and dissatisfied by the impugned
judgement and award dated 29.1.2018 passed by the Motor
Accident Claims Tribunal (Auxi.), Patan in MACP No.296/2011,
the appellant - original claimant has preferred present appeal
under Section 173 of the Motor Vehicles Act, 1988 ("the Act"
for short).
2. The following facts emerge from the record of this
appeal:
2.1. That the appellant was traveling in S.T. Bus No.GJ-18-V-
3471 as passenger from Jetpur to Patan on 13.8.2011. On that
day around 21.30 O'clock at night, one truck bearing
registration No.GJ-3-T-3522 was standing on the road without
any side signals or reflectors. Therefore when the bus took
turn, the conductor side of the bus dashed with the stationary
truck. Because of the said accident, the appellant received
grievous injury. He was taken to Patan Civil Hospital and
thereafter for further treatment he was transferred to Civil
C/FA/120/2019 JUDGMENT DATED: 02/12/2021
Hospital Mehsana. He was thereafter taken to Lions Hospital,
Mehsana and then to Janta Hospital, Patan and during the
treatment his right leg was amputated. The Tribunal has
assessed the permanent disability of body as a whole to the
extent of 75% which has not been disputed by the parties,
therefore it is not necessary to go into disability aspect by this
Court.
3. We have heard Mr. Kaash Thakkar, learned advocate for
the appellant - original claimant, Mr. H.S. Munshaw, learned
advocate for respondent No. 2 - GSRTC, Mr. Rathin Raval,
learned advocate for respondent No.5 - Insurance Company.
Since the liability has not been disputed by respondent Nos. 2
and 5, presence of respondent Nos. 1, 3 and 4 is not required.
4. It is the case of the appellant that the Tribunal has erred
in assessing the income of the claimant at Rs.4,000/- p.m. Mr.
Kaash Thakkar, learned advocate for the appellant has
contended that the appellant was doing agricultural labour
work and earning Rs.8000/- p.m. He further contended that
considering the degree of injuries and resultant right leg
amputation, prospective income ought to have been granted by
the Tribunal. It is further contended that at the time of
accident the claimant was 25 years old and doing labour work.
On account of his leg amputation he would not in a position
to perform the work in the same manner in which he was
earlier doing and therefore, the amount assessed by the
Tribunal under the head pain, shock and suffering at
Rs.50,000/- is less. He also contended that future medical
expenses has not been granted though entitled for.
Considering the permanent disability to the extent of 75% body
C/FA/120/2019 JUDGMENT DATED: 02/12/2021
as a whole even attendant charges of Rs.5,000/- is also
meager. He, therefore, prayed to allow the appeal and to
grant compensation accordingly.
5. Per contra, Mr. H.S. Munshaw, learned advocate for
respondent No. 2 - GSRTC and Mr. Rathin Raval, learned
advocate for respondent No.5 - Insurance Company have
supported the impugned judgment and award and submitted
that the Tribunal has passed the award based on oral and
documentary evidence on record. There is no error in the
award and accordingly, he requested to dismiss the appeal.
6. No other and further submissions/contentions have been
made by the learned advocates for the respective parties.
7. We have considered the submission made by the learned
advocates for the respective parties and also considered the
photocopies of the relevant documents produced by the
appellant. The record and proceedings have also been
considered.
8. Upon re-appreciation of evidence we are of the
considered opinion that the Tribunal has correctly assessed the
income of the claimant at Rs.4000/- per month. However,
considering the nature of injury resulted into permanent
disability, the appellant would be entitled to prospective
income. As the claimant was of 25 years at the time of
accident, considering the decision of the Hon'ble Apex Court in
the case of National Insurance Company Limited v. Pranay
Sethi and Ors. reported in (2017) 16 SCC 689 , the prospective
income to the extent of 40% would be appropriate. It is quite
C/FA/120/2019 JUDGMENT DATED: 02/12/2021
evident that the claimant has passed through mental agony on
account of surgeries as well as medical treatment. Upon re-
appreciation of evidence, we deemed it appropriate to
enhance the amount of Rs. 25000/- for pain, shock and
sufferings and therefore total compensation of Rs. 75,000/- is
awarded under head of pain, shock and suffering. Even the
attendant charges deserves to be enhance and accordingly, the
same is enhanced to Rs.25,000/-. The facts indicate that the
appellant would require some further medical treatment as
well, considering the same we deem it appropriate to grant
Rs.50,000/- as future medical expenses which the Tribunal had
not granted. However, it is made clear that on the future
medical expenses of Rs.50,000/- no interest will be paid by the
respondent - Insurance Company/GSRTC.
9. Having come to the aforesaid conclusion, therefore, the
appellant would be entitled to total compensation as under:
"Rs.4,000 p.m. (income) + Rs.1600/- (40% prospective income)
= Rs.5600/- x 12 (pa) = Rs. 67,200/- x 18 (multiplier as the
age of the deceased was 25 years = Rs.12,09,600/- x 75%
disability =Rs.9,07,200/-".
Particulars Amount (Rs.)
Future loss of income Rs.9,07,200/-
Actual loss of income Rs.32,000/-
Pain, Shock and Sufferings Rs.75,000/-
Attendant Charges Rs.25,000/-
Future Medical expenses Rs.50,000/-
Medical Bills Rs.38,000/-
Total 11,27,200/-
C/FA/120/2019 JUDGMENT DATED: 02/12/2021
10. Thus, the appellant - original claimant would be entitled
to total compensation of Rs.11,28,200. As the Tribunal has
awarded an amount of Rs.7,65,000/-, the respondent -
Insurance Company/GSRTC shall deposit the additional amount
of (Rs.11,27,200- - Rs.7,65,000/-) = Rs.3,62,200/-. As no
interest is awarded on the amount of Rs.50,000/- for future
medical expenses, the respondent - Insurance Company/GSRTC
shall deposit the principal amount (Rs.3,62,200/-) along with
interest @ 7.5.% on the amount of Rs.3,12,200/- and
proportionate costs from date of filing of the claim petition till
its realization with the Tribunal within a period of 8 weeks
from the receipt of the order. The impugned judgement and
award passed by the Tribunal is modified to the aforesaid
extent. Appeal is thus, partly allowed. Registry is directed to
transmit back the Record and Proceedings of the case to the
concerned Tribunal forthwith. However, there shall be no order
as to costs.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
