Shivkumar Chhotalal Gupta vs Pravinbhai Dudhabhai Parmar
2021 Latest Caselaw 3070 Guj

         C/FA/841/2010                                           JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO.              841 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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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 ?

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                   SHIVKUMAR CHHOTALAL GUPTA
                             Versus
            PRAVINBHAI DUDHABHAI PARMAR & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                             Date : 23/02/2021

                                  ORAL JUDGMENT

1. Being aggrieved and dissatisfied by the judgment and award dated 26.04.2007 passed by the Motor Accident Claims Tribunal (Aux), Ahmedabad in MACP No. 306 of 2001, the original claimant has

C/FA/841/2010 JUDGMENT

preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The following facts emerge from the record of the appeal -

2.1 That the accident took place on 27.08.2000 between 8.00 PM to 8.15 PM. It is the case of the appellant­claimant that while the appellant was travelling in Maruti Van bearing registration No. GJ­1­HE­6167 along with his wife and child and was passing through S.P. Stadium Cross Roads, a TATA 407 (mini truck) being driven by respondent no.1 in rash and negligent manner, dashed with the Maruti Van. It is the case of the appellant that appellant sustained serious injuries on his right hand and was admitted to private hospital named Divya Darshan Hospital, Paldi. It is further the case of the appellant that he took discharge from the said hospital and was taken to Palanpur where again he was admitted in the hospital for 20 days. It further transpires from the record that even thereafter, the appellant was admitted to the hospital of Dr. Kirit Shah on 21.09.2000 for bone grafting regarding injury on right shoulder and plate came to be inserted and ultimately, after bone

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marrow, the appellant was discharged on 30.09.2000. As per the appellant, even thereafter, he took treatment from Dr.Shrikant Gupta. It is the case of the appellant that again he was operated on the right hand and bone marrow and bone grafting was made and ultimately, the appellant was discharged from hospital on 28.11.2000. The appellant filed the present claim petition under section 166 of the Act and claimed compensation of Rs. 20 lakhs. It was the case of the appellant that he was 21 years old on the date of the accident and was working as a Notary Public. Various contentions were raised before the Tribunal. The appellant was examined at exhibit 35. Dr.P.M. Vekaria was examined at exhibit 43. Over and above the same, the appellant adduced documentary evidence in form of disability certificate at exhibit 44, copy of income tax return at exhibit 50 to 53, FIR at exhibit 58, panchnama of the place of incident at exhibit 58, injury certificate at exhibit 60, medical bills at exhibit 61. The Tribunal after appreciating the evidence on record, came to the conclusion that the appellant had sustained permanent disability of 32% and considered his income based upon the income tax return at Rs.

     8000/­ per month.                         The Tribunal also came





     C/FA/841/2010                                                JUDGMENT

to the conclusion that drivers of both the vehicle, i.e., Maruti Van and Tata 407, both are liable for the accident and assessed the liability in the ratio of 40:60 and while partly allowing the claim petition, awarded Rs. 4,60,800/­, as compensation under the head of future loss of income, Rs.32,000/­ under the head of actual loss of income, Rs. 15,000/­ towards pain, shock and suffering, Rs.4,000/­ for special diet, Rs. 3,000/­ for attendant charges, Rs.5,000/­ towards transportation and Rs. 70,000/­ for the medicines and medical treatment and thus, awarded total compensation of Rs. 5,89,800/­ and after deducting 40% contributory negligence on the part of the appellant, as driver of the Maruti Van, awarded compensation of Rs. 3,53,900/­ with 8% interest from the date of filing of the claim petition till its realization. Being aggrieved by the same, the present appeal is filed.

3. Heard Mr. Hiren Modi, learned advocate for the appellant and Mr. Vibhuti Nanavati, learned advocate for respondent no.3 insurance company. Though served, no one appears for the other respondents.

4. Mr. Hiren Modi, learned advocate appearing for the appellant has taken this Court through the

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evidence as well as impugned award and has contended that the Tribunal has committed an error in coming to the conclusion that the driver of both the vehicles are contributorily negligent for the accident and has wrongly assessed such negligence of the driver of the Maruti Van to the extent of 40%. According to Mr. Modi, as per the evidence, the driver of TATA 407 was solely negligent because of which the accident has occurred. Mr. Modi further contended that even though the evidence is produced on record to prove that extensive medical treatment was required to be taken by the appellant, the Tribunal has erred in granting only a meagre amount of Rs. 15,000/­ under the head of pain, shock and suffering and Rs. 4,000 towards Special diet. According to Mr. Modi, the said sum deserves to be enhanced. Mr. Modi also further contended that the Tribunal has also committed an error in assessing permanent disability of the body as a whole. On the aforesaid grounds, it was therefore contended by Mr. Modi that the appeal deserves to be allowed by modifying the award and according to Mr. Modi, the appellant is entitled to total compensation as prayed for in the claim petition.

5. Per contra, Mr. Vibhuti Nanavati has opposed this appeal. Mr. Nanavati contended that the Tribunal has rightly appreciated the evidence on

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record and after considering the manner in which the accident has taken place, has rightly come to the conclusion that the appellant was negligent to the extent of 40% whereas the driver of the TATA 407 was negligent to the extent of 60%. Mr. Nanavati further contended that the other amount awarded under the head of pain, shock and suffering and special diet is based upon the evidence led by the appellant, which does not require any modification. Mr. Nanavati therefore contended that the appeal being meritless, deserves to be dismissed.

6. No other or further submissions have been made by the learned advocates appearing for the respective parties.

7. I have perused the original record and proceedings.

8. Upon re­appreciating of the evidence on record, it is no doubt true that the appellant sustained serious injuries on his right hand. Even before the Tribunal, it was the case of the appellant that the permanent disability of the body as a whole was to the extent of 41%. The Tribunal having appreciated the evidence of the Doctor Vekariya at exhibit 43 and considering the cross­examination of the said Doctor, has assessed permanent disability of the body as whole to 32%. Upon re­appreciating of such piece of evidence and the admissions made by the

C/FA/841/2010 JUDGMENT

said Doctor in his cross­examination, as rightly held by the Tribunal, even if a liberal approach is taken, the permanent disability of the body as a whole assessed by the Tribunal at 32% is true and correct interpretation of the evidence on record and the same does not require any modification. Even upon re­appreciation of the other medical evidence on record at exhibit 34 and disability certificate at exhibit 35, the permanent disability of the body as a whole assessed by the Tribunal at 32% is correctly assessed. It also deserves to be noted that there is no dispute as regards income as the income assessed by the Tribunal is based upon the income tax returns of the appellant at exhibit 50 to 53. Upon re­appreciation of the evidence on record and more particularly the medical evidence, it clearly transpires that the appellant had to undergo extensive and long treatment and had to undergo multiple operations. The record indicates that the appellant had to take treatment with four different hospitals and had to undergo bone marrow twice. Upon re­appreciation of the evidence on record, this Court is of the opinion that the Tribunal has granted very less amount as compensation under the head of pain, shock and suffering. It deserves to be enhanced appropriately. Similarly, the Tribunal has also awarded lesser amount under the head of Special Diet, attendant charges and

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transportation, which deserves to be suitably enhanced. Considering the panchnama at exhibit 58, it clearly appears that it was a head on collision and that both the vehicles were damaged from right side. Looking to the manner in which the accident has occurred, the Tribunal has rightly come to the conclusion that the drivers of both the vehicles were negligent because of which the accident has occurred. However, considering the fact that TATA 407 is a bigger vehicle, upon re­appreciation of the evidence, the contributory negligence of both the drivers, i.e., the driver of the TATA 407 and the appellant as driver of Maruti Van is re­ assessed to the extent of 70:30 instead of 60:40. Having come to the aforesaid conclusion therefore, the Appellant would be entitled to compensation as under­

Rs.8,000/­ (income per month) X 32% disability = Rs. 2,560,/­ X 12 = Rs.30,720/­

As the appellant was 42 years old on the date of the accident, the appropriate multiplier would be 14 and thus, the appellant would be entitled to a sum of Rs. 4,30,080/­ under the head of future loss of income. The appellant would be entitled to an amount of Rs. 32,000/­ as actual loss of income. Over and above the same, the appellant would be entitled to Rs. 50,000/­ under the head of pain, shock and suffering and

C/FA/841/2010 JUDGMENT

Rs. 20,000/­ under the head of special diet, attendant and transportation charges. Keeping medical expenses as it is, the appellant would be entitled to Rs. 70,000 towards medical expenses and thus, the appellant would be entitled to total compensation of Rs.6,02,080/­. Deducting 30% towards negligence of the appellant, i.e., Rs. 1,80,624/­, the appellant would be entitled to net compensation of Rs. 4,21,456/­. As the Tribunal has awarded Rs. 3,53,900/­, the appellant would be entitled to additional compensation of Rs. 67,560/­, which is rounded at Rs. 67,600/­ with 8% interest from the date of the claim petition till its realization and proportionate cost.

9. The appeal is thus partly allowed. The impugned judgment and award is modified to the aforesaid extent. The respondent insurance company shall deposit the additional amount as awarded by this Court along with proportionate interest and cost with the Tribunal within a period of three months from the date of the receipt of this judgment and order. However, there shall be no order as to costs. Record and Proceedings be transmitted back to the Tribunal forthwith.

(R.M.CHHAYA, J) BIJOY B. PILLAI