Sukhaji Hiraji Thakor vs Driver Of Truck No. Gj-3-U-6257
2021 Latest Caselaw 974 Guj

           C/FA/2597/2009                                       JUDGMENT



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/FIRST APPEAL NO. 2597 of 2009

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                             sd/­
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1      Whether Reporters of Local Papers may be allowed to see              NO
       the judgment ?

2      To be referred to the Reporter or not ?                              NO

3      Whether their Lordships wish to see the fair copy of the             NO
       judgment ?

4      Whether this case involves a substantial question of law as          NO
       to the interpretation of the Constitution of India or any
       order made thereunder ?

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                          SUKHAJI HIRAJI THAKOR
                                  Versus
                 DRIVER OF TRUCK NO. GJ­3­U­6257 & 2 other(s)
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 1,2
SHARMISHTA A DAVE(8735) for the Defendant(s) No. 3
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
                       Date : 21/01/2021
                        ORAL JUDGMENT

1.0. Being aggrieved and dissatisfied with the impugned judgment and award dated 18.09.2008 passed in MACP No.1261 of 2000 by the learned Motor Accident Claims Tribunal, Mehsana (Auxi), the appellant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988.

2.0. The following facts emerge from the record of the appeal. that on 1.1.1999 at about 12 noon the appellant had gone for labour work in truck bearing registration No. GJ­3U­6257, because of rash

C/FA/2597/2009 JUDGMENT

and negligent driving of the driver of the Truck, the Truck collied with the tree on the boundary of the highway, because of which Truck got turtled. The appellant received serious injuries because of the accident. The record indicates that he was admitted for emergency treatment in the hospital of one Dr. Kanubhai and then shifted to Ahmedabad Civil Hospital wherein stayed as indoor patient from 21.5.1999 to 8.6.1999. The record indicates that the appellant had to undergo two major operations and his right leg was required to be amputated. The record also indicates that after his treatment in Civil Hospital, he was admitted in the Gayatri Hospital for amputation of his leg. The appellant who was working as a labourer thereafter filed present claim petition under Section 166 of the Act and claimed compensation of Rs.3 lakh. the oral as well as documentary evidence was adduced by the appellant - claimant and it was asserted that the appellant was earning Rs.2000/­ and more per month. The Tribunal after considering the the evidence on record both oral and documentary evidence, allowed the claim petition by awarding total compensation of Rs.1,69,600/­ with 9% interest from the date of filing of the claim petition till its realization. Being aggrieved and dissatisfied with the impugned judgment and award, the appellant has preferred present appeal.

3.0. Heard Mr. Yogendra Thakore, learned advocate for the appellant and Ms. Dave, learned advocate for the respondent no.3 - Insurance Company. Though served, nobody appears on behalf of the other respondents.

4.0. Mr. Thakore, learned advocate for the appellant has taken to this Court to the evidence adduced before the Tribunal as well as

C/FA/2597/2009 JUDGMENT

impugned judgment and award. Mr. Thakore contended that because of the injuries, the appellant has almost lost his job and his capacity to work as a labourer is completely diminished, because of which he is almost out of job. Mr. Thakore further contended that the appellant has undergone medical treatment for three months in different hospitals and had to pass through such shock and agony even on getting right leg which is important limb of human body was amputated. Mr. Thakore further contended that after the accident and because of the injuries and amputation of leg, the appellant has not been able to restore to the work. Mr. Thakore therefore, contended that the Tribunal has committed an error in awarding meager amount of Rs.50,000/­ under the head of pain, shock and suffering. Mr. Thakore further contended that the Tribunal has also not considered the fact that the appellant is not in a position to restore back his normal work as a labourer and awarded no compensation under the head of future loss. On the aforesaid grounds, Mr. Thakore therefore, contended that appeal be allowed and impugned judgment and award be modified.

5.0. Per contra, Ms. Dave, learned advocate has supported the impugned judgment and award and has submitted that the Tribunal has correctly appreciated the evidence on record. Ms. Dave as regards the injuries and disability as determined by the doctor, contended that as per the record and evidence though it is true that right leg of the appellant has been amputated, the appellant has suffered only 30% disability of the body as a whole and therefore, it is incorrect to say that appellant is not able to work. According to Ms. Dave, on the contrary the appellant has been awarded more compensation what he was earning before accident. On the aforesaid grounds, Ms. Dave

C/FA/2597/2009 JUDGMENT

contended that appeal being merit less, deserves to be dismissed.

6.0. No other and further submissions, contentions and grounds have been raised by the learned advocates for the respective parties.

7.0. I have perused the original record and proceedings of the case as well as appreciated the observations made by the learned Tribunal while considering the degree of injuries received by the appellant. Upon re­appreciation of the evidence on record, more particularly, injuries certificate at Exh.28, it clearly transpires that the appellant has sustained seious injuries in the accident. The appellant could survive, however it is an admitted position that right leg from knee onwards had to be amputated because of serious injuries sustained by the appellant. Having lost such important limb of the human body and having undergone treatment at three different hospital including that of amputation and major surgery for fractures, in opinion of this Court, the Tribunal has awarded lesser amount under the head of pain, shock and suffering. Upon re­appreciation of evidence on record, this Court finds that such amount has to be Rs.75000/­ instead of Rs.50,000/­.

7.1. It is no doubt true that as per the evidence on record, disability of the body as a whole is to the extent of 30%. However, without leg it is not possible for the appellant to work with same ability, skill, zeal and his work as labourer stands badly affected. Considering the evidence as a whole, more particularly, considering the type of injuries sustained by the appellant in order to provide just compensation to the appellant further amount of Rs.25000/­ deserves to be awarded under the head of loss of amenities of life. Accordingly,

C/FA/2597/2009 JUDGMENT

the appellant would be entitled to total compensation as under:

Particulars                                           Amount (Rs)
Future loss of income                                 75,600/­
Pain, Shock and Suffering                             75,000/­
Loss of amenities of life                             25,000/­
Medical Expenses                                      25,000/­
Special Diet,          Attendant   Charges        and 10,000/­
Transportation
Actual loss of income for six months                  9000/­
Total Compensation                                    2,19,600/­

Thus, appellant would be entitled to total compensation of Rs.2,19,600/­. As the Tribunal has awarded a sum of Rs.1,69,600/­, the appellant would be entitled to additional amount of Rs.50,000/­ with 7.5% interest from the date of filing of the Claim Petition till its realization. Accordingly, the appeal is allowed to the aforesaid extent. The impugned judgment and order is modified to the aforesaid extent. The insurance Company shall deposit the additional amount as awarded within a period of three months from the date of receipt of this judgment and order. However, there shall be no order as to costs. Registry is directed to send the original record and proceedings back to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD