Chaus Taushif Alimiya vs Memon Mahmmad Umar Anwarbhai
2021 Latest Caselaw 16901 Guj

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3022 of 2018
With
R/FIRST APPEAL NO. 3234 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA

and
HONOURABLE MR. JUSTICE SAMIR J. DAVE

 

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 ?

 

 

 

 

 

CHAUS TAUSHIF ALIMIYA
Versus
MEMON MAHMMAD UMAR ANWARBHAT & 2 other(s)

Appearance:

MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 3
NOTICE NOT RECD BACK(3) for the Defendant(s) No. 1,2

CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 27/10/2021

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

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C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

1. Feeling aggrieved and dissatisfied by the common judgment and award dated 04.08.2017 passed in MACP No. 122 of 2013 with MACP No. 638 of 2013, both these

appeals are filed by the original claimants.

2. As the appeals arise out of the common judgment and award and relate to the same accident, both the appeals were directed to be heard together and are

disposed of by this common judgment and order.

3. With the consent of learned advocates appearing for the parties, the matter is taken up for its final disposal. The learned counsel appearing for the parties have also produced for consideration of this Court, the copies of the relevant evidence adduced

before the Tribunal.

4. Heard Mr. Yogendra Thakore, learned advocate for the original claimants in both the appeals and Mr. Rahul Dholakia, learned advocate for the respondent- insurance company in both the appeals. As liability is not denied by the insurance company presence of

other respondents is not necessary.

5. We have also perused the the Record and Proceedings.

6. The following facts emerge from the record of

the appeals -

6.1 That the accident took place on 22.08.2012 at about 11.30 AM. It is the case of the appellant of of First Appeal No. 3022 of 2018 that he was

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

travelling in Wagon-R car bearing registration no. GJ-18-AM-7711 from Ahmedabad to Navsari and when the car reached at Vejalpur on national highway no. 8, the driver of the Wagon-R lost his control because of which the car toppled down road side resulting into the accident. In both these cases, the appellants- claimants sustained serious injuries. The claimant of MACP No.122/13 was referred to specialised hospitals viz., Apple Hospital at Surat and then was shifted to Shifa Multispeciality Hospital at Ahmedabad and thereafter to Shalby Hospital at Ahmedabad and in the case of claimant of MACP No. 638/12, he was admitted to Apple Hospital, Surat. Both the claimants were required to undergo extensive treatment as well as surgery because of the fractures

sustained in the accident.

6.2 In First Appeal No. 3022 of 2018, it was the case of the appellant that he was entitled to compensation of Rs.50,00,000/- and in order to buttress the same, the appellant relied upon evidence, both oral and documentary. Similarly, the appellant of First Appeal No.3234 of 2021, also relied upon oral and documentary evidence to prove the claim of Rs. 5,00,000/-. As in both the cases, the appellants have relied upon. plethora of documentary evidences to prove the manner in which the accident has occurred, FIR and panchnama at exhibit 53 and 54 respectively and in both the cases, even oral evidence have been adduced to prove the disability as_ well as the medical treatment

undertaken by the claimants in both the cases. The

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C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

Tribunal after appreciating the evidence on record in both these appeals, determined the income at Rs.2,000/- per month and after giving benefit of prospective income to the tune of 50% as_ the disability was 95% and 70% of the body as a whole respectively and by applying multiplier of 18, awarded Rs.6,15,600/- as compensation for loss of future income in First Appeal No. 3022 of 2018 and Rs.4,53,600/- as compensation under head of loss of future income in First Appeal No.3234 of 2021. Over and above the same, in both the cases, the Tribunal was pleased to award Rs. 10,000/- as compensation under the head of pain, shock and suffering and Rs.10,000/- as transportation charges. In First Appeal No. 3234 of 2021, the Tribunal was pleased to assess the actual loss of income at Rs.18,000/- whereas in First Appeal No. 3022 of 2018, the Tribunal did not grant any amount towards actual loss of income. Having considered the same, in First Appeal No. 3022 of 2018, the Tribunal awarded total compensation of Rs. 10,26,053/- with interest at the rate of 9% p.a. from the date of filing of the claim petition till its realisation. In First Appeal No. 3234 of 2021, the Tribunal awarded a sum of Rs. 5,86,019/- as total compensation with interest at the rate of 9% p.a. from the date of filing of the claim petition till its realisation. Being aggrieved by

the same, the present appeals are filed.

7. Mr. Yogendra Thakore, learned advocate for the appellants contended that the Tribunal has committed

an error in determining the income of the claimants-

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

insured at Rs. 2000/- per month. Mr. Thakore further contended that considering the date of the accident to be 22.08.2012, the income should be assessed at Rs. 3,000/- per month. Mr. Thakore further contended that in First Appeal No. 3022 of 2018, the appellant has sustained serious injuries and has suffered from paraplegia and fracture of spinal cord of D10 and Dll Tibia Fibla and dislocation of Telus. According to Mr. Thakore, even the evidence on record indicates that the appellant is not able to permit his daily routines at his own and would remain dependent for entire life. Mr. Thakore contended that considering the oral evidence on record, the Tribunal has determined the permanent disability of the appellant at 95%. Relying upon the nature of injuries sustained by the appellant, Mr. Thakore contended that the Tribunal has not awarded any amount towards loss of amenities of life and on the contrary, has awarded a meagre amount of Rs. 10,000/- towards pain, shock and suffering, which deserves to be enhanced

appropriately.

8. Mr. Thakore further contended that similarly in First Appeal No. 3234 of 2021, the appellant has sustained serious injuries because of which the appellant was compelled to remove the spleen and kidney and is now permanently disabled to the extent of 70% even according to the Tribunal. Mr. Thakore contended that in this case also the Tribunal has committed an error in determining the income of the appellant at Rs.2000/- per month, which deserves to be enhanced to Rs.3000/- per month. Similarly, it

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C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

was contended by Mr. Thakore that the amount of compensation under the head of pain, shock and suffering also deserves to be enhanced appropriately. On the aforesaid grounds, it was contended that the impugned judgement and award be modified by partly

allowing the appeals as prayed for.

9. Per contra, Mr.Rahul Dholakia, learned advocate appearing for the insurance company has vehemently opposed both the appeals. Mr. Dholakia contended that the appellants in both the appeals have not even remotely proved the income. Mr. Dholakia contended that even the educational qualifications of the appellants does not attract any further increase in the income that too at the age of 20 and 22 years respectively. According to Mr. Dholakia, notional income considered by the Tribunal of Rs.2,000/- is on higher side. Mr. Dholakia further submitted that the Tribunal has rightly appreciated the evidence on record and has awarded adequate compensation under the head of Pain, Shock and Suffering which does not require any modification by this Court in exercise of the appellate jurisdiction. Mr. Dholakia, learned advocate appearing for the respondent insurance company submitted that both the appeals being

meritless, deserves to be dismissed.

10. No other or further submissions have been made

by the learned advocates for the parties.

11. Before considering the submissions made by both

the learned counsels, it is pertinent to note that

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

there was delay of 412 days in preferring First Appeal No. 3234 of 2018 and this Court while condoning the delay, in Civil Application No. 474 of 2019, vide order dated 18.10.2021, has recorded the statement made by learned advocate Mr. Thakore that the appellant shall not claim interest for the period

from 13.03.2018 to 29.01.2019.

12. We have also perused the original Record & Proceedings. It is no doubt true that there is no direct evidence as far as income of appellants in both the appeals are concerned. However, even considering the fact that the accident is of 22.08.2012 and even if bare minimum wages is taken into consideration, the income as determined by the Tribunal is very less. Upon re-appreciation of the said aspect, we deem it fit to determine the income of the appellants in both the cases at Rs.3,000/- per month. Similarly, the other limb of argument put forward by Mr. Thakore also requires consideration. Upon re-appreciation of the evidence, more particularly of the medical papers, right from exhibit 35 to exhibit 67, it transpires that both the appellants had to pass through much agony and have taken excessive treatment at specialised hospital at Surat as well as Ahmedabad. We also find that in First Appeal No. 3022 of 2018, the disability acquired by the appellant is to the tune of 95% of the body as a whole and he is not in a position to perform his daily routines of his own. Similarly, in First Appeal No. 3234 of 2021, the disability acquired by the appellant is to the extent of 70% of

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

the body as a whole. In both the cases, the Tribunal has awarded a very meagre amount under the head of pain, shock and suffering. Upon re-appreciation of the evidence on record, we find that the appellants had to undergo extensive treatment and at a very tender age have sustained such injuries which shall remain as a disability for the whole life. Upon re- appreciation of the evidence on record, we also feel that as the accident occurred at a very tender age of 20 and 22 years, in both cases, while determining the compensation under the head of pain, shock and suffering, the element of loss of amenities of life also has to be taken into consideration and even if composite compensation is to be determined, for pain, shock and suffering as well as loss of amenities of life, in facts of this case in First Appeal No.3022 of 2018, upon re-appreciation of the evidence on record, it can safely be quantified at Rs.1,25,000/- and similarly, the same can be quantified at Rs. 75,000/- in First Appeal No. 3234/21. Rest of the heads do not require any modification in both the

appeals.

13. Having come to the aforesaid conclusion therefore, in First Appeal No. 3022 of 2018, the appellant therein would be entitled to compensation as under -

Rs.3000/- (income per month) + Rs. 1,500/- (50% prospective income ) = Rs.4,500/- X 95% (disability) = Rs. 4,275/- X 12 = Rs. 51,300/- X

18 (multiplier) = Rs. 9,23,400/- (Future Loss of income )

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

Future Loss of income - Rs.9,23,400/- Medical bills - Rs. 90,453/-

Future Medical expenses Rs.3,00,000/- Pain, shock and suffering Rs.1,25,000/- Transportation charges - Rs. 10,000/-

Total compensation Rs.14,48,853/-

In First Appeal No. 3234 of 2021, the appellant

therein would be entitled to compensation as under -

Rs.3000/- (income per month) + Rs. 1,500/- (50% prospective income ) = Rs.4,500/- x 70% (disability) = Rs. 3,150/- X 12 = Rs. 37,800/- X 18 (multiplier) = Rs. 6,80,400/-(Future Loss of

income )

Future Loss of income - Rs.6,80,400/-

Medical bills - Rs. 94,419/-

Pain, shock and suffering - Rs. 75,000/-

Transportation charges - Rs. 10,000/- Actual loss of income - Rs. 18,000/-

Total compensation Rs. 8,77,819/-

14. In First Appeal No. 3022 of 2018, as_ the Tribunal has awarded a sum of Rs. 10,26,053/-, the appellant would be entitled to additional compensation of Rs.4,22,800/- with interest at the rate of 9% p.a. on the additional amount as per this judgment and order with proportionate cost and

interest.

15. In First Appeal No. 3234 of 2021, as_ the

C/FA/3022/2018 JUDGMENT DATED: 27/10/2021

Tribunal has awarded a sum of Rs. 5,86,019/-, the appellant would be entitled to an additional compensation of Rs. 2,91,800/- with 9% interest p.a., except for the period from 13.03.2018 to 29.01.2019

as observed hereinabove.

16. Additional amount in both the cases be deposited by the insurance company as expeditiously as possible, but not later than 8 weeks from the date of receipt of judgment and order in both the appeal. The appeals are thus partly allowed. However, there shall be no order as to costs in these appeals. Registry is directed to remit the record and

proceedings back to the Tribunal forthwith.

(R.M.CHHAYA, J)

(SAMIR J. DAVE,J)

BIJOY B. PILLAI