Ismailsha Kasamsha Fakir ... vs Jamalkha Kesarkha Pathan
2022 Latest Caselaw 3890 Guj

     C/FA/2532/2008                                  JUDGMENT DATED: 01/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 2532 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. 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 ?

==========================================================
                      ISMAILSHA KASAMSHA FAKIR ALIASDIWAN
                                     Versus
                      JAMALKHA KESARKHA PATHAN & 2 other(s)
==========================================================
Appearance:
MR MTM HAKIM(1190) for the Appellant - Claimant
MR ADIL R MIRZA(2488) for the Defendant(s) No. 3 - Insurance Company
RULE UNSERVED for the Defendant(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 01/04/2022

                                ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by appellant - insurance company, being aggrieved and dissatisfied with the judgment and award dated 09.01.2002 passed by the Motor Accident Claims Tribunal (Main), Vadodara in Motor Accident Claim Petition No.1138 of 1988, by

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

which the Tribunal has awarded Rs.76,120/- with 9% per annum interest to the claimant.

2. Brief facts of the case are as under :

2.1 On 05.03.1988 at about 12:00 noon, after completing the greasing work, when he was standing on left side kachcha road, at that time, one Matador Tempo bearing registration No.GQB 4705 came in rash and negligent manner and dashed from behind the claimant. As a result, the claimant thrown off the road because of the impact of the tempo and sustained grievous injuries. After causing the accident, the driver of the tempo fled away from the place of occurrence. An FIR came to be lodged before the concerned police station. The claimant has, therefore, filed a claim petition before the Tribunal for getting compensation.

2.2 Notices were served to the opponents i.e. driver, owner and insurance company of the Matador Tempo. The insurance company has filed its written statement at Exh.26 and denied the averments made by the claimant. The Tribunal has framed the issues. The oral as well as documentary evidence have been led before the Tribunal. After considering the submissions made by the rival parties, the Tribunal has passed the impugned judgment and award by awarding compensation as noted above.

2.3 Hence, this appeal is by the appellant - claimant for enhancement of the claim before this Court.

3. Learned advocate Mr. Hakim for the appellant - claimant has submitted that the Tribunal has committed an error in awarding only Rs.76,120/- as compensation to the claimants, where it is a clear case

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

of the claimant before the Tribunal that the claimant in his deposition at Exh.27 has stated about his injuries where he has stated that he got serious injuries on right eyebrow, on nose and on leaps. There were about ten steaches on the right eyebrow. He got fracture injury on Thigh and due to said injury, his urinary system was blocked and had to apply catheter for passing urine. He remained in the hospital as an indoor patient initially for 17 days and thereafter again for 5 days and even after that, he could not get proper recovery. The said catheter was removed after three months. He has pointed out from the deposition of the Doctor where Dr.Vivek Agrawal has supported the case of the claimant in his deposition at Exh.42 about the difficulties in urination and the Doctor has also opined that the claimant may have problem in his sexual life and also may have permanent problem in urination. Therefore, he has submitted that the Tribunal has committed an error in awarding compensation of Rs.76,120/- though the claimant has claimed for Rs.2 lakhs. Therefore, he preferred the present appeal for enhancement of Rs.1 lakh. He has submitted that atleast Rs.1 lakh may be awarded in view of the above facts. Therefore, under the had of loss of amenities and prospects of marriage life, atleast Rs.1 lakh is required to be awarded.

3.2 Learned advocate for the claimant has relied on the decision of Hon'ble Apex Court in the case of G.Ravindranath alias R. Chowdary versus E.Srinivas reported in (2013) 12 SCC 455, more particularly Paras : 19 and 23, which are as under :

"19. PW-2 - Dr. P.V.L.N. Murthy, Professor of Urology and H.O.D. of Urogoly, NIMS gave detailed description of the nature of injuries and the treatment given to the appellant in the following words:

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

"On 1-11-2000 the patient was admitted on emergency ward under the care of emergency Medical department or the poetics ward/Urology. An initial emergency treatment was given and discharged on 3.11.2000 with advise to review in urology O.P and Ortho O.P after three weeks. By the time he was admitted here he was with a SPC through which Urine was collected by a bag/ he was unable to pass urine via natural passage. The patient was admitted back on 27.1.2001 as per advise and we discharged him on 31-1-2001. During his admission he was treated for infection and fever (U.T.L.) and special X-ray procedures (R.G.U 85 M.C.U) were conducted to evaluate the stricture. The length of the stricture evaluate the strictures. The length of the stricture was 3 to 4 centimeters and urinary passage was blocked completely. By history of the patient it was know that he was suffering from erectile dysfunction because of injury (Trauma).

He was admitted on 21-3-2001 and operated for the Traumatic stricture Urethra, he underwent transpubic urithroplasty. The stricture length was 3 to 4 centimeters and there was extensive callous which was removed.

Postoperatively patient had wound infection which was treated. After removing the Unwarily Catheter / Cystoscopy was performed and adhesions and granucalation tissue were removed and catheter reinstated. He was discharged on 21.4.2001 to review back in urology O.P. after one week for cathetral removal.

                             After cathetral removal patient passed






 C/FA/2532/2008                                               JUDGMENT DATED: 01/04/2022



                 urine    and    readmitted           on   16-5-2001     for     the

management of recurrence of the stricture. He underwent VIU (Visual Internal Urithrotonomy) endoscopic operation for the recurrence of tine stricture. He was discharged on 23-5-2001 for the removal of the Urothril cathotic. He was called back to O.P. and catheter was removed, and he passed urine satisfactorily.

He was re-admitted on 11-6-2001 for narrowing of the urinary stream die to recurrence of the stricture. He underwent endoscope report operation (VIU) and advised him to perform self dilatation. As the nature of the injury is severe the results of the primary operation (Urithroplast) was explained to the patient required multiple operations and continuous fallow at periodical intervals because the initial trauma was severe and the results of operation will not be satisfactory in this type of injuries. Patient developed erectile dysfunction following trauma. This could be due to impairment in blood supply or nerve supply to the penis.

Ext. P.-5 which was already marked is the out patient record shows about the regular and periodical visit and follow-up. Whenever a procedure was undertaken he was advised to take medicines for two to three weeks.Most of the visits he was accompanied with his father.

Totally there are 13 X-rays which were already marked as Ex. P-10 are pertaining to pelvic fracture and traumatic stricture of the Urethra. Some of the X-rays are related to post operation condition. How I see already marked Ex. P-ll which

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

is the outpatient card dt. 11-12-2002 containing past operative follow-up after one year of self dilatation and erectile disfunction. Patient was passed urine satisfactorily with self dilatation. His urine flow rate was peak flow 31.3 average flow 16.3. He complained absence of nocturnal erections since the accident there was minimum tuniscence after sexual arosal. Regiscan and Papavarin (PIPE) were advised to evaluate erectile dysfunction at an endrology centre.

xxx xxx xxx For erectile disfunction he might retire if he is willing prosthetic penile implantation which is an artificial erection. It is an expensive operation and fraught with complications."

In cross-examination, nothing could be elicited by Dr.P.V.L.N.Murthy which may cast doubt on his testimony regarding the nature of injuries and treatment given to the appellant by NIMS.

23. In our view, the appellant is entitled to Rs.2,20,000/- towards the expenses incurred in the treatment including hospitalization charges, mess and lodging charges, transportation, etc. For future medical expenses including hospitalization, medicines, attendant charges, etc., the appellant is entitled to Rs.6 lakhs. For pain, suffering and trauma, the appellant is entitled to a sum of Rs.3 lakhs. For loss of amenities and prospects of marriage, the appellant is entitled to Rs.4 lakhs. For loss of expectation of life and loss of future earning, the appellant is entitled to a sum of Rs.5 lakhs."

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

3.3 He has submitted that in view of above, the Hon'ble Apex Court has awarded Rs.4 lakhs towards loss of amenities and prospects of marriage life, but since he has prayed for Rs.1 lakh, therefore, atleast, that amount is required to be enhanced and the appeal may be allowed accordingly. He has submitted that though the respondents No.1 and 2 who are driver and owner, are not appearing in the present appeal and for that purpose, he has relied on the observations made our High Court in First Appeal No.1019 of 1993 where our High Court has observed that when the owner was not served on the given address, then also, the liability of insurance company remains as award passed by the Tribunal is against all the respondents and the insurance company who is the insurer of the insured, is liable to indemnify the amount of award and accordingly, he has prayed that in the present matter, though the owner and driver had not appeared, the appeal can be allowed by directing the insurance company to pay the compensation.

4. Per contra, learned advocate Mr. Adil Mirza for the respondent No.3 - insurance company has submitted that the contentions raised by the appellant is not proper. The impugned judgment and award passed by the Tribunal is well reasoned judgment and no interference is called for by this Court. He has submitted that the Tribunal has rightly considered the amount under the various heads and no such amount for the loss of amenities and prospects of marriage life can be awarded in absence of any cogent and convincing evidence. Therefore, he has prayed that the appeal is required to be dismissed. He has further prayed that in any case, if the Court finds that enhancement of any amount is required, then the rate of interest should be awarded lesser than the interest which is awarded by the Tribunal i.e. 9% per annum. Accordingly, he prays that appropriate order may be passed.

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

5. I have heard learned advocates for the respective parties. I have gone through the impugned award. I have perused the record and proceedings of the Tribunal. I have also considered the pleadings of the parties. In the identical case, the Hon'ble Apex Court has considered for awarding the amount towards loss of amenities and prospects of marriage life to the tune of Rs.4 lakhs since in the present appeal, the claimant has restricted his appeal to Rs.1 lakhs, therefore, it would be proper to enhance Rs.1 lakh under the head of loss of amenities and prospects of marriage life, more particularly, considering the deposition of independent witness - Doctor, which is recorded by the Tribunal at Exh.42, where the Doctor has specifically admitted that the claimant will face difficulty in his sexual life and also have permanent problem in urination. Therefore, to award just and proper compensation, it is required to be enhanced the amount under the head of loss of amenities and prospects of marriage life which could meet the ends of justice, which should be Rs.1 lakh in the peculiar facts and circumstances of the case. Accordingly, total amount of award would be Rs.1,76,120/-.

5.2 The claimant could have received more amount - Rs.4 lakhs considering the above decision of Hon'ble Apex Court, however, since the claimant has restricted his claim upto Rs.1 lakh, therefore, I do not think it fit to reduce the rate of interest which is awarded by the Tribunal and further, awarding interest is discretionary under Section 171 of the Motor Vehicles Act.

5.3 In view of above, I found no infirmity in awarding interest in the impugned judgment and award passed by the Tribunal. The findings given by the Tribunal are just and proper qua interest. Therefore, additional amount of Rs.1 lakh is required to be enhanced

C/FA/2532/2008 JUDGMENT DATED: 01/04/2022

with 9% interest per annum, from the date of claim petition, which would meet the ends of justice.

6. In view of above, the following order is passed.

6.1     The present appeal is partly allowed.


6.2     The impugned award is modified to the extent Rs.1,76,120/-

with 9% interest per annum i.e. Rs.1 lakh is enhanced in addition to the awarded amount of Rs.76,120/-.

6.3 The respondent No.3 - insurance company is directed to deposit the enhanced amount of Rs.1 lakh with 9% interest per annum from the date of claim petition till its realisation, before the concerned Tribunal, within a period of six weeks from today.

6.4 The Tribunal is directed to disburse the entire awarded amount lying in the FDR and/or lying with the Tribunal, including the above amount, to the claimant, by account payee cheque, after proper verification and after following due procedure.

6.5 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE