Gujarat High Court
Sukhabhai Punambhai Chauhan vs Kanubhai Chinaubhai Ka Patel on 18 April, 2022
Bench: Sandeep N. Bhatt
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3862 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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SUKHABHAI PUNAMBHAI CHAUHAN
Versus
KANUBHAI CHINAUBHAI KA PATEL & 2 other(s)
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/04/2022
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles
Act, 1988, is preferred by the appellant - Insurance Company, being
aggrieved and dissatisfied with the judgment and award dated
31.08.2012 passed by the Motor Accident Claims Tribunal (Aux.),
Nadiad in Motor Accident Claim Petition No. 256 of 2003, by which
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
the Tribunal has awarded compensation of Rs. 1,65,600/- with 7.5%
per annum interest to the claimants, holding Opponents i.e. driver,
owner and insurance company liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 09.08.2002, when the claimant was travelling in Rickshaw
bearing registration No.GJ-7-W-645 and going from Nadiad to Moti
Silod, at that time, opponent No.1 - driver of Tempo bearing
registration No.GJ-7-U-5451 came in full speed with rash and
negligent driving and dashed with the Rickshaw. Due to that, the
claimant received serious injuries i.e. fracture on right leg fibia and
other injuries on the body. Therefore, the claim petition is filed to get
the compensation of Rs. 3 lakhs with interest.
2.2 Notices were served to the opponents i.e. driver, owner and
insurance company. Opponent Nos.1 and 2 have filed their written
statement at Exh.13 and denied all the contentions raised by the
claimant. Opponent No.3 - insurance company has filed its written
statement at Exh. 28 by disputing all the averments made by the
claimant in the claim petition and also disputed the liability.
2.3 The Tribunal has framed the issues. The oral as well as
documentary evidence were led by the rival parties before the
Tribunal. After considering the documentary as well as oral evidence
and submissions made at the bar, the Tribunal has partly allowed the
claim petition by awarding compensation as noted above.
2.4 Being aggrieved and dissatisfied with the impugned judgment
and award passed by the Tribunal, the present appeal is preferred by
insurance company.
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
3. Learned advocate Mr. Paresh M. Darji for the appellant -
claimant has submitted that the Tribunal has awarded compensation
of Rs.1,65,600/- with 7% per annum interest by partly allowing the
claim petition which is highly insufficient. He has pointed out from
the impugned judgment that the Tribunal has considered the income
of Rs.2,000/- p.m. and 30% disability is considered and applied
multiplier of 18 and therefore, under the head of future loss of
income, the Tribunal has calculated Rs.1,29,600/-. He has further
submitted that the injured is aged about 19 years and he was doing
brick and agriculture labour work. His income as per the deposition
of the claimant himself is Rs.3,600/- p.m. as the claimant has stated
that he is earning Rs.120/- per day and the work of brick and
agriculture is such that the work is remained for 30 days in a month.
He has further submitted that by adding 40% prospective income, in
that Rs.3,600/- p.m., the income should be considered on higher side.
He has further submitted that the disability certificate exhibited at
Exh.43 also indicates 63% permanent partial disability and it is also
coming out from the deposition of the claimant as well as Doctor that
right leg of the claimant was shortened by half inch and accordingly,
applying multiplier of 18 looking to the age, the income could be
Rs.6,85,843/- under the head of future loss of income. He has further
pointed out that the actual loss of income is considered for four
months by considering Rs.2,000/- per month income which should be
as per the evidence available on record and looking to the period of
seven months hospitalisation as well as bed rest, after considering
the income of Rs.3,600/- p.m. for seven months, it comes to
Rs.25,200/-. He has also indicated from the impugned judgment that
towards pain, shock and suffering, the Tribunal has awarded
Rs.20,000/- which should be at least Rs.50,000/- as the claimant was
hospitalised for 31 days. The injury over leg and due to that, the
shortening of the leg and disability is also assessed to the extent 63%
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
and therefore, he has submitted that the amount of at least
Rs.50,000/- should be awarded under the head of pain, shock and
suffering. Under the head of attendant charges, transportation and
special diet, Rs.3,000/- is awarded by the Tribunal, which should be
Rs.15,000/- considering the injuries and period of hospitalisation. The
medical bills are produced which is considered by the Tribunal is
Rs.5,000/-, which should be Rs.20,000/- looking to the prolonged
treatment and hospital charges and therefore, he has submitted that
substantial rise can be given to the claimant as compensation in view
of the decisions of Hon'ble Apex Court in the case of :- (i) National
Insurance Company Limited versus Pranay Shethi reported in
(2017) 16 SCC 680 and (ii) Syed Sadiq versus United India
Insurance Co. Ltd. reported in 2014(2) SCC 735. Therefore, he
prays that the appeal is required to be allowed by enhancing at least
about Rs.6,30,083/- as submitted above.
4. Per contra, learned advocate Mr. Vrushank Mehta for learned
advocate Mr. Dakshesh Mehta for the respondent No.3 - Insurance
Company has supported the impugned judgment and award passed
by the Tribunal. Respondent Nos.1 and 2 are served but none
appears on their behalf. Learned advocate Mr. Mehta has submitted
that the income of the claimant cannot be considered more than
Rs.2,000/-, but in any case, if it is considered Rs.2,500/- to Rs.3,000/-,
then the purpose would be served in absence of any documentary
evidence to prove the income of the claimant. He has submitted that
the Tribunal has rightly awarded Rs.8,000/- towards actual loss of
income which is considered for four months and towards pain, shock
and suffering, Rs.20,000/- is just and proper which is awarded by the
Tribunal as the period of hospitalisation is only 31 days. He has
submitted that the medial bills which are produced on record, the
Tribunal has awarded Rs.5,000/- which is also just and proper. The
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
Tribunal has also considered Rs.3,000/- towards attendant charges,
transportation and special diet which is also just and proper. He has
further indicated that the Tribunal has rightly considered the
disability to the extent 30% looking to the admission made by the
Doctor and therefore, there is no requirement with any other aspect.
Accordingly, he prays to dismiss the appeal or to give some
reasonable enhancement to the claimant.
5.1 I have heard the submissions made by learned advocates for
the respective parties. I have perused the record and proceedings of
the Tribunal. I have also gone through the impugned judgment and
award. I have considered the pleadings of the parties. Firstly, the
Tribunal has assessed the disability which is as per the certificate
given by the Doctor - Shantiswaroop Ramjidas, who was examined at
Exh.42, and disability certificate produced at Exh.43. As per his
evidence, the disability of lower limb is 63% assessed by him. It is
revealed in his deposition that he fo9und that the right leg of the
claimant is shortened by half inch and he was walking in limping
manner. It is also reveals in his deposition that he could not bear
weight of his body on both the legs for a longer period. There is
implantation of rod in tibia fibula bone and therefore, the permanent
disability of the right leg can certainly be assessed to the extent 63%
and accordingly, he has assessed the disability to that extent. He has
further submitted that there can be some variation in the assessment
to the extent 5%, but if we perused the disability certificate at Exh.43
and the deposition of the Doctor at Exh.42, I am of the opinion that
the Tribunal has committed an error in assessing the disability by
replacing its own finding by wrongly relying on the judgment in the
case of AMTS versus Hansaben Dabgar which is reflected from the
impugned judgment. As in the present case, the Doctor has
specifically submitted that the disability is about 63% merely one line
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
is suggested in his deposition that whether any chance to consider
the reduction in the assessment of disability and he has admitted that
there is a chance and therefore, the Tribunal has straightway
reduced the disability to the extent 30% which is highly erroneous in
the facts and circumstances of the case as well as oral evidence and
documentary evidence available on record. Therefore, I found that
the Tribunal has committed an error in considering the disability to
the extent 30% which should be 63%. Therefore, I hold that the
disability of the claimant should be considered as 63%.
5.2 Now with regard to the other aspect, if we look at the
deposition of the claimant himself, where he has specifically and
categorically stated that he was working in brick and agriculture
labour work at the time of accident and he was earning Rs.120/- per
day towards labour and therefore, it can be easily presumed that he
could have earned Rs.3,600/- per month and accordingly, by adding
40% prospective income as per the decision of Pranay Shethi
(supra), the income can be considered as Rs.5040/- per month for
future prospects and yearly it would come to Rs.60,480/- by applying
63% permanent partial disability, the amount would come to
Rs.38,102/- and by applying multiplier 18, the total would come to
Rs.6,85,842/- and therefore, I agreement with the submissions made
by learned advocate for the claimant which is based on the decision
of Hon'ble Apex Court in the case of Pranay Shethi (supra) and
Syed Sadiq (supra). Therefore, under the head of future loss of
income, the amount is awarded Rs.6,85,842/-.
5.3 Now, actual loss of income as per the documentary evidence as
well as deposition of the Doctor as well as claimant, the claimant
must have taken rest and spent time after treatment for about 7
months and therefore, considering the monthly income Rs.3,600/-
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
and 7 months treatment, the amount of Rs.25,200/- is require to be
awarded under the head of actual loss of income. Towards pain,
shock and suffering, looking to the judgment of Syed Sadiq (supra)
and other recent decisions, the amount which is awarded for the
period of hospitalisation of 31 days and disability to the extent 63%,
where the shortening of the right leg by about half inch, in my
opinion, Rs.20,000/- which is awarded by the Tribunal is highly
inadequate which is required to be further enhanced by adding
Rs.10,000/-, so total Rs.30,000/- is required to be awarded under the
head of pain, shock and suffering, looking to the facts and
circumstances of the present case. Towards the attendant charge,
transportation and special diet, the Tribunal has awarded Rs.3,000/-
which is inadequate, looking to the age of the claimant - 19 years,
period of hospitalisation for 31 days and disability to the extent 63%
as his right leg was shortened by half inch, continuous attendant is
required and transportation is also required and therefore, the
amount of Rs.15,000/- is required to be awarded under the head of
attendant charges, transportation and special diet.
5.4 The medical expenses which is awarded by the Tribunal is
Rs.5,000/-. The bills are produced by the claimant is Rs.2,706/- only
and he has taken treatment at Civil Hospital, Nadiad. Therefore, I
found that Rs.5,000/- which is awarded by the Tribunal is just and
proper.
5.5 Accordingly, total amount is now required to be awarded to the
claimant is re-calculated as under :
Particulars Amount (Rs.)
Future loss of income 6,85,843/-
Actual loss of income 25,200/-
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
Pain, shock and suffering 30,000/-
Attendance charges, transportation and 15,000/-
special diet
Medical bills 5,000/-
Total... 7,61,043/-
The above amount would be total. The Tribunal has awarded
Rs.1,65,600/-. Therefore, enhancement would be Rs.5,95,443/- which
is required to be awarded additionally by modifying the impugned
judgment and award passed by the Tribunal, which would meet the
ends of justice.
6. For the reasons recorded the above, the following order is
passed.
6.1 The present appeal is partly allowed.
6.2 The impugned judgment and award passed by the Tribunal is
hereby modified to the extent the claimant is entitled to get total
compensation of Rs.7,61,043/- with 7% p.a. interest from the
opponents, holding them liable, jointly and severally.
6.3 The Tribunal has already awarded Rs.1,65,600/- with 7% p.a.
interest vide impugned judgment and award. Therefore, rest of the
amount i.e. 5,95,443/- (enhanced amount) with 7% p.a. interest shall
be payable to the claimant by the opponents, from the date of claim
petition till its realisation, within a period of six weeks from the date
of receipt of the copy of this order.
6.4 The Tribunal shall disburse the entire awarded amount i.e.
1,65,600/- (originally awarded) plus 5,95,443/- (enhanced amount)
with accrued interest thereon if any, to the claimant, by account
C/FA/3862/2012 JUDGMENT DATED: 18/04/2022
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
