Gujarat High Court

Meenaben Kalpeshbhai Doshi vs Bhikhubhai Dajibhai Jadeja on 14 December, 2022

Bench: Nirzar S. Desai

     C/FA/174/2020                                   ORDER DATED: 14/12/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 174 of 2020
                                With
          CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
                  In R/FIRST APPEAL NO. 174 of 2020
==========================================================
                       MEENABEN KALPESHBHAI DOSHI
                                 Versus
                        BHIKHUBHAI DAJIBHAI JADEJA
==========================================================
Appearance:
MR DHARMESH D NANAVATY(2396) for the Appellant(s) No. 1
MR ASIT B JOSHI(2567) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Defendant(s) No. 1
MR KV GADHIA(319) for the Defendant(s) No. 3
MR RAVI B SHAH(5346) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 14/12/2022

                                ORAL ORDER

1. By way of this appeal, the appellant has

challenged the judgment and award dated 3.6.2019

passed by the M.A.C.T. (Main), Junagadh in Motor

Accident Claim Petition No.116 of 2009 to the extent

that as against the claim of the appellant to pay a

sum of Rs.40,20,000/- towards the compensation, the

Tribunal has awarded only a sum of Rs.8,57,602/- with

interest @ 8% per annum.

C/FA/174/2020 ORDER DATED: 14/12/2022

2. It is the case of the appellant that on

2.1.2009, at about 3.15 p.m. the appellant was going

from Junagadh to Jamnagar by sitting in Mahasagar

Travels Bus bearing No.GJ-11 T-1702 and when he

reached Makhiyara - Jalansar road, at that time, the

luxury bus turned turtle and due to that, the

appellant got severe injuries on hand and different

parts of the body. It is the case of the appellant

that respondent No.1 i.e. the driver of the bus was

driving the bus in full speed and in rash and

negligent manner endangering human life and caused

the accident. As a result, the appellant along with

other passengers sitting inside the bus got injured

in the said accident and the appellant was operated

for injuries. The accident had occurred due to rash

and negligent driving of the opponent No.1.

2.1 It is the case of the appellant that due to

rash and negligent driving of the respondent No.1,

the accident occurred and the applicant sustained

grievous injuries and the appellant suffered severe

pain, shock and agony and incurred expenses on

C/FA/174/2020 ORDER DATED: 14/12/2022

different heads. It is further the case of the

appellant that at the time of accident, the appellant

was of 32 years, hale and hearty and was earning Rs.2

lakhs p.a. by doing DTP job work, however, on account

of the accident, the appellant has lost her source of

income and sustained permanent disability and she

suffered economic loss in future. Therefore, on

different counts, the appellant has claimed

compensation of Rs.40,20,000/- from the opponents

jointly and severally. However, the Tribunal has

awarded a sum of Rs.8,57,602/-. Hence, the present

appeal.

3. Mr.Dharmesh Nanavati, learned advocate for

the appellant submitted that the actual disability as

per the certificate issued by Dr. Avinash Maru was

80%. However, the endorsement for no objection was

made by learned advocate for the appellant before the

Tribunal to consider the disability of the appellant

at 40%, and therefore, the Tribunal considered the

disability @ 40% and assessed the future economic

loss of the appellant. It is the case of the

C/FA/174/2020 ORDER DATED: 14/12/2022

appellant that as per the note book of Disability -

Determination and Evaluation by Henry H. Kessler,

which is relied upon while determining the claim

about disability, in the aforesaid notebook, it is

categorically stated that, "A lower limb has a value

of 50 percent of the body as a whole (the arm,

slightly more)", and therefore, when the appellant

suffered part of the body on account of the aforesaid

accident, the same will have some more effect and

though the appellant restricted her claim to the tune

of 40%, while considering the future loss of income,

the same is required to be treated as 50% and

accordingly, the amount was required to be determined

and the amount awarded by the Tribunal was required

to be enhanced accordingly.

4. Mr.Gadhia, learned advocate for the respondent

insurance company vehemently opposed the appeal and

submitted that when the appellant himself has

restricted the disability to the extent of 40%, now

the appellant cannot ask for considering the

disability at higher percentage. He further submitted

C/FA/174/2020 ORDER DATED: 14/12/2022

that note book of Disability - Determination and

Evaluation by Henry H. Kessler is believed by the

Tribunal for considering the amount of disability.

However, considering the fact that the appellant

himself has given endorsement to consider the

disability at 40%, the award passed by the Tribunal

cannot be faulted with.

5. Heard learned advocates for the parties and

perused the record of the case. It is true that the

disability of the appellant is assessed @ 40% as per

the endorsement given by the learned advocate for the

appellant. However, what is required to be seen is

actual effect of the aforesaid disability for future

loss of income. When the note book of Disability -

Determination and Evaluation by Henry H. Kessler is

believed, the same is required to be considered for

the purpose of considering the future loss of income

as well. If the disability is on the upper limb, the

effect would be slightly more, and therefore, the

disability is required to be considered @ 50%,

instead of 40%, and therefore, the future income of

C/FA/174/2020 ORDER DATED: 14/12/2022

the appellant is required to be considered taking

into consideration the disability of 50%.

6. As far as the actual loss is concerned, the

Tribunal has noted that average income of the present

appellant was considered at Rs.1,05,055/- per annum

and based upon that the Tribunal came to the

conclusion that considering the total future amount,

income would be Rs.42,000/- and odd. However, this

Court is of the view that the disability is

considered @ 50% even the future loss is also

required to be re-calculated. Therefore, the total

amount of compensation awarded by the Tribunal is

also required to be changed accordingly. As far as

the future loss of income is concerned, in view of

the above discussion, the appellant is entitled for

future loss of income at Rs.8,40,448/-; pain, shock

and suffering, medical bills, special diet, this

Court is of the view that the Tribunal has not

committed any error while granting the aforesaid

amount. In the award towards the actual loss of

income, the Tribunal has awarded Rs.12,000/- for four

C/FA/174/2020 ORDER DATED: 14/12/2022

months, which seems to be arithmetic mistake for the

reason that when average income is assessed at

Rs.1,05,055/- actual income of the appellant and 4

months one-third of the same comes to Rs.35,000/-,

and therefore, the aforesaid award is modified by

considering Rs.35,000/- towards the actual loss of

income. Hence, the total compensation would be as

under:

         Income per month                                 Rs.1,05,055/-
         50% Disability                                    - Rs.52,528/-
         Income per month                                 = Rs.52,528/-
         Multiplier                                                      x 16
         Future loss of income                         = Rs.8,40,448/-
         Pain, shock and suffering                        + Rs.20,000/-
         Medical expenses                              + Rs.1,33,250/-
         Special diet, transportation and                 + Rs.20,000/-
         attendant charges
         Actual loss of income                            + Rs.35,018/-
         Total compensation                           = Rs.10,48,716/-

7. Thus, the appellant - original claimant would be

entitled to total compensation of Rs.10,48,716/-. As

the Tribunal has awarded compensation of

Rs.8,57,602/-, the appellant - original claimant

would be entitled to additional amount of

C/FA/174/2020 ORDER DATED: 14/12/2022

Rs.1,91,114/- with interest at the rate of 6% per

annum from the date of petition till its realization

from the insurance company. The insurance company

shall deposit the additional amount with interest as

provided in this order within a period of 12 weeks

from the date of receipt of this order.