New India Assurance Co. Ltd vs Sangeetaben Satishkumar Raval
2022 Latest Caselaw 1201 Guj

      C/FA/3457/2005                                    JUDGMENT DATED: 03/02/2022



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO.          3457 of 2005


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                     NEW INDIA ASSURANCE CO. LTD
                                Versus
             SANGEETABEN SATISHKUMAR RAVAL & 1 other(s)
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Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1
MR SP MAJMUDAR(3456) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                              Date : 03/02/2022

                             ORAL JUDGMENT

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

1. Feeling aggrieved and dissatisfied by the judgment and award dated 01.07.2005 passed by the

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Motor Accident Claims Tribunal (Aux), Sabarkantha at Himmatnagar in MACP No. 848/98, the insurance company has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. At the outset, it deserves to be noted that 6 claim petitions were filed arising out of the same accident before the Tribunal and all the claim petitions were heard together and were disposed of by the common judgment and award, however, the insurance company has preferred appeal only this claim petition.

3. The following facts emerge from the record of the appeal -

3.1 That the accident took place on 14.03.1998 at about 7.00 a.m. It is the case of the original claimants that he was travelling in Mini Bus No. GJ- 9T-1357 from Himmatnagar to Prantij. It is further the case of the original claimant that the bus was being driven in rash and negligent manner. When the mini bus reached near village Sonasan, the left side front wheel of the bus was thrown away due to which the driver of the bus lost control over the steering and the bus turned turtle. The respondent-original claimant along with other co-passengers sustained serious injuries. FIR was lodged with the jurisdictional police station and the present claim petition under Section 166 of the Act was preferred by the respondent-original claimant claiming

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compensation of Rs.21,00,000/-.

3.2 It was the case of the respondent-original claimant that because of the accident, she sustained serious injuries and was given initial treatment at Himmatnagar Civil Hospital and thereafter, transferred to private hospital at Ahmedabad where she stayed as indoor patient for 20 days and operation of her spinal cord was carried out and one steel plate was required to be inserted. It was the case of the original claimant that ultimately, she was discharged on 02.04.1998 and again thereafter, on 22.04.1998, she was required to be admitted as indoor patient in Ahmedabad for 10 days.

3.3 It was the case of the respondent-original claimant that she was drawing salary of Rs.6,000/- for which she has produced documentary evidence. It was the case of the claimant that she was had stayed on unconscious stage and was not able to carry out her daily routine activities like urine and stool and catheter was required to be used for such purpose. The claimant has relied upon her own evidence at exhibit 110 and one Lilaben Rana at exhibit 134, Guddiben Bhil at exhibit 135, Kalusinh Makwana at exhibit 147 and Jagatsinh Jadeja at exhibit 152. The Tribunal after appreciating the evidence on record has observed that because of the accidental injuries, the claimant sustained 100% permanent partial disability of both the lower limbs and the applicant is permanently unable to walk or do any other kind of physical activity without help of any

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person and the wheel chair. Though it has come on record that joined the service as teacher again w.e.f. 13.04.2000, the fact remains that she has acquired permanent disability to the aforesaid extent. The Tribunal after appreciating the evidence on record, observed thus -

"(22)...That considering facts and circumstances of this case, and more particularly, applicant has suffered paraplegia, she has become parmaently dependant on others, and will § suffer permanent inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, and therefore, I think it just and proper to award Rs.2,25,000/~towards permanent ' pain, shock and suffering. Thereafter, applicant has remained bed-ridden for a period of 24 months, hence I think it just and proper to award Rs.24,000/- towards special diet, Rs.15000/- towards conveyance charges, Rs.24,000/-(Rs.1000/- p.m. X 24 months) towards attendance charges for two years, Rs. 24000/- towards charges of maid servants. The applicant is further awarded Rs.1,44,000/- towards actual loss of income for two years, Rs.15,000/- towards tri-cycle expenses. Thereafter, applicant is awarded Rs.1,50,000/- lumpsum towards loss of amenities and enjoyment of life, deprivation of enjoyment of matrimonial life and loss of expectation of life. That applicant has examined Taluka Education Inspector at Exh.147, wherein he has deposed that applicant took 144 days leave as half pay leave, and 615 days leave without pay. That if applicant could have not met with this accident, applicant would have enjoy these much leave in future. Considering this aspects, applicant is entitled to leave salary for 615 days i.e. Rs.1,20,000/- (Rs.6000/- X 20 months). Thus, in all applicant is entitled to get following amount of compensation under various heads:

Rs.03,60,000=00 towards future loss of income Rs.02,25,000=00 towards permanent pain, shock & suffering

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Rs.01,44,000=00 towards actual loss of income Rs.01,50,000=00 towards of loss of amenities and enjoyment of life, deprivation of matrimonial life and loss of expectation of life Rs.01,20,000=00 towards loss of leave salary Rs.00,24,000=00 towards special diet. Rs.00,24,000=00 towards attendance charges. Rs.00,15,000=00 towards conveyance charges. Rs.00,15,000=00 towards tricycle expenses.

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Rs.11,01,000=000 Total compensation under all counts

23. That as Applicant has suffered paraplegia, life will never be the same again, and she has to incur expenses in respect of medical, made-servant charges, cathetarisation charges, wheel chair expenses and professional charges for doctors till her life time, and therefore, I think it just and proper to award at the rate of Rs.1000/- p.m., and therefore, yearly expenses will come to Rs.12,000/-, and considering the age of applicant, I think it just and proper to award multiplier of 15 years, and therefore, applicant is entitled to Rs.1,80,000/- (Rs.12,000/- X 15) towards future expenses, and as the said expenses yet to take place, applicant is not awarded any interest upon it. Thus in all counts, applicant is entitled compensation of Rs.12,81,000/-."

Being aggrieved by the aforesaid, the present appeal is filed.

4. Heard Mr. Ajay Mehta, learned advocate for the appellant and Mr. N.R. Desai, learned advocate for Mr. S.P. Majmudar, learned advocate for respondent- original claimant. Though served, no one appears for the other respondent.

5. Mr. Mehta, learned advocate appearing for the appellant has taken us through the observations made by the Tribunal and has submitted that while awarding compensation of Rs. 12,81,000/-, the Tribunal has

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committed an error whereby the Tribunal has granted compensation under two different heads which are similar in nature. It was contended by Mr. Mehta that the Tribunal has granted Rs.1,44,000/- towards actual loss of income and has also granted Rs.1,20,000/- towards loss of leave salary. Mr. Mehta also pointed out that similarly, the Tribunal has also erred in granting Rs. 24,000/- under the head of attendant charges as well as Rs. 24,000/- towards maid servant charges. On the aforesaid grounds Mr. Mehta contended that the quantum of compensation awarded by the Tribunal deserves to be sliced down. Mr. Mehta, in order to buttress his argument, contending that as such, there is no loss of income as the claimant has herself stated in her oral testimony that she has rejoined the services has relied upon the judgment of the Apex Court in the case of Rajkumar v. Ajay Kumar and Anr., reported in (2011) 1 SCC 343 and has more particularly invited the attention of this Court to the observations made by the Apex Court in paras 13 and 14 of the said judgment. On the aforesaid grounds, it was contended that the appeal be allowed as prayed for.

6. Per contra, Mr. Desai, learned advocate for the respondent-claimant has opposed the appeal. Mr. Desai contended that as such, the respondent-original claimant has also filed cross objection, but the same is not traceable and therefore, keeping the right of the respondent open on the cross-objections that were filed, the appeal deserves to be dismissed.

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7. No other contentions, submissions or grounds have been raised by the learned counsel appearing for the respective parties.

8. We have perused the original record and proceedings.

9. Upon re-appreciation of the evidence on record and as observed by the Tribunal, the original claimant who is a lady has suffered from paraplegia and is not in a position to enjoy normal human life almost for rest of her life. The Tribunal has recorded, which is disputed, that the respondent claimant has sustained permanent partial disability of both the lower limbs and that the original claimant is permanently unable to walk or do any other kind of physical activities without the help of any other person and wheel chair. The degree of injuries that are sustained by the respondent- claimant has made her permanently disabled and even though she may be working as teacher, her whole life has become dependent on some other person or some facility like wheel chair. The accident occurred when the claimant was just 30 years old. Considering the said facts, the paramount consideration of this Court in exercise of appellate jurisdiction is to see whether the claimant has been granted and awarded just and adequate compensation or not. Considering the fact that the spine is damaged and the lower limb is totally without any movement, as can be seen from the record and the observations made by the Tribunal, upon re-appreciation of the evidence as a whole and

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the observations made by the Tribunal, this Court is of the opinion that what has been granted is just and adequate compensation. Even if the argument put forward by Mr. Mehta learned counsel for the appellant is accepted that there is some overlapping about the head under which the compensation is granted, the fact remains that the amount of pain, shock and suffering which the original claimant has undergone would require some consideration while determining whether the total compensation granted is just and adequate or not. In totality of the facts, therefore even if the contention of the learned counsel for the insurance company is accepted, the total compensation awarded is not required to be altered or modified as upon re-appreciation of the evidence as a whole, we hold that the Tribunal has been granted Rs. 12,81,000/- as total compensation, which is just, adequate and proper and no interference is called for. Even considering the ratio laid down by the Apex Court in the case of Rajkumar(supra) is concerned, considering the type of permanent disability, in the case on hand, including loss of amenities and loss of expectation of life and the Tribunal has considered 100% partial disability of lower limb, the actual physical disability, which hampers the daily routine as well as the future life of the respondent-claimant and in such circumstances, we find that the Tribunal has rightly awarded just and adequate compensation and no interference is called for. Even if it is examined from another aspect, we find that the Tribunal has considered only

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multiplier of 5, which can be even higher and under such circumstances, as we have come to the conclusion that the compensation granted is just and adequate, no interference is called for.

10. Before we end, we make it clear that this Court had passed an order on 20.12.2021, pursuant to which Registry has filed a report wherein it is stated that the papers of the cross-objection (st) no.16 of 2006 are not found. As against this, Mr. Ajay Mehta, learned advocate appearing for the insurance company has pointed out that as such, the objections were not removed and under such circumstances, we cannot permit filing of fresh set/papers by the advocate for the claimant. It would be open for the claimant to take appropriate steps as we have reason to believe that the cross-objections, if any filed by the respondent-claimant which also bornes out from the record, may have been dismissed for default for want of non-prosecution and straightway we cannot permit reconstruction of the cross-objection without proper verification. Keeping rights of the respondent claimant open for the same, the present appeal is dismissed. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) BIJOY B. PILLAI