Kantaben Alias Kalavatiben ... vs Surajprakash Bularam Khattar
2022 Latest Caselaw 1543 Guj

     C/FA/4753/2019                                   JUDGMENT DATED: 10/02/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO.         4753 of 2019


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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             KANTABEN ALIAS KALAVATIBEN DAYALJI PUJARA
                               Versus
                    SURAJPRAKASH BULARAM KHATTAR
==========================================================
Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 3
NOTICE UNSERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                             Date : 10/02/2022

                        ORAL JUDGMENT

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

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

1. Feeling aggrieved and dissatisfied by the judgment and award dated 09.08.2018 passed by the Motor Accident Claims Tribunal (Aux), Kachchh at Bhuj in MACP No. 239 of 2006, the original claimants have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2. The record and proceedings were called for and as the liability is not denied by the respondent no.2 insurance company, i.e., Oriental Insurance Co. Ltd., the matter was taken up for its final disposal.

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

3.1 That the accident took place on 29.01.2005. It is the case of the claimant that the applicant was proceeding from Gandhidham to Radhanpur in Maruti Car bearing registration no. GJ-12-P-8063 along with her husband Kanaiyalal and son Jaldipa. The said car was being driven by her husband. It is the case of the claimants that about 15.00 hrs., when the car reached the place of accident, a tanker bearing registration HR-38-G-3785 came from behind and dashed with the Maruti Car, on an attempt to overtake the car. All persons including the appellant sitting in the Maruti Car sustained serious injuries. The present claim petition came to be filed under Section 166 of the Act by the appellant and the appellant claimed total compensation of Rs. 17,50,000/-. The appellant- claimant examined Shri Kanaiyalal N. Kotak at exhibit

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

38, Shri Amrutlal Mafatlal Patel at exhibit 42 and Shri Bhaveshbhai Omprakash Vaghela, Jr. Clerk at Taluka Panchayat, Gandhidham at exhibit 86 and also relied upon plethora of evidence such as -

1. Letter dated 28.02.2018 forwarded to the Tribunal by Head Master of Primary School, Gandhidham at exhibit 43

2. Letter dated 31.01.2018 written by the Head Master, Gandhidham Primary School at exhibit 44.

3. Order dated 30.01.2006 issued by District Primary Education Officer at exhibit 45.

4. Pay slip of the petitioner at exhibit 46.

5. Disability certificate issued by Dr. Vijay Sheth at exhibit 55

6. Case papers of Ayer Surgical Hospital and Nursing Home, Gandhidham at exhibit 56.

7. Medical Certificate of Ayer Surgical Hospital and Nursing Home, Gandhidham at exhibit 57

8. Case papers of Dr. Deven S. Zaveri at Exhibit 58

9. Case Papers of Dr. Sanjiv Gupta Hospital, Bhuj at exhibit 60

10. Certificate issued by Dr. Sanjiv Gupta at exhibit 61

11. Case papers of Ayer Surgical Hospital and Nursing Home, Gandhidham at exhibit 62

12. Certificate issued by Dr. J.K. Ayer at exhibit

13. Case papers of Navjivan Nature Cure at exhibit

64.

14. Case papers of Dr. Ajit M. Sowani at exhibits

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

65, 66, 67 and 70.

15. Case paper of Dr. Alpesh K. Pandya at exhibit 68

16. MRI Brain reports at exhibit 69 and 83.

17. Case papers of Dr. Mahesh P. Trivedi, Dr. Deven S. Zaveri, Dr. Jitendra Singh and Dr. Ravindra Lodha, Dr. Nirmal Surya, Dr. R.S. Bhatia, Dr.Basir Ahmadi and Dr. Vijay Sheth at exhibit 71 to 74, 76 to 79 respectively.

18. OPD case papers of BAP Hospital at exhibit 75.

19. Summary of bills and receipts of Rs. 42,052/- at exhibit 80

20. EMG report at exhibit 81

21. Neurological report at exhibit 82

22. Last pay certificate at exhibit 37/29

23. Leave application at exhibit 87 to 89

24. Application to DPEO, District Panchayat, Bhuj at exhibit 90

25. Officer order at exhibit 91

26. Service book at exhibit 92

27. Leave application dated 14.02.2005 at exhibit 93

28. Pan card and pass book of the claimant at exhibit 97 and 98

29. Opinion of the concerned office regarding leave without pay in service of the claimant at exhibit 37/34.

3.2 The Tribunal after appreciating the evidence in form of FIR at exhibit 51 and panchnama of the place of occurrence at exhibit 52, came to the conclusion

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

that the driver of the tanker was sole negligent for the accident. The appellant-original claimant relied upon pay-slip at exhibit 46 and proved that her income was Rs.11,645/-. The Tribunal after added prospective income to the tune of 30% and applied multiplier of 14. Relying upon disability certificate at exhibit 55 and agreement between the parties, i.e., the appellant and the insurance company, the Tribunal assessed the disability of the body as a whole at 17% and awarded compensation of Rs.4,32,370/- as compensation under the head of future loss of income. Over and above the same, the Tribunal also awarded Rs.10,000/- towards pain, shock and suffering, Rs.10,000/- as special diet and thus, while partly allowing the claim petition, awarded a sum of Rs.4,95,400/- with 9% interest from the date of filing of the claim petition till its realisation. Being aggrieved by the same, the present appeal is filed.

4. Heard Mr. Hemal Shah, learned advocate for the appellant, Ms. Karuna Rahevar, learned advocate for respondent no.2 and Mr.Maulik Shelat, learned advocate for respondent no.4. The presence of respondents no.1 and 3 is not essential in deciding the present appeal.

5. Mr. Hemal Shah, learned counsel appearing for the appellant has contended that the Tribunal has awarded less amount towards future loss of income. Mr. Shah contended that after the accident,

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

ultimately, the appellant had to leave her job and opt for VRS. The said facts have not been considered by the Tribunal. According to Mr. Shah, the degree of disability is much more than what is assessed by the Tribunal. It was also contended by Mr. Shah that the Tribunal has awarded meager amount under the head of pain, shock and suffering as well as special diet, attendant and transportation, which deserves to be increased. Mr. Shah also contended that even though it has come on evidence that the appellant who was working as teacher, had to take leave without pay for 201 days, no compensation for actual loss of income is granted. It was also contended that the Tribunal has committed an error in not granting any amount for future loss of amenities. Of the aforesaid grounds, Mr. Shah contended that the impugned judgment and award deserves to be modified by allowing the appeal as prayed for.

6. Ms. Karuna Rahevar, learned advocate appearing for respondent Oriental Insurance Co. Ltd. has opposed this appeal. Ms. Rahevar referring to the disability certificate at exhibit 55 contended that the appellant has consented to the extent of disability, i.e., 17% of the body as a whole and therefore, now cannot be permitted to argue contrary to what is there on evidence. Ms. Rahevar contended that the Tribunal has rightly appreciated the evidence on record and granted compensation under the head of pain, shock and suffering and special diet and no modification is required. Ms. Rahevar also contended that the appellant was a Teacher in taluka

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

panchayat school, i.e., Government school and there is nothing on record to show that there was actual loss of income. According to Ms. Rahevar, considering the age of the appellant to be 45, no loss of amenities deserves to be granted. Ms. Rahevar contended that the appeal being meritless, deserves to be dismissed.

7. Mr. Maulik Shelat, learned advocate appearing for the other insurance company contended that the Tribunal has come to the conclusion that the driver of the tanker involved in the accident was sole negligent and the insurance company of the Maruti Car has been rightly exonerated.

8. No other or further submissions, contentions or grounds have been raised by the learned advocates appearing for the respective parties.

9. As far as the first contention raised by Mr. Shah is concerned, it would be appropriate to refer to the disability certificate at exhibit 55. Firstly, it deserves to be noted that the certificate issued by the said Doctor has not been examined. In addition to that, from the bare reading of the said document at exhibit 55, it reveals that she has received 20% permanent disability because of the head injury. In addition to that, the record indicates, as observed by the Tribunal, the appellant agreed that she had suffered 17% disability of the body as a whole. Having agreed before the Tribunal, the appellant cannot now be permitted to argue to the

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

contrary in the present appeal.

10. Upon re-appreciation of the evidence as a whole and considering the deposition of Shri Kanaiyalal Kotak at exhibit 38, the same indicates that the appellant had to undergo extensive treatment at different hospitals for her neurological problems, which has been caused because of the injuries sustained in the accident. The evidence on record clearly shows that she has taken treatment in Gandhidham Ahmedabad, Rajkot before the experts and neurosurgeon. The record indicates that even ayurvedic treatment was taken by the appellant. Upon re-appreciation of the evidence on record, we are of the opinion that the Tribunal has granted meagre amount of Rs.10,000/- as compensation under the head of pain, shock and suffering, which deserves to be enhanced to Rs.25,000/-. Similarly, the amount awarded under the head of Special diet, attendant and transportation also deserves to be modified to Rs.15,000/-.

11. Upon considering the oral deposition of the Junior Clerk of Taluka Panchayat, Gandhidham at exhibit 86 and service book at exhibit 92, we find that there is a clear-cut endorsement to the effect that for 201 days, the appellant had to take leave without pay. Considering the monthly salary of the appellant, which was Rs. 11,645/-, the appellant would also be entitled to Rs. 80,000/- as Actual Loss of Income.

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

12. It also appears that the injuries sustained by the appellant with 17% permanent disability of the body as a whole has hampered her day to day life. Though the age of the appellant was 45 years on the date of the accident, she would be entitled to compensation under the head of loss of amenities of life as the injuries have precluded the appellant from enjoying the amenities of life. Upon re- appreciating the evidence on record, we deem it fit to quantify it at Rs. 50,000/-.

13. In view of the aforesaid, the appellant would be entitled to compensation as under -

Future Loss of Income - Rs.4,32,400/-

Pain, shock and suffering - Rs. 25,000/-

        Special diet, attendant &
        transportation                                 -          Rs.     15,000/-
        Actual loss of income                          -          Rs.     80,000/-
        Loss of amenities of life                      -          Rs.     50,000/-
        Medical expenses                               -          Rs.     43,000/-
                                                                  -------------
                 Total compensation                               Rs.6,45,400/-
                                                                  =============

14.     Thus,          the   appellant     would       be        entitled       to     total
compensation            of    Rs.   6,45,400/-.             As    the    Tribunal          has

awarded Rs.4,95,400/-, the appellant would be entitled to additional compensation of Rs.1,50,000/- with proportionate cost and interest at the rate of 6% p.a. on such additional compensation from the date of filing of the claim petition till its realisation. The appeal is thus partly allowed. The impugned judgment and award

C/FA/4753/2019 JUDGMENT DATED: 10/02/2022

stands modified to the aforesaid extent. The additional amount of compensation along with proportionate cost and interest as quantified above shall be deposited by the respondents no.1 and 2 within a period of eight weeks from the date of receipt of this judgment and order. Record and proceedings be transmitted to the Tribunal forthwith.

(R.M.CHHAYA,J)

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