Azad Salwarsinh Solanki vs S T Corporation
2022 Latest Caselaw 1592 Guj

     C/FA/2347/2013                               JUDGMENT DATED: 11/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2347 of 2013


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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                        AZAD SALWARSINH SOLANKI
                                  Versus
                            S T CORPORATION
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 11/02/2022

                             ORAL JUDGMENT

1. The present First Appeal is filed by the present appellant - original claimant, being aggrieved by and dissatisfied with the judgment and award dated 29.06.2012 passed by the Motor Accident Claims Tribunal (Aux.), Vadodara, in Motor Accident Claim Petition No. 51 of 1997, by which, the Tribunal has awarded compensation of

C/FA/2347/2013 JUDGMENT DATED: 11/02/2022

only Rs.50,000/- with 7.5% interest per annum to the claimant. Therefore, the present appeal is for enhancement of the compensation.

2. Brief facts of the present case are that, on 16.12.1996, while the claimant was cross the road, at that time, ST bus bearing registration No.GRR 8027 came in rash and negligent manner and ran over his foot. Consequently, the claimant sustained crush injuries and admitted to SSG Hospital, where he was operated upon requiring the amputation of left toe. Due to this, the claimant could not be in a position to pursuit his routine work. He has suffered from permanent disability due to the said accident. Therefore, the claimant has filed a claim petition before the Tribunal. The notices were served to the opponent - ST Corporation, therefore, the matter was proceeded ex-parte by the Tribunal and awarded only Rs.50,000/- to the claimant. Hence, the present appeal before this Court by the claimant for enhancement.

3.1 Learned advocate Mr. Hakim for the appellant - claimant has submitted that minor Azad Solanki has filed claim petition to get compensation of Rs.15 lakhs as he has received multiple injuries due to the accident occurred by rash and negligent driving of the ST bus . He has further submitted that he has sustained crush injuries and admitted to SSG Hospital. He has further submitted that during hospitalization, the applicant was operated upon requiring the amputation of left toe.

3.2 He has also submitted that the Tribunal has committed serious error in considering the physical disability of 12% only in absence of contrary evidence. He has submitted the Tribunal ought to have considered the evidence of Dr. Shailesh Parikh who has identified the

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disability of the claimant as 26%. He has pointed out that the Tribunal was confused by relying on the disability certificate issued by Dr. Rajiv Daveswar of SSG Hospital which was issued long ago on 01.04.1998 when the claimant was aged about 12 years old and his bones and musculoskeleton system were still in developmental stage. The disability certificate issued by Dr. Shailesh Parikh was issued on 24.03.2007 when the appellant claimant was aged about 20 years old and his bones were in full shape. He has submitted that because of the injuries sustained in the accident, the bones were completely deformed and turned inwards and the claimant rendered completely disabled. He has submitted that the Tribunal ought to have considered the findings in the certificate of Dr. Shailesh Parikh in which it is shown that the claimant got medial shift along with entire four-foot and is suffering from Equinus deformity. Further, it was opined by the said doctor that there is no dorsiflexion and plantar flexion of the foot and there is a complete ankylosis (adhesion/fusion) of the fingers of the toew and bones of ankle and foot.

3.3 He has submitted that the Tribunal has erred in considering Rs.15,000/- income per annum of the claimant without considering anything further. Therefore, he has prayed to award the amount by considering the disability to the extent of 56% and also considering the amount of future loss of income more than Rs.15,000/- per annum. He has also submitted that the Tribunal has erred in awarding Rs.3,000/- only towards medicines and Rs.2,000/- towards diet, Rs.1,500/- towards transportation and Rs.1,500/- towards attendance charges. In support of his submissions, learned advocate for the claimant has relied on the decision of Hon'ble Apex Court in the case of Mallikarjun versus National Insurance Co. Ltd., reported in (2014) 14 SCC 396. He has submitted that the appeal may be allowed.

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4. Per contra, learned advocate Ms. Vasavdatta Bhatt for the respondent - Gujarat State Road Transport Corporation has submitted that, from the certificate issued by Dr. Daveswar at Exh.30, who is orthopedic doctor at SSG Hospital at the time of accident, the Tribunal has rightly assessed the disability to the extent 12%, though the injuries seem to be very serious one, but the Tribunal has rightly considered the same. She has also submitted that in absence of any material and/or evidence available on record to show the income of the person aged about 12 years, the Tribunal has rightly considered the income of Rs.15,000/- as notional income per year and no interference is required in it. She has submitted that this appeal may be dismissed.

5.1 I have heard learned advocates for the respective parties. I have perused the record and proceedings of the case. I have gone through the impugned judgment and award of the Trial Court. I have considered the submissions made by the rival parties. I found that the disability should be considered as 56% as assessed by Dr.Shailesh Parikh as he has given the details of the injuries in his deposition at Exh.29, which clearly reveals that the appellant has received serious injuries and due to that, he is suffering from permanent disability of 56% and due to the same, his prospects of life also ruined, which cannot be compensated in terms of money. Therefore, I found that the Tribunal has committed an error in awarding very meager amount of Rs.50,000/- only to the claimant.

5.2 Though it is difficult to have an accurate assessment of the compensation in case of children suffering from permanent disability due to vehicular accident, but having regard to the relevant factors, precedent and more particularly considering the decision of the

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Hon'ble Apex Court in the case of Mallikarjun (supra), I am of the view that an appropriate compensation from all other heads should be Rs.3 lakhs if the disability is above 30% to the body as a whole and Rs.4 lakhs if the disability is above 60% to the body as a whole. Therefore, I found that the claimant is having disability of 56% as deposed by Dr. Shailesh Parikh (Exh.29) and in view of the decision of the Hon'ble Apex Court in the case of Mallikarjun (supra), he is entitled to be awarded Rs.4 lakhs towards pain, shock and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience. I also found that it would be just and proper to award Rs.25,000/- towards discomfort, inconvenience and loss of parents' love during the period of hospitalization and It would be also just and proper to award Rs.25,000/- further towards future medical expenses and other expenses for such treatment. Therefore, total Rs.4,50,000/- should be awarded with 7.5% interest per annum from the date of application to the claimant, which would meet the ends of justice by enhancing the amount.

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

6.1 This appeal is partly allowed, with no order as costs.

6.2 The impugned judgment and award passed by the Tribunal is modified to the extent that the amount of Rs.50,000/-, which is already awarded by the Tribunal, is ordered to be enhanced to Rs.4,50,000/- with 7.5% interest per annum.

6.3 Accordingly, additional amount of Rs.4 lakhs is enhanced with 7.5% interest per annum.

6.4     The respondent - Gujarat State Road Transport Corporation is




       C/FA/2347/2013                            JUDGMENT DATED: 11/02/2022

directed to deposit the additional amount of Rs.4 lakhs with 7.5% per annum interest from the date of impugned judgment till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.

6.5 On depositing such amount by the respondent - GSRTC, the Tribunal shall pay the same to the claimant by account payee cheque, after proper verification and after following due procedure.

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

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