Gujarat High Court
Pravinsinh Nathubha Jhala vs Imtiyaz Abdulbhai Gafarbhai Dal on 28 July, 2022
Bench: Gita Gopi
C/FA/2498/2022 ORDER DATED: 28/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2498 of 2022
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PRAVINSINH NATHUBHA JHALA
Versus
IMTIYAZ ABDULBHAI GAFARBHAI DAL
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Appearance:
MR JAYESH A DAVE(253) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/07/2022
ORAL ORDER
1. Since the issue is limited in this appeal,
therefore, with the consent of the learned Advocates
appearing on record, the Appeal is taken up for final
hearing today.
2. The present appeal has been preferred by the
appellant against the judgment and award dated
28.08.2019 passed by the Motor Accident Claims Tribunal
(Aux.) Jamnagar in M.A.C.P. No.194/2011.
3. The facts in brief, as could be culled out from
the judgment and award is that, the accident took place
C/FA/2498/2022 ORDER DATED: 28/07/2022
on 06.10.2010 at about 1:30 p.m., when the appellant was
going on his motorcycle with his wife and son to Hapa
Railway Station and when they reached near Gulabnagar,
at that time, the driver of the motorcycle No.GJ-10-AR-
1593 came from the opposite side in rash and negligent
manner and dashed with the motorcycle of the appellant;
as a result, the appellant sustained severe injuries and
taken to the G.G. Hospital, Jamnagar and after primary
treatment shifted to the hospital of Dr. Ruparelia.
4. Mr. Jayesh A.Dave, learned advocate for the
appellant submits that the appellant as a claimant
challenges the judgment and award passed by the Motor
Accident Claims Tribunal (Aux.) Jamnagar on 28.08.2019
in M.A.C.P. No.194/2011, on the ground that, very
nominal amount has been granted as compensation, while
the claimant had sustained 21% disability, and the
learned Tribunal has accepted the said disability for body
as a whole; however, he submits that the learned Tribunal
has not considered the functional disability on the ground
that the claimant is working in railway as a Guard and the
accidental disability has not hampered his earning
C/FA/2498/2022 ORDER DATED: 28/07/2022
capacity, or in any manner has affected his duty to serve,
therefore, the Tribunal considered that the claimant has
not suffered any actual or future income loss.
4.1 Mr. Dave submits that the learned Tribunal
relied on the judgment of Raj Kumar Vs. Ajay Kumar,
reported in (2011) 1 SCC 343, but has not granted just
and reasonable amount under the head of loss of
amenities of the life. Mr. Dave states that the injury is on
the face, which would affect his day-to-day dealings with
the people and in his job, and thus submitted that the
learned Tribunal ought to have considered the fact to
assess the loss of amenities and enjoyment of life.
4.2 Mr. Dave further submitted that the learned
Tribunal though had considered the physical disability, on
consent of the parties, as 21%, but has failed to take into
consideration the factum of pain, shock and suffering in
proportion to the injuries sustained, and also has not
granted the reasonable amount under the head of
Attendant, Transportation & Diet charges.
C/FA/2498/2022 ORDER DATED: 28/07/2022
5. Countering the same, Mr. Maulik J.Shelat,
learned advocate for the respondent no.3 - National
Insurance Company Ltd. submitted that, though the
physical disability is assessed on the consent of both the
sides as 21%, but the same has not affected the claimant
seriously to have considered any loss towards amenities
to the life or enjoyment of life. Mr. Shelat submitted that
the injury though would be considered as being proved,
but no specific evidence has been given as to how such
injury would affect day-to-day life of the claimant.
6. Countering the same, Mr. Dave submitted that
the claimant has sustained injury on the face and not in a
position to open his eyes. To that, Mr. Shelat submitted
that nothing has come on record to support such
contention.
7. The claimant is continued in his job as a
Railway Guard and as per his own admission during the
cross-examination, he admitted that he was not declared
unfit for his job due to the accidental injuries; he has
continued his service as a guard and rather he got rise
C/FA/2498/2022 ORDER DATED: 28/07/2022
and increment, to that extent, the claimant has failed to
prove disability, which they could consider as functional
disability affecting his job. Further, nothing has been
observed in the judgment, nor anything shown by way of
evidence that the claimant has suffered any privation of
organ.
8. However, considering the fact that the claimant
has 21% permanent disability, this Court deem it
appropriate to enhance the amount granted under the
head of loss of amenities and enjoyment during life time.
Taking into consideration the age of the claimant as 45
years at the time of accident, this Court considers that
further Rs.19,000/- is required to be granted in
proportion to the injuries and the length of treatment,
and further keeping in mind 21% physical permanent
disability, this Court considers to grant Rs.11,000/- more
under the head of pain, shock and suffering. The length
and extent of treatment would have added to the cost for
transportation and diet and attendant charges; thus,
Court considers to increase amount of Rs.5,000/- under
the head of attendant, transportation and diet. Thus, in
C/FA/2498/2022 ORDER DATED: 28/07/2022
total, the amount of Rs.35,000/- (Rs.19,000/- +
Rs.11,000/- + Rs.5,000/-) is enhanced compensation
money, which the claimant would be entitled to receive,
over and above the amount granted by the Court below.
However, it is directed that the enhanced amount of
Rs.35,000/- would be deposited @ 7.5% from the date of
claim petition till realization, within eight weeks from the
date of receipt of the writ of this order.
9. In the result, the appeal is allowed in the
aforesaid terms. The judgment and award dated
28.08.2019 passed by the Motor Accident Claims Tribunal
(Aux.) Jamnagar in M.A.C.P. No.194/2011 stands modified
to the above extent. Record & Proceedings, if any, be
sent back to the concerned tribunal forthwith.
(GITA GOPI, J.)
Pankaj
