Gujarat High Court
Ruchitaben Arjunbhai Dubal vs Padmadevi Premsinh on 31 March, 2022
Bench: Hemant M. Prachchhak
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3210 of 2021
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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RUCHITABEN ARJUNBHAI DUBAL
Versus
PADMADEVI PREMSINH
================================================================
Appearance:
MR AMIT JOSHI FOR MR.AKASH J PANDYA(7206) for the Appellant
for the Defendant(s) No. 1,5
MR GANESH R GOYAL(10052) for the Defendant(s) No. 3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
VINAY B VISHEN(7425) for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 31/03/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
1. Feeling aggrieved and dissatisfied by the impugned
judgment and award dated 30.11.2018 passed by the Motor
Accident Claims Tribunal (Aux.), Ahmedabad city (hereinafter
referred to as "the Tribunal") in M.A.C.P. No.583 of 2012, the
original claimant has preferred this appeal under Section 173 of
the Motor Vehicles Act, 1988 (hereinafter referred to as "the
Act").
2. Heard Mr.Amit Joshi, learned counsel for Mr.Akash Pandya,
learned counsel appearing for the appellant, Mr.Vibhuti Nanavati,
learned counsel appearing for the respondent - Insurance
Company and Mr.Ganesh Goyal, learned counsel for Mr.Vinay
Vishen, learned counsel appearing for respondents no.3 and 4.
As the liability is not challenged, the presence of respondent
no.1 is not necessary for deciding this appeal.
3. As the short question about quantum arises in this appeal,
with the consent of learned counsel appearing for the respective
parties, the appeal is taken up for final disposal forthwith.
4. Learned counsel for the parties have taken this Court to the
factual matrix arising out of this appeal and taken us to the
relevant evidence on record more particularly the medical
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
evidence, the treatment taken by the appellant as well as oral
examination of Maulikbhai Pankajbhai Patwa at Exhibit 61 and
Dr.Upadhyay at Exhibit 79.
5. Following facts emerge from the record of the appeal.
5.1 The accident occurred on 09.09.2012 in Ahmedabad city in
Sabarmati area. It is the case of the claimant that the claimant
was travelling in Innova car bearing registration no.GJ-1-KP-5234
and when the said car reached at the scene of occurrence, a
luxury bus bearing registration No.RJ-16-PA-1494, which was
driven by original opponent no.1 in full speed and in rash and
negligent manner, dashed in front side of the Innova car, as a
result of which, the claimant sustained serious injury. It is the
case of the claimant that she sustained fractures on her both
legs, clavicle bone and right side pelvis. The claim petition came
to be filed under Section 166 of the Act by the claimant claiming
compensation of Rs.50,00,000/-. The Tribunal, after appreciating
the oral as well as documentary evidence assessed permanent
disability at 30% body as a whole and considering other evidence
and income of the claimant, awarded compensation under the
following heads along with interest at the rate of 7% from the
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
date of filing of the claim petition till its realization.
Rs.0,15,000 Pain, shock and suffering
Rs.2,59,200 Future economic loss
Rs.6,32,000 Medical expenses
Rs. 7,500 Special diet transportation and attendance
charges.
Rs. 12,000 Actual loss for three months
----------------
Rs.9,25,700
=======
Being aggrieved and dissatisfied by the same, the present
appeal is filed.
6. Mr.Amit Joshi, learned counsel appearing for the appellant
has contended that the Tribunal has committed an error in
considering the disability to the tune of 30% of the body as a
whole. He has further contended that the Tribunal has
committed an error in granting only meager amount of
Rs.15,000/- as compensation under the head of pain, shock and
suffering and Rs.7,500/- as compensation under the head of
special diet, transportation and attendance charges, which
should be enhanced considerably. He has contended that the
appellant was only 26 years of old on the date of accident and
because of the injury sustained she could not travel to U.K. for
almost one year and and she was out of job and because of
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
disability acquired, she has lost amenities of life. Mr.Joshi,
learned counsel went upto the extent of contending that because
of the injury sustained, the appellant could not become a
mother. On the aforesaid ground, Mr.Joshi, learned counsel has
contended that the impugned judgment and award deserves to
be modified and the appeal be allowed as prayed for.
7. Per contra, Mr.Vibhuti Nanavati, learned counsel appearing
for the respondent - Insurance Company and Mr.Ganesh Goyal,
learned counsel for Mr.Vinay Vishen, learned counsel appearing
for respondents no.3 and 4 have supported the impugned
judgment and award and have contended that the Tribunal has
correctly appreciated the evidence on record and has granted
just compensation and no case for interference in exercise of
appellate jurisdiction in this appeal is made out by this Court and
the appeal being meritless deserves to be dismissed.
8. No other contentions, submissions and/or grounds are
raised by learned counsel appearing for the parties.
9. Considering the aspects of the disability, it would be
appropriate to note that in order to prove the disability, the
appellant has relied upon the oral evidence of Dr.Upadhyay at
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
Exhibit 79 and certificate issued by Krishna Physiotherapy and
Pain Rehabilitation Clinic at Exhibit 82. Upon re-appreciation of
the evidence on record and summary issued by the Apollo
Hospital at Exhibit 48, it clearly borne out that the appellant
sustained close communited fracture of right neck femur with
segmental fracture shaft femur left with vertical instability
fracture right hemi pelvis with right clavicle fracture and CLW
forehead. Even considering the oral evidence of Dr.Upadhyay at
Exhibit 79, who examined the appellant, it has come on record
that the condition of the appellant is quiet good and movement
is also good. It is no doubt true that the appellant has sustained
injury, but because of appropriate treatment, the fracture was
found healed up. The said doctor has opined before the Tribunal
that the fracture of clavicle bone is well united and the appellant
has no complaints or has not taken any treatment for such
complaint. The Tribunal, while considering the fact that the
appellant has undergone total hip replacement, has, on correct
appreciation of evidence on record, determined the disability of
the body as a whole at 30%. Even if the evidence as a whole on
these aspects is considered and the fact that even the doctor of
UCO, who treated the appellant, has not opined that the
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
disability acquired by the appellant is that of serious in nature,
upon re-appreciation of the evidence on record, we find that the
doctor, who examined the appellant, has opined that there is
disability to the tune of 42% of the body as a whole. Even
applying caliper principle of disability, we do not find any error in
the findings arrived at by the Tribunal that the appellant has
acquired 30% permanent disability of the body as a whole.
10. However, upon re-appreciation of the evidence on record,
we find that almost for one year or more, the treatment was
continued and the appellant has to undergo treatment in India as
well as U.K. and considering the magnitude of the injury
sustained, the Tribunal has awarded very less amount of
compensation under the head of pain, shock and suffering which
we determine at Rs.1,00,000/-. Similarly, the Tribunal has also
awarded meager amount of compensation under the head of
special diet transportation and attendance charges which we
quantify at Rs.50,000/-. We also find that the appellant was just
26 years old on the date of accident and that too tender age,
even acquired 30% disability of body as a whole, the appellant is
deprived of amenities of life as a whole. Upon re-appreciation of
the evidence on record, we are of the opinion that the Tribunal
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
has committed an error in not granting any compensation under
the said head. Upon re-appreciation of the evidence as a whole,
we deem it fit to quantify the compensation under the head of
loss of amenities of life including the future life of the appellant
at Rs.1,25,000/-.
11. Having come to the aforesaid conclusion, the appellant
would be entitled to total compensation as under:-
Rs. 1,00,000 Pain, shock and suffering
Rs. 2,59,200 Future economic loss
Rs. 6,32,000 Medical expenses
Rs. 50,000 Special diet transportation and attendance
charges.
Rs. 12,000 Actual loss for three months
Rs. 1,25,000 Loss of amenities of life and future life
-------------------
Rs.11,78,200
========
Accordingly, the appellant would be entitled to
Rs.2,52,500/- (Rs.11,78,200 - Rs.9,25,700) as additional
compensation along with interest at the rate of 7% from the date
of claim petition till its realization. The Insurance Company shall
deposit additional amount of compensation with interest before
the Tribunal within a period of eight weeks from the date of
receipt of the certified copy of this order.
C/FA/3210/2021 JUDGMENT DATED: 31/03/2022
12. Thus, the appeal is partly allowed. The impugned judgment
and award stands modified to the aforesaid extent only. There
shall be no order as to costs. Registry is directed to transmit
back the record and proceedings to the concerned Tribunal
forthwith.
(R.M.CHHAYA,J)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
