Gujarat High Court
Dilipbhai Chandrakantbhai Dani vs Mahavirsingh Gulabsingh Rathore on 2 May, 2022
Bench: Hemant M. Prachchhak
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4661 of 2018
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2022
In R/FIRST APPEAL NO. 4661 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
DILIPBHAI CHANDRAKANTBHAI DANI
Versus
MAHAVIRSINGH GULABSINGH RATHORE
==============================================================
Appearance:
MR KARTIKEY P RAWAL(720) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 2
==============================================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 02/05/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
ORDER IN CA 1 OF 2022
As the appeal is heard and disposed of by order of even
dated, present Civil Application would not survive. The same
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
stands disposed of.
ORDER IN FA
1.0. Feeling aggrieved and dissatisfied with the impugned
judgment and award dated 27.3.2008 passed by the Motor
Accident Claims Tribunal (Auxi), City Civil Court, Ahmedabad in
MACP No.65 of 2008, the appellant- original claimant has
preferred present appeal under Section 173 of the Motor Vehicles
Act, 1988 (hereinafter referred to as the "Act").
2.0. Following facts emerge from the record of this appeal:
2.1. That the accident took place on 14.09.2007. It is the case
of the appellant that he and his wife were traveling in the Bus of
Shrinath from Shreenathji to Ahmedabad. It is further the case
of the appellant that when said bus reached Udaipur at 3.15 am,
some other persons and appellant got down and at that moment,
a bus bearing registration no. RJ-27-PA-4688 being driven in
rash and negligent manner, dashed with the appellant, because
of which, the appellant sustained multiple fracture injuries. An
FIR was lodged with the jurisdictional police station at Exh.38.
Present claim petition was filed under Section 166 of the Act and
claimed compensation of Rs.25 lakhs. It was the case of the
present appellant that he was working as Senior Manager in the
Bank of India and was aged 55 years. The appellant examined
himself at Exh.34, one Jayantibhai from Bank of India at Exh.46
and Dr. Vijay Sheth at Exh.51. The appellant also relied upon
the following documentary evidence:
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
Particulars Exh.No.
Original certificate issued by the Bank of 48
India for salary paid
Original disability certificate issued by Dr. 52
Vijay Sheth
Discharge Summary issued by Sterling 55
Hospital
Discharge summary issued by Sterling 56
Hospital
Original Leave Certificate of Wife of applicant 57
Original statement of Bank of India of wife of 58
applicant
Original medical bills of Rs.6,61,821.94 59 to 133
Certificate issued by the Bank of India for 139
leave certificate
The Tribunal after appreciating the evidence on record,
came to the conclusion that the driver of bus was solely
negligent and upon appreciation of the evidence on record and
pay slip at Exh.47 and 48, determined the income of the
appellant at Rs.32233/-. The Tribunal appreciating the medical
evidence on record, more particularly, deposition of Dr. Vijay
Sheth at Exh.51 and discharge summary issued by Sterling
Hospital at Exh.55 as well as determined the permanent
disability body as a whole to the extent of 18% and applied
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
multiple of 9 and deducted 1/4th of the income, awarded a sum
of Rs.1,56,700/- as compensation under the head of loss of
amenities. Over and above the same, the Tribunal awarded a
sum of Rs.32,233/- towards actual loss of income, Rs.15,000/-
towards pain, shock and suffering, Rs.15000/- towards diet and
transportation, Rs.33,805/- towards attendance and Rs.
Rs.65,700/- towards medical expenses and thus, awarded total
compensation of Rs.3,18,438/- to the appellant with 8% interest
from the date of application till its realization.
Feeling aggrieved and dissatisfied with the impugned
judgment and award, present appeal is filed by the appellant
claimant.
3.0. Heard Mr. Kartikey Raval, learned advocate for the
appellant and Mr. Tanmay Karia, learned advocate for the
respondent Insurance Company of vehicle involved in the
accident and have perused the original record and proceedings of
the case.
4.0. Mr. Raval, learned advocate for the appellant contended
that the the Tribunal has committed gross error in deducting
1/4th of the income without any reason whatsoever. Mr. Raval
contended that the upon appreciation of the evidence on record,
more particularly, pay slip at Exhs. 47 & 48 the income of the
appellant was Rs.36053/-, out of which, an amount of
Rs.3820/- was deducted as tax and therefore, income of the
appellant would come to Rs.32,233/-. Mr. Raval also disputed
the disability of 18%. According to Mr. Raval, considering the
deposition of Dr. Vijay Sheth at Exh.51, disability should have
been assessed at 23%. Mr. Raval also contended that as the age
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
of the appellant was 55 yeas on the date of accident, he would
have also be entitled to prospective income to the extent of 15%.
Mr. Raval further contended that the Tribunal has awarded a
meager amount of Rs.15000/- under the head of Pain, shock
and suffering and Rs.15000/- under the head of special diet and
transportation, which deserves to be enhanced properly. Mr.
Raval also further contended that the Tribunal has erred in
granting lesser amount of medical expenses even though bill of
Rs.1,05,510/- were produced on record. On the aforesaid
ground, Mr. Raval contended that the appeal be allowed as
prayed and impugned judgment and award be modified.
5.0. Per contra, Mr. Tanmay Karia, learned advocate for the
Insurance Company has opposed this appeal. Mr. Karia
contended that the income to be considered as per gross income
minus tax and therefore, dictum figure arrived at by the Tribunal
is proper. Mr. Karia further contended that it is an admitted
position that the disability is only to the extent of 18% and the
Tribunal has rightly deducted 23% and granted less disability by
5% then what was certified by the Doctor. Mr. Karia further
contended that it is an admitted position that because of the
injuries sustained, the appellant does not suffer any functional
disability and in fact had continued to work in the bank even
after accident. Mr. Karia further contended that the amount
awarded under the Pain, shock and suffering and special diet
and transportation is as per the evidence on record and same
does not require any modification. Mr. Karia referring to the
observations made by the Tribunal as regard medical expenses is
concerned, the Tribunal pointed that after appreciating the
evidence of the bills at Exh.59 to 133, the Tribunal has awarded
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
remaining amount then the amount which was reimbursed by
the Bank to the appellant as per the policy of the Bank. Mr.
Karia submitted that the difference of said amount is reimbursed
by the Bank, the same cannot be again granted by the Tribunal
by way reimbursed of bill expenses. On the aforesaid grounds,
Mr. Karia submitted that appeal being meritless, deserves to be
dismissed.
6.0. No other and further submissions, contentions and
grounds have been raised by the learned advocates for the
respective parties.
7.0. Upon hearing the learned counsel for the respective parties
and on perusal of the original record and proceedings, following
questions arise for consideration of this Court.
1. Whether the Tribunal has committed any error in
deducting 1/4th from the dictum figure of income arrived at
based upon evidence on record or not ?
2. Whether the Tribunal has committed any error in
determining the permanent disability at 18% of the body as a
whole ?
3. Whether the Tribunal has committed any error in not
granting any prospective income ?
4. Whether the appellant claimant is entitled to further
amount under the pain, shock and suffering and special diet and
transportation or not ?
5. Whether the Tribunal has committed any error in granting
medical reimbursement only to the tune of Rs.65,700/- or not ?
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
8.0. As far as income is concerned, it is an admitted position
that the appellant was working as Manager with Bank of India.
The pay slip at Exh. 47 & 48 clearly established the fact that
gross salary of the appellant at Rs.36053/- and out of said
amount, amount of Rs.3820/- was deducted towards tax and
therefore, the income of the deceased can be determined at
Rs.32,233/-, which deserves to be rounded off at Rs.32,250/-.
As far as possibility is concerned, upon re-appreciation of the
oral evidence of Dr. Vijay Sheth at Exh.52 and disability
certificate at Exh.52, the Tribunal has committed no error in
determining the permanent disability of the body as a whole at
18%. It is also a matter of fact that the doctors have opined that
the appellant does not suffer any functional disability and in
view of the same, the appellant would not be entitled to any
prospective income. The record indicates that in fact appellant
had continued to work in the bank even after accident. Upon re-
appreciation of the evidence, as the appellant was 55 years of
age on the date of accident, the appellant wuold be entitled to
appropriate multiplier of 11 instead of 9 as granted by the
Tribunal. Having come to the aforesaid conclusion the appellant
would be entitled compensation under the head of loss of
amenities as under:
Rs.32,250/- per month (income) X 18 ( functional
disability)= 5805/- X 12 (yearly)= 69,660/- X11
(Multiplier as the age of the deceased was 55 years)
= Rs.7,66,260/-
9.0. Upon re-appreciation of the evidence on record, extensive
treatment which the appellant had to take, we are of the opinion
that the Tribunal has committed an error in granting meager
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
amount of Rs.15000/- towards pain, shock and suffering and
Rs.15000/- towards diet and transportation. Upon re-
appreciation of the evidence as a whole, we quantified at
Rs.50,000/- towards pain, shock and suffering and Rs.25000/-
towards special diet and transportation. As far medical bills is
concerned, it is true that the appellant had produced same by
way of Exh. 59 to 101, however Tribunal has correctly deducted
an amount which was already reimbursed by the Bank as per its
policy to the appellant and has awarded remaining amount of
Rs.65,700/-. The questions raised in the present appeal for
determination are answered accordingly. Having come to the
aforesaid conclusion, the appellant would be entitled to
compensation as under :
Particulars Amount (Rs.)
Loss of amenities 7,66,260/-
Actual loss of income 32,233/-
Pain, Shock and suffering a 50000/-
Special Diet, and transportation. 25000/-
Attendance 33805/-
Medical expenses 65,700/-
Total Compensation 9,72,998/-
10. Thus, the appellant would be entitled to compensation of
Rs.9,72,998/-. As the Tribunal has awarded an amount of
Rs.3,18,438/- the respondent Insurance Company shall deposit
the additional amount of Rs.6,54,560/- with 6% interest from
the date of claim petition till its realization with the Tribunal
within a period of 8 weeks from the receipt of the order.
8.0. In view of the aforesaid, therefore, the appeal is partly
allowed to the aforesaid extend and impugned judgment and
C/FA/4661/2018 JUDGMENT DATED: 02/05/2022
award is modified to the aforesaid extend. Rest of the impugned
judgment and award stands. The Tribunal shall disburse the
amount as per the award. Registry is directed to transmit back
the Record and Proceedings of the case to the concerned
Tribunal forthwith. However, there shall be no order as to costs.
sd/-
(R.M.CHHAYA,J)
sd/-
(HEMANT M. PRACHCHHAK,J)
KAUSHIK J. RATHOD
