Daxaben Baldevbhai Patel vs General Manager
2022 Latest Caselaw 8189 Guj

     C/FA/4326/2009                             JUDGMENT DATED: 20/09/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4326 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

=======================================

1     Whether Reporters of Local Papers may be                        No
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

3     Whether their Lordships wish to see the fair                    No
      copy of the judgment ?

4     Whether this case involves a substantial                        No
      question of law as to the interpretation of the
      Constitution of India or any order made
      thereunder ?

=======================================
               DAXABEN BALDEVBHAI PATEL
                           Versus
              GENERAL MANAGER & 1 other(s)
=======================================
Appearance:
MR JM BAROT(143) for the Appellant(s) No. 1
MR RAJESH M CHAUHAN(2470) for the Appellant(s) No. 1
MS KIRAN D PANDEY(3337) for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
=======================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK


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      C/FA/4326/2009                        JUDGMENT DATED: 20/09/2022




                       Date : 20/09/2022

                       ORAL JUDGMENT

1. This appeal is filed by the appellant - claimant seeking

enhancement of the compensation amount awarded by the

Motor Accident Claims Tribunal (Aux.), Mehsana (hereinafter

referred to as "the Tribunal") vide impugned judgment and

award dated 15.02.2005 passed in M.A.C.P. No.1494 of 1991.

2. Brief facts of the present case are that on 04.06.1991 at

about 6.45 a.m., the appellant was standing with her maternal

uncle at Gojhariya Bus Stand for a bus to Village: Ambasana and

at that time, S. T. Bus bearing registration No.GRU 9610 brought

by respondent no.2 and the appellant was stepping in the bus, at

that time, respondent no.2 had all of a sudden started the bus

with high speed pickup, due to which the appellant had fallen

down from the bus and come under the wheels of the bus. On

account of the said incident, the appellant sustained severe

injuries in her leg and other parts of the body. Hence, the

appellant - original claimant has filed aforesaid claim petition

before the Tribunal. The Tribunal, after evaluating the pleadings

C/FA/4326/2009 JUDGMENT DATED: 20/09/2022

and evidence tendered by the parties, partly allowed the claim

petition and awarded a sum of Rs.3,000/-.

3. It came to be held by the Tribunal that said amount was

ordered to be awarded to the deponents. Not being satisfied with

the compensation amount, this appeal has been filed.

4. Heard Rajesh Chauhan, learned counsel appearing for the

appellant and Ms.Kiran Pandey, learned counsel appearing for

the respondent - S. T. Corporation. Though served, respondent

no.2 has chosen not to appear before the Court.

5. Mr.Chauhan, learned counsel appearing for the appellant

has submitted the same facts which are narrated in the memo of

appeal. He has submitted that the appellant was minor at the

relevant time and was studying in standard VII and had a bright

future. He has submitted that the appellant had taken treatment

as an indoor patient for seventeen days and, thereafter, for a few

days for skin grafting and sustained 40% disability due to the

accident. He has submitted that the Tribunal has committed an

C/FA/4326/2009 JUDGMENT DATED: 20/09/2022

error in disbelieving the medical evidence in the form of doctor's

evidence and the injury certificates. He has submitted that the

Tribunal has committed an error in awarding a sum of Rs.3000/-

as cumulative compensation under the different heads. He has

submitted that the amount of compensation awarded by the

Tribunal requires to be enhanced and the appeal deserves to be

allowed to the extent.

6. As against that Ms.Pandey, learned counsel appearing for

respondent - S. T. Corporation has supported the impugned

judgment and award passed by the Tribunal. She has submitted

that so far as the income of the claimant is concerned, there is

no cogent and proper proof or evidence led by the appellant and

even the compensation awarded by the Tribunal is just and

proper and, therefore, no interference is called for.

7. No other or further submissions, grounds or contentions

have been raised by the learned counsel appearing for the

parties.

C/FA/4326/2009 JUDGMENT DATED: 20/09/2022

8. Upon hearing learned counsel appearing for the parties the

following question arise in this appeal for determination by this

Court.

"Whether the Tribunal has, while passing the impugned judgment and award, committed an error by discarding and disbelieving the medical evidence?"

9. Having considered the averments made in the appeal,

submissions made by the learned counsel appearing for both the

sides and considered the facts of the case and perused the

record and proceedings, it appears that though the Tribunal has

considered the fact that the accident took place and it is not in

dispute that the claimant was minor at the time of accident and

the claimant sustained injury, however, the Tribunal completely

ignored the medical certificate issued by Dr.Prakash Amin,

Harikrupa Orthopedic Hospital, Ahmedabad dated 07.09.1991,

the deposition of the doctor at Exhibit 31, medical certificate at

Exhibit 38 issued by the Civil Surgeon dated 02.07.2001 wherein

it was mentioned that the injured sustained 40% permanent

partial disablement. It clearly establishes the fact that because

of the injury sustained by the appellant, the impugned judgment

C/FA/4326/2009 JUDGMENT DATED: 20/09/2022

and award of the Tribunal is not just and proper and the same

deserves to be modified to the extent. It appears that the

Tribunal has completely ignored the evidence and awarded only

Rs.3,000/- towards the compensation. Therefore, the impugned

judgment and award deserves to be modified to the extent.

10. Considering the ratio laid down by the Hon'ble Supreme

Court in the case of Mallikarjun Vs. Divisional Manager,

National Insurance Company Limited and another,

reported in (2014) 14 SCC 396, I am of the considered opinion

that the appeal requires to be allowed and the impugned

judgment and award requires to be substituted by enhancing the

amount of compensation and, therefore, the compensation is

enhanced to Rs.3,00,000/- in view of the aforesaid decision.

Thus, the question raised in this appeal is answered accordingly.

Accordingly a sum of Rs.3,00,000/- as additional

compensation requires to be awarded towards future loss of

income, which is just and reasonable compensation and the

same is awarded in addition to Rs.3,000/- awarded by the

C/FA/4326/2009 JUDGMENT DATED: 20/09/2022

Tribunal. However, the appellant is entitled to the enhanced

amount of compensation of Rs.3,00,000/- along with interest at

the rate of 6% from the date of application till its realization.

11. For the foregoing reasons, the appeal is allowed in part.

The judgment and award dated 15.02.2005 passed by the Motor

Accident Claims Tribunal (Aux), Mehsana in M.A.C.P. No. 1494 of

1991 is hereby modified and in addition to what has been

awarded by the Tribunal, a sum of Rs.3,00,000/- as additional

amount with interest at the rate of 6% per annum is awarded

which shall be from the date of filing claim petition till its

realization. The respondent No.1 - S. T. Corporation is directed to

deposit additional amount of compensation with 6% interest as

early as possible within an outer limit of eight weeks from the

date of receipt of certified copy of this order. After deposit of the

additional amount of compensation, the same shall be disbursed

in favour of the claimant through RTGS, after proper verification.

The bank account details shall be furnished by the learned

advocate for the claimant to the Nazir Department of the Court

concerned. Record and proceedings be sent back to the

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concerned Tribunal forthwith. Pending civil applications, if any,

shall stand disposed of accordingly.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL