Gujarat High Court

Chunara Bhadiben Motibhai vs Vohra Ismailbhai Rehmanbhai Deleted on 4 December, 2023

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/1860/2019                               JUDGMENT DATED: 04/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1860 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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                      CHUNARA BHADIBEN MOTIBHAI
                                 Versus
                  VOHRA ISMAILBHAI REHMANBHAI DELETED
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MS VYOMA K JHAVERI(6386) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 04/12/2023

                              ORAL JUDGMENT

1. The injured - claimant challenges the judgment

dated 13.2.2013 passed by the MACT (Aux), Anand in

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MACP No.1174 of 2006 (Old MACP no.1186 of 1993).

2. Facts of the case in brief can be noted as under:-

On 20.2.1993 at about 6.00 a.m., the claimant was

crossing the road situated near over bridge at

Anand. She was on her way to sell the goat feed.

While crossing the road, opponent no.1 came

driving S.T. bus bearing registration no. GRU-9857

in a rash and negligent manner and in excessive

speed endangering human life, dashed with the

claimant. As a result, she sustained injury as was

admitted to SSG Hospital, Vadodara as an indoor

patient. As per the claimant, she was admitted for

about 3 times and in total, her medical treatment

was continued for 154 days.

3. Advocate Mr. Dwivedi for the appellant submitted

that the very fact of the evidence that on the

date of the accident, she was heading for her work

to sell the goat feed itself suggests that she is

earning woman and also being married, is looking

after her family. Hence, the learned Tribunal

should have considered the income in proportion to

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the work of the claimant as well as her

contribution in the development of the family.

3.1 Advocate Mr. Dwivedi further submitted that the

functional disability was required to be assessed

as 100% since the injured had suffered 100% loss

of power of muscles in right knee and ankle.

3.2 Advocate Mr. Dwivedi contended that the learned

Tribunal has failed to consider the age to assess

the future loss of income in accordance to

consider the functional disability of the claimant

and thus, stated that the amount under the head of

pain, shock and suffering and loss of amenities of

life being a woman has to be just and reasonable

as at the time of the accident, the claimant was

35 years and would not be in a position to

normally lead her life as was living earlier to

the accident.

4. Vehemently contending against the arguments of

learned advocate Mr. Dwivedi for the appellant,

Advocate Ms. Vyoma Jhaveri for the respondent no.2

submitted that the evidence with regard to the

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work of the claimant has not been produced on

record to establish the fact of her earning to

consider any loss of future income and submitted

that at the most, the claimant as a woman can be

compensated for her contribution in the family and

accordingly, her loss has to be considered, where

actually, there would not be any future loss of

income and thus, stated that the amount in total

compensated i.e. Rs.1,64,560/- is just and proper.

5. The claimant at the time of the accident was 35

years of age and hence, the multiplier applicable

as per the decision in the case of Sarla Verma Vs.

Delhi Transport Corporation & Anr., (2009) 6 SCC

121 would be 16. The claimant was doing labour

work as pleaded and on the date of the accident,

she was on her way to sell goat feed and that fact

prima facie establishes that she is a working

woman coupled with the fact that she has been

looking after the family. In view of the same,

this Court considers that Rs.3,000/- per month as

income is required to be assessed. Further, as per

the decision in the case of National Insurance

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Company Limited Vs. Pranay Sethi & Ors., (2017) 16

SCC 680, 40% prospective rise is required to be

assessed and thus, her monthly income would come

to Rs.4,200/-.

6. The evidence of Dr. Shantiswarup Ramjidas Kshatri

at Exh.53 refers to the disability certificate,

the history of the accident and the injury

sustained with the opinion in regard to mobility

and power loss with the assessment of stability

and difference in weight bearing capacity. The

Doctor, thus on examination of the finding during

the examination, has formed an opinion that the

claimant had remained with permanent partial

physical mobility of 90% of right lower limb. The

learned Tribunal has considered 45% disability for

the body as a whole, which this Court considers

just and proper.

7. The examination of the Doctor for assessing the

physical disability is as under:-

"(1)(a) An operative scar with broad scar around it of 7"x4" on anterior-

medial and poeterio-medial aspect of right knee with healed sinus.

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(b) A scar of 3½" x 2" on posterior- lateral aspect of right knee.

(d) Food drop with equines deformity of right foot

(e) Length of both lower limbs -

right leg had shortening of 1½"

(f) Douor site scars on left thigh.

(2) Mobility loss:

At right hip joint, movements were normal.

At right knee, limb was fixed in extenaion and there was total loss of flexion movement at right knee.

At right ankle joint foot was fixed in equinus and there was total loss of all the movements at ankle joint.

(3) Power Loss:

Muscles at right hip had normal power.

Muscles at right knee and at right ankle had power of gr. 0, (N-gr. V), thus loss of 100% power.

(4) Stability and difference in weight baring capacity:

There was average difference of 8.0 kgs. in weight bearing capacity of lower limbs with less on right side and body weight being 30 kgs.

           (5)   Squatting       and        cross       legged





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                sitting was not possible.

(6) X-ray taken at this hospital on 6-9-10 showed following

X-ray of right femur with knee and upper tibia showed bony ankylosis across medial and leteral femoral condyle with pin track holes in femur and tibia.

X-ray of right ankle with foot showed foot in equines at ankle joint with sclerosis and irregular articular surface of ankle joint.

Considering the examination findings, he has remained with permanent partial physical impairment of 90% (ninety percent) of right lower limb.

The Doctor on assessment has considered the

functional disability as 90%.

8. It is required to be noted that the injury which

could be observed in form of permanent disability

is power loss of muscle at right knee and right

ankle which is of 100%. The weight bearing

capacity of the lower limb was found with an

average difference of 8 kgs. The Doctor has opined

that there will be difficulty in squatting and

cross leg sitting. Accordingly, 45% functional

disability assessed by the Tribunal is in

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accordance to the evidence on record. Hence,

future loss of income would come to Rs.3,62,880/-

(Rs.1,890/- x 12 x 16). The history as noted by

the Doctor as per his evidence, after sustaining

the accident on 20.2.1993, she was treated at

municipal hospital, Anand and thereafter, was

transferred to SSG Hospital, Vadodara. The

certificate of SSG Hospital, Vadodara no.28406

dated 20.2.1993 case no. 157773, EPR No.2234,

shows the date of admission on 20.2.1993 and date

of discharge is 30.6.1993 and readmitted on

10.8.1993 and thereafter, admitted on 24.8.1993

and again readmitted on 22.10.1993 and again the

date of admission was 4.11.1993. Initially, the

claimant has taken the treatment from municipal

hospital and thereafter, was transferred to SSG

Hospital, Vadodara. The discharge card showed

compound grade II fracture of both femoral

condyles of right knee, fracture of neck of fibula

of right leg with fracture of upper end of right

tibia with neuro vascular deficit, with fracture

base of 2nd metatarsal of left foot. It appears

from the evidence that after 20.2.1993, she was

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admitted for about 6 times. She was treated for

eight surgical procedures for the wound and

thereafter, again admitted and readmitted. The

evidence shows that she is not in a position to

put her feet down and is unable to stand or walk

without the support of a crutch. Considering the

fact of the actual admission in the hospital,

Rs.36,000/- for the loss of one year is granted.

Applying multiplier of 5 to the 45% functional

disability towards the income of Rs.3,000/-,

relying upon the decisions in the case of The New

India Assurance Company Limited v. Satish Chandraa

Sharma & Anr. passed in Civil Appeal no.1579 of

2022 (@SLP (C) no.14350 of 2019), Mohd. Sabeer @

Shabir Hussain v. Regional Manager, U.P. State

Road Transport Corporation reported in 2022

LiveLaw (SC) 1017 as well as Raj Kumar v. Ajay

Kumar & Anr., reported in (2011) 1 SCC 343,

Rs.75,000/- is assessed under the head of of pain,

shock and suffering and loss of amenities of life.

While considering the hospitalization and the need

for special diet, attendant and transportation,

Rs.15,000/- is granted.

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9. The claimant could prove only the medical evidence

of Rs.10,000/- which she is entitled to receive.

Hence, the total compensation would be computed as

under:-

Future loss of income Rs.3,62,880/-

          Actual loss                                            Rs.     36,000/-

          Pain, shock and suffering and                          Rs.     75,000/-
          loss of amenities of life
          Transportation, special diet                           Rs.     15,000/-
          and attendant
          Medical expenses                                       Rs.     10,000/-
          Total compensation                                = Rs.4,98,880/-


10.      As     the       Tribunal    has       granted        compensation               of

Rs.1,64,560/-, the claimant would be entitled to

the enhanced amount of compensation of

Rs.3,34,320/- with interest at the rate of 7.5%

per annum from the date of filing of the claim

petition till its realization. The enhanced amount

is directed to be deposited within eight weeks

from the date of receipt of writ of this Court.

Upon deposit, total amount be paid to the

claimant.