Rupsangji Becharji Thakor vs Ashokkumar N Bhil
2023 Latest Caselaw 8633 Guj

Gujarat High Court

Rupsangji Becharji Thakor vs Ashokkumar N Bhil on 13 December, 2023

Author: Gita Gopi

Bench: Gita Gopi

                                                                                            NEUTRAL CITATION




     C/FA/1314/2020                                       JUDGMENT DATED: 13/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1314 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI                     -Sd/-

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

 2     To be referred to the Reporter or not ?                                     No

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

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


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                        RUPSANGJI BECHARJI THAKOR
                                  Versus
                           ASHOKKUMAR N BHIL
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR. YOGENDRA THAKORE(3975) for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 13/12/2023
                                 ORAL JUDGMENT

1. This appeal has been filed by the appellant - original claimant against the respondents - original opponents under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award passed by the learned Motor Accident Claims Tribunal (Aux.II), District Gandhinagar at Kalol in MACP No. 16 of 2016 on 06.12.2018.

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2. The facts as could be drawn from the facts of the judgment of the learned Tribunal is to the effect that on 27.09.2015 at about 7.30pm, the claimant was going towards his home and while passing through Gogapara Cut, near Chhatral on Kalol Mehsana Highway, the opponent No.1 - driver came driving the Toofan Jeep bearing registration No.GJ-13-V-1192 owned by Opponent No.2, in a rash and negligent manner, ignoring traffic rules, endangering the human life, dashed with the claimant, as a result of which, the claimant sustained grievous injuries and fractures on his various parts of the body.

3. Learned advocate Mr.Hiren Modi for the original claimant submitted that at the time of accident, the claimant was doing labour work and was looking after his family. He submitted that the income of the applicant was required to be calculated as per the daily wages schedule and the learned Tribunal should have considered the income accordingly. The applicant has, in his evidence, stated that he was earning Rs.4,000/- to Rs.5,000/- per month. It is also submitted that even taking into consideration the date of the accident, the monthly income of Rs.3,000/- as considered by the learned Tribunal is at very lower side.

4. Learned advocate Mr.Modi submitted that the disability

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certificate issued by Dr.A.I.Upadhyay, who has assessed the physical disability to be 45% body as a whole and the claimant injured was doing labour work and it should be taken as functional disability and the compensation should have been granted accordingly. He further submitted that the evidence on record also suggests that the claimant could not work for longer period and the learned Tribunal has considered the actual loss for a period of six months, which is, in fact, shows that the claimant would have suffered the pain and in future, the applicant would also suffer the pain as disability of 45% would again lead to pain in future since the right lower limb of the claimant was amputated and hence, the amount granted under the head of pain, shock and suffering, special diet, transportation and attendance charges are also at very lower side.

5. Learned advocate Mr.Modi further submitted that since the right lower limb of the claimant has been amputated, the learned Tribunal should have considered under the head the loss of amenities of life as well as future medical expenses.

6. Countering the submissions made by learned advocate Mr. Modi for the claimant, learned advocate Mr. Ranthin Raval for the respondent No.3 - Insurance Company submitted that a person when urges a specific income is required to

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establish by way of documentary evidence and the claimant has failed to do so. He further submitted that though 45% physical disability has been considered by the learned Tribunal but no evidence has been produced showing that the claimant would not be in a position to have some other employment and could not have done some alternate work. He further submitted that the amount under the head of future loss of income should be assessed keeping in mind all these aspects. He further submitted that the learned Tribunal has granted sufficient amount under the head of pain, shock and suffering and also provided the good amount under the head of transportation, special diet and attendance charges with further amount of Rs.25,000/- for artificial lower limb. Thus,the learned Tribunal has awarded compensation Rs.3,00,200/-, which is just and proper.

7. The claimant has pleaded that he was earning Rs.4,000/- to Rs.5,000/- per months by doing labour work and thus, considering the date of accident and keeping in mind the age of the claimant, the income of the claimant assessed to be Rs.3,000/- per month is on the basis of mere assumption. The learned Tribunal is also required to keep in mind the date of accident. Thus, on that basis, this Court has considered Rs.5,000/- as monthly income of the claimant,

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who was doing the labour work. In the result, this Court assessed Rs.5,000/- as monthly income of the claimant.

8. Since, at the time of accident, the age of the claimant was 42 years and was labourer, in view of the settled principles of law established in the case of National Insurance Company Vs. Pranay Shethi reported in (2017) 16 SCC 680, 25% rise in income is to be assessed. Hence, the monthly income of the claimant would be Rs.6,250/- (Rs.5,000/- + Rs.1,250/- = Rs.6,250/-) and income would be Rs.75,000/- per annum. Assessing 45% functional disability, applying the multiplier of 14, considering age of the claimant at the time of accident, the future loss of income would amount to Rs.4,72,500/-.

9. The learned Tribunal has assessed six months loss of income and hence, considering the monthly income of the claimant to be Rs.5,000/- per month, the amount under the head of actual loss of income would be Rs.30,000/-.

10. The facts that the claimant has received severe injuries in the accident, the fractures on various parts of the body and the amputation of the right lower limb, the claimant would suffer further pain because of the inability owing to the loss of leg, the amount under the head of pain, shock and suffering is required to be increased considering the injuries

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suffered and the physical disability and hence, the amount of Rs.1,50,000/- is granted under the head of pain, shock and sufferings.

11. The learned Tribunal has granted Rs.40,000/- granted under the head of transportation, special diet and attendance charges, keeping in view six months disability and the fact that due to the amputation, some relatives or other acquaintance would have attended him throughout and further, special diet would have been necessary to strengthen the body muscles and thus, the amount of Rs.10,000/- is granted by the learned Tribunal is required to be increased to Rs.50,000/- under the said head and accordingly, Rs.50,000/- is granted.

12. The medical expenses of Rs.16,000/- has been proved. The learned Tribunal has granted Rs.25,000/- for artificial lower limb. The age of the applicant was 42 years at the time of accident and in view of length of life, he would be in need of maintaining the artificial lower limb or in future, need of changing the same would arise and further, disability may lead to the complications and hence, this Court deems fit to grant Rs.1,00,000/- under the head of future medical expenses.

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13. The amputation of right lower limb of the claimant would affect his social status and also affect day to day work and such physical condition would bring trauma to normal life and therefore, this Court deems fit to grant Rs.1,00,000/- to compensate the claimant under the loss of amenities of life.

14. In view of the above observations and reasons, the details of compensation computed by this Court are as under:

               Amount                       Particulars
            Rs. 4,72,500/-   Future loss of income
            Rs. 30,000/-     Actual loss of income

Rs. 1,50,000/- Pain, shock and suffering Rs. 50,000/- Special Diet, transportation and attendance charges Rs. 16,000/- Medical expenses Rs. 1,00,000/- Loss of future medical expenses Rs. 1,00,000/- Loss of amenities of life Rs. 9,18,500/- Total

15. For the foregoing reasons, the appeal is allowed and the judgment and award passed by the the learned Motor Accident Claims Tribunal (Auxi.II), District Gandhinagar at Kalol in MACP No. 16 of 2016 is hereby modified and as the learned Tribunal has already granted 3,00,200/- to the claimant and therefore, and in addition to that amount, the claimant is entitled to receive Rs.6,18,300/- as an additional amount with interest at the rate of 7.5% per annum on the

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enhanced amount till realization. The insurance company is directed to deposit the additional amount of compensation with 7.5% interest as early as possible within an outer limit of eight weeks from the date of receipt of certified copy of this order. After depositing of the additional amount of compensation, the same shall be disbursed in favour of the claimant through NEFT / RTGS, after proper verification.

16. Record and proceedings, if received by the registry, be sent back to the concerned Tribunal forthwith. Pending civil application, if any, shall stand disposed of accordingly.

Sd/-

(GITA GOPI, J) F.S.KAZI.....