Deepakbhai Chhanabhai Prajapati vs Yakub Abdul Sattar Pathia
2023 Latest Caselaw 1583 Guj

     C/FA/3839/2018                                ORDER DATED: 15/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3839 of 2018

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                      DEEPAKBHAI CHHANABHAI PRAJAPATI
                                   Versus
                         YAKUB ABDUL SATTAR PATHIA
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 5
NOTICE SERVED for the Defendant(s) No. 1,2
NOTICE UNSERVED for the Defendant(s) No. 4
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 15/02/2023
                                ORAL ORDER

1. Admit. Learned advocate Mr.Raval waives service for respondent no.3 and learned advocate Mr.Nanavati waives service for respondent no.5.

2. Challenge in this appeal is to judgment and award dated 12th May 2018 passed by Motor Accident Claims Tribunal (Aux.), Ahmedabad, in MACP No.620 of 2011, which is a common judgment, whereby compensation amount of Rs.1,22,398/- has been granted to the claimant.

3. Mr.A.V.Prajapati, learned advocate for the appellant submits that true-copies of medical bills for the amount of Rs.96,927/- were produced before the Tribunal, however, that amount has not been granted to the claimant. He further submitted that United India Insurance Company has admitted in written arguments that out of total medical bill of Rs.1,62,827/-, the claimant has received an amount of

C/FA/3839/2018 ORDER DATED: 15/02/2023

Rs.65,930/- towards mediclaim. Mr.Prajapati has submitted that learned Tribunal ought to have granted rest of the amount, which comes to Rs.96,927/-, as the claimant is legally entitled to receive this amount, more so, when there is clear submission made by the insurance company to the effect that the claimant has not received the amount of Rs.96,927/- towards medical bills.

3.1 Mr.Prajapati further submits that learned Tribunal ought to have granted more money under the head of "pain, shock and suffering" considering the physical disability suffered by the claimant. He further submits that the claimant had actually suffered 25% permanent physical impairment of the whole body, as observed by the Tribunal. He, therefore, prayed to enhance the amount under the head of "Pain, shock and suffering".

3.2 Mr.Prajapati also submitted that, because of the injury, the appellant had to leave his job and he had joined M/s. Auto Pack India Private Limited and he had suffered actual loss of income for more than six months. He further submits that actual loss of income has not been considered by learned Tribunal in right perspective, though evidence has been produced on record.

4. Countering these arguments, Mr.Rathin Raval, learned advocate for the insurance company submitted that the claimant was required to prove the medical bills by producing the original bills. He further submitted that no authorized person has been examined by the claimant to prove actual loss

C/FA/3839/2018 ORDER DATED: 15/02/2023

of income. He also submitted that no evidence has been produced to consider the submission for actual loss of income, when the claimant was required to prove the same by way of cogent evidence. Mr.Rathin Raval further submitted that, in case of other claimants, by a common judgment almost similar amount has been granted under the head of "pain, shock and suffering" and, to maintain equality compensation under this head may not be interfered with.

5. From the material produced on record, it appears that after the accident, the appellant was firstly admitted in Government Hospital at Nadiad, thereafter, he was shifted to Civil Hospital at Ahmedabad and then he was taken to the Hospital of Dr.Kirit Patel. On the next day, he was shifted to Siddhi Vinayak Hospital, Maninagar, Ahmedabad, where he remained as indoor patient. On 2.6.2021, he was re-admitted in the hospital of Dr.Kirit Patel at Odhav and discharged on 2.6.2011. Learned Tribunal has observed that he sustained fractures of 3rd and 4th ribs on right side, and 2nd, 3rd, 4th, 5th, 6th and 7th ribs on left side. There was also a fracture of right clavicle bone and there was also deep second degree burn over back. For the injuries, he was given conservative treatment and he was assessed for permanent physical impairment by Dr.Upadhyaya, who had considered his physical disability at 25%, however, by filing a purshis at Exh.88, the appellant has stated that 10% disability may be considered for body as a whole.

6. Learned Tribunal has observed in the impugned judgment in connection with medical bills that the claimant has

C/FA/3839/2018 ORDER DATED: 15/02/2023

produced certificate at Exh.88-B, which disclosed the fact that he had submitted accident claim form along with hospitalization and medical bill of Rs.1,62,287/-. The Oriental Insurance Company has settled his claim and paid Rs.65,930/- in the bank account on 16.3.2012 which were paid as per the details given in the certificate. For the remaining amount of Rs.96,927/-, he had made a prayer stating that the amount which were not sanctioned under mediclaim may be disbursed to him. Learned Tribunal rejected said claim observing that the original bills are not produced on record and true-copies of medical bills were produced. Accordingly, the Tribunal did not reimburse the said amount. The observation so made by the Tribunal could become erroneous, as the claim of Rs.1,62,827/- was made before the insurance company. Total claim was for hospitalization and medical bills. There is no denial to the fact that the bills were produced before the insurance company. The amount claimed for hospitalization are not false or got up. Admitted fact remains that though the claimant had spend money for treatment of his injury, he has not been granted an amount of Rs.96,927/- and to corroborate said fact, he has produced true-copies of the bills. Learned Tribunal ought to have appreciated this fact and should have granted said amount as the claimant would be entitled to the unsanctioned amount of Rs.96,927/-.

7. The appellant in his cross-examination has stated that, at the time of accident, he was serving in Electronica Mochatronic Systems (I) Pvt. Ltd. As as Mechanical Engineer and drawing salary of Rs.10,822/-. However, it has been observed that said fact has not been proved by examining any authorized person

C/FA/3839/2018 ORDER DATED: 15/02/2023

of the company but learned Tribunal has believed said income as the bank statement was produced at Exh.138, which was considered as per the provisions of Section 2 (5) of the Banker's Book Evidence Act, 1891, which showed receipt of salary of Rs.10,822/- for the period between April 2011 and May 2011. Accordingly, learned Tribunal has granted Rs.32,466/- under the head of "actual loss of income" for a period of three months. Considering the injuries sustained and fractures in the ribs and the fracture on right clavicle bone, though no specific evidence has been produced as to when the claimant would have recovered, this Court considers one more month towards loss of income. Hence, considering the period of recovery as four months, Rs.10,822/- is added to the amount already awarded by Tribunal towards "actual loss of income".

8. It is also clear that common judgment has been delivered in case of four claimants and learned Tribunal has given consistent observation for awarding the amount under the head of "pain, shock and suffering", whereas the disability has been considered as 10% for the body as a whole in view of the purshis submitted by the appellant, therefore, this Court does not find any reason to interfere with the amount of compensation granted under the head of "pain, shock and suffering".

9. Hence, the applicant would be entitled to receive the amount as under:-

Loss of amenities                            Rs.64,932/-
Pain, shock and suffering                    Rs.20,000/-
Actual loss of income                        Rs.43,288/-




        C/FA/3839/2018                                       ORDER DATED: 15/02/2023




Special diet, transportation &
Attendance charges                             Rs.5,000/-
Medical Bills                                  Rs.96,927/-

Total                                          Rs.2,30,147/-

10. In view of above, the claimant would be entitled to receive enhanced amount of Rs.1,07,749/-, over and above the amount granted by the Tribunal. The Tribunal has granted Rs.1,22,398/- with interest at the rate of 7% p.a. from the date of petition till payment with cost, which the insurance company was required to deposit. It is directed that enhanced amount be deposited before the Tribunal within a period of eight week, with interest at the rate of 7% p.a.

11. Accordingly, this First Appeal is allowed. The impugned judgment and award dated 12th May 2018 passed by Motor Accident Claims Tribunal (Aux.), Ahmedabad, in MACP No.620 of 2011, is modified to aforesaid extent. Record and Proceedings be sent back to the concerned Tribunal forthwith.

12. At this stage, Mr.Prajapati, has made prayer for disbursement of the amount stating that considerable amount has been spent by the claimant towards medical expenses. Considering the extent of medical expenses, let the enhanced amount be disbursed to the claimant along with interest at the rate of 7% p.a.

(GITA GOPI,J) R.S. MALEK