Gujarat High Court
Girishkumar Hargovindas Parmar vs New Chem Traders on 16 February, 2023
Bench: Gita Gopi
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1607 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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GIRISHKUMAR HARGOVINDAS PARMAR
Versus
NEW CHEM TRADERS & 1 other(s)
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/02/2023
ORAL JUDGMENT
1. Heard, learned advocate Mr. M. I. Mansuri for the appellant
and learned advocate Mr. H. G. Mazmudar for the respondent No.
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
2 - insurance company at length. Though served, nobody
appears for the respondent No. 1. Since, the liability was not in
dispute, the Court proceeded with the matter.
2. Admit. Learned advocate Mr. Mazmudar waives service
qua respondent No. 2.
3. This is an appeal under Section 173 of the Motor Vehicles
Act, 1988 arising out of the judgment and award dated
06.03.2017 rendered by the learned Motor Accident Claims
Tribunal (Auxiliary) and 3rd Additional District Judge, Ahmedabad
(Rural) at Mirzapur, (the Tribunal) in Motor Accident Claim
Petition No. 1202 of 2001 (claim petition), whereby, the Tribunal
was pleased to award compensation of Rs.1,26,000/- together
with proportionate costs and interest at the rate of 9% per
annum from the date of claim petition till realization against the
total compensation of Rs.4 lakh with interest and cost as claimed
by the appellant - original claimant towards injury sustained by
him. The opponents therein are jointly and severally held liable
to pay the compensation. Accordingly, the appellant has
preferred this appeal for enhancement of compensation.
4. Since the facts of the accident are not in dispute, the Court
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
deems it proper not to discuss the same.
5. The learned advocate for the appellant submitted that the
Tribunal has materially erred in awarding the compensation
towards the injury sustained by the appellant - claimant
inasmuch as the Disability Certificate issued by Dr. Pradip Seju,
M.S. (Gen. Surg.) dated 01.10.2001, which was produced at Exh.
27 has not been properly appreciated by the Tribunal. He
submitted that as per the said Certificate, the appellant -
claimant has sustained 20% permanent partial disability body as
a whole. He submitted that the Tribunal has failed to consider
the fact that the Injury Certificate, Exh. 22 clearly goes to show
that the appellant - claimant had sustained injuries on his leg,
hand and there was rupture of kidney and his one kidney was
removed. It is submitted that the Tribunal ought to have
considered the future pain, shock and fear of life which the
claimant would suffer and stated that appropriate amount is
required to be granted under the head of pain, shock and
suffering.
6. Countering the arguments, learned advocate Mr. Mazmudar
for the insurance company submitted that it has been
scientifically proved that a person who had sustained such injury
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
can lead a healthy life with one kidney. He submitted that the
claimant would not have any sufferings in future to consider
granting higher amount under the head of pain, shock and
suffering and thus, justified the amount awarded by the Tribunal.
7. Mr. Mansuri, the learned advocate for the appellant -
claimant has also challenged the monthly income of the claimant
assessed by the Tribunal as Tanker driver and stated that the
injuries would affect his earning capacity also.
7.1 Mr. Mazmudar for the respondent - insurance company
submitted that the Tribunal has considered Rs.3,000/- per month
and considering the date of accident, he submits that keeping in
mind the Minimum Wages Schedule, the salary of the claimant is
rather assessed on a higher side.
8. Mr. Mansuri, learned advocate for the appellant - claimant
has further submitted that after the accident, the claimant was
admitted in the hospital from 26.07.2001 to 08.08.2001 and lost
movement of his body and suffered many problems and he was
attended by one person during the treatment. It is submitted
that the Tribunal has not taken this aspect into consideration. It
was further submitted the Tribunal has not considered the
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
document at Exh. 22 which clearly shows that the appellant had
lost normal bowel movement and suffered major abdominal
surgery; his right kidney was badly damaged and was removed;
he was young driver by profession. Mr. Mansuri further
submitted that the appellant - claimant is not in a position to
continue with his work as had been done earlier.
9. The claimant has produced the copy of FIR, Panchnama of
Scene of Offence, Follow-up Card of L.G. Hospital at Exh. 21,
Injury Certificate at Exh. 22 and Charge-sheet at Exh. 23 before
the Tribunal. The Tribunal has perused the Injury Certificate, Exh.
22, however, has not appreciated the same in right perspective.
The injury suffered in the accident and its after effects, which
have resulted into abdominal surgery and since the kidney was
damaged, it was removed. The Tribunal has granted only
Rs.10,000/- under the head of Pain, Shock and Suffering, while
has not even considered the loss which the claimant has
sustained because of removal of the kidney. This Court considers
that the amount under the head of Pain, Shock and Suffering is
required to be increased and further, under the head of Loss of
Amenities of Life, the amount is required to be granted. Taking
into consideration the date of accident and the hospitalization
and further treatment taken, further Rs.40,000/- is granted under
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
the head of Pain, Shock and Suffering. The removal of kidney
would certainly affect the mental health of the claimant but at
the same time, it could be noted that the appellant could lead
with his daily life with single kidney but the mental agony would
persist and hence, under the head of Loss of Amenities of Life,
this Court considers grant of Rs.50,000/-.
9.1 The income factor does not require any interference of this
Court as Rs.3,000/- is assessed as monthly income of the
claimant as driver of the Tanker which is just and reasonable
keeping in mind the Minimum Wages Schedule on the date of the
accident. The Tribunal has considered 15% physical disability on
the basis of the consent pursis, Exh. 26 moved by both sides.
9.2 The Tribunal has granted the amounts under different
heads as under:
Head Amt. (Rs.)
Pain, Shock and Suffering 10,000/-
Future Loss of Income 91,800/-
Actual Loss of Income 9,000/-
Medical Expenses 5,200/-
Special Diet, Transportation and Attendant etc. 10,000/-
Total 1,26,000/-
C/FA/1607/2019 JUDGMENT DATED: 16/02/2023
9.3 For the reasons recorded herein above, the claimant would
be entitled to the following amount towards compensation:
Head Amt. (Rs.)
Pain, Shock and Suffering 50,000/-
Future Loss of Income 91,800/-
Actual Loss of Income 9,000/-
Medical Expenses 5,200/-
Special Diet, Transportation and Attendant etc. 10,000/-
Loss of Amenities of Life 50,000/-
Total 2,16,000/-
9.4 The Tribunal has granted Rs.1,26,000/- @ 9% per annum
from the date of petition till realization. The enhanced amount of
Rs.90,000/- (Rs.2,16,000/- minus Rs.1,26,000/-) is required to be
deposited by the insurance company, which shall be deposited
within a period of 08 (eight) weeks from the date of receipt of
writ of this order. The claimants shall be entitled interest at 7.5%
on such enhanced amount.
9.5 The impugned judgment and award is modified to the
aforesaid extent. Rest of the judgment and award shall remain
intact. R&P, if received, be sent back forthwith.
[ Gita Gopi, J. ]
hiren
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