Mohammad Ikaram Nisar Shaikh vs Pravinkumar Valchandbhai Patel
2023 Latest Caselaw 1734 Guj

     C/FA/2220/2019                                JUDGMENT DATED: 21/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2220 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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                       MOHAMMAD IKARAM NISAR SHAIKH
                                  Versus
                      PRAVINKUMAR VALCHANDBHAI PATEL
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR HARDIK P MEHTA(6943) for the Defendant(s) No. 6
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 21/02/2023

                              ORAL JUDGMENT

1. The challenge has been given to the judgment

and award dated 16.11.2007 passed in MACP

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

No.137 of 2008 by MACT (Aux), Panchmahals at

Godhra on the ground that though physical

disability as well as functional disability

of the appellant - claimant was proved, the

learned Tribunal, keeping aside the legal

principles established under various

judgments of the Hon'ble Apex Court, has

awarded a meager amount of Rs.9,999/-.

2. Mr. Hemal Shah, learned advocate for the

appellant submits that it is very

unfortunate that the Tribunal forgot the

object of the Act of the benevolent

legislation and though there are guidelines

and judgments which can assist the Court in

deriving at just, fair and reasonable

compensation, the Tribunal, in this case,

has awarded lumpsum amount without any

justification or any reasoning to support

the same.

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

Adv. Mr. H.P. Mehta for the Oriental

Insurance Co. Ltd. submits that they have

been exonerated and no liability has been

laid down.

3. Mr. Palak Thakkar, learned advocate for the

respondent - insurance Company submits that

the learned Tribunal has considered the case

of the claimant who had urged himself to be

a labourer, but could not produce any

evidence to substantiate the fact and

further, the claimant has failed to examine

the Doctor to prove his physical disability,

nor any medical bills have been produced to

substantiate the injuries. Hence, the

lumpsum amount which was granted would meet

the ends of justice and thus, supporting the

judgment, Mr. Thakkar submits that the

judgment requires no interference of this

Court.

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

4. The facts of the case suggest that the

appellant-claimant on 30.7.2007 was

traveling in a rickshaw from Dahod and it is

stated that tempo bearing registration no.

GJ-9 V-2553 came from behind and dashed the

rickshaw. As a result, the rickshaw turned

turtle and the appellant suffered partial

disability.

5. At the time of the accident, the claimant

was aged about 18 years and was earning

Rs.3,000/- per month by doing labour work.

He suffered loss of hearing capacity in one

ear, lacerated wound on the right side and

sustained head injuries and the Doctor had

assessed his disability as 25%.

6. The claimant examined himself at Exh.37. The

FIR was produced at Exh.40, Panchnama at

Exh.41 and the charge-sheet counter at

Exh.42. MLC certificate at Exh.43 and the

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

disability certificate at Exh.57 were

produced by the claimant, while driving

license of the opponent no.1, R.C. Book,

investigation report, insurance policy of

vehicle no. GJ-9 V-2553 were produced from

Exhs.46 to 49 respectively. The driving

license of opponent no.4 at Exh.50, R.C.

book permit and insurance policy of vehicle

no. GJ-20 T-1352 were produced vide Exhs.51

to 53 respectively. The accident is not in

dispute and the learned Tribunal, relying

upon the evidence on record, held the driver

of tempo no.GJ-9 V-2553 negligent and

because of negligence of the driver, it has

been observed that the claimant sustained

injuries in the accident.

7. The learned Tribunal, though had come to the

conclusion that the claimant had sustained

injuries in the accident and the evidence

was given by the claimant that he had

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

suffered permanent hearing impairment and

submitted injury certificate, which

discloses that he was treated in the

hospital and had produced the disability

certificate at Exh.57, had not considered

the same on the ground that the claimant has

failed to examine the Doctor who had issued

the disability certificate. Hence, the

Tribunal came to the conclusion that the

disability is not proved.

8. The Hon'ble Apex Court in the case of Raj

Kumar v. Ajay Kumar & Anr., reported in

(2011) 1 SCC 343 has observed as under:-

"11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'.

While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage."

9. It has been observed about the assessment to

be made by the Tribunal regarding the

functional disability of the claimant. Here,

the disability of the claimant is shown as

25% because of the hearing impairment

sustained in the accident and thus,

following the judgment in the case of Raj

Kumar (supra), 25% disability is to be

considered and 12.5% of the body as a whole,

if considered, would be just and proper.

10. The learned Tribunal has considered that the

claimant was doing labour work, but had

failed to prove and had assessed notional

income of the deceased at Rs.2,250/- per

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

month. Hence, taking into consideration the

date of accident and keeping in view the

minimum wages schedule, the income of

Rs.2,600/- per month is required to be

considered considering the age of the

claimant as 18 years at the time of the

accident and 40% addition is to be made

towards future prospective rise. Hence, the

income per month would be considered as

Rs.3,640/- (Rs.2,600/- + 40% rise=

Rs.1,040/-). 12.5% permanent disability is

to be considered and accordingly, functional

disability is assessed and thus, on the

monthly income, the annual disability

applying the multiplier of 18, future loss

of income would come to Rs.98,280/-.

Rs.3,640/- X 12.5% = Rs.455/-. Rs.455/- X 12

X 18 = Rs.98,280/-.

11. The learned Tribunal has not even granted

any amount under the head of pain, shock and

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

suffering, medical expenses, actual loss of

income, special diet, attendant charges and

transportation. Considering the disability

which the claimant sustained and the

treatment undergone, reasonable amount is to

be granted under all heads. Considering the

period of hospitalization, actual loss of

income of 3 months is granted and

considering the hearing impairment and the

head injuries, he would have taken at least

3 months period for recovery. No medical

bills have been produced on record, but

considering the treatment undergone and the

documents on record regarding the disability

certificate, aggregate amount is to be

granted. Thus, the computation of the

compensation would be as under:-

Future loss of income Rs.98,280/- Pain, shock and suffering + Rs.15,000/- Special diet, attendant and + Rs.10,000/- transportation charges

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

Medical expenses + Rs.5,000/- Actual loss of income + Rs.7,800/- Total compensation = Rs.1,36,080/-

12. As the Tribunal has granted Rs.9,999/- as

compensation money, the appellant-claimant

would be entitled to enhanced amount of

compensation of Rs.1,26,081/- at the rate of

7.5% interest per annum from the date of

filing of the application till its

realization. The respondent no.3 - insurance

Company is directed to deposit Rs.1,26,081/-

with interest at the rate of 7.5% per annum

within eight weeks from the date of receipt

of writ of this Court.

13. Out of the said amount, 70% of the amount

be invested in a Fixed Deposit with any

nationalized Bank, initially for a period

of two years, (which shall be renewed

from time to time) without any reference

to this Court, or till the final disposal

C/FA/2220/2019 JUDGMENT DATED: 21/02/2023

of the appeal, whichever is earlier.

Insofar as the remaining 30% amount is

concerned, the same shall be disbursed in

favour of the claimant after proper

verification. Interest on such Fixed

Deposit shall be paid to the claimant

periodically.

14. The impugned judgment and award be modified

accordingly. The appeal is partly allowed.

Registry is directed to send the record and

proceedings back to the Tribunal, if

received.

(GITA GOPI,J) Maulik