Vijayan Kunj Pillai vs Pavankumar Ashokkumar Rai
2023 Latest Caselaw 935 Guj

     C/FA/2107/2019                              JUDGMENT DATED: 07/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2107 of 2019

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 No
     the judgment ?

2    To be referred to the Reporter or not ?                                 No

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

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

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                          VIJAYAN KUNJ PILLAI
                                Versus
                      PAVANKUMAR ASHOKKUMAR RAI
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Appearance:
DR RG DWIVEDI for MS POOJA H HOTCHANDANI(7765) for the
Appellant(s) No. 1
MR ANAL S SHAH(3988) for the Defendant(s) No. 3
MR. BHAVIK P SHAH(6391) for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 07/02/2023
                             ORAL JUDGMENT

1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 26.02.2018 passed by the learned Motor Accident Claims Tribunal

C/FA/2107/2019 JUDGMENT DATED: 07/02/2023

(Aux.), Vadodara in M.A.C.P. No.1435 of 2006 praying for enhancement in the compensation amount.

2. The facts of the case are that on 26.08.2006 at about 5.00 pm, the appellant was riding his motor cycle bearing Registration No.GJ-6-BP-6267 from Por to Vadodara. The appellant following all the traffic rules was driving his vehicle slowly and carefully. When the appellant reached near the site of the accident, i.e. on National Highway No.8, between Varnama and Por near Varnama Village, one Truck bearing Registration No.HR-58-A-7681 owned by the respondent No.2 and driven by the respondent No.1 in a rash and negligent manner and endangering the human life came and dashed the motorcycle of the appellant. The appellant was thrown on the road and the wheel of the truck rolled over the right hand of the appellant, the applicant sustained crush injuries on his right hand and also serious injuries below his right eye, forehead and head. The appellant was rushed to SSG Hospital, where he was provided preliminary treatment. Thereafter, the appellant was referred to Navrang Hospital where an operation was

C/FA/2107/2019 JUDGMENT DATED: 07/02/2023

carried out and the right hand of the appellant was amputated. Extensive treatment was provided to the appellant as an indoor patient and the appellant was discharged on 04.09.2006 with a clear medical advise to take extensive follow-up treatment and to take complete bed rest for a long time.

3. Learned Advocate for the appellant Dr. R.G. Dwivedi submitted that the right hand of the appellant was amputated and as neuro-patient, he had to take extensive and expensive treatment and was later discharged from the hospital on 04.09.2006. As per the medical advice, the appellant was required to undergo follow-up treatment and was advised complete rest for a long time. It is further submitted that at the time of accident, the applicant was doing job work for M/s. Tool Product Incorporate situated in G.I.D.C. Por and was earning Rs.20,000/- per month. However, because of the injuries the appellant became incapacitated and that affected his earning. In addition, the appellant had to bear huge expenses towards medical expenses as also expenses under the head of Special Diet, Transportation and Attendant Charges. It is further submitted that

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because of the injuries sustained in the accident, it affected the appellant's ability to continue with his job and his income also dropped and was not earning consistently as compared to the time before the accident.

4. Referring to the observations made in the judgment and award of the learned Tribunal, it is submitted that the appellant had produced the deposition vide Exhibit 26 where he confirmed that he was working for M/s. Tube Products Incorporate at GIDC since 2011 where the appellant was manufacturing pipes fittings, SSCS, M.S. Alloys, from plate T Elobw, 'l' reducer design etc. and as per the appellant's evidence, he was earning Rs.17,000/- per month. To support the appellant's claim, the claimant examined witness - Vinodbhai Babubhai Chavda at Exhibit 30 who was the Manager (Human Resources) of M/s. Tube Products Incorporate before the learned Tribunal.

5. M/s. Tube Products Incorporate was incorporated in the year 2011. It is submitted that the appellant was doing the job work with the company for the

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years 2004 - 2005 and 2005 - 2006.

6. It is submitted that the assessment of income is not in accordance with the evidence on record. Further the physical disability as alleged is of functional disability which has been considered by the Tribunal @ 75%. However, no rise in income has been considered by the Tribunal. It is further submitted that considering the amputation of the right hand, the learned Tribunal ought to have been compensation under the head of loss of amenities of life. Further, the amount under the head of future medical expenses by way of prosthetic arm was required to be granted so that the appellant would feel himself fit to work and would be able to remain active in the Society as he was prior to the date of accident.

7. Countering the arguments, learned Advocate for the respondent - Insurance Company Mr. Anal S. Shah contended that with regard to the the claimant's income, though the witness has been examined but the actual earning of the appellant has not been proved and further, the appellant has admitted that

C/FA/2107/2019 JUDGMENT DATED: 07/02/2023

he was doing job work and he was not on a regular pay role. Hence, the appellant's income would differ in accordance with the job work allotted to him and thus, it is submitted by learned Advocate Mr. Anal S. Shah that there would be variance in the income. The appellant was required to prove his consistent income prior to the accident and the only evidence which has come on record is by way of deposition of the witness and thus, the income is calculated on his own assumption and though it is stated that the work was being done from 2004, no evidence has been produced of any consistency of income from other any company. It is further submitted that the appellant is shown to be the Proprietor of M/s. Vijay Fabricators but has not produced proof of his income nor has shown any papers to support the case of payment for labour work for other labourers. As per the statement, the appellant was making payment to M/s. Sonu Fabricators which shows that the work was done and it could be inferred that the work was being done through some sub-Contractor while no bills / documents has been shown towards the labour cost.

C/FA/2107/2019 JUDGMENT DATED: 07/02/2023

8. It is further submitted by learned Advocate Mr. Anal S. Shah that the learned Tribunal has observed that the appellant has not produced Bill of M/s. Vijay Fabricators and has also not produced the T.D.S. Certificate.

9. Heard learned Advocates appearing for the respective parties and perused the records of the case, including the record and proceedings. The Certificate by M/s. Tube Products Incorporate at Exhibit 25 acknowledges the fact that the appellant was performing the job work for the Company. The learned Tribunal thus, came to the conclusion that the appellant was an experienced Contractor and doing job work for a particular company and observations have been made appreciating Exhibits 31 and 32 which shows that for each month prior to the accident, the appellant was making payment for the job work and which as per the admission in the cross examination, the job work includes materials, labourers etc. The appellant has not furnished any details about annual income for carrying out the job work. No income-tax returns were produced on record nor it could be proved what the appellant was paid after deduction of TDS.

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Hence, the learned Tribunal concluded that it would very difficult to get an exact idea of the income at the time of accident.

10. Exhibits 31 and 32 produced on record is a account of M/s. Vijay Fabricators with M/s. Tube Products Incorporate (Por) Limited at GIDC, District Baroda. The account states the entries of Sonu Fabricators as labour charge expenses. It is a running account, which started from 01.04.2004, the Entry upto 31.03.2005 is produced where certain entries are regarding deduction of TDS on Contract. Taking into consideration the running account of the appellant - M/s. Vijay Fabricators and the entries regarding the expenses registered and the general register in connection with M/s. Sonu Fabricators, this Court considers it appropriate to consider as Rs.13,000/- as monthly income of the appellant. The age of the appellant at the time of the accident was 40 years and 2 months. Considering the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in 2017 16 SCC 680, 25% rise in prospective income is considered. Therefore, the

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monthly income would Rs.13,000/- + Rs.3,250/- = Rs.16,250/-. Thus, the annual income would be Rs.16,250/- x 12 = Rs.1,95,000/-. The functional disability is considered as 75% which comes to Rs.1,46,250/- (75% of Rs.1,95,000/-). Considering the age and applying the multiplier of 15, the future loss of income can be considered as Rs.1,46,250/- x 15 = Rs.21,93,750/-.

11. The learned Tribunal has considered Rs.42,641/- as actual medical expenses which requires no interference. Taking into consideration the period of hospitalization and the age of the appellant, the learned Tribunal has granted Rs.50,000/- towards pain shock and suffering which is also proper. The Tribunal has granted Rs.50,000/- for transportation, Special Diet and Attendant Charges, which requires no intervention.

12. The appellant had suffered amputation of the right hand and that would affect his ordinary process of life in absence of healthy and mobile limbs. The amputation would affect the day to day functioning of his life and under the head of loss of amenities

C/FA/2107/2019 JUDGMENT DATED: 07/02/2023

Rs.75,000/- can be assessed.

13. Considering the income as Rs.13,000/- per month, the learned Tribunal has considered the loss for the period of 8 months. Accordingly, taking the income so assessed herein under the head of loss of income, the amount would come to Rs.1,04,000/- (Rs.13,000/- per month x 8 months). Under the head of Transportation, Special Diet and Attendant Charges, an amount of Rs.50,000/- has been granted while no amount has been granted towards future medical expenses. Considering the fact of amputation of hand, an amount of Rs.50,000/- is granted, for any future medical expenses.

14. Thus, the computation can be made as under :-

                       Details                              Amount (Rs.)
Future loss of income                                        21,93,750.00
Future medical expenses                                           42,641.00
Actual loss of income                                          1,04,000.00
Pain, shock and suffering                                         50,000.00
Transportation, Special Diet and Attendant                        50,000.00
Charges
Loss of Amenities of Life                                         75,000.00
Future medical expenses - amputation of hand                      50,000.00
TOTAL                                                        25,65,391.00




     C/FA/2107/2019                                JUDGMENT DATED: 07/02/2023

15. The learned Tribunal has awarded an amount of Rs.11,43,641/- with rate of interest @ 9% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.14,21,750/- (Rs.25,65,391/- minus Rs.11,43,641/-). In the result, the present respondent/s are directed to deposit the amount within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ 7.5% per annum from the date of the application and the disbursement of the amount be made as per the judgment and award of the learned Tribunal.

16. In view of the above, the Appeal is allowed and the judgment and award dated 26.02.2018 passed by the learned Motor Accident Claims Tribunal (Aux.), Vadodara in M.A.C.P. No.1435 of 2006 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.

Sd/-

(GITA GOPI, J) CAROLINE