Gujarat High Court
Sarojben Natvatsinh Rathod vs Naginbhai Mohanbhai Rathod on 6 June, 2023
Bench: Gita Gopi
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2404 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SAROJBEN NATVATSINH RATHOD
Versus
NAGINBHAI MOHANBHAI RATHOD
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 6
MR YOGI K GADHIA(5913) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2,3,5
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/06/2023
ORAL JUDGMENT
1. Heard the learned advocates appearing for the
respective parties.
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
2. Being aggrieved and dissatisfied with the judgment and
award dated 17.11.2006 passed by the MACT (Aux),
Panchmahals at Godhra in MACP No.583/1988, the
appellants - original claimants have preferred present
First Appeal under Section 173 of the Motor Vehicles Act.
3. It is the case of the claimants that tractor bearing
registration No.GAF-9429 of opponent No.2 and trailer
bearing registration No.GRY-6238 of opponent No.3 was
loaded with bags of fertilizers and sand, which was
already loaded, was driving in excessive speed and in
rash and negligent manner. When the said tractor
reached near Sansoli Village, at that time, opponent No.5
came driving tractor bearing registration No.GAM-6289
with trailer bearing registration No.GRY-6402 and dashed
with the tractor No. GAM-6289 and as a result, accident
took place. It is stated that opponent No.1 lost control
over his tractor No.GAF-9429, wherein, the deceased was
travelling and fell down on the ground and the wheel of
the tractor passed over on his stomach and he sustained
grievous injuries.
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
4. Mr. Hiren Modi, learned advocate for the appellants
claimants submitted that that victim-minor's injuries had
been proved by the deposition of the doctor who was
examined at Exh:68 where the doctor has referred to the
medical disability certificate at Exh:76, whereas observed
in Exh:85 that the doctor had assessed the disability on
four counts, which are referred hereunder :-
(I) 20 % of severed urethra
(ii) 30 % of upper urinary track
(iii) 30 % loss of sexual function
(iv) 0.5 % weakness of the anterior abdominal wall
5. Thus, Mr. Modi submitted that the doctor has assessed
85% disability and thus, following the judgment of
Master Mallikarjun Vs. Divisional Manager, The
National Insurance Company Limited & Anr. [AIR
2014 SC 736], he submitted that the minor claimant
ought to have been appropriately compensated.
6. Countering the arguments, Mr. Maulik J. Shelat learned
advocate for respondent No.6 - United India Insurance
Co. Ltd. and Mr. Yogi Gadhia, learned advocate appearing
for respondent No.4 - National Insurance Co. Ltd.
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
submitted that the order below Exh:85 passed by learned
Tribunal shows that the certificate produced was not
reflecting the exact disability of the minor and therefore,
the learned Tribunal had directed the applicant to appear
before the Medical Board of SSG Hospital, Vadodara for
deciding the disability of severed urethra, upper urinary
track, loss of sexual function and weakness of the
anterior abdominal wall and the learned Tribunal has
requested the authorized person of the SSG Hospital
Vadodara to examine the applicant for deciding the
disability on the above-referred points. However, the
applicant failed to appear before the Medical Board and
disability could not be proved before the Tribunal.
Accordingly, the Tribunal granted lumpsum amount of
Rs.40,000/-.
7. It is submitted at bar that the minor claimant thereafter
died on 28.08.2010 and the judgment came to be
delivered on 17.11.2016. The prayer was made for the
compensation of Rs.2,00,000/- in the year 1988. The
doctor who has been examined as a witness had
assessed 85 % disability of the minor, however, the fact
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
remains that the applicant though directed to appear
before the Medical Board of SSG Hospital, failed to get
himself examined in accordance with the order of the
Motor Accident Claims Tribunal, Panchmahal at Godhra,
below Exh:85. The medical bills and report at Exhs:52, 53
and 61 prove that parents had spent Rs.22,590. The
doctor who had examined the minor had given a medical
certificate. Though 85 % disability could not be proved,
but the urological case papers and urological report and
medical bills of the Urologist have been proved in the
Court, which has been observed in the judgment. Since
the disability as stated by the witness doctor could not be
proved through examination of the Medical Board report,
it would be difficult to follow the yardstick as laid down
by the Apex Court in the case of Mallikarjun Vs.
Divisional Manager, The National Insurance
Company Limited & Anr. However, considering the fact
of the medical expenses and urological report, amount
under the head of pain, shock and suffering could be
granted, at the same time considering the injuries, some
reasonable amount is also required to be granted under
the head of loss of enjoyment of life. This Court taking
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
into consideration the date of accident, deems fit to grant
Rs.1,50,000/- under the head of pain, shock and
suffering, Rs.50,000/- under the head of loss of
enjoyment and amenities of life and Rs.22,590/- as
medical bills. Thus, in total, the claimants would be
entitled to get Rs.2,22,590/- with interest at the rate of
7.5 % from the date of claim petition till its realization.
8. As the Tribunal has granted compensation of Rs.40,000/-
with interest at the rate of 9%, the appellants would be
entitled to enhanced amount of compensation of
Rs.1,82,500/- with interest at the rate of 7.5% per annum
from the date of filing of the claim petition till its
realization. The insurance Companies are directed to
deposit said additional amount with interest at the rate of
7.5% per annum within eight weeks from the date of
receipt of writ of this Court
9. It is clarified that as there has been delay of 1007 days in
filing the appeal, the burden of payment of interest may
not be laid on the Insurance Companies. Hence, for those
delayed period, interest amount be excluded and
accordingly, the additional compensation amount be
C/FA/2404/2022 JUDGMENT DATED: 06/06/2023
deposited in the Tribunal by both the insurance
Companies in accordance with the proportion laid down,
for the negligence attributed.
10. 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.
Sd/-
(GITA GOPI,J)
SUCHIT
