Gujarat High Court

Harshit Chadrakishor Alias ... vs Ranmalbhai Harshadbhai Mer on 26 June, 2023

Bench: Gita Gopi

      C/FA/330/2020                              JUDGMENT DATED: 26/06/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 330 of 2020

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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 HARSHIT CHADRAKISHOR ALIAS SHARADBHAI PANDYA
                          Versus
            RANMALBHAI HARSHADBHAI MER
=================================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
DS AFF.NOT FILED (N) for the Defendant(s) No. 1
MS VYOMA K JHAVERI(6386) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 26/06/2023

                            ORAL JUDGMENT

1. Perused the office note and considered the accompanying

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

report.

2. The office note is disposed of.

3. This is an appeal under Section 173 of the Motor Vehicles Act,

1988 arising out of the judgment and award dated 15.02.2019

rendered by the learned Motor Accident Claims Tribunal (Main),

Junagadh (the Tribunal) in Motor Accident Claim Petition No. 374

of 2006 (claim petition), whereby, the Tribunal was pleased to award

compensation of Rs.30,23,800/- with interest at the rate of 8% per

annum from the date of claim petition till realization against the total

compensation of Rs.70 lakh as claimed by the appellant - original

claimant towards injuries sustained by the appellant - claimant.

Accordingly, the appellant has preferred this appeal for enhancement

of compensation.

4. The present appeal is filed, inter alia, raising the ground that

the learned Tribunal has not considered the income of the appellant

as per the qualification of the appellant coupled with the fact that he

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

was pursuing his studies in Microbiology. Further ground has been

raised that, owing to the vehicular accident, the appellant is suffering

100% physical disability and therefore, the amount awarded has not

been considered just and appropriate to compensate the claimant on

various heads.

5. As the facts go, the claimant, on 12.08.2006, was travelling in

an ST Bus bearing registration No. GJ-18-V-8769, which was being

driven by the respondent No. 1, by paying fare and was proceeding

from Ahmedabad to Junagadh. It was contended that the respondent

No. 1, the driver of the ST Bus, was driving the bus in full speed and

in rash and negligent manner and instead of taking the bus towards

Junagadh, the driver took the bus towards Vadodara and when they

were passing through the Toll Tax Post, the driver took a turn and

when it reached one kilometer away from the Toll Tax Post, owing

to the speed and rash and negligent driving, the bus had a heavy

jump because of a pit on the road and therefore, the appellant -

claimant was tossed down heavily in the bus and was thrown away

from his seat, because of which, he sustained injuries in the spinal

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

cord and there were fracture injuries at two places. It is contended

that the appellant - claimant was immediately moved to the SAL

Hospital at Ahmedabad and treated as an indoor patient for about 20

days and was operated upon and after discharge from the hospital, he

had to take follow up treatment. Because of the injuries sustained,

he suffered severe pain, shock and agony and incurred heavy

expenses for the medical treatment.

5.1 At the time of accident, the claimant was aged 20 years and it

was urged that he was earning Rs.5,000/- per month by providing

tuitions and was also pursuing his studies in Microbiology and was

supporting the family and owing to the accident, he totally lost his

source of income and thus, had claimed Rs.70 lakh under different

heads to compensate him for the loss suffered.

5.2 The learned Tribunal, after having considered the documents

on record, has concluded sole negligence of the ST Bus driver.

6. Heard, learned advocate Mr. Nishit Bhalodi for the appellant

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

and learned advocate Ms. Vyoma Jhaveri for the respondent No. 2.

6.1 The learned advocate for the appellant submitted that

necessary documents were produced on record by way medical bills

and the learned Tribunal has, on the basis of the documents so

produced, has assessed the amount under the head of medical

expenses, special diet, attendant, physiotherapy and transportation

charges at Rs.24,10,400/-. It is submitted that this fact itself

suggests that the claimant had availed long term treatment and has

expended a lot towards medical expenses. The claimant had

produced MLC papers issued by the SAL Hospital and Medical

Institute, Ahmedabad vide Exhs. 61 and 75 and Medical Case Papers

at Exh. 76, where, the learned Tribunal has observed that the

appellant - claimant had blunt injury over nape of neck and has

further found that the claimant had developed weakness on all limbs

and quadriplegia occurred and x-rays of Cervical spine were taken

and he was treated conservatively. The Disability Certificate is

issued by Dr. Prashant B. Chhaya, M.S. (Ortho.), Junagadh at Exh.

74. On examination of the patient, more particularly, both upper

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

limbs and both lower limbs, it was found that the claimant had

fracture C-5 Vertebra, Quadriplegia and the treatment given was

conservative and the type of treatment was traction and he was

admitted as an indoor patient for about 20 days with chief complaint

of paralysis of both upper limbs and lower limbs. The medical

expert has assessed 100% permanent partial physical impairment of

body as a whole involving all four limbs. The learned advocate for

the appellant - claimant, thus, has stated that in spite of evidence on

record, the learned Tribunal has not properly compensated under the

head of Pain, Shock and Suffering, where, at present, owing the

quadriplegia, the appellant - claimant is bedridden and still

undergoing pain and it is stated that there is no improvement and in

future too, there are no chances of any improvement and through out

his life, the appellant - claimant would continue in such a condition

leading to more pain and sufferings. Referring to a decision of the

Division Bench of this Court in Bhavik @ Bhavin Dwarkadas

Vithlani v. Ganpatsinh Manubha Jadeja, 2021 (0) AIJEL-GJ

243099, the learned advocate for the appellant - claimant submitted

that the claimant is 100% disable and in vegetative state has lost

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

future hope of improvement and the learned Tribunal ought to have

considered the Pain, Shock and Suffering, loss of marriage

prospective and loss of amenities and enjoyment of life. The learned

Tribunal has granted a meager amount of Rs.50,000/- under the head

of Pain, Shock and Suffering.

6.2 Learned advocate Ms. Vyoma Jhaveri for the respondent - ST

Corporation has stated that the amount under the head of Pain,

Shock and Suffering as granted by the learned Tribunal would be

appropriate since the learned Tribunal has granted the amount under

the heads of attendant charges, physiotherapy and transportation

charges and for special diet including the medical expenses totalling

to Rs.24,10,400/- and thus, she stated that such an amount would be

appropriate to be considered under the head of Pain, Shock and

Suffering. It is further submitted that though the claimant could

produce on record the documents to show his graduation but there

could not be any assumption with regard to his future income as he

could not prove any scope of having any gainful employment,

though could have got a degree in Science.

       C/FA/330/2020                          JUDGMENT DATED: 26/06/2023




6.3     The medical bills as well as the amount under the attendant

charges has been paid towards bills which were proved on record

and therefore, the amount, as granted of Rs.24,10,400/- is the total

amount, which has been proved by the claimant by way of cogent

evidence, while it is a case that the appellant - claimant has 100%

physical disability and he is suffering from paraplegia. The Tribunal

has considered the said fact and 100% disability for the body as a

whole has been believed by the Tribunal, but, the learned Tribunal

has failed to keep in view the marriageable age of the claimant,

longevity of the claimant and the fact that owing to the paraplegic

condition, he has lost his future prospects of marriage and also, he

would not be in a position to enjoy the life as usual and would also

not have the pleasure of amenities of life. The learned Tribunal has

not considered the same, which is required to be compensated.

Accordingly, under the head of Pain, Shock and Suffering, the

amount is required to be enhanced from Rs.50,000/- to Rs.6 lakh.

Further, the amount under the head of Loss of Marriage Prospects is

assessed to Rs.2,00,000/-, and under the head of Loss of Amenities

and Enjoyment of Life of Rs.2,00,000/-.

       C/FA/330/2020                         JUDGMENT DATED: 26/06/2023




6.4     The learned Tribunal, while assessing the income of the

injured claimant has observed that nothing has been produced on

record to show the exact income and no cogent documentary

evidence was produced by the appellant and thus, in the absence of

proof of income, the learned Tribunal has assessed the income on the

basis of the Minimum Wage Schedule for a skilled labourer Skill-A

and as per the prevalent rate on the date of accident i.e. on

12.08.2006, considered the daily income of Rs.62.10 ps. and has

assessed the monthly income of the appellant as Rs.1,863/- to

consider it as yearly income of Rs.22,356/-. The claimant has stated

that he was earning the income by way of giving tuitions so as to

meet with the expenses and was also supporting the family. A copy

of Statement of Marks was produced on record at Exh. 84, which

reflects that he was pursuing his studies in Microbiology in Virani

SC, Rajkot and had passed B.Sc. examination held by Saurashtra

University. It appears that the learned Tribunal has failed to take

this document in consideration. Further, Exh. 84 is also supported

by a Certificate issued by the Principal of M. & N. Virani Science

and Yogiji Maharaj Arts and Commerce College, Rajkot to certify

C/FA/330/2020 JUDGMENT DATED: 26/06/2023

that the claimant was a bona fide student of the college, who had

passed T.Y. B.Sc. in March/April 2006 in the first attempt. The Seat

No. of 1077 and the mark-sheet fortifies the same. The learned

Tribunal should have, thus, considered that the complainant had

completed his third year of B.Sc. and he would have earned, if at all

had been employed at a service, with good carrier progression.

Taking into consideration the date of accident i.e. 12.08.2006, this

Court considers the income of Rs.5,000/- per month and considering

the age of the claimant at the time of accident, he would earn 40%

rise in income. Having 100% functional disability, future loss of

income would come to Rs.15,12,000/- (Rs.5,000 + 40% = 7,000 x

100% x 12 x 18 (multiplier).

6.5 Thus, in view of the above, present appeal requires to be

allowed and is accordingly, allowed in part. The appellant - original

claimant is entitled to following compensation under the different

heads as narrated herein below, and to that extent, the impugned

judgment and award stands modified:

       C/FA/330/2020                             JUDGMENT DATED: 26/06/2023




                      Head                             Amount (Rs.)
Future loss of income                                            15,12,000/-
Pain, Shock and Suffering                                          6,00,000/-
Loss of Marriage Prospects                                          2,00,000/
Loss of Amenities and Enjoyment of Life                             2,00,000/
Medical Expenses                                                 24,10,400/-
                          Total Compensation                     49,22,400/-
                            Award of Tribunal                    30,23,800/-
                                       Difference                18,98,600/-


6.6     Thus, the claimant shall be entitled for a total compensation of

Rs.49,22,400/-. Further, the claimant shall be entitled for interest at

the rate of 7.5% per annum on such enhanced amount of

compensation viz. Rs.18,98,600/-, which shall be deposited within a

period of 10 weeks from the date of receipt of copy of this judgment

and order. Upon such deposit being made, 50% amount shall be

disbursed to the appellant - claimant on proper verification of

identity and rest 50% be invested in the FDR in the name of the

claimant with any Nationalized Bank for a period of five years.

FDR shall be kept in the custody of the Nazir of the Tribunal

concerned. No encumbrance, whatsoever, shall be permissible on

such FDR. However, the claimant shall be entitled to the periodical

C/FA/330/2020 JUDGMENT DATED: 26/06/2023