Gujarat High Court
Babubhai Tapubhai Rathod vs Sanojkumar Jain on 15 March, 2023
Bench: Gita Gopi
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 567 of 2018
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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BABUBHAI TAPUBHAI RATHOD
Versus
SANOJKUMAR JAIN & 1 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/03/2023
ORAL JUDGMENT
1. Claimant, as an injured, has challenged the
judgment and award dated 25.10.2017 passed
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
by the MACT (Main), Bhavnagar in MACP no.
579/09.
2. The case of the claimant was that he was
going, driving his Luna bearing registration
no. GJ-4 M-5595 to his service place on
6.1.2006 at about 10:00 a.m. in moderate
speed and on correct side of the road. When
he reached near the Atabhai Road, one car
bearing registration no. GJ-4 D-5790
suddenly opened the door of the vehicle. As
a result, the appellant lost control on his
vehicle - Luna and dashed on the door of the
car and in the result, he sustained about
23% disability of the body as a whole.
3. Learned advocate Mr. Shah along with learned
advocate Mr. Modi submit that the learned
Tribunal has granted lumpsum amount of
Rs.45,000/- to the appellant, while the
amount under the head of pain, shock and
suffering, attendant charges, transportation
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
expenses, etc. have not been granted and
further state that the loss of the amenities
of life, considering the disability, has not
been assessed by the Tribunal, which ought
to have been in accordance with the evidence
led on record.
4. While learned advocate Mr. Thakkar submits
that the appellant is a Government servant
and was serving in Central Salt and when he
retired, he was drawing salary of
Rs.35,000/- to Rs.40,000/- per month and
thus, there was no loss in the future income
and thus, submits that the learned Tribunal
has rightly considered this aspect and the
lumpsum amount with the medical bills so
granted is just and reasonable.
5. The learned Tribunal has considered the fact
that the claimant was 52 years at the time
of the accident and he was drawing salary of
Rs.15,758/- per month, while the claimant
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
was drawing salary of Rs.35,000/- to
Rs.40,000/- per month while he retired in
the year 2013. Hence, the Tribunal came to
the conclusion that the there would not be
any future loss of income. However, the
Tribunal failed to consider the aspect that
the claimant has sustained 23% permanent
disability and both the parties had admitted
to consider the disability of the body as a
whole at 11.5%. The learned Tribunal has not
considered this disability as functional
disability and ought to have taken into
consideration 23% physical disability to
assess the loss of amenities of life and
should have granted amount under the said
head. To compute the loss to the life
because of disability to bring certain
degree of accuracy in computing the loss,
thus, considering the income of Rs.15,758/-
per month at the time of the accident and
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
the disability as consented as of 11.5% and
applying multiplier of 5, keeping in view
the age of the claimant at the time of the
accident, this Court considering that the
claimant would have sustained loss of
amenities of life with permanent disability,
so under the said head, it would be just and
reasonable to grant an amount of
Rs.1,10,000/- for loss of amenities of life.
The medical bills have been produced on
record amounting to Rs.27,270/-, but the
learned Tribunal has not considered the fact
that the appellant, because of his 23%
permanent disability and the treatment,
could have suffered pain, shock and
suffering and during the treatment, the
claimant would have received special diet
and some person would have attended him and
there would have been expenses for
transportation charges. Thus, under the head
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
of pain, shock and suffering, Rs.15,000/- is
granted and under the head of special diet,
attendant and transportation charges, an
amount of Rs.7,500/- is granted.
6. Thus, the compensation would be computed as
under:-
Loss of amenities of life Rs.1,10,000/-
Medical expenses + Rs.27,270/-
Pain, shock and suffering + Rs.15,000/-
Special diet, attendant and + Rs.7,500/-
transportation charges
Total compensation = Rs.1,59,770/-
7. As the Tribunal has awarded compensation of
Rs.45,000/- with interest at the rate of 9%
per annum, the appellant-claimant would be
entitled to enhanced amount of compensation
of Rs.1,14,770/- with interest at the rate
of 7.5% per annum from the date of filing of
the claim petition till its realization. The
insurance Company is directed to deposit
Rs.1,14,770/- with interest at the rate of
C/FA/567/2018 JUDGMENT DATED: 15/03/2023
7.5% per annum within eight weeks from the
date of receipt of writ of this Court.
8. The appeal is partly allowed. The impugned
judgment and award be modified accordingly.
Registry is directed to send the record and
proceedings back to the Tribunal, if
received.
(GITA GOPI,J)
Maulik
