Gujarat High Court
Bhikhubhai Dhirajlal Nanda vs Hirabhai Mansurbhai Gadhavi on 6 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/5197/2007 ORDER DATED: 06/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5197 of 2007
With
R/FIRST APPEAL NO. 5326 of 2007
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BHIKHUBHAI DHIRAJLAL NANDA
Versus
HIRABHAI MANSURBHAI GADHAVI & 2 other(s)
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 06/09/2023
ORAL ORDER
1. As both the appeals arise out of common judgment and
award, they are being disposed of by this common order.
2. The appellants had sustained grievous injuries in a road
accident, allegedly caused by driver of the luxury bus as
the bus in question rammed into ditch at the road side.
The appellants filed claim petitions viz. MACP Nos.617 of
1996 and 618 of 1996 under the provisions of Motor
Vehicle Act. The claim Tribunal, after considering the
evidence on record and hearing the parties, partly allowed
the petitions. The appellants, being dissatisfied with the
amount of compensation awarded by the Tribunal, have
preferred present appeals seeking enhancement of
compensation.
3. This Court has heard learned counsels Mr.M.M. Mansuari
and Mr.Nagesh Sood for the respective parties.
4. Mr.Mansuari appearing for and on behalf of the appellants,
has submitted that the amount awarded in both the cases
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C/FA/5197/2007 ORDER DATED: 06/09/2023
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are meager and lower side and the Tribunal has ignored
the settled principle of law, in relation to the principle of
just compensation.
5. On the other hand, Mr.Nagesh Sood, learned counsel
appearing for and on behalf of the respondent - Insurance
Company, has submitted that the Tribunal, after
considering the oral as well as documentary evidence, has
passed the award which is just, reasonable and equitable
and has not committed any error either on facts or law,
warranting interference by the Appellate Court.
6. Having heard learned counsels for the respective parties
and on perusal of the impugned judgment and award, the
issue falls for my consideration is whether the amount
determined by the Tribunal in both the appeals needs any
enhancement.
7. Appellant - Bhikhubhai Nanda, being a passenger of the
luxury bus, sustained fracture injuries viz. fracture left
shaft humerus and fracture later condyle on the same
hand. Initially, he was treated at Nadiad Civil Hospital and
was referred to Ahmedabad Civil Hospital and after taking
treatment there, he was admitted at Jamnagar Medical
Officer where operation was performed for the fracture
humorous and steel rod inserted and was stayed at the
hospital as in-patient for about 5 to 6 days. It is the case of
the claimant that at the relevant time, he was working with
Digjam Mill on daily basis. Due to sustaining of the said
injuries, he suffered permanent partial disablement to the
extent of 60%, certified by Dr.K.H. Sojetra. Considering the
oral as well as documentary evidence, the Tribunal by
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C/FA/5197/2007 ORDER DATED: 06/09/2023
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allowing application awarded total amount of
compensation Rs.83,900/- under the following heads:
(i) Rs.60,750/- - Future loss of income
(ii) Rs.7,500/- - Pain, shock and suffering
(iii) Rs.4,500/- - Actual loss of income
(iv) Rs.8,150/- - Medicines
(v) Rs.3,000/- - Special diet, attendant
charges, transportation
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Rs.83,900/- Total
8. Learned counsel Mr.Mansuri submitted that the Tribunal
while computing the future economic loss, failed to take
into account the actual income of the injured, based on the
statement of advocate, wrongly applied the percentage of
disablement. The award has been assailed by advocate on
the other heads whereunder according to his submissions
the amount is very less and meager.
9. So far as claimant - Bhikhubhai Nanda is concerned, the
Tribunal has rightly considered monthly income of
Rs.1,500/- as there is an admission on the part of the
claimant that he was daily wager and he could not get
work for the entire month. Thus, therefore, the findings on
the issue of income do not warrant any interference. On
the aspect of fixation of the disability, it required to be
considered that the Tribunal has considered 15%
disablement a body as a whole as counsel for the claimant
by making statement restricted the percentage of the
disablement of 15%. Learned counsel Mr.Mansuri stated
that there is no admission on the part of advocate to
restrict the percentage of the disablement. This contention
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C/FA/5197/2007 ORDER DATED: 06/09/2023
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having no any merits as before the Tribunal, there was a
statement made at the bar to consider 15% disablement
and there was no reason for the Tribunal to disbelieve the
said statement that it is without any authority or made
without any instruction. If the claimant is aggrieved with
the statement made by advocate, he could have
immediately filed a review application for clarification.
Thus, the Tribunal has rightly accepted the statement
made by learned counsel for the claimant on the issue of
functional disability certified by Dr.Sojetra. It needs to be
noted that the Tribunal while computing the amount under
the future economic loss, has considered the prospective
income monthly Rs.2,250/- and has properly applied the
multiplier of 15. Thus, therefore, under the head of future
economic loss, the amount awarded is just, reasonable and
proper and this Court does not find any reason to interfere
with the findings on the issue.
10. Mr.Mansuri has raised the contentions that the amount
under the pain, shock and suffering is being awarded on
lower side. The amount under this head has been awarded
Rs.7,500/-. The claimant sustained two major injuries for
which he was twice admitted in the hospital and his
operation was performed by the concerned doctor. Thus,
therefore, this Court is of the considered view that the
amount under this head needs review and modification.
The amount payable under this head is enhanced
Rs.10,000/- more.
11. In view of the aforesaid discussions hereinabove, except
the above modification, there is no ground to interfere with
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C/FA/5197/2007 ORDER DATED: 06/09/2023
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the amount awarded under the other various heads.
12. So far as claimant - Sunitaben Nanda (Appeal No.5326 of
2007) is concerned, she has been awarded the amount
Rs.5,000/-. The claim was Rs.1,50,000/-. It is in this
context, learned counsel Mr.Mansuri submitted that the
claimant had suffered injuries in the nature of fracture i.e.
third metacarpal over the right wrist and fracture of fifth
ribs and according to Dr.Sojetra, she suffered 20%
disablement. Despite of these facts, it is submitted that
learned Tribunal overlooked the medical evidence did not
consider to award the amount under the future economic
loss. He further submitted that no any amount under the
pain, shock and suffering and other heads being awarded
which shows that the award is being passed in arbitrary
manner.
13. On the other hand, learned counsel Mr.Sood vehemently
opposed the enhancement of the amount, contending that
there is no any satisfactory evidence of fracture injuries so
far as claimant - Sunitaben is concerned and therefore, no
case is made out for enhancement of the amount of
compensation.
14. Before the Tribunal, claimant - Sunitaben was examined at
Exh.64 and had produced medical evidence at Exhs.63
and 105 and to prove her disablement witness Dr.Sojetra
Exh.103 had been examined. On perusal of the medical
evidence, it proves that she had fracture of fifth ribs and
third metacarpal for which treatment plastering was given.
It is no doubt true that there is no evidence about her
income. In such circumstances, this Court is of the
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C/FA/5197/2007 ORDER DATED: 06/09/2023
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considered view that the Tribunal failed to award the
amount under the head of future economic loss. Thus, the
claimant is entitled for the following amount of
compensation:
(i) Future economic loss - Rs.18,900/-
(Rs.1500 x 7% = 105 x
12 = 1260 x 15 =Rs.18,900/-)
(ii) Pain, shock and suffering - Rs.5,000/-
(iii) Actual loss, medicines, - Rs.8,000/-
special diet, attendance
and transportation
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Total - Rs.31,900/-
5,000/-
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26,900/-
15. In view of the aforesaid discussions and reasons thereof,
both the appeals are partly allowed. Claimant -
Bhikhubhai Nanda is entitled for the enhanced amount of
Rs.10,000/-, whereas claimant - Sunitaben is entitled for
the enhanced amount Rs.26,900/- and accordingly, to that
extent, both the appeals are partly allowed and Insurance
Company herein is directed to deposit the enhanced
amount, within three months. The enhanced amount in
both the cases shall carry interest at the rate of 6%. The
Tribunal shall disburse the entire amount respective
claimants. Decree be drawn accordingly.
(ILESH J. VORA,J)
Rakesh
