Gujarat High Court

Karshan Kana Alias Kanji Jaru ... vs Shambhubhai Tejabhai Khatariya ... on 6 September, 2023

Bench: Umesh A. Trivedi

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     C/FA/3695/2017                               JUDGMENT DATED: 06/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3695 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

and
HONOURABLE MRS. JUSTICE M. K. THAKKER

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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 ?

==========================================================
               KARSHAN KANA ALIAS KANJI JARU (AHIR)
                             Versus
          SHAMBHUBHAI TEJABHAI KHATARIYA (AHIR) & 5 other(s)
==========================================================
Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR. KISHAN H DAIYA(6929) for the Appellant(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 6
RULE SERVED for the Defendant(s) No. 1,2,4,5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
          and
          HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 06/09/2023



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                     ORAL JUDGMENT

(PER : HONOURABLE MRS. JUSTICE M. K. THAKKER)

1. Feeling aggrieved and dissatisfied with the impugned

judgment and award passed by the learned MACT (Aux9.) (Ad-

Hoc), Gandhidham - Kutch in MACP No.146 of 2014, dated 7 th

July, 2017, appellant - original claimant has preferred this appeal

under Section 173 of the Motor Vehicles Act.

2. Following facts emerge from the records are as under:

2.1 That on 26.02.2014, the claimant as a Pillion Rider on

Motor Cycle No.GJ12-AG2762 driven by opponent No.4, when

they reached near the Yogeshwar Chowkdi, Anjar, one tanker

bearing Registration No.GJ12-YY-9100 driven by opponent No.1

came from the opposite side - wrong side in excessive speed and

dashed with Motor Cycle of the claimant and thereby caused the

accident resulted into grievous injuries. The claimant was taken

to the Anjar Government Hospital and thereafter, referred to

Dr.Hotchandani, Gandhidham for further treatment. The claim

petition came to be filed before the learned MACT (Aux.) Ad-hoc,

Gandhidham for claiming the compensation under Section 166 of

the Motor Vehicles Act, 1988 of Rs.25 lacs. The learned Tribunal,

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after considering the evidence placed and the arguments

advanced by the learned advocates for the respective parties

was pleased to pass judgment and award granting the

compensation of Rs.8,38,172/- with proportionate cost and

interest @ 7.5% per annum from the date of Claim Petition till

the realization from opponent Nos.1 to 3 liable jointly and

severally, which is the subject matter of the petition.

3. Learned advocate, Mr.Vishal C. Mehta and Mr.Kishan

Dahiya, learned advocate for the appellant - original claimant

submitted that learned Tribunal erred in not considering the

prospective income of the claimant as due to the injury, right

arm was amputated and also not considered the functional

disability of the appellant as it is required to be assessed to be

permanent and total. Learned advocate further submitted that

towards the pain, shock and suffering, leaned Judge awarded

Rs.7500/- only as from the material placed on record i.e. Medical

Certificate as well as evidence i.e. the deposition of the injured

claimant, it transpires that the claimant had undergone two

operations and remained in Hospital for 15 days around and

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thereafter also, he could not function like earlier, there was a

continuous treatment which was going. In view thereof, learned

advocate for the claimant prays to enhance the compensation

under the head of pain, shock and suffering. Confining the

arguments with respect to the above two heads, learned

advocate for the claimant - appellant prays to allow the appeal

to the aforesaid extent.

4. On the other hand, learned advocate, Mr.Sunil Parikh,

appearing for Respondent No.3- New India Insurance Co. Ltd.

submitted that whatever the documents were relied and proved

according to the same, learned Tribunal awarded compensation,

which is just and reasonable, therefore, prayed to not to interfere

with the judgment and award passed by the learned Tribunal and

to dismiss the First Appeal.

5. Considering the submissions as well as evidence placed

before the learned trial court, this Court finds some force in the

submission of the learned advocate of the appellant with regard

to the prospective income and the compensation under the

head of pain, shock and suffering. This Court has considered the

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evidence of the claimant Exh.35, which is not controverted in the

cross examination, is produced herein below:

"In this accident, the right hand of the applicant upto the elbow got crushed and despite ample efforts of the doctors, it could not be saved and had to amputate the same. There were multiple fractures on left hip and iliac bone, whereon surgery was done and plates were inserted. Due to fracture in left leg, it got shortened by about 3 inches.

Contused lacerated wounds were sustained on right shoulder.

Contusions were sustained on right side of chest, on back as well as on chest.

Due to injuries on abdomen, the internal organs such as kidney, intestines, liver etc. were highly damaged".

6. The Medico Legal Certificate Exh.55 which is produced

before the trial Court is reproduced herein below.:

Details of Injury

1. H/O RTA between Motor Cycle and unknown tanker (truck) while going from Anjar to Ningal near Anjar Yogeshwar Chowkdi around 12.00 mid noon on 26/2/2014 and injury overhead.

2. Forearm crush injury pelvis and back side hand No H/ O LOC/vomiting / convetual / eye-bleeding.

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3. Patient fully conscious and oriented GES-15115 - Pupil - BEPL. All limbs movements - +ve P/R - 77 per minute - BP - 126/80. SPO2 - 99-1 R/R 20/min. PIA- mild distention PCT /PD7

4. RT forearm severally contaminated crush injury C

5. Of dust and particle C exposed bone muscles and vessels.RT flank hematomathi

Radiological Investigation: CT - Abdo + Pelvis Xray Pelvis + Both hands. X ray RT forearm. X-chest. Summary Treatment: RT forearm amputation and primary closure Age of Injury: Fresh Cause of Injury : Accident.

Dr.P.Vaghasiya Dr.G.Amlani and Dr.Parth Aghera

7. Considering the evidence led before the learned Tribunal, it

transpires that right arm arm was amputated due to the several

crush injury received by the claimant in the accident and

disability certificate which is mentioned @ 47.5%. As the

deceased was of the age of 45 years and lost his one hand

resulted into change in whole life. Considering the same, this

Court is of the opinion that 25% loss of prospective income is

required to be assessed as accident and grievous injury resulted

into total disability of 47.5%. That under the head of pain, shock

and suffering, total amount of Rs.75000/- is required to be

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awarded as he had undergone two surgeries, which is not

disputed by the learned advocate for the Insurance Company. In

view of above, below mentioned amount is required to be

awarded.

Particulars                                      Tribunal               Proposed
                                                 Awarded                Claim
Income (Minimum Wage) (2014)                     5,000                  5,000
Add: Future Rise (Age 45 years)                  ----                   1,250
                                                                        (25%)
                             Monthly Income 5,000                       6,250
Disability (47.5%)                               2,375                  2,969
                      Total Monthly Income 2,375                        2,969

                        Total Yearly Income 28,500                      35,628

                      Future loss of income 3,99,000                    4,98,792
Add: Medical Expenses                            4,21,672               4,21,672
Add: Actual Loss of Income                       5,000                  5,000
Add: Pain, Shock and sufferings                  7,500                  75,000
(Amputation of right leg below knee)
Add: Special Diet, Transportation, etc.          5,000                  15,000
Total Amount of Compensation                     8,38,172               10,15,464
                         Additional Amount                              1,77,292

8. As the learned Tribunal had awarded the amount of

Rs.8,38,172/- and this Court comes to the conclusion that

amount, which is required to be awarded Rs.10,15,464/- the

balance amount i.e. Rs.1,77,292/- is required to be deposited by

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the Respondent Nos.1 to 3, before the trial Court with cost and

proportionate interest @ 7.5% per annum from the date of

petition till realization.

9. In view of the above, this First Appeal is partly allowed to

the aforesaid extent. The enhanced amount is directed to