Valjibhai Popatbhai Vaviya vs Yunus Ibrahim Patti
2023 Latest Caselaw 6730 Guj

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     C/FA/3240/2010                               ORDER DATED: 13/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3240 of 2010

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                       VALJIBHAI POPATBHAI VAVIYA
                                  Versus
                      YUNUS IBRAHIM PATTI & 5 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 5
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3,6
RULE NOT RECD BACK for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 13/09/2023

                               ORAL ORDER

1. Being dissatisfied with the quantum of compensation awarded by the Tribunal at Surat, the original injured claimant has preferred the present appeal seeking enhancement of compensation.

2. The injured Valjibhai Vaviya, being a passenger of Luxury Bus, sustained serious injuries. The accident took place on 27.02.2001. Due to collusion of the luxury bus and stationary truck, the appellant sustained and suffered spinal injury, resulting into 100% disability. He was working with travel company as a booking Clerk and was earning Rs.5000/- p.m. He was hospitalized for about 1 month and had spent huge amount towards different heads of the compensation. In these background facts, he had filed claim petition (294 of 2001)

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before the Surat Claim Tribunal, claiming Rs.20,00,000/- by joining both the vehicles and their insurance companies. The learned Tribunal vide its judgment and award dated 11.07.2008, came to the conclusion that, there was no fault on the part of driver of stationery truck and the alleged accident was being occurred on account of negligent driving of the bus driver. So far as quantum part is concerned, the Tribunal awarded following amount under the different heads:

Rs.2,11,845/- Medicines and treatment charges Rs. 47,000/- Future medical expenses Rs. 50,000/- Pain, shock and suffering Rs. 14,800/- Transportation, attendant loss and special diet.

Rs,4,20,000/- Future loss of income. ========== Rs.7,43,645/- Total

3. The appellant claimant being dissatisfied with the aforesaid amount of compensation is before this Court.

4. Mr. Hiren Modi, learned counsel appearing for and on behalf of the appellant - claimant has submitted that, the Tribunal grossly erred both the facts and in law, in not evaluating the evidence on record to just and reasonable compensation. That, the claimant suffered 100% disablement on account of spinal injuries and same has been established by proving medical evidence. That, the appellant being a booking clerk, now permanently deprived in doing the said work and considering the age, he could not worked for any gain and became total dependent on the others. Thus, therefore, Mr. Modi, relying on the case of Kajal Vs. Jagdish Chandra (2020

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ACJ SC 1042), submitted that, while awarding the amount of compensation in the case of serious and grave injury, the Tribunal overlooked the non-pecuniary damaged like loss of amenities and loss of expectation of loss and therefore, he prays that the amount of compensation be modified and enhanced accordingly.

5. On the other hand, Mr. Vibhuti Nanavaty, learned counsel appearing for and on behalf of respondent Insurance Companies, has submitted that, the tribunal has not committed either error on facts or on law while awarding the amount of compensation under the different heads and therefore, no ground is made out to interfere with the impugned judgment and award which seems to be just, proper and having been passed after considering the settled principle of the just compensation.

6. Having heard the learned counsel for the respective parties, the issue falls for my consideration is whether the appellant is entitled to enhanced compensation under different heads of pecuniary and non-pecuniary damages?

7. Section 168 of the Motor Vehicle Act, 1988 provides that, the claim tribunal shall make an award to determine the amount of compensation which appears to be just. In the case of Helen Rebello (1999 ACJ 10), the Apex Court interpreted the word "just". It is said that, the word "just" as its nomenclature, denotes equitability, fairness and reasonableness having large peripheral field. It was further held that, the largeness is, of course, not arbitrary; it is restricted by conscience which is fair,

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reasonable and equitable. In the case of Arvindkumar (ACJ 2010 2857) the Apex Court emphasized that, while awarding compensation in personal injury cases, an attempt should be made to put the injured in the same position as he was, as far as money is concerned. In K. Suresh vs. New India Assurance Company Limited reported in 2012 (1) SCC 274, the Apex Court held that, an adjudicating authority while determining the quantum of compensation, has to keep in view of sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, the Apex Court observed that, while computing the compensation, the approach of the tribunal or Court has to be broad based and the methodology would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation.

8. It is also settled position of law that in case of grave and serious injuries the compensation is to be awarded under the head of pecuniary damages like treatment, hospitalization, medicines, transportation and other expenditure, loss of earnings, loss of future earnings and future medical expenses and under the head of non-pecuniary damages, the compensation may be considered under different heads like damages of pain suffering and trauma, loss of amenities, loss of expectation of life. It is clarified by the Apex Court in the case of Rajkumar (supra) that, in a routine personal injury cases the Court can award the compensation under the

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pecuniary damages, however, in a serious case of injury, where there is special medical evidence, the compensation will be granted under non-pecuniary damages.

9. In view of the above authoritative rulings of the Apex Court and considering the peculiar facts and circumstances of the present case, it is established that, the appellant-claimant sustained spinal cord injuries, as a result of which, he has quadriparesis and became a patient of paraplegic. Dr. K.C. Jain- Exh.90 was examined to establish the facts of the injury as well as disablement suffered by the claimant. As per the opinion of Dr. Jain, there is no improvement in the movement of lower and upper limbs and the patient has to live bedridden throughout the life. The doctor has opined 100% disablement as a result of injuries as there is 100% loss of earning capacity. The learned tribunal also after relying the medical evidence on record, came to conclusion that, the appellant-claimant has suffered 100% disability which has impact on his earning capacity and he could not execute his clerical job as a Booking Clerk and cannot do any work for his livelihood. It is not in dispute that, the claimant is totally dependent on others for his daily routine and his life become miserable.

10. In the aforesaid facts and evidence on record, this Court is of considered view that, under the head of future loss, the tribunal erred in not granting future rise and straightway computed the amount which requires modification. The tribunal did not seriously consider the length of treatment and the inability of the claimant to enjoy his life as before. Thus, under the head of non-pecuniary damages, the tribunal has not

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granted any amount.

11. In view of the aforesaid and considering the settled principle of just compensation and keeping in mind the seriousness of the injuries supported by the medical evidence, the modified compensation payable to the claimant is computed below:

1. Future loss Rs.5,25,000/- (Rs.2500+25% X 12 X 14)

2. Pain, shock & suffering Rs.2,00,000/-

3. Attendant charges Rs.1,25,000/- (Rs.750 X 12 X 14)

4. Loss of amenities & Loss of expectation of life Rs.3,00,000/-

5. Special diet & transportation Rs.60,000/-

6. Future medical expenses Rs.1,00,000/-

Total Rs.13,10,000/-

(The awarded amount Rs.7,43,345/-. After deducting the said amount from the total amount, the enhanced amount of compensation would come to Rs.5,66,655/-).

12. For the reasons recorded, the present appeal is allowed in part. The appellant is entitled to get the enhanced amount of compensation of Rs.5,66,655/-. This amount shall carry interest @ 6%. It is made clear that, the interest amount under the head of attendant loss (Rs.1,25,000/-) and future medical enhanced expenses (Rs.50,000/-) awarded herein would be calculated from the date of original award i.e. from 11.07.2008. Decree be drawn accordingly.

(ILESH J. VORA,J) TAUSIF SAIYED