Gujarat High Court
Fatehsinh Sohansinh Ranavat vs Rameshkumar Shantilal Tank on 13 September, 2023
Bench: Gita Gopi
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C/FA/418/2020 JUDGMENT DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 418 of 2020
FOR APPROVAL AND SIGNATURE :
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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FATEHSINH SOHANSINH RANAVAT
Versus
RAMESHKUMAR SHANTILAL TANK
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4
MS MASUMI NANAVATI for MR VIBHUTI NANAVATI(513) for the
Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/09/2023
ORAL JUDGMENT
1. By way of this Appeal, the Appellant-claimant has
challenged the judgment and award dated 16.10.2018
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passed by the learned Motor Accident Claims Tribunal
(Aux.), Ahmedabad District Court (Rural), Mirzapur,
Ahmedabad in M.A.C.P. No.734 of 2011 under
Section 166 of the Motor Vehicles Act, 1988.
2. Learned Advocate for the appellant - claimant Mr.
Nishit A. Bhalodi referring to the grounds raised
submitted that the learned Tribunal has committed an
error in considering only 65% of the disability for the
purpose of assessing future loss of income. The
appellant was working as a Driver and has lost his
left leg and sustained grievous fracture injuries of
right leg and left hand and therefore, 100% functional
loss is required to be assessed as the appellant would
not be in a position to continue with his work as a
Driver. It is further stated that, looking to the age,
50% prospective rise in income is required to be
considered.
3. Learned Advocate for the appellant - claimant Mr.
Nishit A. Bhalodi submitted that the amount under
the head of pain, shock and suffering is on the lower
side and also the amount for the artificial limb owing
to the amputation of the leg has not been granted.
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It is further submitted that no amount has been
considered under the head of loss of amenities of life.
Under the head of Special Diet, Attendant Charges
and Transportation Charges, higher amounts need to
be granted.
4. Learned Advocate for the claimant Mr. Nishit A.
Bhalodi relying on the decisions of the Hon'ble Apex
Court in the case of Govind Yadav v. New India
Assurance Co. Ltd. reported in 2012 ACJ 28 as also
the recent decision dated 04.07.2023 in Civil Appeal
No.3900 of 2023 in the case of Sarnam Singh v.
Shriram General Insurance Co. Ltd. and Others
contends that if a person being a driver becomes
incapable to continue with his work because of
amputation of leg, then 100% functional disability is
required to be assessed. It is further submitted that
because of amputation of leg, there would be
requirement of future treatment and fixing of an
artificial limb. The claimant would not be in a
position to continue with his life as previously and
the pain and suffering would continue throughout his
life and therefore, appropriate amount is required to
be granted as after the accident, the appellant had to
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undergo hospitalization and surgery and lost his leg
which has affected his source of earning; thus, it is
submitted that reasonable amount is required to be
granted under the head of pain, shock and suffering.
5. On the other hand, learned Advocate for the
Insurance Company Ms. Masumi Nanavati has relied
on the decision of the Hon'ble Apex Court in the
case of Raj Kumar vs. Ajay Kumar and Anr. reported
in (2011) 1 SCC 343 and submitted that in a case
where there is loss of one leg, then no amount ought
to be granted separately under the head of loss of
amenities or loss of expectation of life if 100%
functional disability is appreciated. It is further
submitted that the learned Tribunal ought to have
considered the functional disability in accordance to
the evidence on record, as the appellant would be in
a position to carry on some other work to survive,
and thus, stated that the learned Tribunal has
adequately compensated the appellant under all the
heads.
6. Having heard learned Advocates for the respective
parties, perused the records of the case. In the case
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of Sarnam Singh (supra), the Hon'ble Apex Court was
considering the case of a Gunman, who had suffered
amputation of the right lower limb above the knee
and his services were terminated. It was further
observed that on account of this amputation, the
person cannot perform the duty of a gunman and
that was the functional disability. It was further
observed that the assessment by the learned Tribunal
of 100% loss of earning capacity was right and the
High Court fell in error to reduce the loss to 80%.
7. In the case of Govind Yadav (supra), amputation of
the leg due to infection was examined and it was
noted that the compensation awarded by the learned
Tribunal for pain, shock and trauma caused due to
amputation of leg was meager. The injured
remained in hospital for over a period of three
months and it was not possible for the learned
Tribunal to make an assessment of the pain, suffering
and trauma of the person, whose leg was amputated
because of the accident and if the victim gets an
artificial limb, he would suffer from different kinds of
handicaps and social stigma throughout his life.
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Therefore, in such case, the learned Tribunal should
have made a broad guess for the purpose of fixing
the amount of compensation. In this case, the
appellant was aged 24 years at the time of accident
and for the remaining of his life, he would suffer the
trauma of not being able to do his normal work.
The Hon'ble Apex Court therefore, awarded him an
amount of Rs.1,50,000/- in lieu of pain, suffering and
trauma caused due to amputation of leg.
8. The Hon'ble Apex Court has also considered that the
compensation awarded by the learned Tribunal for
loss of amenities of life was meager observing that it
can only be a matter of imagination as to how the
appellant will have to live for rest of his life with
one artificial limb and the appellant can be expected
to live for atleast 50 years and during this period, he
will not able to live like a normal human being and
will not be able to enjoy the life. The prospects of
his marriage have considerably reduced and therefore,
it was held just and reasonable to award
Rs.1,50,000/- towards the loss of amenities and
enjoyment of life.
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9. In the present case, the appellant-claimant suffered
injuries on 04.09.2010 in a vehicular accident while
he was heading from Valsad to Ahmedabad in Truck
No.RJ-27-GA-7907. On 05.09.2011 early in the
morning at about 5.30 p.m., he was passing on
Express Highway near Reliance Petrol Pump, at that
time, a Truck bearing Registration No.GJ-17-X-6467
driven in a rash and negligent manner, endangering
human life and in violation of traffic rules, while
moving the driver applied the brakes suddenly, so the
appellant's Truck dashed with the Truck of the
respondent, resultantly the appellant suffered serious
injuries which led to fractures on both the legs, both
the hands and other body injury. The appellant was
was immediately taken to V.S. Hospital as an indoor
patient, where on performance of an operation, rods
and plates were inserted. For further treatment, the
appellant was taken to Parimal Multi-Speciality
Hospital where he was treated as an indoor patient,
the operation was performed and the left leg below
the knee was amputated.
10. The learned Tribunal considered the evidence on
record by way of First Information Report /
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Panchnama - the evidence of the injured. And the
learned Tribunal came to the conclusion that the
Driver of the Truck No.GJ-17-X-6467 was negligent
for the occurrence of the accident and it was held
that the appellant had been successful to establish
that he has suffered the injury on account of the rash
and negligent driving of the driver of the Truck
No.GJ-17-X-6467. The Truck No.GJ-17-X-6467 was
insured with the United India Insurance Company
Limited - the present respondent No.2. The learned
Tribunal has considered the income of the claimant
@ Rs.4,000/- per month as a Driver and the
documentary evidence in the form of Driving License
established the claimant's age as 40 years and
therefore, the learned Tribunal has considered the
claimant to be aged 40 years. The multiplier of 15
was applied. However, the learned Tribunal has
considered 65% disability of the body as a whole and
assessed functional disability of the body as a whole.
Placing reliance on the decisions in the cases of
Govind Yadav (supra) and Raj Kumar (supra), the
assessment of the functional disability is very much
relevant to consider the case for a just compensation.
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11. Taking into consideration the work of the
appellant as being a Driver and the left leg being
amputated, 100% functional disability was required to
be considered. Further, considering the age of the
claimant as 40 years at the time of accident, 25%
prospective rise in income is required to be
considered which the learned Tribunal has erred in
no doing so. Hence, considering the future loss of
income @ Rs.4,000/- per month with a prospective
rise in income @ 25%, would bring the monthly
income to Rs.5,000/- per month. Applying the
multiplier of 15, the future loss of income would
come to Rs.9,00,000/- (Rs.5,000/- x 12 months x 15
multiplier). The learned Tribunal has considered the
actual loss of income for the period of five months @
Rs.20,000/-.
12. In view of the observations of the Hon'ble Apex
Court in the case of Govind Yadav (supra) and
considering the age of the appellant as 40 years as
also the pain, suffering and trauma caused due to the
amputation, this Court deems it fit to grant
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Rs.1,00,000/- under the head of pain, shock and
suffering. The learned Tribunal has granted medical
bills @ Rs.1,10,000/-, which has been proved during
the course of the trial. The appellant had
undergone hospitalization and was operated upon and
considering the lengthy suffering, under the head of
Special Diet, Attendant Charges and Transportation,
amount of Rs.20,000/- could be considered just and
appropriate.
13. The claimant's left leg below the knee was
amputated and therefore, he would be in need of an
artificial limb/leg and hence, an amount of
Rs.40,000/- towards artificial limb is deemed just and
proper.
14. Thus, the computation can be made as under :-
Details Amount (Rs.)
Future loss of Income Rs.9,00,000/-
Actual loss of Income Rs.20,000/-
Pain, Shock and Suffering Rs.1,00,000/-
Medical Expenses Rs.1,10,000/-
Special Diet, Attendant Charges & Transportation Rs.20,000/-
Artificial Limb Rs.40,000/-
TOTAL Rs.11,90,000/-
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15. The learned Tribunal has awarded an amount of
Rs.6,54,000/- with rate of interest @ 9% per annum,
which the respondent/s are liable to deposit, with the
enhanced amount as Rs.5,36,000/- (Rs.11,90,000/-
minus Rs.6,54,000/-). In the result, the present
respondent/s are directed to deposit the amount
within a period of EIGHT (8) WEEKS from the date
of receipt of writ of the order of this Court. It is
further directed that the claimants would be entitled
to receive the enhanced compensation @ 7.5.% per
annum from the date of the application and the
disbursement of the amount be made as per the
judgment and award of the learned Tribunal.
16. After deposit of the above/enhanced amount,
50% of the amount be disbursed to the appellant-
claimant, after carrying out the necessary procedure
for verification of his identity. The remaining 50% of
the amount be invested in a Fixed Deposit Receipt
(FDR) with any nationalized Bank, in the name of the
claimant, initially, for a period of three years, (which
shall be renewed from time to time) without any
reference to this Court. As ordered, the
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above/enhanced amount to be recovered from the
owner of the vehicle, i.e. the order of 'pay and
recover' as ordered by the learned Tribunal to
continue.
17. In view of the above, the Appeal is allowed and
the judgment and award dated 16.10.2018 passed by
the learned Motor Accident Claims Tribunal (Aux.),
Ahmedabad District Court (Rural), Mirzapur,
Ahmedabad in M.A.C.P. No.734 of 2011 stands
modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
