Gujarat High Court
Keyur Navinchandra Kotharai vs Bhikhubha Natubhai Zala on 18 September, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/4551/2009 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4551 of 2009
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KEYUR NAVINCHANDRA KOTHARAI
Versus
BHIKHUBHA NATUBHAI ZALA & 3 other(s)
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
for the Defendant(s) No. 3
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
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 MR. JUSTICE ILESH J. VORA
Date : 18/09/2023
ORAL ORDER
1. Being dissatisfied with the quantum of compensation awarded by
the Claim Tribunal at Surendranagar, the original injured claimant
has preferred present appeal seeking enhancement of the
compensation.
2. The appellant claimant, sustained grievous injuries in a road
accident. On 31.10.1999, on account of collusion of luxury bus and
car, the appellant being occupier of the car sustained following
injuries:-
(i) Fracture shaft femur L3,
(ii) Shaft femur Rt Fracture
(iii) Fracture clavicle and rips
NEUTRAL CITATION
C/FA/4551/2009 ORDER DATED: 18/09/2023
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3. The appellant claimant was taken to private hospital at
Surendranagar and was operated for both the fractures of femurs
and treatment nailing with fixation done and was remained as in
patient for about considerable time and later on Dr. Santosh had
treated the claimant for act of skin grafting. At relevant time, The
Dr. Mamta Doshi and Dr. Kamlesh Parikh, after examining the
appellant and upon evaluation of medical evidence, assessed the
permanent partial disablement to the extent of 59.1%. The
appellant claimant was doing his trading work in the name of
'Nemi Medical Stores' and his average taxable income was
Rs,37,400/-. In these background facts, the claimant had filed claim
petition (1067 of 1999) at Surendranagar, claiming the amount of
compensation at Rs.8,00,000/- against both the involved vehicles
and their insurance companies. On the issue of negligence, the
claim Tribunal apportioned the negligence in the proportionate
70:30 and accordingly, the driver of both the vehicles held
negligence in causing the accident. The Tribunal after considering
the oral as well as documentary evidence, awarded total amount of
compensation Rs.4,58,220/- with interest at the rate of 9%.
4. Being aggrieved with the judgment and award, the claimant is
before this Court.
5. This Court has heard learned counsel Ms. Amrita Ajmera, Mr.
H.G. Majmudar and Mr. Palak Thakkar, for the respective parties.
6. Ms. Amrita Ajmera, learned counsel appearing for the original
claimant, assailing the judgment and award, contended that, the
NEUTRAL CITATION
C/FA/4551/2009 ORDER DATED: 18/09/2023
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judgment and award so far quantum part is concerned is contrary to
law and evidence on record, as Tribunal failed to appreciate the
medical evidence on record. She further submitted that, while
assessing the amount under the head of Future Economic Loss, the
Tribunal did not have taken into account of future rise of income
and on this count, the amount awarded under the said head is
required to be modified. She further submitted that due to
sustaining of the fracture injuries, the both the limbs of the
claimant were seriously injured, as a result of which, the earning
capacity has been reduced substantially and the claimant still finds
difficulty in his daily routine.
7. In the aforesaid contentions, Ms. Ajmera, learned counsel
submitted that, the amount awarded is required to be modified and
increased, as under the various heads the reasonable and just
amount has not been awarded by the Tribunal.
8. On the other hand, counsel appearing for the Insurance Companies
have submitted that the incident occurred in the year 1996 and
considering the prevalent economic parameters at the relevant time,
the Tribunal has awarded just, equitable and reasonable amount,
which does not require any interference by this Court.
9. Having heard the learned counsel for the respective parties and on
perusal of the impugned order and case records, the issue arise for
determination is whether the appellant has made out a case for
enhancement in the amount of compensation?
NEUTRAL CITATION
C/FA/4551/2009 ORDER DATED: 18/09/2023
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10. In the facts of the present case, the appellant at the age of 23,
sustained the injuries as mentioned in para-2 of this judgment and
same are not disputed by the other side. The claim Tribunal after
taking into account to average taxable income of Rs.37,400/- and
considering 30% disablement, awarded Rs.1,79,520/- towards the
future loss of income. The Tribunal, while determined the income,
failed to consider the prospective income. In the case of Pappu
Dev Yadav (AIR 2020 SC 733), has categorically observed that,
in the case of serious injury, the prospective income required to be
considered while awarding the amount under the head of future
loss.
11. In view of the aforesaid, this Court is of considered view that,
under the head of Future Loss, the amount is payable to the
appellant is as under:
Future loss of income : 2,82,744/-
37400+40% (14960)=52360 and considering 30%, the yearly loss
would come to Rs.15,708/- and applying multiplier of 18, the total
loss would come to Rs.2,82,744/-.
12. This Court has considered the amount awarded under the medical
expenses, pain, shock and suffering and there is no scope for
revision of the amount under this two heads.
13. The amount under the head of special Diet, transportation and
attendant loss is required to be increased further at the rate of
Rs.10,000/-.
NEUTRAL CITATION
C/FA/4551/2009 ORDER DATED: 18/09/2023
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14. For the reasons recorded, the appeal is allowed in part. The
appellant claimant is entitled for the enhanced amount of
compensation of Rs.1,13,224/-. The enhanced amount would carry
the interest of 6% from the date of application. Both the insurance
companies are directed to deposit the said amount within 2 months
from the date of receipt of this order, as per their liability fixed by
the Tribunal. The Claim Tribunal shall disburse the entire amount
without making further investment in the FDRs. Decree be drawn
accordingly.
(ILESH J. VORA,J)
P.S. JOSHI
