Jalaluddin Ilmuddin Kaji vs Dinesh Bhagat Chunilal Bhagat
2023 Latest Caselaw 6894 Guj

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       C/FA/2664/2008                                ORDER DATED: 18/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2664 of 2008

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                       JALALUDDIN ILMUDDIN KAJI
                                Versus
               DINESH BHAGAT CHUNILAL BHAGAT & 2 other(s)
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Appearance:
MR HM PARIKH(574) for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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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 Nadiad, Kheda, the original injured claimant has preferred present appeal seeking enhancement of the compensation.

2. On the day of accident dated 15.01.1998, the appellant claimant sustained multiple fracture injuries, in a road accident. On the day of accident, the Luna Vehicle upon which the appellant was going towards Nadiad, the involved Truck came from behind and given a dash to the Luna Vehicle, as a result, he sustained grievous injuries, resulting into permanent partial disablement. According to case of the appellant, he sustained head injury in the nature of temporal hemorrhage for which he treated conservatively. He also sustained fracture in right zygama and fracture right tibia fibula and fracture humerus. In these background facts, the appellant claimant had filed a claim petition, claiming compensation of Rs.8,00,000/- against the

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driver, owner and insurance company of the offending truck. The claim Tribunal on the issue of negligence, the driver of the truck held liable in causing the accident. The claim Tribunal vide its judgment and order dated 30.07.2007 after considering the evidence on record, awarded, Rs.2,31,806/- towards the total amount of compensation with interest at the rate of 9%.

3. Being aggrieved with the judgment and award, the claimant is before this Court.

4. This Court has heard learned counsel Mr. Hemang Parikh and Mr. V.C. Thomas for the respective parties.

5. Mr. Parikh, learned counsel appearing for the original claimant, assailing the judgment and award, contended that, the 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. He 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. He 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.

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     C/FA/2664/2008                                 ORDER DATED: 18/09/2023

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6. In the aforesaid contentions, Mr. Parikh, 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.

7. On the other hand, counsel appearing for the Insurance Company has submitted that the incident occurred in the year 1998 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.

8. 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?

9. In the facts of the present case, the facts of injuries sustained by the claimant and issue of negligence determined by the Tribunal are not in dispute. The accident in question was being occurred on 15.01.1998. The Tribunal has awarded Rs.1,17,960/- under the head of Future Loss, for which the monthly income of Rs.2891/- was being considered with 34.8 functional disability assessed by the Orthopedic surgeon. It needs to be noted that, the neuro surgeon Dr. Balkrishna Desai, after considering the head injury assessed functional disability to the extent of 36.25%. The learned Tribunal observed that the assessment made by Dr. Desai on the aspect of disability, is not acceptable on the ground that the claimant in his deposition did not state that due to head injury, he lost his memory

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and has suffered mental retardation. The contention is that, the assessment of disability considered by the Tribunal is on lower side and so far, head injury is concerned, the Tribunal did not have considered the assessment of disablement made by Dr. Balkrishna Desai. This contention cannot be accepted and observations of the Tribunal, that despite the head injury suffered by the claimant, there is no any deformity. The second contention is that, the Tribunal while awarding the amount under the Future Loss has not considered the prospective income. It is settled position of law that, in case of (Pappu Dev Yadav AIR 2020 SC 733), in the case of serious injury, the prospective income required to be considered while awarding the amount under the head of future loss.

10. 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 : 1,91,568/-

2891+25%(722.75)=3614 and considering 34% disability, the monthly loss would come to Rs.1228 and yearly, it would be 14736/- and applying multiplier of 13, the total loss would come to Rs1,91,568/-.

The amount awarded by the Tribunal Rs.1,17,960/- is required to be deducted from aforesaid total amount and actual enhanced compensation amount payable is Rs.73,608/-.

11. The amount awarded under the head of medical expenses, pain,

shock and suffering are reasonable and just and therefore, there is no

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scope for revision of the amount awarded under this two heads.

12. The amount under the head of special Diet, transportation and

attendant loss is required to be further increased at the rate of Rs.10,000/-.

13. For the reasons recorded, the appeal is allowed in part. The appellant

claimant is entitled for the enhanced amount of compensation of Rs.83,608/-. 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