Balubhai Mohanbhai Gevariya vs Dipakbhai Meghjibhai Patel
2023 Latest Caselaw 6977 Guj

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       C/FA/2496/2010                             ORDER DATED: 21/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 2496 of 2010

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                       BALUBHAI MOHANBHAI GEVARIYA
                                  Versus
                   DIPAKBHAI MEGHJIBHAI PATEL & 1 other(s)
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Appearance:
MR HARSHIT S TOLIA(2708) for the Appellant(s) No. 1
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1
MR RITURAJ M MEENA(3224) 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 : 21/09/2023
                       ORAL ORDER

1. Feeling aggrieved by and dissatisfied with the judgment and award dated 15.05.2009, passed by the learned Claim Tribunal, at Surat in MACP No.8 of 1998, the appellant - original injured claimant has preferred present appeal under Section 173 of the Motor Vehicle Act, 1988.

2. The appellant claimant at the age of 38, sustained spinal injury, resulting into permanent partial disablement in a road accident. The accident took place on 15.12.1996. The appellant being a passenger of a luxury bus, sustained injuries, as the bus rammed into ditch due to rash and negligent act on the part of its driver. After prolonged treatment, the doctor had opined that due to sustaining of the paraplegia, the sensation and movement of both the lower limbs lost their working power and his life becomes miserable and accordingly, the disability to the extent of 40% was being assessed by the expert doctor. In these background facts, the appellant had filed a claim petition,

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claiming Rs.6 lakhs, against the owner and insurance company of the bus. The learned Tribunal vide its judgment and award dated 15.05.2009, held liable driver of the bus for causing the accident. On the aspect of compensation, the learned Tribunal, after considering monthly Rs.3,000/- income, awarded Rs.1,87,200/- under the head of future loss and in all Rs.3,30,200/- has been awarded and directed the insurance company to pay the same with interest at the rate of 7.5%.

3. The appellant claimant being dissatisfied with the said judgment and award is before this Court.

4. Mr.Shirish Tolia, learned counsel appearing for the appellant, has submitted that the judgment and award under appeal are contrary to the evidence and settled law. He further submitted that the appellant sustained spinal injuries and despite the extensive treatment, the injury could not cure which resulted into paraplegia and the same facts having been admitted by the other side also and therefore, in a serious case of injuries, the Tribunal should have considered the prospective income while awarding the amount under the future loss. He has further submitted that due to paraplegia, the appellant is totally disabled and he is unable to walk on his own and his entire life will be depended on the others and could not enjoy a matrimonial life. Thus, therefore, he submitted that the learned Tribunal failed to award just compensation as no amount under the non pecuniary damages, awarded.

5. In view of the aforesaid contentions, learned counsel Mr.Tolia prays that the case is made out for modification of

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the award and this Court may award just and reasonable amount under the different heads.

6. On the other hand, Mr.R.M.Meena, learned counsel for the insurance company, has submitted that the accident occurred in the year 1996 and the learned Tribunal after considering the prevalent economic situation, awarded a just and reasonable amount under the different heads which does not warrant interference.

7. Having heard learned advocates for the respective parties, the issue arose for the determination is to whether the amount of compensation, as determined by the Tribunal, needs any enhancement.

8. In the facts of the present case, the facts of the accident and issue of negligence decided by the Tribunal are not in dispute. Upon scrutiny of the records, it appears that before the Tribunal, the monthly income of Rs.3,000/- and the functional disability 40% assessed by Dr.Pethe, considered and admitted by the insurance company. In these circumstances, learned counsel for the appellant does not press the revision in the monthly income and disability assessed by Dr.Pethe.

9. In the aforesaid facts, now let us examine the merits of the case. The learned Tribunal awarded Rs.1,87,200/- under the head of future loss. In awarding the said amount, no any prospective income was being considered by the Tribunal. The Apex Court, time and again, in its various judgments, held that in a serious case of injury, the Tribunal and/or Court should consider the prospective income. In the facts of present case, the appellant could

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not lead full life with normal amenities which he would have enjoyed, if the accident could not arise. Thus, this is a fit case to modify the amount awarded under the head of future loss. The appellant is entitled for the following amount:

       future loss -          Rs.3,02,400/-
                             (Rs.3,000 + 40% = Rs.4200 x 12 x 40% x
                             15 = Rs.3,02,400/-)

10. The appellant herein raised the contentions that the Tribunal has not awarded amount under the head of non pecuniary damages like loss of amenities and loss of expectation. On perusal of the judgment and award, this Court finds that the Tribunal in a routine manner, determined the amount of compensation. In case of Raj Kumar (2011 (1) SCC 343), the Apex Court laid down the heads under which compensation is to be awarded for personal injuries. The Apex Court categorically observed that in the routine personal injuries cases, compensation will be awarded under the different heads of pecuniary damages, whereas in a serious cases of injuries, where there is specific medical evidence, the compensation will be granted under the non pecuniary damages including future medical expenses, etc.

11. In light of the settled principle of law, and considering the injury of paraplegia suffered by the appellant, the amount of Rs.1,00,000/- is being awarded for the loss of amenities and Rs.1,00,000/- under the loss of expectation of life and Rs.50,000/- is being awarded for the future medical expenses. The amount under the pain, shock and

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suffering, medical bills, transportation, actual loss awarded by the claim Tribunal does not require modification and same remained unchanged.

12. For the aforestated reasons, present appeal is allowed in part. The appellant is entitled for the enhanced amount of compensation Rs.3,65,200/- (Rs.3,02,400 - 1,87,200 = Rs.1,15,200 + 2,50,000). The enhanced amount of compensation shall carry interest at the rate of 6% from the date of claim petition. The insurance company shall deposit the amount within a period of two months. Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh