Gujarat High Court
Palakben Alpeshbhai Shah vs Keyurbhai Kamleshbhai Adesara on 12 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
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C/FA/2770/2022 JUDGMENT DATED: 12/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2770 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PALAKBEN ALPESHBHAI SHAH
Versus
KEYURBHAI KAMLESHBHAI ADESARA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 5
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/02/2024
ORAL JUDGMENT
1. The injured claimant has challenged the
judgment dated 20.01.2022 passed by Motor
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Accident Claims Tribunal (Main), Sabarkantha at
Himmatnagar in M.A.C.P. No.98 of 2014. The
claimant lady has raised the ground inter alia
contending that the functional disability should
have been considered as 100%, and when both the
parties, on the evidence on record, have
consented for considering 60% disability for body
as a whole, the assessment of 30% by the Tribunal
is erroneous.
2. Mr. Nishit A.Bhalodi, learned advocate
for the appellant submitted that the claimant was
running a Beauty Parlour, and she had produced
the income tax returns for the assessment years
2011-2012, 2012-2013 and 2013-2014 at Exh.61 to
62. Mr. Bhalodi submitted that when the evidence
has come on record that the claimant has
difficulty in vision and is suffering from
diplopia (double vision), and has undergone
surgery, and further the accident has led to
disfigurement, and the claimant has difficulty in
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speech and even suffering from deafness in the
right ear, and has also sustained head injuries
with fractures, and now she cannot work
completely, 100% functional disability is
required to be considered.
2.1 Advocate Mr. Bhalodi referring to the
disability certificate produced at Exh.90 and 91
submitted that on perusal of the disability
certificate, the advocate of insurance company
has consented to consider the permanent
disability as 50% for the assessment, which has
been done, which Mr. Bhalodi submits that, Exh.90
is in connection with head injury, while Exh.91
is in connection with injuries on hips on both
the limbs, where the insurance company has
assented to consider 10% disability for body as a
whole.
2.2 Advocate Mr. Bhalodi submitted that the
injury suffered by the claimant, has made her
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jobless and now she cannot continue with her
Beauty Parlour work and, therefore, the
functional disability should have been considered
as 100%. Mr. Bhalodi has not pressed for any
other grounds raised in the appeal memo.
3. Countering the argument, Advocate Mr.
Rathin P.Raval stated that the Tribunal had not
found any stuttering in the speech or any
cramping, and, therefore the Tribunal has very
rightly observed that it cannot blindly follow
the endorsement of the advocates on record.
Advocate Mr. Raval submitted that the guidance
for considering the functional disability, is to
follow the judgment of Raj Kumar And Another Vs.
Ajay Kumar And Another, reported in 2011 ACJ,1;
equivalent to: (2011) 1 SCC 343, which could be
on a sound footing to consider the functional
disability.
4. Advocate Mr. Tanmay B.Karia supported
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the argument of Advocate Mr. Raval, further
stating that the Tribunal has examined the
evidence on record and has considered the aspects
of physical disability as well as the injury to
the sense organs (receptor), and has in detail
examined the issues of speech component as well
as mental health.
5. Exh.90, disability certificate, issued
by Doctor Balkisan N.Desai for assessment of the
disability for the injury that has been caused on
the head of the claimant following the vehicular
accident. The Doctor had observed that the
claimant has right sided hemiparesis, difficulty
in speech, difficulty in vision & diplopia
(double vision), and also having recent frequent
epileptic attacks, deafness in right ear and
disfigurement of the face, since head injury. The
C.T. scan of the brain was done, which revealed
subarachnoid hemorrhage along anterior
interspheric fissure, basal cistern and genu of
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corpus callosum, large intra-parenchymal
hemorrhage along the genue of corpus callosum,
tentorial hemorrhage along left side and
generalized cerebral edema. She was intubated and
ventilated.
5.1 For further treatment, she was
transferred to Hope Neurocare Hospital in
Ahmedabad, with endotracheal tube. Her C.T. angio
of brain was done on 22.04.2013, which revealed
saccular aneurysm from distal right anterior
cerebral artery. Her C.T. brain showed 52 x 25 mm
sized intraparenchymal hemorrhage involving
midline cingulate gyrus and subarachnoid
hemorrhage along bilateral high fronto-parietal
cortical sulci. She was treated conservatively
with ventilator support and remained unconscious.
Her CT angio of brain was repeated on 06.05.2013,
which showed increase in the size of aneurysm
with presence of adjacent right frontal lobe
hematoma and intraventricular Hemorrhage. She was
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operated craniotomy and clipping of aneurysm was
done on 07.05.2013. Simultaneously, orthopedic
surgery for pelvis fracture was done, and post
operatively, she remained unconscious.
Thereafter, she was transferred to Siddhi Vinayak
Hospital on 21.05.2013, and on transfer, she had
tracheostomy tube and was on Ryle's tube feeding
and gradually weaned off tracheostomy.
5.2 Further observations were that, again on
17.12.2014, her C.T. scan was done, which
revealed changes of gliosis in right para satital
frontal lobe and infract in left thalamus, and
again on 29.12.2014, her C.T. scan was done,
which revealed changes of glosis in right
parasagital frontal lobe. She had extensive
treatment for her diplopia in Nagri Eye Hospital
since 25.04.2014 and diagnosed to be having
exophoria due to superior rectus and lateral
rectus muscle of the right eye and inferior
rectus weakness of the left eye. In spite of her
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regular follow-ups, the diplopia persisted.. she
has right sided hemiparesis. Neurologically, her
muscle power in right upper limb is 3 to 4 and
her deep tendon reflexes are brisk in right upper
limb. It has been further observed that she has
motor dysphasia (difficulty in speech) and gets
stammering while speaking. She has diplopia
(double vision), which is due to irreversible
injury to the upper cranial nerves. She has a
large scar of surgery, over the high froto-
parietal region in para median region. She has
rounded bony depression over the high forehead
near the midline, disfiguring her face. She has
other two such bony deressions over the parietal
region.
5.3 The Doctor has not considered the
deafness and disfigurement in assessing the
disability, and according to his calculation, 30%
assessment could be for right upper limb paresis
+ 24% for diplopia (double vision) + 20% for
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right lower limb paresis + 20% for speech
difficulty and 10% for infrequent epileptic
attacks, thus, according to him taking the
assistance of Kessler's method of calculation,
the total calculation of the Doctor is 69.4%.
Doctor Prafulla N.Shah has given the disability
certificate with respect to hips and lower limbs.
6. The observation by the Tribunal that the
replies given by the claimant during the trial
were consistent and without any cramping in
speech, cannot be made a basis for assessment,
since the evidence was in fact given by way of
affidavit and the cross-examination would be in
minimum words, itself could not be made a base
for the assessment for functional disability,
where evidence on record by way of examination of
the Doctors, shows the vision loss, speech loss
and further an effect in nerves.
6.1 The applicant-claimant would not be in a
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position to continue with the work, hence, it
appears that the advocate of insurance company on
record has justly put up an endorsement after
considering the disability of the claimant. 100%
functional disability would not be a just
assessment, though the applicant may be having
difficulty in conducing her day-to-day activity,
but would be in a position to independently do
so.
6.2 Considering the disability, as has been
assessed, and the work of the claimant, this
Court concurs with the endorsement of the
advocates on record to consider 60% disability.
The Tribunal has considered the income of the
claimant as Rs.15,958/-, hence, by assessing 60%
functional disability, and applying same
multiplier of 16, annually the future loss would
come to Rs.18,38,362/- (15,958 x 60% x 12 x 16).
Rest of the amount would require no
consideration, at this present stage, as the
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amount for the medical expenses and treatment has
been granted, and even amount under pain, shock
and suffering, attendance charges, died and
transportation with actual loss of income have
already been assessed by the Tribunal. Hence, the
only increment would be an addition to the future
loss of income, which has been assessed as
Rs.9,19,181/-. While, as per present computation,
it would come to Rs.18,38,362/-. Thus, the
claimant would be entitled to get additional
amount of Rs.9,19,181/- (18,38,362 - 9,19,181).
6.3 The additional amount of Rs.9,19,181/-
be deposited before the Tribunal within eight
weeks from the date of receipt of copy of this
judgment at the rate of 7.5%.
6.4 The Tribunal is directed to disburse 50%
amount thereof in favour of the original claimant
by Account Payee cheque/NEFT, after due
verification; the remaining 50% shall be invested
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in Fixed Deposit with any nationalized Bank in
the name of the original claimant for two years.
Thereafter, the same be given along with
accumulated interest to the claimant without any
reference to the Court.
7. In the result, the appeal is partly
allowed. The impugned judgment and award dated
dated 20.01.2022 passed by Motor Accident Claims
Tribunal (Main), Sabarkantha at Himmatnagar in
M.A.C.P. No.98 of 2014, stands modified to the
aforesaid extent. No order as to costs.
(GITA GOPI,J)
Pankaj
