Gujarat High Court
Fatemaben Jujarbhai Bataliwala vs Sanmukhbhai Ryajibhai Damor on 14 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/4667/2023 ORDER DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4667 of 2023
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FATEMABEN JUJARBHAI BATALIWALA
Versus
SANMUKHBHAI RYAJIBHAI DAMOR
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2,5
NOTICE UNSERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 14/02/2024
ORAL ORDER
1. The appellant-claimant lady is before this Court by way
of this appeal challenging the judgment dated 15/01/2019
passed by the Motor Accident Claims Tribunal (Main),
Panchmahal, Godhra in MACP No.993 of 2009 wherein the
Tribunal has made her entitle to recover only an amount of
Rs.1,000/- and thus, she has prayed for enhancement of the
compensation amount.
2. Mr. Nishit A. Bhalodi, learned advocate for the appellant
claimant submitted that the applicant lady because of the
accident had suffered injuries and had claimed Rs.2,00,000/-
by producing injury certificate at Exh.27 and Exh.28. The
disability certificate was produced at Exh.36 and the pursis
vide Exh.35 was produced on record for consensus to consider
6% disability. Mr. Bhalodi, learned advocate submitted that
the learned Tribunal was required to consider the disability
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C/FA/4667/2023 ORDER DATED: 14/02/2024
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certificate to assess the actual functional loss but has denied
the assessment observing that there was no fracture of
permanent partial disability which would be contrary to the
record and such observation of the Judge is only because of an
endorsement by opponent no.3 to prove the same by
examining the doctor. Mr. Bhalodi, learned advocate
submitted that the learned Tribunal was required to consider
the ratio laid down in the decision of Rajkumar vs. Ajay
Kumar and another reported in 2011 (1) SCC 343 to
consider the functional disability and when pursis was later on
produced at Exh.35, the learned Tribunal ought to have
consider 6% disability and the learned Tribunal was required
to appreciate the same and should have relied upon the
consensual understanding of the lawyers on record.
3. Ms. Kirti Pathak, learned advocate submitted that since
the pursis was filed, she cannot now retract the same but
submitted that while considering the compensation amount,
just and reasonable approach is required to be adopted so
that unjust enrichment should not be there for any claimant in
the name of accidental injury.
4. The facts of the case in nutshell are as under:
4.1. On 16/08/2007, the appellant and her husband i.e.
opponent no.4 were going on Discover Bike bearing
registration No.GJ-17-R-252 on the side of the road and
opponent no.4 was driving the said bike with slow speed and
great care and the present appellant was pillion rider. While
passing at the place of accident, opponent no.1 came driving
NEUTRAL CITATION
C/FA/4667/2023 ORDER DATED: 14/02/2024
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his Pick-up Van bearing registration No.GJ-06-Y-9541 in rash
and negligent manner with an excessive speed having lost
control over the vehicle and dashed with the bike as a result
of which the appellant and opponent no.4 both sustained
serious injuries. The complaint was registered at Godhra
Taluka Police Station vide I-CR No.238 of 2007 against the
opponent no.1.
4.2. The Tribunal on consideration of the evidence of FIR,
Panchnama and evidence of the claimant, has considered sole
negligence of opponent no.1 for the accident.
4.3. The claimant produced injury certificate as well as
disability certificate to prove the permanent disability. Vide
pursis 6% was urged before the Tribunal to be considered as
the disability of the claimant.
5. This Court considers the same to assess the functional
disability. As per the evidence, the appellant was doing
embroidery the work in the house, however, no evidence was
produced to prove the same and hence she is considered as a
house wife.
6. Relying on the judgment of the Apex Court and taking
the standard of the minimum wages, to consider the monthly
income, this Court finds the amount of Rs.2,600/- to be the
income of the claimant. Considering the 6% disability, annual
loss with multiplier of 16, future loss of income would come to
Rs.29,952/- considering the calculation of (2,600 x 6 x 12 x
16). For the pain, shock and suffering, considering the injury,
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C/FA/4667/2023 ORDER DATED: 14/02/2024
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the amount of Rs.10,000/- abbreviate the pain caused due to
the accident. Claimant would have taken special diet for the
recovery and she may have assistance of some person during
the recovery period and further must have expended on
transportation to attend the doctor for the recovery. Hence,
Rs.10,000/- is granted under the said head. The claimant
would not have been in a position to work for a month and
considering the same, actual loss of income is assessed as
Rs.2,600/-.
7. Accordingly, calculation of the amount of compensation
would come as under:
Future loss of income Rs.29,952/-
Pain, shock and suffering Rs.10,000/-
Special diet, attendance charges Rs.10,000/-
Actual loss of income Rs.2,600/-
Total amount Rs.52,552/-
8. Hence, in total, compensation amount would come to
Rs.52,552/-. The Tribunal has awarded Rs.1,000/-. Hence,
enhanced amount of compensation of Rs.51,552/- is required
to be given to the appellant claimant. Accordingly, the same
to be deposited with interest at the rate of 7.5% within a
period of six weeks. Thereafter, the amount deposited be
given to the appellant claimant lady after due verification by
an account payee cheque.
(GITA GOPI,J)
ILA
