Gujarat High Court

Vimlaben Vinubhai Patel vs Takhatsinh Nathusinh Zala on 17 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/425/2007                                      JUDGMENT DATED: 17/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 425 of 2007


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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                          VIMLABEN VINUBHAI PATEL
                                   Versus
                     TAKHATSINH NATHUSINH ZALA & 2 other(s)
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Appearance:
MR HEET B JHAVERI(11950) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MR HEMANT S SHAH(756) for the Defendant(s) No. 3
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 17/01/2024

                                ORAL JUDGMENT

1. The injured claimant has challenged the judgment

dated 30.8.2002 passed by the MACT (Aux),

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Ahmedabad (Rural) in MACP No.632/95. The grounds

inter alia raised challenging the judgment are

that the compensation has not been granted as per

the functional disability and the amount under the

various heads are also on lower side, and the

learned Tribunal has not considered the same in

right perspective.

2. Learned advocate Mr. Heet Jhaveri for the

appellant submitted that the learned Tribunal

though had considered the evidence on record with

regard to the treatment undergone by the claimant

and had also considered 40.03% physical disability

assessed of the body as a whole by the orthopedic

surgeon but has failed to consider the functional

disability of the claimant accordingly and has

assessed disability as 30%. Learned advocate Mr.

Jhaveri submitted that the Tribunal was required

to follow the principles laid down in the case of

Raj Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343

to decide the functional disability since the

claimant could not continue with her job, and to

state that under various heads to grant just

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compensation requires holistic view of this court,

Advocate Mr. Jhaveri has placed reliance on the

judgments of Mangla Ram v. Oriental Insurance

Company Limited, (2018) 5 SCC 656 and Ashvinbhai

Jayantilal Modi v. Ramkaran Ramchandra Sharma,

(2015) 2 SCC 180 and also to contend that strict

proof of accident is not possible when the

claimants are merely required to establish their

case on the touchstone of preponderance of

probability.

3. The Hon'ble Apex Court in the case of Raj Kumar v.

Ajay Kumar & Anr., reported in (2011) 1 SCC 343

has observed as under:-

"11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the

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Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage."

4. As per the facts of the case, on 9.1.1995, the

applicant claimant was going towards drive in road

from Thaltej on her Sunny moped bearing

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registration no. GJ-1 N-9916. She had stopped

Moped on Sarkhej to Gandhinagar highway road four

was cross roads, and from the ongoing traffic on

the highway, opponent no.1 came in full speed

negligently driving truck bearing registration no.

RSJ 5938 in a rash and negligent manner in full

speed, having lost control over the steering came

on the wrong side and dashed the applicant's moped

in full force. As a result, the applicant

sustained injury.

5. As per her deposition before the Court owing to

the accident, she was dragged for about 15 feet.

Her left leg above the knee got crushed and the

whole body got disfigured. There were fractures on

the leg. She was admitted to V.S. hospital in the

emergency ward and in the evening operation was

conducted on her. She remained as an indoor

patient for about 3 months in V.S. hospital and

during that period for about 7-8 times, operations

were conducted on her and in the course of

operation, a rod was inserted at the knee cap in

the middle of the leg and plastic surgery was

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conducted on her and inspite of that, the said

part has not maintained the shape. She has deposed

that after being discharged from the hospital for

about 4-5 months, there was rod in her leg. The

legs could not be bent. Again at Dr. Kanabar's

hospital she was operated as an indoor patient for

15-20 days. After the operation, rod was inserted

which continued. She was advised physiotherapy

treatment which she had undergone for 7-8 months.

6. She stated that she was serving in cooperative

bank at Manekchowk and was earning monthly income

of Rs.3,400/-. She stated that she has to now

expend a lot after medical expenses. She states

that she could not attend the job for about 12

months. Mr. Jhaveri submitted that since the

injury did not allow her to continue with the

work, she was retrenched from service with effect

from 23.4.2005. Advocate Mr. Jhaveri produced a

copy of certificate from the Manekchowk

Cooperative Bank Ltd. from which it transpires

that she had joined the service of bank on

1.4.1987 and retrenchment started having effect

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from 1.4.1987.

7. The claimant had examined Dr. Naresh Khandvala,

orthopedic surgeon to prove her physical

disability and the doctor had referred to the

injury which had extended to lower back of body,

with the observation that she could not squat or

seat cross legs. She had to take support of a

person. She had difficulty in climbing the stairs.

The doctor after having examined movements of

various parts of the body had considered 80.07%

disability and had assessed 40.03% disability for

the body as a whole.

8. Learned advocate Mr. Hemant S. Shah for the

insurance company stated that the Tribunal has

considered the amount under the head of future

loss of income and also the medical expenses and

the money has been paid under pain, shock and

suffering and disfigurement and for special diet,

attendant and transportation and actual loss of

income. Total compensation amount of Rs.2,82,914/-

has been granted, while considering her

contributory negligence of 15%.

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9. The Tribunal has granted the compensation as

under:-

Rs.1,00,000/- Medical expenses Rs. 15,000/- Pain, shock and suffering Rs. 10,000/- Disfigurement Rs.1,81,440/- Future loss of income Rs. 12,000/- Special diet Rs. 14,400/- Actual loss of income Rs.3,32,840/- Total compensation

10. At the time of the accident, the claimant was

having the income of Rs.3,400/-. As per the school

leaving certificate, she was 37 at the time of the

accident. Thus, considering her job in the bank,

50% rise in income is assessed and hence,

prospective rise in income would be Rs.1,700/-.

Accordingly, monthly income would be Rs.5,100/-.

Since the Doctor has given his calculation for

assessment of 40% physical disability for the body

as a whole, this court considers the same as

functional disability to assess the future loss.

Hence, in accordance to the income of Rs.5,100/-

with 40% functional disability applying multiplier

of 15, she would be entitled for future loss of

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income as Rs.3,67,200/-. (Rs.5,100/- x 40% x 15 x

12). It is required to be mentioned that by way of

retrenchment, the claimant has lost her job but at

the relevant time during the course of trial,

while recording the evidence, the explicit

evidence of non-performance in her job was not

brought on record, while the retrenchment is after

judgment by the Tribunal, hence, this court is of

view that 40% functional disability assessed

hereinabove would justify the cause, instead of

considering 100% functional disability.

11. As per the evidence on record and as observed by

the Tribunal, she had multiple fractures and the

medical expenses proved on record shows six

operations and plastic surgeries which has also

been observed by the Tribunal concerned. The

amount as granted under the head of pain, shock

and suffering is not in confirmity with the actual

sufferings of the injured claimant. This court

having considered the evidence on record is of an

opinion that the amount under the head of pain,

shock and suffering is required to be

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appropriately assessed. Hence, this court is of

the view that Rs.50,000/- should be granted under

the said head.

12. The claimant had suffered injury which has led to

disfigurement, the Tribunal has also granted

Rs.10,000/- under the head of disfigurement but

this court considers the said amount would be

inappropriate and hence, the same is enhanced to

Rs.50,000/-.

13. Medical expenses of Rs.1,00,000/- has been proved

on record. It is required to be noted that the

claimant would be in need of future medical

treatment. Thus, this court considers in

proportion to the medical expenses already

undergone and the age of the claimant and being a

woman with the details of injury deposed by the

doctor supported by medical examination, an amount

of Rs.70,000/- to be granted for future medical

expenses.

14. As the Tribunal has failed to grant any amount

under the head of transportation charges while has

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granted Rs.12,000/- under the head of special diet

but has also failed to take into consideration the

amount for the attendance charges for the period

she suffered to completely recover, hence, an

amount of Rs.70,000/- is granted under the head of

special diet, attendant and transportation.

15. The claimant was not in a position to work for 20

months. Hence, considering the income of

Rs.3,400/- per month, under the said head, she

would be entitled to amount of Rs.68,000/- towards

actual loss of income and further an amount of

Rs.85,000/- is also granted towards loss of

enjoyment of life.

16. For the aspect of contributory negligence which

has been assessed as 15%, learned advocate Mr.

Jhaveri submitted that the said assessment is not

in accordance to the evidence on record, since the

applicant claimant had stopped the vehicle at the

cross road, where she was bound to stop and such

evidence had come on record and the driver of the

truck has not been examined by the insurance

company and when there was evidence of the

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claimant as an eye-witness on record which has

gone unrebutted. Advocate Mr. Jhaveri submitted

that 15% negligence has been wrongly attributed.

17. Countering the arguments, learned advocate Mr.

Shah submitted that at the time of the accident,

she was at the cross roads where she was required

to take enough precaution to safeguard herself.

The Panchnama was drawn by the police within a

short period as shown by the witness and there is

no reason to disbelieve the panchnama and thus,

stated that by way of adverse inference too,

negligence of the claimant is required to be

considered, and the Tribunal has rightly assessed

the same as 15%.

18. Having considered the submissions raised by both

the advocates on record and the observation of the

Tribunal, it is required to be noted that the

accident has taken place at the cross roads where

the claimant had stopped her moped and she had

very clearly given the evidence that the truck had

come in a very full speed and on the wrong side

and dashed with her vehicle. She was dragged for

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about 15 feet. Learned advocate Mr. Jhaveri has

relied upon the judgment in the case of Mangla Ram

v. Oriental Insurance Company Limited, (2018) 5

SCC 656 to state that the Tribunal has erred in

considering the contributory negligence of the

claimant. The facts as could be noted was that the

claimant had stopped the vehicle at the cross

road. The truck had come on the wrong side and in

full speed had dashed with the claimant's vehicle.

The insurance company has failed to examine the

truck driver to contradict the evidence of the

claimant, so merely on the basis of assumption,

negligence cannot be attributed. The admitted fact

on record is that the accident had occurred on

four cross roads of S.G. highway. which is

supported by the panchnama. The learned Tribunal

has failed to observe as to how the claimant had

contributed to the accident when she has denied

the suggestion that at the time of the accident,

she was trying to cross the road and the accident

had occurred in the middle of the road. She has

very categorically stated that she had seen the

truck from the distance of 30 to 40 ft. and at the

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time of the accident her vehicle was in a

stationery position at the four cross roads. No

rebuttal evidence has been given by the insurance

company. The driver of the truck has failed to

appear before the court. Thus, the Tribunal's

assessment of contributory negligence of 15% of

the claimant is not supported by any evidence on

record. Hence, the said observation stands quashed

and set aside.

19. In the result, the computation of the income would

be as under:-

Rs.3,67,200/- Future loss of income Rs. 50,000/- Pain, shock and suffering Rs. 50,000/- Disfigurement Rs.1,00,000/- Actual medical expenses Rs. 70,000/- Future medical expenses Rs. 70,000/- Special diet, attendant charges and transportation expense Rs. 68,000/- Actual loss of income Rs. 85,000/- Loss of enjoyment of life Rs.8,60,200/- Total compensation

20. As the Tribunal has granted compensation of

Rs.2,82,914/- with interest at the rate of 9% per

annum, the claimants would be entitled to the

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enhanced amount of compensation of Rs.5,77,286/-

with interest at the rate of 7.5% per annum from

the date of filing of the claim petition till its

realization. The enhanced amount is directed to be

deposited within eight weeks from the date of

receipt of writ of this Court.