Gujarat High Court

Champakbhai Bhikhabhai Patel vs Saptarshibhai Ranchhodbhai Patel on 31 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/2204/2019                              ORDER DATED: 31/01/2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2204 of 2019

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                    CHAMPAKBHAI BHIKHABHAI PATEL
                                Versus
                  SAPTARSHIBHAI RANCHHODBHAI PATEL
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR KV GADHIA(319) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (N) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 31/01/2024

                               ORAL ORDER

1. The challenge has been given by the injured claimant to

the judgment dated 5.1.2017 passed by the Motor Accident

Claims Tribunal (Aux.), Surat in M.A.C.P. No.1097 of 2000 by

preferring the present appeal under section 173 of Motor

Vehicles Act, 1988. The main ground of the dispute is the

assessment of monthly income, where the claimant has urged to

consider the minimum wage schedule to grant compensation,

being the agriculturist.

2. Mr. Hiren M. Modi, learned advocate for the appellant

submitted that Dr. Rashmikant Gandhi, M.S. (Ortho) had issued

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disability certificate produced during the trial at Exh. 73. The

said medical officer examined at Exh. 72 and according to his

evidence, the permanent disability of left lower limb of 62%.

Thus, he contended that on appreciation of the evidence of the

doctor, the Tribunal was required to assess functional disability

as laid down in the case of Rajkumar vs. Ajay Kumar [(2011)

1 SCC 343].

3. Mr. Modi, learned advocate for the appellant submitted

that the injuries sustained by the claimant had led to shortening

of legs and medical document to that effect has come on record

by way of the deposition of the expert Dr. Rashmikant Gandhi.

Learned advocate submitted that the Tribunal was required to

grant amount under the head of loss of amenities of life in

considering the age of 47 years at the time of accident. Learned

advocate further submitted that the evidence was given by the

claimant of being admitted in the hospital as an indoor patient

and now because of such physical disability would not be in a

position to cultivate the land and hence Mr. Modi urged for

enhancing the amount under the head of pain, shock and

suffering and stated that the claimant has spent lot of amount

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behind the special diet, attendance charges and transportation

and thus made a plea for appropriate compensation by

considering the income of the claimant as per the minimum

wages scheduled as the Tribunal has considered the income

only as Rs.1,800/-.

4. Mr. K.V. Gadhia, learned advocate for the insurance

company submitted that the Tribunal has considered the

agriculture work of the claimant for 11 vighas land and has

rightly considered Rs.1,800/- as monthly income of the claimant.

Learned advocate submitted that it is required to be examined

that the claimant had tried to secure certificates from doctors so

as to get assessment to the maximum physical disability and

thus on record one certificate of Dr. Nayan Bhatt shows

disability of 34%, whereas Dr. Dhaval Goswami who has

certified 60% disability for body as a whole and thereafter the

certificate of Dr. Rashmikant Gandhi at Exh. 73 shows physical

disability of lower limb as 62%. Learned advocate submitted

that as per the oral evidence of Dr. Rashmikant Gandhi, the

assessment is of 40% functional disability, has rightly been

considered by the Tribunal and the total compensation granted

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is just and reasonable.

5. As per the facts of the case that had led to filing of the

claim petition before the Tribunal that on 16.9.2000 at about

5.00 p.m., the appellant was travelling along with other villagers

from Pipalwada village to Mayadevi in Jeep bearing Registration

No.GJ-2-A-8022 owned by opponent No.2 and driven by

opponent No.1 and when they reached at the site of accident,

i.e. Jamanpada, Taluka: Vansada, District: Navsari, the jeep was

driven by opponent No.1 in very rash and negligent manner

endangering the human life, and opponent No.1 lost the control

over the vehicle, as a result of which the jeep got turtle and

slipped on the left side of road and the applicant had multiple

fractures on his left thigh, knee and tibia and the appellant also

sustained internal injuries on his chest for which immediately

the appellant was taken to new Civil Hospital where the

appellant was operated and was admitted as indoor patient.

6. The evidence of Dr. Rashmikant Gandhi at Exh. 74 was

recorded by the Tribunal. Dr. Gandhi had examined the injured

claimant annexing the medical papers and according to him, the

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claimant had open type of three communicated tibia fibula

fracture on his upper left leg and he took treatment in New Civil

Hospital for debridement and close reduction, debridement and

STG, bone marrow injection. On examining the appellant, the

doctor stated that there was deficiency in his left leg that (i) the

patient walks with help of crutch; (ii) the leg was short of 1 ½

inch; (iii) tibia bone was flexed; (iv) knee was flexing till 40

degree; (v) ankle was fixed towards down side; (vi) there was no

movement in leg's finger; (vii) patient was facing problem in

using staircase; (viii) cannot sit by crossing legs; (ix) unable to

use Indian toilet.

7. The doctor had assessed permanent physical disability of

62% with the opinion that the claimant would be unable to do

agriculture and labour work. The doctor witness has admitted

that he has not treated the claimant nor has performed

operation and he is not familiar to claimant. The Tribunal, after

having considered disability certificate at Exh. 73 and the

factum of the cross-examination where doctor was put to test

with the suggestion, but he denied to consider half of assessed

permanent disability body as a whole of 31%, the Tribunal,

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keeping in mind the evidence on record and the fact of doctor

witness examining injured claimant with the evidence on record,

has held that even on passage of time, there would not be any

deduction in the percentage of permanent physical disability

and the doctor has deposed that there would not be any change

in the percentage of permanent disability. Two different doctors

had treated the claimant and witness had stated that the injured

can do his work by sitting to do his work and get his agricultural

work done with the help of others. Having observed the fact that

the claimant is having agricultural work and doing a labour job,

the Tribunal has considered the functional disability of 40%.

This Courts does not have any reason to upset the conclusion

reached by the Tribunal of 40% functional disability and

accordingly is required to be assessed. However, on perusal of

the minimum wages schedule on the date of accident on

16.9.2000, the minimum wages as per the schedule for skilled

and semi-skilled labourer would be Rs.2,000/- in 'B' category.

The claimant is very from Village: Dhodiyawad, Post: Pithadara,

Taluka: Vyara, District: Surat and the monthly income is

required to be assessed as Rs.2,000/-. Accordingly, the

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compensation is to be granted.

8. The actual medical expense has been considered by the

Tribunal.

9. However, this Court is of the opinion that the amount

under pain, shock and sufferings is not assessed in

correspondence to the actual sufferings and injuries and the

length of hospitalization and even the fact of future pain to be

undergone because of shortening of legs and fracture sustained.

Hence, under the head, Rs.50,000/- is granted and in the same

tune, since the claimant has suffered shortening of legs as has

come in the evidence of the doctor, he would be suffering from

lack of self-confidence as with such defect, he would not be in a

position to present himself confidently before the society and

also before his family. Thus, this Court considers to grant

Rs.50,000/- under the head of loss of amenities of life and

enjoyment of life.

10. The amount for transportation and special diet is

enhanced from Rs.20,000/- to Rs.30,000/- keeping in view of the

length of hospitalization and the injury suffered and the time

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taken to recover with the assistance of family members and

acquaintance. His inability to work is considered for six months

by the Tribunal. Hence, considering Rs.2,000/- monthly income,

it would be Rs.12,000/- actual loss.

11. The future loss of income assessing the monthly income of

Rs.2,000/- with 40% disability applying multiplier of 15, it would

come to Rs.1,44,000/- (Rs.2,000 x 12 = Rs.24,000 x 40% =

9,600 x 15).

12. In view of the above, compensation under different heads

would be:

                       Heads                       Amount (Rs.)

Future loss of income                                  1,44,000/-
Actual loss of income                                    12,000/-
Medical expenses                                               800/-
Special Diet, Attendance Charges and                     30,000/-
Transportation
Pain Shock and Suffering                                 50,000/-
Loss of amenities of life and enjoyment                  50,000/-
of life
                       Total                           2,86,800/-


13.    The      Tribunal   has   awarded       total   compensation              as






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         C/FA/2204/2019                       ORDER DATED: 31/01/2024

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Rs.1,86,200/- Now, the claimant would be entitled to get

Rs.1,00,600/- (2,86,800 - 1,86,200) as enhanced compensation.

13.1 The enhanced amount of Rs.1,00,600/- be deposited before

the concerned Tribunal within eight weeks from the date of

receipt of writ of this order at the rate of 7.5% per annum.

14. The Tribunal concerned is directed to disburse 80%

amount thereof in favour of the original claimant, by Account

Payee cheque, after due verification; the remaining 20% shall be

invested in Fixed Deposit with any nationalized Bank in the

name of the original claimant for a period of two years, and

after two years the same be disbursed to the claimant with

accrued interest thereon.