Gujarat High Court

Rooplal Mavjibhai Prajapati vs Govindram C/O Vasant Ramji on 24 February, 2025

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                            C/FA/3719/2009                                JUDGMENT DATED: 24/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/FIRST APPEAL NO. 3719 of 2009
                                                      With
                        CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
                                                  NO. 2 of 2022
                                       In R/FIRST APPEAL NO. 3719 of 2009

                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE DEVAN M. DESAI

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                                   Approved for Reporting                 Yes           No

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                                               ROOPLAL MAVJIBHAI PRAJAPATI
                                                          Versus
                                             GOVINDRAM C/O VASANT RAMJI & ORS.
                      ==========================================================
                      Appearance:
                      MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1
                      MR RITURAJ M MEENA(3224) for the Defendant(s) No. 2
                      RULE NOT RECD BACK for the Defendant(s) No. 1,3
                      RULE SERVED for the Defendant(s) No. 4
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                      Date : 24/02/2025
                                                      ORAL JUDGMENT

1. The present appeal is filed under Section 173 of

the Motor Vehicles Act, 1988 by the appellant - original

claimant against the judgment and award dated 03.07.2008

passed by the learned Motor Accident Claims Tribunal,

Court No.9, Ahmedabad in Motor Accident Claim Petition

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No.298 of 2000.

2. Heard learned advocate Mr.Mehul Sharad Shah

for the appellant - original claimant and learned advocate

Mr.Rituraj Meena for respondent No.2. Though served,

none appears for respondent No.4.

3. Brief facts narrated in the present appeal are as

under:-

3.1 The appellant - claimant was travelling in a

luxury Bus bearing registration No.RJ-PD-409 which was

coming from village Kalyana (Udaipur-Rajasthan) to

Ahmedabad. A truck, which was at an excessive speed

attempted to overtake another truck. Resultantly, bus and

truck collided with each other. The appellant sustained

grievous injuries and fractures. Appellant was admitted in

Himmatnagar Hospital and thereafter shifted to

V.S.Hospital, Ahmedabad for further treatment.

3.2 The claimant filed a claim petition for

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compensation of Rs.7,00,000/- against the opponents. The

Insurance Company of Truck bearing registration No.RJ-27-

G-0125 appeared and filed a Written Statement at Ex.25

and denied its liability. The Insurance Company of Bus

bearing Registration No.RJ-PD-409 appeared and filed a

Written Statement at Ex.36 and denied its liability to pay

compensation. Issues were framed vide Ex.42. The claimant

examined himself at Ex.62 and produced documentary

evidence such as complaint, Panchnama and disability

certificate issued by Doctor. After considering the evidence

and materials placed before the learned Tribunal, learned

Tribunal partly allowed the claim petition granting

compensation of Rs.2,60,000/- with interest at the rate of

9% from the date of claim petition till realization against

opponent Nos.2 to 5.

3.3 Being aggrieved and dissatisfied with the

quantum of compensation, appellant-claimant has filed

present appeal for enhancement of compensation.

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4. Learned advocate for the appellant submitted

that because of rash and negligent driving of luxury bus

and truck accident had occurred and therefore claimant

sustained injuries such as closed fracture of mid shaft

tibia, segmental fibula, head fibula, fracture patella, closed

fracture of bimanlleolar ankle, fracture calcaneum, closed

fracture - left calcaneum, open grade one fracture - left

mid shaft tibia, fracture -bimalleollar ankle, chronic non

healing ulcer on right foot, ulcer on left calf. The claimant

had remained in V.S.Hospital from 10.03.2000 to

22.04.2000 in all for 42 days as an indoor patient.

Thereafter, the claimant had to remain in the hospital of

Dr.Manoj Joshi from 22.04.2000 to 13.05.2000 i.e. for

around 21 days as an indoor patient where the claimant

was operated. The claimant had remained bedridden for

nine months. Thereafter, once again, claimant was

admitted in the hospital of Dr.Santosh C. Raibagkar from

26.12.2009 to 08.02.2010 i.e. for around 44 days. Dr.

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Pranav R. Shah of Kanchi Orthopedic Hospital, who has

examined by claimant has given disability certificate at

Ex.33 and has assessed 44.48% disability body as a whole.

4.1 At the time of hearing of claim petition, upon a

joint consensus being arrived at between the parties,

disability was reduced to 25% and consequently, the

learned Tribunal assessed disability at 25%. At the time of

hearing of First Appeal, learned advocate for the appellant

urged to consider disability 44.48% body as a whole by

submitting that the reduction of disability was arrived at

upon legal advice given to the claimant. Since there is

specific medical evidence regarding disability, the

consensus between the parties regarding reduction of

disability may not be considered, instead, the disability

assessed by the medical examiner at 44.48% body as a

whole should be taken into account.

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4.2 Pursuant to the said submission, the Co-ordinate

Bench of this Court, vide order dated 05.02.2025, directed

the Medical Board, Civil Hospital, Asarwa, Ahmedabad to

conduct a medical examination of the claimant to reassess

the disability. The said order was complied with the

Medical Board, B.J.Medical College & Civil Hospital,

Ahmedabad. After examining the claimant, the Medical

Board arrived at the conclusion that claimant-appellant has

sustained 40% bodily disability. Learned advocate for the

appellant therefore prays that report dated 12.02.2025,

which assessed the disability at 40%, may be considered in

determining disability.

4.3 It is further submitted that learned Tribunal has

not considered the oral deposition of the claimant while

calculating the income. Learned Tribunal has considered

Rs.3,000/- per month as notional income of the claimant.

Claimant was serving in Mazda enterprises and was getting

gross salary of Rs.2,650/- per month and was also earning

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Rs.1,000/- per month in the Company of Manibhai Shah.

Certificates issued by Manibhai Shah are produced which

are marked at 44/12 and 44/13. It is further submitted

that claimant was also getting Rs.100/- per day as a Tip

by serving in Ellisbridge Gymkhana, Ahmedabad.

Considering the said evidence, the claimant was earning

Rs.6,650/- per month. However, a grave error has been

committed by learned Tribunal in considering the income

of claimant of Rs.3,000/- per month only. It is submitted

that learned Tribunal has not considered the prospective

income of the claimant while determining the

compensation. It is further submitted that in the cases of

similar type of employees, other employees are getting

Rs.8,000/- to 10,000/- per month on the date of

deposition.

4.4 It is further submitted by learned advocate for

the appellant- claimant that in absence of specific cross-

examination on income, learned Tribunal ought to have

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considered the income stated in the Examination-in-chief.

It is further submitted by learned advocate for the

appellant that even after the judgment and award, the

claimant had to undergo further treatment and incurred

huge expenses. Therefore, the claimant has filed a separate

application under Order XXXXI Rule 27 of the Civil

Procedure Code and produced Bills showing the expenses

for medical treatment incurred after the pronouncement of

the judgment and award.

4.5 Looking to the nature of injuries and

hospitalization, which totaled approximately 107 days, the

claimant had to remain bedridden for almost 10 months.

However, learned Tribunal awarded compensation only

Rs.10,000/- under the head of pain, shocks and suffering,

which is a very meager amount. Claimant sustained

multiple fractures due to the vehicle accident. Additionally,

the learned Tribunal has not properly considered the

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compensation under the head of actual loss of income.

Looking to the absenteeism in the services because of

injuries sustained, only Rs.6,000/- was awarded under the

head of actual loss of income.

5 Per contra, learned advocate for respondent No.2

- insurance company has supported the judgment and

award. So far as question of disability is concerned, the

claimant himself admitted in the Pursis submitted before

the learned Tribunal and submitted that disability may be

considered as 25%. Therefore, the claimant is now

estopped from raising any grievance regarding the

assessment of disability.

5.1 It is further submitted that report of the

Medical Board of B.G.Medical College & Civil Hospital,

Ahemdabad, which assessed the disability at 40% is

irrelevant as claimant has already admitted reduction in

disability at 25%. So far as the claimant's income is

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concerned, the prevailing rates under minimum wages at

the relevant point of time was Rs.2,900/-. However, the

learned Tribunal has considered the income of claimant as

Rs.3,000/- per month which is just and reasonable. It is

further submitted that the certificates which were issued

by Mazda Enterprises and Manibhai Shah have not been

proved by examining the witnesses. Additionally, there is

lack of evidence regarding claimant receiving Rs.100/- per

day as Tip. Therefore, the claim of Rs.6,650/- as income

of the claimant at the relevant point of time is

misconceived and may not be considered.

6. Having considered the submissions and on

perusal of record and proceedings, the facts emerge that,

the claimant has sustained as many as six fractures on his

body, more particularly, mentioned in Ex.33, which is a

certificate issued by Doctor. The disability that has been

assessed by Doctor is 44.48% body as a whole. I am of the

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view that when a person has sustained injuries including

fractures due to a vehicular accident, and the claimant is

claiming compensation on the ground of disability, the

best evidence is medical evidence. After examining the

claimant, expert has assessed disability on the basis of

nature of work and the functional disability.

In the present case, instead of examining the

Doctor who issued disability Certificate, the parties to the

Claim Petition agreed to reduce the disability by 25%. The

claimant, who is an illiterate person, is not expected to

understand the effect of reduction in disability. Merely on

legal advice of Counsel signs a Pursis or application for

reduction of disability, is not the best evidence to assess

disability. When the learned Tribunal is assessing

disability, it must consider the Doctor's Certificate and

cannot rely upon a mere application signed by the

claimant. Only a medical professional can opine on

reduction or increase in disability.

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7. Vide order dated 05.02.2025, the Co-ordinate

Bench of this Court has directed the Medical Board of

Civil Hospital, Aswara, Ahmedabad to carry out a medical

examination of claimant. After examining the claimant, the

experts in the field opined in their report dated 12.02.2025

that claimant has a disability of 40% of the body as a

whole. This medical opinion cannot be ignored. Accident

has occurred on 10.03.2000 and after 25 years of the

accident, the claimant's disability has remained almost the

same as assessed by Dr.Pranav R. Shah on 11.04.2001 as

stated in Ex.33. Learned advocate for respondent No.2

could not contradict the medical opinion dated 12.02.2025.

Therefore, I am of the opinion that learned Tribunal erred

in considering the reduction of disability by simply relying

upon pursis/application for reduction of disability. Hence, I

hold that claimant - appellant be awarded compensation

on the basis of assessment of disability at 40% body as a

whole.

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8. It is contended by learned advocate for

respondent No.2 that deduction in disability by way of

consent can only be interfered with if fraud has been

practiced upon the claimant. In the present case, the

claimant has not made any allegation in relation to the

reduction of disability.

9. The contention of fraud which is missing in the

present appeal regarding the determination of disability, is

of no significance when the Medical Board of B.J.Medical

College & Civil Hospital, Ahmedabad, after examining the

claimant has arrived at conclusion that even after a period

of 25 years, the claimant has a disability of 40%. I am of

the view that such contention holds no merit in light of

the facts of the case.

10. The next question which is to be addressed is

the income of the claimant. The claimant has stated that

he was earning Rs.2,650/- per month from serving in

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Mazda Enterprises and Rs.1,000/- per month from working

part-time for Manibhai Shah. Although claimant has

submitted two certificates in support of his income, the

record reveals that claimant has not been able to prove

the contents of these certificates. When the claimant

heavily relies on these certificates to establish his income,

which is reflected in his service records, it raises

questions. The claimant also claims that he worked as a

Waiter at Ellisbridge Gymkhana and was earning Rs.100/-

per day as Tips, however, this fact is denied by the other

side. When the claimant worked as a Waiter in a

hotel/restaurant, it is presumed that he would receive

some Tips for service he rendered. Considering the

conclusion arrived at by learned Tribunal an assessment of

income at Rs.3,000/- per month seems reasonable, as per

the rates prevailing as minimum wages at the relevant

time. At that time, the minimum wage for unskilled labour

was Rs.900/- per month. The non-examination of witnesses

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of Mazda Enterprises and Manibhai Shah's company would

not be fatal for the claimant for the reason that learned

Tribunal has considered the notional income of Rs.3,000/-

per month, including earnings from both concerns.

Learned Tribunal has not awarded prospective income,

which is the Rule of Law.

11. The age of the claimant at the relevant point of

time was 35 years and in view of the settled law, 40% of

his income is required to be added while calculating future

loss of income. Considering the nature of injuries and the

treatments undertaken by the claimant and his period of

hospitalization, an award of Rs.1,50,000/-under the head

of pain, shock and suffering would be appropriate. The

evidence indicates that claimant was away from work for

about 9-10 months. Furthermore, the claimant has

produced medical bills for post-judgment and award

treatment. The only challenge raised by the learned

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advocate for respondent No.2 regarding the claim for post

medical expenses is that claimant has not been able to

prove the credibility of bills, which are from 2009

onwards.

12. It is well settled principles of law that while

deciding a claim petition, strict proof as per the Evidence

Act is not required. As the proceedings are summary in

nature, and considering the benevolent legislation, it is

just and reasonable to award the actual amount incurred

for treatment post award, as supported by discharge

summary issued by Dr.Santosh C. Raibagkar dated

10.03.2010. The total medical bills are amounting to Rs.

Rs.73,576.29. It would be in the larger interest of justice

to allow the application for adducing the additional

evidence. Hence, claimant is entitled to Rs.73,576.29

towards the medical bills.

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12. In the totality of the facts and circumstances of

the case, the judgment and award of learned Tribunal is

modified to the following extent.

                                             Head                     Compensation in Rs.
                       Future loss of income                                               3,22,560/-

                       Monthly income (Rs.3,000/-)

                       Prospective Income 40%
                       (Rs.3,000 + 40%) = Rs.4,200/-

                       40% Disability
                       (Rs.4200 x 40%) = Rs.1,680/-

                       (Rs.1680 x 12 x 16) =
                       Rs.3,22,560/-
                       Actual loss of income                                                  36,000/-
                       (Rs.3000 x 12)
                       Pain, shock and suffering                                           1,50,000/-
                       Medical expenses (Rs.90,000/-)                                      1,63,600/-
                       Additional amount of Medical
                       Bills (Rs.73,576/- which is
                       rounded off to Rs.73,600/-)
                       (Rs.90,000    +    73,600)   =
                       Rs.1,63,600/-
                       Future Medical expenses done                                        1,00,000/-
                       during appeal
                       Transportation Charge                                                  25,000/-
                       Grand Total                                                         7,97,160/-
                       Less Awarded amount by                                              2,60,000/-
                       Tribunal





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                       Enhanced amount                                                             5,37,160/-
                       (Rs.7,97,160/- 2,60,000/-)
                       Interest                                     @9%

13. For the reasons recorded hereinabove, following

order is passed.

13.1 The appellant is entitled to enhanced amount of

compensation of Rs.5,37,160/- at the rate of 9% per annum

from opponent Nos.2 to 5 jointly and severally from the

date of claim petition till realization from Insurance

Company.

13.2 The opponents is directed to deposit the

enhanced amount of compensation with interest as above

within a period of Four Weeks from the date of receipt of

this order. Upon such deposition, it will be open to the

original claimant to approach the concerned Court/Tribunal