Gujarat High Court
Rabani Abdulraheman Shaikh vs Tarsomsingh S/O. Chandansingh on 2 January, 2025
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4810 of 2008
==========================================================
RABANI ABDULRAHEMAN SHAIKH
Versus
TARSOMSINGH S/O. CHANDANSINGH & ORS.
==========================================================
Appearance:
MR A R DWIVEDI(11319) for the Appellant(s) No. 1
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3.1,3.2,3.3
RULE UNSERVED for the Defendant(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/01/2025
ORAL ORDER
1. The instant appeal under Section 173 of the Motor Vehicle
Act, 1988 challenges the judgment and award dated 12.10.2006
passed in M.A.C.P. No.1415 of 1996 by the Motor Accident Claim
Tribunal, Ahmedabad (Rural).
2. The brief facts of the case are as under.
2.1 On 12.05.1996, at about 11.00 am, applicant was doing
some repairing work of Truck bearing No.GJ-1-U-4035 in the
sim of village Tarapur, at that time, one Fiat Car No.GJ-04-9572
came from Dharmaj side in rash and negligent manner and
dashed with rear portion of truck, due to which wheel of the
truck ran over the leg of the applicant and applicant sustained
serious injuries. Therefore, claimant filed claim petition for
compensation.
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
2.2 FIR of incident was registered before the concerned Police
Station.
2.3. The claimant filed claim petition under section 166 of MV
Act being MACP No.1415 of 1996 claiming compensation of
Rs.15,00,000/- along with interest jointly and severally from the
opponents.
2.4. After appreciating evidence on record, learned Tribunal was
pleased to pass judgment and award in tune of Rs.2,08,400/-
with 7.5% interest from the date of claim petition.
2.5. Being aggrieved and dissatisfied with impugned judgment
and award dated 12.10.2006, the original claimant has filed
present appeal.
3. Learned advocate for the appellant submits in the present
case, 15 year old lost four organs received from the road
accident. It is submitted that at first blush 30% disability seems
to be just, but looking to injuries and removal of spleen and one
kidney is one of the major drawback to the life of minor
claimant. It is submitted that learned Tribunal has not
considered this issue in true prospective. Another submission of
learned advocate for the appellant is that learned Tribunal erred
in not granting compensation for loss of future prospects as well
as granting compensation under pain, shock and suffering and
other heads are on lower side. Therefore, it is submitted to
rationalize entire amount of compensation to meet with doctrine
of just and fair compensation.
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
3.1. Upon above submissions, it is submitted to allow the
appeal.
4. Learned advocate for the Insurance Company pointed out
that claimant has accepted that he has suffered 30% disability
and same has been tendered as functional disability and same is
adopted by learned Tribunal, so there is justification in passing
impugned order. It is submitted that learned Tribunal has
assessed compensation on the line of being just and fair
compensation and it need not be disturbed in this appeal.
5. I have heard learned advocates for both the sides. I have
minutely applied mind to the evidence on record. Vide Exh.41,
the claimant has produced birth certificate indicating his birth
date as 03.03.1981 and therefore, on the date of accident
(12.05.1996), the claimant was 15 years and 9 months old. It is
claimed by the claimant that he was working as Mechanic in
Auto Carriage, however, to substantiate the same, no evidence is
produced on record. In present case, truck ran over left leg of
the minor claimant resulting into multiple external injuries
including fracture pelvic bones. Medical evidence is produced on
record at Exh.34 to 40. On conjoint reading it indicates that
internal organ has been removed in the treatment of injury
received by the claimant in road accident. Learned Tribunal has
also recorded in para 2 of the impugned judgment that left
kidney has been removed of the claimant has been removed due
to injury, he has received from road accident. Worthy reference
to Exh.51 being disability certificate is required to be referred. It
reads as under :-
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
"CERTIFICATE Date: 31 Aug 2004
This is to certify that I have examined Mr Rabbani Abdul
Rehman Sheikh aged about 22 years for the purpose of
disability calculation. He had met with an accident on 12th
May 1996 and was primarily treated at CHC, Tarapur. He
was subsequently treated at Civil Hospital, Ahmedabad, as
an indoor patient from 12-05-1996 to 06-06-1996. I have
examined the case papers, discharge papers and the injury
certificates. He had undergone Exploratory Laparotomy &
Splenectomy with loop Sigmiod Colostomy on 12-05-1996,
in emergency At present he has complaints of,
(1) Indigestion and constipation.
(2) Loss of appetite and weight loss of about 8 kg. in last 3
years.
(3) Weakness and lethargy
(4) Colicky pain in abdomen off and on associated with
nausea and vomiting
(5) Heaviness and burning pain in epigastrium after meals.
(6) Recurrent bouts of rhinitis, Sinusitis, fever and
headache
(7) Inability to bend forward and lift heavy objects due to
pain in abdomen as well as back
(8) Inability to walk at normal pace, he has to limp while
walking
(9) Inability to run or walk on sandy or uneven surface
(10) Inability to sit or squat due to stiffness in left ankle,
knee and hip joint
On examination,
1. There is - a visible scar of operation over the abdomen in
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
the midline of the abdomen, an oblique scar in the LIF as
well as scar of drainage tube
2 There is generalized tenderness all over the abdomen.
Abdomen is soft with normal bowel sounds.
3 There is increased lumbar lordosis due to paraspinatous
muscle spasm
4. He has to take treatment every 2-3 months for colicky
abdominal pain associated with vomiting.
5 I have examined his left lower extremity, but not
assessed the physical disability because it has been
assessed by Dr. A. G. Memon, orthopedic surgeon.
He is a young automobile mechanic. At present he is doing
nothing. Abdominal colic, epigastric distress, indigestion,
constipation, loss of appetite and weight are the usual
sequel of such a major abdominal surgery. Spleen is the
major organ controlling the immunity of the body and a
major organ for RBC generation as well as destruction.
This major organ has been removed at operation, so his
immune system as well as haemopoetic system is
deranged. Hence due to diminished resistance power of the
body, relatively non-pathogenic viruses and bacteria infect
him very easily. He had also undergone Sigmoid loop
colostomy and closure of colostomy later on. He also has
lost 8 Kg of body weight in the last 3 year due to loss of
appetite, abdominal pain and over-anxiety He had
developed Acute intestinal obstruction due to post-
operative adhesions. He may require re-exploration of the
abdomen for recurrent bouts of intestinal obstruction due
to intestinal adhesions. He is able to continue a sedentary
occupation by restriction of other physical activity and
adherence to a strict diet. He is not able to do any sort of
physical labor work. In my opinion he has a permanent
partial physical impairment of 35% with body as a whole
for major organ loss. Reasoning and calculations are based
on the book - " IMPAIRMENTS, DISABILITIES AND THEIR
ASSESSMENT by Dr. Veena Murlidhar"
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
6. It is case where claimant has undergone exploratory
laparotomy and splenectomy with loop sigmiod colostomy. Thus
on reading above documentary evidence, it is proved that top
killer has taken away organ of claimant. External injury may be
30% disability, but internal injury are big. In view of such
aspect, compensation has to be just and adequate. Accident took
place in the year 1996, the claimant has not produced any
documentary evidence to prove income. Thus, taking notional
income of Rs.24,000/- by the learned Tribunal is correct
approach and not required to be interfered. However, learned
Tribunal has not granted compensation for loss of future
prospects in absence of evidence of continuous income. Looking
to the age of the claimant being 15 years and 9 months at the
time of accident, 40% rise is required to be given for
compensating loss of future prospects. Adoption of 30%
disability by the claimant and accepted by learned Tribunal is
maintained. Multiplier of 18 would be applied as per judgment of
Hon'ble Apex Court in the case of Sarla Verma v/s. DTC
[[(2009) 6 SCC 121]. One year actual loss i.e. Rs.12,000/ -
is granted considering long treatment. Removal of four organ
and prolong treatment, compensation of Rs.1,00,000/- under
pain, shock and suffering and under loss of amenities of life
and marriage prospects is granted. Learned Tribunal has
granted Rs.35,000/- towards transportation and special diet,
attendant. I enhance the same to Rs.50,000/-. Though there is
no sufficient medical evidence produced to establish medical
expenses, but considering the fact that claimant has
undergone medical treatment upto the year 1997, I grant
Rs.1,00,000/- towards medical expenses.
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
7. In view of above, total compensation is re-worked as under,
which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 4,23,360/-
Rs.2000/- per month + 40% rise = Rs.2800/-
and deducting 30% towards disability, the
amount would be Rs.1960/- per month and
applying 18 multiplier, total amount would
be Rs.4,23,360/- [Rs.1960/- x 12 x 18]
Actual loss 12,000/-
Pain, shock and suffering, loss of amenities 1,00,000/-
of life and loss of marriage prospects.
Transportation, special diet, attendant 50,000/-
charges
Medical expenses 1,00,000/-
Total... 6,85,360/-
Less : Amount which is already awarded 2,08,400/-
Additional amount which is awarded 4,76,960/-
8. Therefore, I hold that the claimant is entitled to get
the enhanced compensation of Rs.4,76,960/- with 7.5% p.a.
interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice. Rest of the
direction(s) of the Tribunal remain same.
9. For the reasons recorded above, the following order is
passed.
NEUTRAL CITATION
C/FA/4810/2008 ORDER DATED: 02/01/2025
undefined
10. The present appeal is partly allowed. The Insurance
Company is directed to deposit the enhanced amount of
Rs.4,76,960/- with 7.5% p.a. interest from the date of claim
petition till its realization before the concerned Tribunal, within a
period of six weeks from the date of receipt of this order.
10.1 The Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued
interest thereon, if any, to the claimant, by account payee
cheque / NEFT / RTGS, after proper verification and after
following due procedure.
10.2 Since it is case of composite negligence, the claimant
would be entitled to recover amount of compensation jointly and
severally from any of the wrong doer / opponents.
10.3 While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
10.4 Record and proceedings be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI,J)
SATISH
