Gujarat High Court
Yuvrajsinh Kanaksinh Bhati vs Owner Kishan Ifrastructure Pvt. Ltd on 28 January, 2025
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C/FA/2045/2017 ORDER DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2045 of 2017
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YUVRAJSINH KANAKSINH BHATI
Versus
OWNER KISHAN IFRASTRUCTURE PVT. LTD. & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
claimant being aggrieved and dissatisfied with the judgment and
award dated 23.03.2017 passed by the Motor Accident Claims
Tribunal, Rajkot in Motor Accident Claim Petition No.1705 of
2009.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
02.12.2009, the minor claimant was riding on Motorcycle No.GJ-
3-AE-2252 as pillion rider and when they reached near the place
of accident, one Tata Dumper No.GJ-3-AT-652 came driven by
its driver in rash and negligent manner and dashed with the
motorcycle. As a result, the accident took place and claimant
sustained severe injuries. The claimant has filed aforestated
claim petition under Section 166 of the Motor Vehicle Act, 1988
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claiming compensation of Rs.15,00,000/-. The learned Tribunal
vide impugned judgment and award dated 23.03.2017 has
granted compensation to the tune of Rs.6,87,500/-. Hence, the
present appeal.
3. Heard learned advocates for the respective parties.
4. To get out from the consent given to exhibit the disability
at 50%, learned advocate Mr.Tushar Sheth would submit that
learned Tribunal ought to have considered the functional
disability and should not be guided by the consent given by the
parties. The functional disability should be decided on the basis
of judgment of Hon'ble Supreme Court in case of Raj Kumar Vs.
Ajay Kumar - AIR 2010 Online SC 125. He would submit that
in the present case, left hand of the claimant has been amputed
above elbow. At the time of accident, the claimant was studying
in 7th Standard and at the time of deposition, he was studying in
12th Standard along with 1 st semester of I.T.I. Upon above
submissions, he would submit to take 100% disability of the
claimant.
5. On the other hand, learned advocate Mr.Nanavati would
submit that learned Tribunal has rightly decided the issue of
functional disability at 50% on the basis of consent arrived at
between the parties. Therefore, he would submit to dismiss the
appeal.
6. Having heard learned advocates for both sides, what could
be pursued that disability certificate at Exhibit-59 produced by
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the claimant issued by private doctor has been exhibited without
examining the doctor who is maker of the said certificate on
consent given by learned advocate Mr.G.R.Prajapati appearing
for the claimant and learned advocate Mr.P.R.Desai appearing
for the United India Insurance Company Limited. Learned
Tribunal has taken up consent of learned advocates for both
sides and taken up functional disability as 50%. Taking
somersault from there, learned advocate Mr.Sheth would submit
that learned Tribunal should take functional disability to some
other figure and has to assess the same in accordance with the
judgment of Hon'ble Supreme Court in case of Raj Kumar
(supra). However, this submission has to be appreciated in the
background that the claimant has not examined the doctor who
has issued the certificate at Exhibit-59. Dr.Rajesh Gandhi,
Orthopedic Surgeon, Rajkot has issued certificate at Exhibit-59.
It is not the case of claimant has taken treatment from
Mr.Gandhi. As stated hereinabove, learned advocates for both
sides agreed to take up disability for whole body at 50% but now
learned advocate Mr.Sheth submits that learned Tribunal should
take up functional disability. The issue, therefore, requires to be
proved by leading necessary evidence by both parties.
7. Further, it is to be noted that left hand of the claimant has
been amputed above elbow and claimant has not produced any
evidence to show that whether he is righty or lefty and this
aspect is to be reappreciated by the learned Tribunal. In view of
above, without observing on the merits of the case, I find it fit
case to remand the matter to the learned Tribunal.
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8. For the reasons stated hereinabove, the appeal is allowed.
The impugned judgment and award is quashed and set aside.
Claim petition No.1705 of 2009 is remanded back to the learned
Tribunal for fresh consideration permitting both parties to lead
necessary evidence. If any decreetal amount lying in the FDR, it
shall not be disbursed to the claimant and it shall be subject to
outcome of the fresh decision of the claim petition. Registry is
directed to send back the record and proceedings to the
concerned Tribunal, so as to reach within three weeks from
today.
(J. C. DOSHI, J)
GAURAV J THAKER
