Gujarat High Court
Maniram Santram Kapdi vs Janaksinh Merubha Zala on 5 May, 2025
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C/FA/2711/2012 JUDGMENT DATED: 05/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2711 of 2012
With
R/CROSS OBJECTION NO. 132 of 2013
In
R/FIRST APPEAL NO. 2711 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MANIRAM SANTRAM KAPDI
Versus
JANAKSINH MERUBHA ZALA & ORS.
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Appearance:
MR HENIL M SHAH(10677) for the Appellant(s) No. 1
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/05/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Henil M. Shah for the
appellant and learned advocate Ms. Karuna V. Rahevar for
respondent No.3 while Rule could not be served upon
respondent Nos.1 and 2. Perused the record.
2. The challenge in the present appeal is with regard to the
judgment and award dated 27.4.2012 passed by learned
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Motor Accident Claims Tribunal (Main), Kutch @ Bhuj in
M.A.C.P. No.76 of 2001.
3. The facts in brief of the case are as under:
* On 12.2.2001, Maniram Santram Kapdi with
his family members were travelling in Luxury Bus bearing
registration No.GJ-17-W-1827 which was coming from
Bhuj. Opponent No.1 was driving bus in a rash and
negligent manner with an excessive speed. When the bus
reached near the place of accident around 10.45 hours,
the bus turned turtled. Resultantly, claimant sustained
serious permanent partial disabilities.
* The claimant filed a claim petition u/S. 166 of
the M.V. Act being MACP No.76 of 2001 before the
learned Motor Accident Claims Tribunal claiming
compensation of Rs.17,00,000/-. Opponents were served
with the notice of claim petition. Opponent Nos.1 and 2
did not appear to contest the claim petition, however,
opponent No.3 - insurance company of Bus appeared and
filed Written Statement at Exh.13 and denied its liability.
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Issues were framed.
* Claimant examined himself at Exh.56 and
produced documentary evidence such as FIR, RC Book,
Panchnama, Driving license, disability certificate, injury
certificate and also examined two witnesses at Exhs.62
and 65 alongwith oral deposition of the Doctor.
* After considering the evidence on record and
considering the submissions, learned Tribunal partly
allowed the claim petition granting compensation of
Rs.6,08,500/- with interest @ 9% p.a. from the date of
application till realisation.
* Being aggrieved and dissatisfied with the impugned
judgment and award - the appellant - original claimant
has filed this appeal while Insurance Company filed Cross
Objections for reduction of compensation.
4. Learned advocate for the appellant submitted that on the
date of accident, claimant was aged about 44 years and
was doing labour work. In support of the claim of income,
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claimant has examined the Talati cum Mantri of the
village Chapredi at Exhibit 65C. The said witness has
produced certificates at Exhibit 63C and Exhibit 64C and
the claimant of the claim that he was earning Rs.200/- is
supported by the said witness. Learned tribunal has
considered the income @ Rs.5,000/- but failed to grant
any compensation under the head of future prospective
income. It is submitted that in the accident, the right leg
below knee of claimant was amputated. Resultantly,
Doctor has assessed disability at 47.95% - body as whole.
Since the right leg below knee is amputated, learned
tribunal ought to have considered 100% functional
disability and ought to have considered that the claimant
now in future will not be able to do the labor work.
5. The claimant in his examination in chief has specifically
stated that he was initially admitted in Military Hospital,
Bhuj and had taken treatment from 13-2-2001 to 30-3-
2001 as an indoor patient. It is also stated by the
claimant in his oral deposition that after the accident he
is not able to perform any activities. It is further
contended that compensation under the head of pain,
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shock and suffering is on lower side. There is no cross-
examination by either of the opponents on this aspect. It
is submitted that considering the amputation of right leg
below knee, learned tribunal ought to have granted
compensation for artificial limb which has not been
granted. It is also contended that the assessment of
income at Rs.5,000/- per month is just and proper. No
other submissions are made except the above
submissions.
6. Per contra, learned advocate for the respondent -
insurance company has submitted that in absence of any
future medical expenses for the artificial limb, claimant is
not entitled to any enhancement. It is further submitted
that neither claimant nor any medical person has opined
that the claimant would be needed artificial limb and,
therefore, in absence of any medical evidence, claimant
is not entitled to any compensation. Learned advocate
for the respondent - insurance company has further
contended that if there is no direct evidence with regard
to income of the claimant and therefore rates of
minimum wages is the yardstick. On the date of accident,
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the rates of minimum wages prevailing for unskilled
labourer was Rs.2,000/- per month. However, learned
tribunal has awarded Rs.5,000/- per month and therefore
there is no question of considering future prospective
income. It is also contended that rest of the award is on a
reasonable side and therefore prayed for rejection of the
appeal.
7. I have considered submissions canvassed by learned
advocates for the respective parties and perused the
Record & Proceedings.
8. It is an undisputed fact which is coming out from the
record that because of the vehicular accident, claimant
has sustained serious injuries on his part of the body and
more particularly his right lower leg below knee has been
amputated. The medical papers which are produced on
record establishes the fact that claimant was amputated
in the hospital for the period mentioned hereinabove and
has taken treatment for such injuries. The present is the
case where the claimant being a labourer has sustained
disability to the extent of 95% - body as a whole as
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opined by Dr. Harjeevan M. Adhiya at Exhibit 69C and
Exhibit 70. The said doctor has opined that because of
the vehicular injuries, the claimant has sustained
permanent physical disability of 90% of right lower limb.
9. On perusal of the cross-examination of the same doctor,
nothing fruitful could be extracted by opponents and,
therefore, considering the nature of injuries, it could be
just and proper to assess the functional disability of
claimant at 100%. The claimant being an illiterate person
and more particularly was doing a work of labourer would
not be able to perform the duties which he was doing
prior to the accident.
10. So far as income aspect is concerned, learned tribunal
has considered oral deposition of 2 witnesses and the
documents in support of the oral deposition. Exhibit 65C
is the oral deposition of Rajendra Ravishankar Thaker
who was performing his duties as a Talati-cum-Mantri in
the year 2001 and as per the certificate Exhibit 63C,
claimant was doing masonry work and because of the
vehicular accident, he would not able to perform his
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work. The said witness has also produced a certificate
which indicates that in the village and surrounding
village, the rates of masonry is prevailing at Rs.200/- per
day. The claimant has also examined another witness at
Exhibit 62C who is a villager of Chapredi village. He has
also stated that claimant was earning Rs.200/- per day as
a mason. When ample evidence with regard to income is
produced by claimant, rates of minimum wages are not
to be looked into and, therefore, learned tribunal has
reasonably assessed income of claimant at Rs.5,000/- per
month. However, while calculating compensation,
learned tribunal has failed to award compensation under
the head of future prospective income. Considering the
age of claimant who was 44 years of age at the relevant
point of time, 25% to be added in the income.
11. Considering the medical evidence on record and the
surgeries of amputation being undergone by claimant,
the compensation under the head of pain shock and
suffering is required to be enhanced from Rs.75,000/- to
Rs.1,25,000/-.
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12. So far as medical expenses are concerned, in absence of
any evidence, learned tribunal has considered reasonable
amount of Rs.10,000/-.
13. Considering the aforesaid facts, the first appeal of
claimant is partly allowed. Cross objections filed by
insurance company are dismissed.
14. Considering the fact that the claimant has suffered
amputation of right lower limb from knee, claimant is
entitled to a lump sum amount of compensation for
artificial limb and there is every possibility that the same
may require change after a considerable period of time.
Claimant is entitled to Rs.1,00,000/- under the head of
expenses for artificial limb.
15. In view of the above facts and circumstances, the
claimant is entitled to following amount of
compensation under the different heads:
Sr. Name of the Head Compensation
No. Amount
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(In Rs.)
1 Loss of Income
Rs.5000
+
Prospective income (25%
of 5000) = Rs.1250)
Rs.5000 + 1250 =
Rs.6250/-
+
Disability 100%
6250*12X14 10,50,000/-
2. Pain, Shock, Suffering 1,25,000/-
3. Medical Expenses 10,000/-
4. Attendant Charges 21,000/-
5. Transportation Charges 5,000/-
6. Actual Loss 60,000/-
7. Special Diet 10,000/-
8. Artificial Limb 1,00,000/-
Total Compensation 13,81,000/-
(-) Awarded Amount 6,08,500/-
Enhanced Amount 7,72,500/-
16. Therefore, total amount of compensation would come
to Rs.13,81,000/-, which is required to be awarded
with 7.5% p.a. interest from date of claim petition till
its realisation, which would meet the ends of justice.
It is pertinent to note that learned Tribunal has
already awarded Rs.6,08,500/- to the claimant,
therefore, Rs.7,72,500/- (Rs.13,81,000-6,08,500) is
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ordered to be enhanced with interest @ 7.5% p.a.
17. For the reasons recorded hereinabove, the following
order is passed:
[A]. The present appeal is partly allowed
accordingly in above terms.
[B]. The Insurance Company is directed to
deposit the enhanced amount Rs.7,72,500/- with
7.5% p.a. interest from the date of claim
petition till its realisation before the concerned
Tribunal, within a period of Six Weeks from the
date of receipt of this order.
[C]. 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' / RTGS / NEFT', after proper verification
and after following due procedure.
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[D]. While making the payment, the
Tribunal shall deduct the Courts fees, if not paid,
in accordance with the Rules.
[E]. Record & Proceedings, if any, be sent
back to the concerned Tribunal, forthwith.
(D. M. DESAI,J)
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