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2015 DIGILAW 1204 (GUJ)

Shantilal Devrajbhai v. Mahendrakumar Kantilal Patel

2015-11-24

AKIL KURESHI

body2015
JUDGMENT : Akil Kureshi, J. These first appeals arise out of a common judgment of Motor Accident Claims Tribunal, Ahmedabad (Rural), dated 24.12.2003 in Motor Accident Claims Petitions No.1374 to 1378 of 1991 and MACP No.1557/1991. Brief facts are as under : 2. All the appellants were the original claimants in the respective claim petitions. The appellant of First Appeal No.2981/2004, i.e. claimant of MACP No.1557/1991 Yunusbhai Jivabhai Chauhan was the driver of the ambassador car which met with the accident when it collided with the matador. Rest of the appellants - original claimants were passengers in the same car. All the passengers and driver himself received serious injuries, mercifully none of the them proved to be fatal. Five injured passengers in the car filed their respective claim petitions seeking compensation from the driver/owner and insurer of both the vehicles involved in the accident. Driver of the ambassador car Yunusbhai Chauhan filed his claim petition seeking compensation from the driver/owner and insurer of the matador. 3. The Claims Tribunal in the impugned judgment came to the conclusion that the accident occurred due to 70% negligence on part of the driver of the matador and 30% of that of the ambassador car. The Tribunal quantified compensation payable to each claimant working out various well known heads in injury cases. Loss computed in case of the driver of the ambassador car was reduced by 30% on account of his own negligence. 4. All the claimants have file respective first appeals for enhancement of the compensation. The insurance companies have not filed any appeals. Neither at the hands of the appellants nor by the insurance companies, there is any dispute about the distribution of negligence of the two drivers of the vehicles involved. I have therefore, proceeded on such basis. Essentially the appeals are pressed before me on the question of computation of compensation. In fact, the central line of arguments of counsel for the appellant in all cases with suitable modifications is identical. He raised the following three grounds for enhancement in the compensation : (1) That the amount awarded for pain, shock and suffering in each case looking to the serious nature of injuries, was inadequate. (2) The Tribunal awarded no compensation for loss of amenities of life. He raised the following three grounds for enhancement in the compensation : (1) That the amount awarded for pain, shock and suffering in each case looking to the serious nature of injuries, was inadequate. (2) The Tribunal awarded no compensation for loss of amenities of life. (3) The Tribunal did not grant any rise in future income for computation of future loss of income though almost all the claimants were employed in regular service. Counsel pointed out that the nature of injuries, respective ages of the claimants, their employments and income through such employments were established through reliable evidence on record. In fact, the extent of disability accepted by the Tribunal was on agreed premises. 5. On the other hand, learned counsel for the insurance companies submitted that the accident took place way back in the year 1991. The standard adopted by the Tribunal for compensation under various heads particularly, for pain, shock and suffering was on the basis of value of rupee at the relevant time and cannot be equated with the current purchasing power of rupee. He submitted that the Tribunal having granted adequate compensation, there is no further scope for enhancement. 6. With the assistance of learned advocates for the parties, I have perused the relevant evidence on record principally concerning the nature of injuries received by the claimants and the resultant disabilities. In almost all cases, the injuries are extremely serious resulting into multiple fractures to the concerned claimants. The injuries have left permanent disablement and would surely lead to diminished enjoyment of life. Majority of the claimants are in the age group of 35 to 40. Except for the driver of the ambassador car, rest were employed in regular services. These factors would become relevant when we test the validity of the three contentions raised by the counsel for the appellant. The first glance at the nature of injuries and the amounts awarded to different claimants for pain, shock and suffering would convince me that such compensation has been rather conservative. It is equally true that no compensation has been awarded by the Claims Tribunal for loss of amenities of life though undisputably the injuries were serious in nature resulting into permanent disabilities which would undoubtedly lead to reduced enjoyment of life and its amenities. It is equally true that no compensation has been awarded by the Claims Tribunal for loss of amenities of life though undisputably the injuries were serious in nature resulting into permanent disabilities which would undoubtedly lead to reduced enjoyment of life and its amenities. The Tribunal also did not grant any rise in future income though majority of the claimants were employed in regular service. These conclusions would have to be applied in individual cases which I may presently do. FA No.2976/2004 [Arising out of MACP No.1374/1991] Claimant-Shantilal Devrajbhai 7. The claimant was a passenger in the ambassador car. He was aged about 45 years. His deposition was recorded at exh.57 in which he pointed out that during the accident, he received fractures on the left knee and left thigh as well as wrist of left hand. He lost four teeth and two molars. He was admitted as an indoor patient in V.S. Hospital for one and half month. His left knee had to be operated. In his thigh also by an operation, a rod had to be implanted. His right knee was also damaged for which he had to be kept in a traction. A plate was inserted in the left wrist. Fluid had collected in the right side of his ribcage which also had to be operated. After discharge from hospital, he had to be admitted again in Surendranagar C.J. Hospital. For about a week bone grafting had to be done by operation. He is also unable to walk briskly or sit cross-legged. He is also unable to lift any weight. He stated that he was working as a weaver in Kanti Cotton Mills, Surendranagar. He was paid salary ofRs.2000/- toRs.2500/-. On account of injuries, he was unable to do the same work. The Claims Tribunal awarded compensation ofRs.20,000/- for pain, shock and suffering, did not award any amount for loss of amenities of life, accepted disability of 26% agreed between the parties, believed the income of the claimant ofRs.2000/- per month. However, I notice that the injuries were serious in nature. The claimant suffered multiple fractures. All the fractures required surgical intervention. He had to be operated on as many as four occasions for various reasons. His left leg underwent two operations. Similarly his right leg had to be kept in traction. However, I notice that the injuries were serious in nature. The claimant suffered multiple fractures. All the fractures required surgical intervention. He had to be operated on as many as four occasions for various reasons. His left leg underwent two operations. Similarly his right leg had to be kept in traction. He was treated as an indoor patient for six weeks initially and for couple of weeks thereafter. By all accounts compensation ofRs.20,000/- for pain, shock and suffering is rather inadequate. Even by going by the standards of the year 1991, such amount would have to be raised to in allRs.50,000/-. Thus the claimants would receive additional sum ofRs.30,000/- towards pain, shock and suffering. Injuries left a permanent partial disability of 26% as the body as a whole. Such injuries would certainly leave permanent damage. As per the claimant, he was unable to walk briskly, sit cross-legged or lift weight. One may recall that he was working as a weaver in a Cotton mill. Quite apart from his diminished capacity to earn the same income as before, for the rest of the life, he would be seriously handicapped in his daily pursuit and in enjoyment of normal pursuits of life. For loss of enjoyment of amenities further sum ofRs.25,000/- would be awarded. The injured claimant was employed on regular basis in a Cotton mill. He was working as a weaver. Looking to his age and the permanent nature of service, at-least 30% increase in the current income for considering prospective income would be justified which would come toRs.600/- per month (Rs.2000x30%) orRs.7200/- per annum (Rs.600/-x12). Applying disability factor of 26%, his loss would beRs.1872/- per annum (Rs.7200/-x26%). Adopting multiplier of 14, this sum would come toRs.26,208/- (Rs.1872/-x14) rounded off toRs.26,300/-. The claimant of First Appeal No.2976/2004 would therefore, in all receive additional compensation as under : Rs. 30,000/- for pain, shock and suffering Rs. 25,000/- for loss of amenities of life Rs.26,300/- for future loss of income. Rs.81,300/- Total additional compensation. FA No.2977/2004 [Arising out of MACP No.1375/1991] Claimant-Madhusudan Chunilal Pandya 8. The claimant was a passenger in the ambassador car. The claimant was aged about 40 years. His deposition was recorded at exh.64 in which he pointed out that he received fractures on the shoulder of the right hand, on the wrist of the left hand, on the left knee and on the right thigh. The claimant was a passenger in the ambassador car. The claimant was aged about 40 years. His deposition was recorded at exh.64 in which he pointed out that he received fractures on the shoulder of the right hand, on the wrist of the left hand, on the left knee and on the right thigh. He was admitted in V.S. Hospital and treated as an indoor patient for one and half month. His left leg was kept in a plaster. Right hand was operated and plate was inserted. Right leg was kept in a traction. He suffered partial paralysis in his right hand for which he had to be operated. Even after his discharge from the V.S. Hospital, he had to be admitted in a private hospital. Skin grafting had to be done. The plates in the thigh had to be removed later on. At that time he had to remain as indoor patient for one month. He also had dislocation in the right hip, artificial ball had to be inserted. He deposed that he was unable to walk without the help of a stick. The right leg has become shorter. He is unable to run or walk for a long distance, cannot lift weight or sit cross-legged or squat. He was employed in Majoor Mahajan Sangh. He produced the documents of his treatment as well as payslip issued by the employer. The Tribunal awardedRs.30,000/- for pain, shock and suffering, believed the income of the deceased atRs.3000/- per month, applied agreed disability of 35% but awarded no compensation for loss of amenities of life. Here also one can immediately see that serious injuries received by the claimants led to multiple fractures. He had to undergo several operations and had to be admitted as an indoor patient for extended periods. Even by conservative standard, the compensation for pain, shock and suffering would have to be computed atRs.60,000/-. He would thus receive additional amount of compensation for pain, shock and suffering ofRs.30,000/-. The claimant was not awarded any amount towards loss of enjoyment of amenities. He was aged 40 years. The accident left permanent disabilities. His right leg was shortened. He was unable to run, walk for a long distance, sit cross-legged or squat. He was unable to lift weight. The claimant was not awarded any amount towards loss of enjoyment of amenities. He was aged 40 years. The accident left permanent disabilities. His right leg was shortened. He was unable to run, walk for a long distance, sit cross-legged or squat. He was unable to lift weight. Looking to the age of injured and nature of permanent disablement, he may be awarded further sum ofRs.30,000/- for loss of enjoyment of amenities of life. His income of Rs.3000/- per month was frozen without any increase. Considering his age and permanent nature of service, 30% increase would be justified which would come toRs.900/- per month (Rs.3000x30%) orRs.10,800/- per annum (Rs.900/-x12). Applying disability factor of 35%, his loss would beRs.3780/- per annum (Rs.10,800/-x 35%). Adopting multiplier of 15, this sum would come toRs.56,700/- (Rs.3780x15). The claimant of First Appeal No. 2977/2004 would therefore, in all receive additional compensation as under : Rs.30,000/- for pain, shock and suffering Rs.30,000/- for loss of amenities of life Rs.56,700/- for future loss of income. Rs.1,16,700/- Total additional compensation. FA No.2978/2004 [Arising out of MACP No.1376/1991] Claimant-Mayursinh Balubha Rana 9. The claimant was a passenger in the ambassador car. He was aged about 35 years. His deposition was recorded at exh.78 in which he pointed out that during the accident he had received fracture on the left thigh, on the right knee, in the right leg below the knee. He also suffered fracture on the left wrist and the right shoulder. He also had fracture of the right side collarbone. He was admitted in V.S. Hospital on 10.6.1991 and remained there till 2.7.1991. A rod had to be inserted in the left thigh. The right leg joint had to be put in a plaster. In the right leg, a plate had to be fitted. The wrist of left hand was kept in a plaster. Even after his discharge from the hospital, he had to be admitted as an indoor patient in C.U. Shah hospital, Surendranagar, and had to undergo one more operation on the right knee. He stated that due to the injuries, he was unable to walk briskly or sit cross-legged. He was unable to lift any weight. He was employed as a weaver in Kanti cotton mill and earningRs.2000/- per month. Due to injuries he was unable to do the same work. He stated that due to the injuries, he was unable to walk briskly or sit cross-legged. He was unable to lift any weight. He was employed as a weaver in Kanti cotton mill and earningRs.2000/- per month. Due to injuries he was unable to do the same work. The Tribunal believed his monthly income to beRs.1600/-, applied agreed disability of 20% to work out future loss of income, awardedRs.15,000/- for pain, shock and suffering but did not grant any amount for loss of amenities of life. As noted, the claimants had suffered multiple injuries. He had fractures in both the legs as well as on the wrist of left hand, right shoulder and collarbone. He had to undergo series of operations, was treated as indoor patient first at V.S. Hospital and thereafter, at C.U. Shah hospital, Surendranagar. AwardingRs.15,000/- by way of pain, shock and suffering is inadequate. Same should be awarded atRs.50,000/-. He would thus receive additional compensation ofRs.35,000/- towards pain, shock and suffering. The injuries left permanent disability, assessed at 20% by the doctor. He was unable to walk, run, squat or lift weight. He was 35 years of age. Amount ofRs.30,000/- for loss of enjoyment of life is therefore, awarded. His income ofRs.1600/- was taken into account without any future rise in income. Looking to the age and permanent nature of service, 30% increase is granted, which would come toRs.480/- per month (Rs.1600/-x30%) orRs.5760/- per annum (Rs.480/-x12). Applying 20% disability, his loss would beRs.1152/- per annum (Rs.5760/-x20%). Adopting multiplier of 16, he would receive further compensation ofRs.18,432/- (Rs.1152/- x 16) or rounded off toRs.18,500/- for future loss of income. The claimant of First Appeal No.2978/2004 would therefore, in all receive additional compensation as under : Rs.35,000/- for pain, shock and suffering Rs.30,000/- for loss of amenities of life Rs.18,500/- for future loss of income. Rs.83,500/- Total additional compensation. FA No.2979/2004 [Arising out of MACP No.1377/1991] Claimant-Mahendrasinh Laxmansinh Gohil 10. The claimant was a passenger in the ambassador car. He was aged about 52 years. His deposition was recorded at exh.80 in which he deposed that he had received fractures on the left thigh despite several other minor injures. He was admitted in V.S. Hospital for three days and thereafter, shifted to a private nursing home where he was admitted for two weeks, where he had to undergo operation for implanting a plate in his thigh. He was admitted in V.S. Hospital for three days and thereafter, shifted to a private nursing home where he was admitted for two weeks, where he had to undergo operation for implanting a plate in his thigh. He was working as workshop in-charge in the engineering division of Kanti cotton mill. He stated that he was earningRs.3000/- per annum. After the injuries, he was unable to do the same work and had to resign. The Tribunal awardedRs.10,000/- towards pain, shock and suffering, believed the income of the claimant atRs.2500/- per month and applied agreed disability rate of 12%. Looking to the nature of injuries and the fact that the accident took place way back in the year 1991, no further compensation can be awarded for pain, shock and suffering. However, for loss of amenities of life, looking to the nature of injuries and permanent disablement, a sum ofRs.10,000/- may be awarded. The injured was 52 years of age. However, he was in a secured service. As noted, he was a workshop in-charge. By his account, he was unable to pursue the same work and was therefore, forced to resign. Considering such factors, future rise of 15% may be considered for computing loss of future income over and above his current income ofRs.2500/- believed by the Tribunal which comes toRs.375/- per month (Rs.2500x15%) orRs.4500/- per annum (Rs.375x12). Applying disability factor of 12%, his loss would beRs.540/- per annum (Rs.4500x12%). Adopting multiplier of 11, future loss of income would work out toRs.5940/- (Rs.540/-x11), rounded off toRs.6000/-. The claimant of First Appeal No.2979/2004 would therefore, in all receive additional compensation as under : Rs.10,000/ for loss of amenities of life Rs. 6,000/ for future loss of income. Rs.16,000/ Total additional compensation. FA No.2980/2004 [Arising out of MACP No.1378/1991] Claimant-Harishchandrasinh alias Sukhubha Praveensinh Rana 11. The claimant was a passenger in the ambassador car. He was aged about 35 years. His deposition was recorded at exh.105 in which he deposed that during the accident he lost his consciousness. He was shifted to V.S. Hospital in such condition. He had suffered fracture on the left thigh and on the writs of both the hands, lost two teeth. He was admitted as an indoor patient in V.S. Hospital for 22 days. Two plates were inserted in his right wrist, one plate was inserted in left wrist. Rod was also inserted in his thigh. He had suffered fracture on the left thigh and on the writs of both the hands, lost two teeth. He was admitted as an indoor patient in V.S. Hospital for 22 days. Two plates were inserted in his right wrist, one plate was inserted in left wrist. Rod was also inserted in his thigh. He had to take further treatment at C.J. Hospital, Surendranagar. He was unable to lift any weight, sit cross-legged or stand for a long time. He was also working in the Kanti cotton mill as a weaver. He was earningRs.2000/- per month. Due to his injuries, he was unable to work. The Tribunal awardedRs.15000/- towards pain, shock and suffering, believed his income to beRs.1700/- per month and applied agreed disability of 22%. It may be noted that the injuries resulted in multiple fractures. He had to be operated several times. He was admitted in hospital for extended periods. The injuries left permanent disabilities and reduced the enjoyment of life. He would therefore, additionally receiveRs.20,000/- towards pain, shock and suffering andRs.20,000/- for loss of amenities of life. Looking to the age and the permanent nature of service, 50% increase in the income would be justified, which would come toRs.850/- per month (Rs.1700/-x50%) orRs.10,200/- per annum (Rs.850/-x12). Applying 22% disability, his loss would beRs.2244/- per annum (Rs.10,200/-x22%). Adopting multiplier of 16, he would receive further compensation ofRs.35,904/- (Rs.2244/- x16) or rounded off toRs.36,000/- for future loss of income. The claimant of First Appeal No.2980/2004 would therefore, in all receive additional compensation as under : Rs.20,000/- for pain, shock and suffering Rs.20,000/- for loss of amenities of life Rs.36,000/- for future loss of income. Rs.76,000/- Total additional compensation. FA No.2981/2004 [Arising out of MACP No.1557/1991] Claimant-Yunusbhai Jivabhai Chauhan 12. The claimant was driving the ambassador car involved in the accident. He was aged about 35 years. His deposition was recorded at exh.102 in which he deposed that he received fractures on the right hand and right thigh. He was admitted in V.S. Hospital for 15 days. A rod had to be inserted in his right leg. Right hand had to be plastered. He was unable to lift weight, sit cross-legged or squat. He was a motor mechanic. Due to injuries, he was unable to pursue such work. He was admitted in V.S. Hospital for 15 days. A rod had to be inserted in his right leg. Right hand had to be plastered. He was unable to lift weight, sit cross-legged or squat. He was a motor mechanic. Due to injuries, he was unable to pursue such work. The Tribunal believed his income to be atRs.2000/- per month, applied agreed disability rate of 9% and awardedRs.8000/- towards pain, shock and suffering. Looking to the multiple fractures and operations that the claimant had to undergo and resultant disabilities, the claimant would receive additional compensation ofRs.10,000/- towards pain, shock and suffering andRs.10,000/- towards loss of amenities of life. For a self-employed person who being of the age group of 30 to 35 years, we may grant 30% increase for future income, which would come toRs.600/- per month (Rs.2000/- x 30%) orRs.7200/- per annum (Rs.600/- x 12). Applying disability rate of 9%, his loss would beRs.648/- per annum (Rs.7200/- x9%). Adopting multiplier of 16, he would receive further compensation ofRs.10,368/- (Rs.648/- x 16) or rounded off to Rs.10,500/- for future loss of income. The claimant of First Appeal No.2981/2004 would therefore, in all receive additional compensation as under: Rs.10,000/- for pain, shock and suffering Rs.10,000/- for loss of amenities of life Rs.10,500/- for future loss of income. Rs.30,500/- Total additional compensation. Since 30% negligence is attributed to the claimant, this amount may be reduced by 30%. He would thus receive a net ofRs.21,350/- rounded off toRs.21,500/-. 13. Additional compensation in each case shall carry simple interest at the rate of 8% per annum from the date of claim petition till actual deposit before the Claims Tribunal which shall be done latest by 31.12.2015. Considering the fact that the accident was an old one, such amount shall be released in favour of the claimants after due verification when deposited. 14. All the First Appeals are disposed of. R&P may be transmitted back to the concerned Court. Appeals disposed off.