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2015 DIGILAW 1233 (GUJ)

G. S. R. T. C. v. Jagdishbhai Verabhai Karelia

2015-12-02

M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal, Vadodara (hereinafter referred to as "the tribunal") in MACP No.914/1994 by which the learned tribunal has awarded a total sum of Rs.6,41,568/- to the original injured claimant, the appellant-Gujarat State Road Transport Corporation (hereinafter referred to as "GSRTC") has preferred the present First Appeal. 2. In a vehicular accident, which occurred between the Motorcycle, bearing No.GJ 6 F 2755, on which the claimant was driving as pillion driver, and the ST Bus owned by the appellant herein, the injured claimant sustained serious injuries. His knee was totally fractured with crushed fracture and he was required to be admitted for number of days in hospital and was required to be operated. He was required to take rest and leave for approximately two years from service and, therefore, the injured claimant filed the aforesaid Claim Petition before the learned tribunal claiming a total sum of Rs.9 lakhs towards compensation. It is required to be noted that initially the Claim Petition was for Rs.5 lakhs, which was subsequently enhanced to Rs.9 lakhs. On appreciation of evidence, the learned tribunal has held the driver of the ST Bus sole negligent. Thereafter, considering the functional disability as 40%, the learned tribunal has awarded future loss of income considering 10% of the actual income. Thus, the learned tribunal has awarded a total sum of Rs.6,41,568/- towards compensation under different heads; Rs.1,60,000/- for the disability Rs. 24,288/- for actual loss of income Rs. 40,000/- for pain, shock and suffering Rs.4,05,280/- for medical expenses vide bills Rs. 12,000/- for special diet, attendant and transport Rs.6,41,568/- Total compensation Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal, the appellant herein-GSRTC has preferred the present First Appeal. 3. Ms. Avni Mehta, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned tribunal has materially erred in holding the driver of the ST Bus sole negligent involved in the accident. It is submitted that while holding the driver of the ST Bus involved in the accident sole negligent the learned tribunal has not considered the evidence on record, more particularly, the FIR given by the complainant and the injured claimant and even the panchnama of the place of accident has not been considered. 3.1. It is submitted that while holding the driver of the ST Bus involved in the accident sole negligent the learned tribunal has not considered the evidence on record, more particularly, the FIR given by the complainant and the injured claimant and even the panchnama of the place of accident has not been considered. 3.1. Alternatively it is submitted that the manner in which the accident took place the injured claimant could have been held contributory negligent. It is further submitted by Ms. Mehta, learned advocate appearing on behalf of GSRTC that the learned tribunal has committed a grave error in awarding Rs.4,05,280/- towards the medical expenses. It is submitted that out of the aforesaid amount of Rs.4,05,280/- even according to the learned tribunal and the claimant Rs.3,80,208/- were unpaid. It is submitted that though the receipts have been produced, the concerned Doctor/Physiotherapist has not been examined to prove the said receipts. It is submitted that even one of bill is in duplication, more particularly Exhs.151 & 154. Both the bills are covering the same period. It is submitted that out of the total amount claimed towards the medical expenses, even as per the receipts produced at Exhs.141 to 144 they are for the period between 01/01/1999 onwards and they are reported to be pending. It is submitted that as such the accident has occurred in the year 1999. It is submitted that is not believable that in the year 1999/2000 the injured claimant was taking the treatment. It is submitted by Ms. Mehta, learned advocate appearing on behalf of GSRTC that considering the above at least Rs.1,90,000/- is required to be deducted and/or disallowed. She has stated at the bar that if considering the receipts and in the facts and circumstances of the case Rs.1,90,000/- is disallowed, the appellant will be satisfied and she does not invite any further reasoned order for the same. 4. The present Appeal is opposed by Shri Goswami, leaned advocate appearing on behalf of the original claimant. He has also stated at the bar that if considering the documentary evidence on record, more particularly, the receipts issued by Dr. 4. The present Appeal is opposed by Shri Goswami, leaned advocate appearing on behalf of the original claimant. He has also stated at the bar that if considering the documentary evidence on record, more particularly, the receipts issued by Dr. N.R. Deshkar, more particularly, the receipts produced at Exhs.141 to 148 and Exhs.151 to 154 if Rs.1,90,000/- is disallowed, which was claimed towards the medical expenses/medical treatment, he has no objection and, therefore, he does not invite any further reasoned order if out of Rs.4,05,280/-, which is allowed by the learned tribunal towards medical treatment Rs.1,90,000/- is disallowed. 4.1. Now so far as the amount awarded by the learned tribunal towards future loss of income to be disallowed is concerned, it is submitted that in the facts and circumstances of the case, the learned tribunal has only considered 10% as functional disability while awarding future loss of income, which in the facts and circumstances of the case is not required to be interfered with. It is submitted that in any case the learned tribunal has as such committed an error in awarding Rs.40,000/- only towards pain, shock and suffering. It is submitted that looking to the injuries sustained by the claimant and having multiple crushed fracture and the operation and the prolonged hospitalization the claimant was entitled to much more amount towards pain, shock and suffering. Making the above submissions, it is requested not to interfere with the impugned judgment and award except the amount of Rs.1,90,000/- towards medical treatment. 4.2. It is further submitted that as such the finding recorded by the learned tribunal holding the driver of the ST Bus sole negligent is on appreciation of evidence, more particularly, considering the panchnama of the place of the accident and considering the fact that the ST Bus dashed the Motorcycle from behind and the front side of the ST Bus was damaged. It is further submitted that the driver of the ST Bus has not stepped into the witness box. It is submitted that in the facts and circumstances of the case, no error has been committed by the learned tribunal holding the driver of the ST Bus sole negligent. 5. Heard the learned advocates appearing on behalf of the respective parties at length. It is submitted that in the facts and circumstances of the case, no error has been committed by the learned tribunal holding the driver of the ST Bus sole negligent. 5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that by the impugned judgment and award the learned tribunal has awarded a total sum of Rs.6,41,568/- under different heads as referred to herein above. While awarding compensation the learned tribunal has held the driver of the ST Bus involved in the accident sole negligent. Considering the panchnama of the place of the accident and considering the fact that the driver of the ST Bus dashed the Motorcycle from behind and the front side of the ST Bus was damaged and considering the fact that the driver of the bus involved in the accident has not stepped into the witness bod and, therefore, even adverse inference can be drawn, in the facts and circumstances of the case, it cannot be said that the learned tribunal has committed an error in holding the driver of the ST Bus sole negligent. 5.1. Now so far as the amount awarded by the learned tribunal qua future loss of income i.e. Rs.1,60,000/- is concerned, it is required to be noted that while awarding the same the learned tribunal has considered the functional disability as 10% only. Cogent reasons have been given by the learned tribunal while awarding future loss of income, more particularly, considering the fact that as per the certificate issued by Dr.N.R. Deshkar the partial disability would be 40%. It is required to be noted that even the learned tribunal has as such erred in awarding Rs.40,000/- only towards pain, shock and suffering. Looking to the injuries sustained by the claimant and the prolonged hospitalization and the medical treatment etc. the claimant was entitled to much more amount than 40% under pain, shock and suffering. Under the circumstances, even if there is some substance in the submissions made by Ms. Mehta, learned advocate appearing on behalf of the GSRTC on future loss of income, the impugned judgment and award is not required to be interfered with. the claimant was entitled to much more amount than 40% under pain, shock and suffering. Under the circumstances, even if there is some substance in the submissions made by Ms. Mehta, learned advocate appearing on behalf of the GSRTC on future loss of income, the impugned judgment and award is not required to be interfered with. However, so far as the amount of Rs.4,05,280/- awarded by the learned tribunal towards medical expenses is concerned, even as recorded by the learned tribunal, out of the total bills produced Rs.3,80,208/- were mentioned as unpaid. Considering the receipts produced by the claimants of Dr.N.R. Deshkar produced at Exhs.141 to 144 even the same were for the period between 01/01/1999 onwards. Even in the said receipts it has been mentioned that they are unpaid. It is required to be noted that the accident occurred in the year 1999. It is not forthcoming that even thereafter in the year 1999-2000 the claimant continued to take the medical treatment. In any case as such the claimant has not examined the Doctor. It is not believable that in the year 2004-05 when the evidence was recorded the aforesaid amount remained unpaid. In any case there is a broad consensus by the learned advocates appearing on behalf of the respective parties that out of the aforesaid amount of Rs.4,05,280/- if Rs.1,90,000/- is deducted/disallowed they have no objection. The learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while disallowing Rs.1,90,000/- towards medical expenses out of Rs.4,05,280/- awarded by the learned tribunal. Under the circumstances, this Court is not passing any further reasoned order. 5.2. In view of the above and for the reasons stated herein above, the present Appeal succeeds in part. The impugned judgment and award passed by the learned tribunal is hereby modified to the aforesaid extent and it is held that the original claimant shall be entitled to a total sum of Rs.4,51,280/- with 9% interest from the date of application till realization. No order as to costs. The impugned judgment and award passed by the learned tribunal is hereby modified to the aforesaid extent and it is held that the original claimant shall be entitled to a total sum of Rs.4,51,280/- with 9% interest from the date of application till realization. No order as to costs. It goes without saying that on partly allowing the present Appeal and modifying the impugned judgment and award passed by the learned tribunal, if any amount is deposited in excess to the above, the appellant-GSRTC shall be entitled to get back the same either from the Fixed Deposit Receipts with proportionate interest deposited with the learned tribunal and/or from the original claimant. Appeal partly allowed.