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2015 DIGILAW 1241 (GUJ)

Ineshbhai Laljibhai Munia v. Tansukhrai N. Gour

2015-12-03

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 (Auxiliary), Vadodara in Motor Accident Claim Petition No. 1620 of 2003 dated 4/1/2007, by which the learned tribunal has awarded total sum of Rs.3,80,000 towards compensation to the injured claimant by way of compensation for the permanent partial disability sustained by him, appellant herein - original injured claimant has preferred the present First Appeal to enhance the amount of compensation. 2. The factum of accident in which the appellant herein - original claimant sustained injuries, is not in dispute. 2.1. The claimant sustained fractures on left leg, left hand and other injuries on mouth, knee and head portion. Initially operation was performed on the left leg and steel rod was inserted on upper knee portion of left leg and thereafter his left leg was amputated just below knee. He remained in hospital for in all approximately 74 days as indoor patient. He sustained permanent partial disability to the extent of 65%. Therefore, the claimant filed the claim petitioner alleging interalia that he was earning Rs.3000 per month by way of doing agricultural work and doing part time job in Jokot Gram Panchayat. The claimant claimed compensation of Rs.5 Lacs. 2.2. That on appreciation of evidence, by the impugned judgment and award the learned tribunal has awarded a total sum of Rs.3,80,000 towards compensation under different heads as under :- Rs. 2,49,600=00 Towards future loss of income. Rs. 0,75,000=00 Towards pain, shock and suffering. Rs. 0,25,400=00 Towards medical expenses. Rs. 0,20,000=00 Towards transportation, special diet etc. Rs. 0,10,000=00 Towards actual loss of income. Rs. 3,80,000=00 Total compensation. 2.3. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned tribunal, appellant herein - original injured claimant has preferred the present appeal to enhance the amount of compensation. 3. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - original claimant has vehemently submitted that the learned tribunal has materially erred in awarding future loss of income considering permanent partial disability of the body as a whole at 65%. 3.1. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - original claimant has further submitted that the learned tribunal has materially erred in assessing income of the claimant at Rs.2000 per month. 3.1. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - original claimant has further submitted that the learned tribunal has materially erred in assessing income of the claimant at Rs.2000 per month. He has submitted that the learned tribunal ought to have assessed the income of the deceased at least at Rs.3000 per month 3.2. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - original claimant has further submitted that the learned tribunal has materially erred in awarding Rs.50,000 only towards pain, shock and suffering. It is submitted that the learned tribunal has not awarded any amount towards loss of amenities and enjoyment of life. It is submitted that looking to the permanent partial disability sustained by the claimant and his left leg was amputated and he also sustained serious injuries on the mouth, the learned tribunal ought to have awarded at least Rs.1,50,000 under the head of pain, shock, suffering, loss of amenities and enjoyment of life. 3.3. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - original claimant has further submitted that the learned tribunal has materially erred in awarding at the rate of 8% per annum. 3.4. Mr.Hiren Modi, learned advocate appearing on behalf of the appellant - original claimant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Dinesh Singh v. Bajaj Allianz General Insurance Company Limited and another, reported in (2014) 9 SCC 241 in support of his submission to award at least Rs.1,50,000 under the head of pain, shock and suffering, loss of amenities and enjoyment of life. Making above submissions and relying upon above decision, it is requested to modify the impugned judgment and award accordingly and allow the present appeal to the aforesaid extent. 4. Present appeal is opposed by Mr.Karun Rahegar learned advocate appearing on behalf of the respondent No.2 and Ms.Lilu Bhaya, learned advocate appearing on behalf of the respondent No.7. It is submitted by the learned advocates appearing on behalf of the respective respondents that in the facts and circumstances of the case and in absence of any cogent evidence on record, the learned tribunal has rightly assessed the income of the claimant at Rs.2000 per month. It is submitted by the learned advocates appearing on behalf of the respective respondents that in the facts and circumstances of the case and in absence of any cogent evidence on record, the learned tribunal has rightly assessed the income of the claimant at Rs.2000 per month. It is further submitted by the learned advocates appearing on behalf of the respective respondents that in the facts and circumstances of the case and considering the deposition of the Doctor and considering the Medical Certificate, the learned tribunal has rightly assessed the permanent partial disability of the body as a whole at 65% and rightly awarded future loss of income accordingly. It is further submitted by the learned advocates appearing on behalf of the respective respondents that in the facts and circumstances of the case, the learned tribunal has rightly awarded Rs.50,000 under the head of pain, shock and suffering. It is submitted that there is no certificate issued by the Doctor with respect to any injury and/or permanent partial disability sustained by the claimant on the mouth as alleged. It is submitted even awarding interest at the rate of 8% per annum is not required to be interfered with by this Court in the facts and circumstances of the case. Making above submissions it is requested to dismiss the present appeal. 5. At the outset, it is required to be noted that in the vehicular accident in question, the appellant herein - injured claimant sustained serious injuries. As per the deposition of the Doctor and the Medical Certificate, the claimant sustained/suffered 65% permanent partial disability of the body as a whole. He sustained fractures on left leg, left hand and other injuries on mouth, knee and head portion. Initially operation was performed on the left leg and steel rod was inserted on upper knee portion of left leg and thereafter his left leg was required to be amputated just below knee. He remained in hospital for in all approximately 74 days as indoor patient. At the time of accident, the claimant was aged 25 years and doing agricultural work. The appellant claimant has failed to prove that he was serving in Jokob Gram Panchayat as part time employee. Under the circumstances, his income is required to be considered from the agricultural activities only. At the time of accident, the claimant was aged 25 years and doing agricultural work. The appellant claimant has failed to prove that he was serving in Jokob Gram Panchayat as part time employee. Under the circumstances, his income is required to be considered from the agricultural activities only. Considering the fact that the accident took place in the eyar 2003 and considering the decision of the Hon'ble Supreme Court in the case of Lata Wadhwa and others v. State of Bihar and others, reported in AIR 2001 S.C. 3218 , income of the claimant as an agriculturist notionally was required to be considered at Rs.3000 per month. No error has been committed by the learned tribunal in awarding future loss of income. Considering the permanent partial disability of the body as a whole at 65%. The injury on the mouth has nothing to do with the earning capacity. Under the circumstances, the income of the claimant at Rs.3000 per month and 65% permanent partial disability, applying multiplier of 18 as the claimant was aged 25 years at the relevant time, future loss of income is required to be awarded. Under the circumstances, the claimant shall be entitled to Rs.4,21,000/- towards future loss of income and considering number of injuries more particularly considering the fact that the claimant had sustained fractures on left leg, left hand and other injuries on mouth, knee and head portion and even steel rod was inserted on upper knee portion of left leg and thereafter his left leg was amputated just below knee and he remained in hospital for approximately 74 days as indoor patient, the learned tribunal has materially erred in awarding Rs.50,000/- only under the head of pain, shock and suffering. It is required to be noted that as such the learned tribunal has not awarded any amount under the head of loss of amenities and enjoyment of life. Considering the decision of the Hon'ble Supreme Court in the case of Lata Wadhwa and others (supra), the number of injuries, operations, prolonged hospitalisation and permanent partial disability, if an amount of Rs.1,50,000/- is awarded under the head of pain, shock and suffering and loss of amenities and enjoyment of life, it can be said to be just compensation under the said head. 5.1. Even the learned tribunal has materially erred in awarding interest at the rate of 8% per annum. 5.1. Even the learned tribunal has materially erred in awarding interest at the rate of 8% per annum. Considering catena of decisions of the Hon'ble Supreme Court and the rate of interest prevailing in the year 2003, the original claimant shall be entitled to interest at the rate of 9% per annum. 5.2. To the aforesaid extent, the impugned judgment and award passed by the learned tribunal is required to be modified and the present appeal is required to be allowed to the aforesaid extent. 6. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Vadodara in Motor Accident Claim Petition No. 1620 of 2003 dated 4/1/2007 is modified to the above extent and it is held that the appellant herein - original claimant shall be entitled to a sum of Rs.6,51,400/- towards compensation with interest at the rate of 9% per annum from the date of claim petition till realisation. In the facts and circumstances of the case, there shall be no order as to costs. The balance enhanced amount of compensation be deposited by the concerned respondent, more particularly respondent Nos.2 and 7 herein - Insurance Company as per their respective liability determined by the learned tribunal, with the learned tribunal within a period of eight weeks from today and on such deposit, the same be paid to the appellant herein - original claimant by Account Payee Cheque on proper verification and identification by the learned tribunal itself. Appeal partly allowed.