Jagrutiben Subodhbhai Champaneria v. Laljibhai Hirabhai Khatri
2016-06-06
S.G.SHAH
body2016
DigiLaw.ai
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. P.J. Yagnik for the appellant and learned advocate Mr. Sunil B. Parikh for the respondent. Perused the Record and Proceedings. 2. The appellant is a claimant being victim of a road accident. She has claimed an amount of Rs. 2,00,000/- by filing Motor Accident Claims Petition No. 50 of 1989 before the Motor Accident Claims Tribunal of Ahmedabad district at Ahmedabad Rural against driver, owner and insurer of the vehicle, which was involved in an accident. By impugned judgment and order dated 15.02.2005, the tribunal and 8th Additional District Judge, Ahmedabad (Rural) has awarded an amount of Rs. 78,380/- only and, therefore, appellant has challenged such award for quantum only for remaining amount of Rs. 1,21,620/-. 3. Opponents are driver, owner and insurer of the vehicle in question. However, when they have not challenged the award, there is no issue regarding their liability to pay compensation and, therefore, the only issue which needs to be considered is to the effect that whether tribunal has awarded just and reasonable compensation to the claimant or not. 4. For the purpose, nature of incident and history of litigation is not much material, however, it would be appropriate to recollect the basic information. It is the case of appellant-claimant that on the date of accident i.e. on 14.09.1985 when she was going on her bicycle, near Ghodasar Police Station, one scooter bearing No. GRA-3935 has came in full speed and was driven rashly and negligently by its driver and thereby scooter driver has dashed his scooter with the bicycle of the claimant. Because of such impact, claimant has fallen down from the cycle and received several grievous injuries. The claimant has produced on record all relevant documentary evidence viz. FIR of the incident, panchnama of the place of incident, injury certificate, disability certificate etc. The scrutiny of injury certificate at exhibit 121 makes it clear that petitioner has sustained following injuries:- "(a) Compound fracture lower end of left femur with separation of epiphysis. (b) Fracture condyle of It Mandible (c) Fracture distal end of Radius (d) Other minor injuries. She was admitted to L.G. Hospital on 14.9.1985 and discharged on 5.11.1985. She was operated by Dr. Manoj I. Joshi on 24.7.1992 and Dr.
(b) Fracture condyle of It Mandible (c) Fracture distal end of Radius (d) Other minor injuries. She was admitted to L.G. Hospital on 14.9.1985 and discharged on 5.11.1985. She was operated by Dr. Manoj I. Joshi on 24.7.1992 and Dr. V.C. Patel." The doctor has certified that due to such injuries; she has pain in her knee, leg and thigh, more cold during cloudy weather and she limps while walking. She cannot walk fast, cannot run, cannot walk at a stretch for more than 10 min. She cannot climb stairs properly. She cannot squat & sit cross legged properly. She cannot jump and land on her left foot properly. She cannot stand at a stretch for more than 15-20 minutes. She cannot bend her left knee fully, cannot move her left foot at ankle properly and diminished her sensahours over left leg. Doctor has also certified that he found following problems being suffered by the victim appellant viz. (a) Healed STG over popliteal vegion (Learned APP waives service of notice of rule on behalf of respondent - State.) side over an area of 6" x 4". Hypoaccthesia over the grattered area. (b) Tenderness over lower end lt frmar and awund lt. Knee. (c) Left knee flexion - 0" to 110" flexion. (d) Left ankle movements: No active dorsiflexion possible, planters flexion as brinak. (e) Left Toe movements: only flexion is possible active extension of toes not possible at all. (f) Washing of left thigh by 1-0 c.m. And left leg by 1-0 cm as compared to opposite side. Present power of thigh muscles is grade 4. (g) Complete loss of dorsiflexor power of left ankle and of extensor power of loss of left foot. This means that there is a foot drop. (h) Loss of sensahors over outer of left leg and over lateral half of dorsum of left foot. (i) Body wt. 55 kgs. Average difference between RI and LI scale readings 11 kgs. (j) Limps while walking, walks with a foot dup gait, keeps left foot away while squatting and sitting cross legged. She cannot stand on left leg alone without support. Shortning of left lower limb by 1-0 cm. X ray of left knee with femur shows malunited fracture of lower end femur with angularity of femoral articular surface. As calculated as per to Dr.
She cannot stand on left leg alone without support. Shortning of left lower limb by 1-0 cm. X ray of left knee with femur shows malunited fracture of lower end femur with angularity of femoral articular surface. As calculated as per to Dr. Kessler's principles, her injuries remains as a permanent physical impairment of 38.8% of her left lower limb. From the Certificate it transpires that there is a serious injury like compound fracture lower end of left femur with separation of epiphysis as well as serious injury as stated in the Certificate vide (a) to (j). The appellant has produced Medical & Discharge Certificate vide Exh. 129. As per the Medical Certificate Exh. 121, she was admitted to L.G. General Hospital on 14.9.1985 and discharged on 5.11.1985. She was operated for tendon transfer for fort doop Lt. By Dr. Manoj L. Joshi on 24.7.1992 and Dr. V.C. Patel. The applicant has produced various medical bills for the sum of Rs. 23,510/- vide Exh. 36. As per the deposition, after accident, the applicant was not able to do her study for one year and she could start her study only after a year. As per the case of the applicant, her career is spoiled due to accident. In cross-examination, the applicant has denied the case of the Insurance Company. 5. Considering the above injuries and age of the victim, tribunal has taken Rs. 1200/- as prospective income and considering 18% as disablement and applying 15 as suitable multiplier, the tribunal has awarded compensation as under:- Future Loss of Income Rs. 38,880/- Medical Expenses Rs. 18,000/- Pain, shock, suffering Rs. 15,000/- Attendance Charges Rs. 2,000/- Transportation Charges Rs. 2,000/- Special Diet Rs. 2,500/- Total Rs. 78,380/- 6. If we peruse the impugned judgment and the available record, it becomes clear that the tribunal has erred in not considering just and reasonable compensation almost on all heads considering the nature of injuries, age, treatment and disability sustained by the claimant.
15,000/- Attendance Charges Rs. 2,000/- Transportation Charges Rs. 2,000/- Special Diet Rs. 2,500/- Total Rs. 78,380/- 6. If we peruse the impugned judgment and the available record, it becomes clear that the tribunal has erred in not considering just and reasonable compensation almost on all heads considering the nature of injuries, age, treatment and disability sustained by the claimant. It cannot be ignored that though accident has occurred in the year 1985 and compensation is awarded in the year 2005 i.e. after 20 years, but if we consider fall in value of money, then practically if we award an amount of compensation for loss suffered in the year 1985 but practically allowing all such award since the consumer price index has gone very high during such two decades and, therefore, it would be difficult for the claimant to get any benefit of such compensation when it is paid only after 20 years. For comparing such price index we can consider a simple example of gold. If one gram gold is purchased in the year 1985 and if it is to be purchased after 20 years in the year 2016. In any case, tribunal has erred in considering 38% disability of the minor girl as certified by the doctor. Therefore, there is reason to interfere with in such award so as to modify the award by increasing the amount of compensation. The tribunal has also failed to award full amount of medical bills when they are produced on record, without assigning any reason that why amount on medical expenditure has been reduced to Rs. 18,000/- only, when total bills are for Rs. 23,510/-. On the contrary, while awarding any such amount, it is to be considered that in fact, injured person may not be in a position to collect and preserve all bills and there may be some more expenditure than actual bills and, therefore, in any case reduction of such amount is not justified. The tribunal has also failed to consider that simple injury on face and, thereby there is permanent disfigurement and loss of 6 teeth for which she is entitled to more amount of compensation, both for pain, shock and suffering so also for disfigurement of face. Similarly, on the heads of attendant charges, transportation charges and special diet. Therefore, there is reason to enhance the compensation.
Similarly, on the heads of attendant charges, transportation charges and special diet. Therefore, there is reason to enhance the compensation. For the purpose, following basic information is material:- Name of the victim Jagruti Subodhbhai Shah Result of the incident Injured Age of the victim 13 Years Occupation Study Injury (a) Compound fracture lower end of left femur with separation of epiphysis. (b) Fracture condyle of it Mandible. (c) Fracture distal end of Radius. (d) Six teeth were fallen down at the time of accident (e) Permanent disability of 38.8 % of lower limb. 7. It cannot be ignored that for pain, shock and suffering, award of Rs. 15,000/- has been suggested as back as in the year 1978 in the judgment rendered in the case of Babu Mansa vs. Ahmedabad Municipal Corporation reported in 1978 GLR 492 and thereafter, the same has been consistently approved and followed and ultimately the Honble Supreme Court has awarded more than Rs. 50,000/- and even Rs. 2 lac towards pain, shock and suffering for 50% disability in Sanjay v. Batham reported in AIR 2012 SC 459 . As against that, in the present case, in the year 2005 the Tribunal has awarded only Rs. 15,000/- for pain, shock and suffering, which is nothing but mockery of judicial decisions by the Hon'ble Supreme Court when Rs. 15,000/- was awarded for simple fracture and 10 to 15% disability in the year 1978. Whereas in the present case, though disability is 38.8%, the Tribunal has considered it only at 18% and awarded Rs. 15,000/- towards pain, shock and suffering, which is certainly required to be increased and award under the head would be more than Rs. 50,000/-. 8. Therefore, considering the earning capacity as Rs. 2000/- with future prospective income and 19% disability only, the claimant is entitled to amount of Rs. 68,400/- towards loss of earning capacity, Rs. 30,000/- towards medical expenses, Rs. 25,000/- towards pain, shock and suffering and disfigurement, Rs. 5000/- towards attendance charges, Rs. 3000/- towards special diet. Total Rs. 1,48,400/-, whereas tribunal has awarded Rs. 78,380/-. Therefore, appellant is entitled to additional amount of Rs. 70,020/- with 6% interest through out the period with cost. 9.
68,400/- towards loss of earning capacity, Rs. 30,000/- towards medical expenses, Rs. 25,000/- towards pain, shock and suffering and disfigurement, Rs. 5000/- towards attendance charges, Rs. 3000/- towards special diet. Total Rs. 1,48,400/-, whereas tribunal has awarded Rs. 78,380/-. Therefore, appellant is entitled to additional amount of Rs. 70,020/- with 6% interest through out the period with cost. 9. For my above view, I am relying upon following decisions:- (i) Bharat Premjibhai v. Ahmedabad Municipal Corporation reported in 1978 GLR 585 (ii) Amul Rameshchandra Gandhi v. Abbasbhai Kasambhai Diwani reported in 1978 GLR 721 (iii) State of Gujarat v. Dushyantbhai Nagjibhai Patel reported in 1982 (2) GLR 95 (iv) Ahmedabad Municipal Corpn v. Niranjanbhai Ambalal Patel reported in 1982 (2) GLR 180 (v) New India Assurance Co. Ltd. v. Vallabhbhai Bhikhabhai [Decd.] through his heirs Josnaben Vallabhbhai reported in 2008 (4) GLR 2876 (vi) Smt. Kamla Devi v. Government of NCT of Delhi reported in 2005 ACJ 216 (vii) Nagappa v. Gurudayal Singh reported in (2003) 2 SCC 274 (viii) Puttamma v. KL Narayana Reddy reported in AIR 2014 SC 706 10. Appeal is disposed of in above terms. Record and Proceedings be sent back forthwith. Civil Application No. 10047 of 2014 11. Appellant has also preferred Civil Application for permitting her to adduce additional evidence for considering just and reasonable amount of compensation. It is the case of the appellant that, she has to suffer great difficulty in her life because of such injury, she has consulted the doctor in the year 2011 and 2014 and she has to take continuous treatment. Though law is well settled on such issued that when and why additional evidence can be allowed to be adduced on record. The fact remains that all such documentary evidence produced by the appellant is mainly regarding her medical treatment for the period under consideration which is certainly after the impugned order so also filing of the appeal and, therefore, though such evidence can be permitted to be adduced as additional evidence, the fact remains that for adducing such evidence, the matter may be required to be remanded back to the tribunal for allowing the claimant to prove such evidence so also to allow the opponent to scrutinize such evidence and to rebut the same. In that case though it is permissible, it would linger up the matter for long time.
In that case though it is permissible, it would linger up the matter for long time. It cannot be ignored that such exercise would be after a gap of 25 years and, therefore, even if it is because of accidental injuries, it is also to be considered that it is because of the natural course of aging when there it time gap of 25 years. Whereas scrutiny of documents regarding additional evidence makes it clear that probably all the difficulties are not relating to accidental injuries, though some of them may be because of accident injuries. Therefore, all such evidence may not be relevant at this stage. Moreover, when amount of compensation has been enhanced on all counts, there is no reason to allow such application for additional evidence, at this stage. 12. Therefore, Civil Application does not survive, when First Appeal is decided as aforesaid.