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2023 DIGILAW 710 (GUJ)

Nareshkumar Lilachnad Shah v. Kamlesh H. Doshi

2023-05-01

S.V.PINTO

body2023
JUDGMENT : 1. Though served, no one has appeared for the respondent Nos.1, 2, 4 and 5. 2. This appeal has been preferred by the appellant – original claimant under section 173 of the Motor Vehicles Act (“the Act” for short) being aggrieved and dissatisfied by the judgment and award passed by the learned Motor Accident Claims Tribunal (Aux), Valsad in Motor Accident Claims Petition No.122 of 2006 (old MACP No.280 of 1999) on 30.8.2007. 3. The brief facts of the case that emerge from the record are as under. 3.1 That on11.8.1995 at around 2.30 am the claimant was travelling in Maruti Car No.GJ 15 C 4447 which was being driven by the opponent No.1 and was in the ownership of the opponent No.2 and was going from Udaipur to Kesaryaji and when they reached near Govardhan Vilas near Kesaryaji within the jurisdiction of Udaipur Police Chowki, the opponent No.4 came driving Maruti Gypsy No.DD 03 1775, which was in the ownership of the opponent No.5, rashly and negligently and came on the wrong side of the road and dashed with the Maruti Car in which the claimant was travelling. The claimant suffered serious injuries on his head and fracture on his right femur and also serious injuries on his face, his right eye was seriously damaged which disfigured his face and he also sustained other injuries on his body. That the Maruti Car was insured with the opponent No.3 and Maruti Gypsy was insured with the opponent No.6. It is the say of the claimant that due to the injuries, he has taken treatment at Government Hospital, Kesaryaji and thereafter as an indoor patient at Rajasthan Hospital, Ahmedabad and further treatment at Ankola Hospital, Mumbai where bone grafting was done and he has spent a huge amount on medical treatment. That the claimant has claimed for an amount of Rs.12,00,000/- inter alia from the opponents for the injuries sustained in the accident. 4. That the claimant has claimed for an amount of Rs.12,00,000/- inter alia from the opponents for the injuries sustained in the accident. 4. Notices were duly served to all the opponents and the opponent Nos.1, 2, 4 and 5 have remained absent, whereas the opponent Nos.3 and 6 appeared before the learned Tribunal and filed their written statement at Exh.50 mainly denying all the contents of the claim petition and have further stated that the accident has occurred due to dash by some unknown vehicle and that vehicle has not been joined as a party to the claim petition and hence, the claim petition must be dismissed. 5. The learned Tribunal, after having considered the evidence on record, held all the opponents jointly and severally responsible for the accident and ordered the opponents to pay the amount of Rs.1,95,000/- to the claimant with interest at the rate of 9% from the date of the application till realization. The learned Tribunal has considered the income of the claimant to be of Rs.5000/- per month and held that permanent disability of the claimant is 25% and accordingly, used the multiplier of 9 and awarded the amount of Rs.1,35,000/- as loss of future prospective income, Rs.15,000/- towards pain, shock and sufferings, Rs.30,000/- towards loss of actual income for six months and Rs.15,000/- towards medical expenses, attendant expenses and special diet and in all, awarded the amount of Rs.1,95,000/- jointly and severally from the opponents with interest at the rate of 9% till realization. 6. Being aggrieved and dissatisfied by the aforesaid award, the appellant – original claimant has approached this Court by way of this appeal. 7. I have heard learned advocate Mr.A.V.Prajapati for the appellant – original claimant and learned advocate for Mr.Palak Thakkar for the respondent Nos.3 and 6. Though served, the respondent Nos.1, 2, 4 and 5 have not appeared. 8. It is mainly contended by Mr.A.V.Prajapati, learned advocate appearing for the appellant – original claimant that the learned Tribunal has erred in considering the income of the claimant at Rs.5000/- per month when in fact the learned Tribunal ought to have appreciated that the claimant was the partner of Comet Nugricus, a partnership firm and income tax returns for the years 1996-1997 and 1997-1998 have been produced on record. That as per the income tax returns, the learned Tribunal ought to have considered the income of the claimant at Rs.10,000/- per month instead of Rs.5000/- per month. That the learned Tribunal has also erred in considering 25% permanent disability whereas as per the certificate issued by Dr.Ushaben, disability of the right eye is given 50% and as per the certificate issued by Dr.Ashish Deo, leg of the claimant has become 2 cms short and his bone was required to be cut down and disability of leg is given as 40%. The Neurosurgeon has also certified disability of 50% for the head injuries and considering all the certificates, the learned Tribunal ought to have considered permanent disability at 85% body as a whole of the claimant. The learned Tribunal has also calculated the actual loss of income at a meager amount of Rs.30,000/- and has also not considered the huge amount of medical expenses, attendant charges and special diet considering the indoor treatment taken by the claimant at Rajasthan Hospital, Ahmedabad and Ankola Hospital, Mumbai and the operations that had to be undergone by the claimant. The learned Tribunal has also awarded only Rs.15,000/- as pain, shock and sufferings and the award of the learned Tribunal is illegal, unjust, improper, erroneous and bad in law and hence, the same must be enhanced accordingly. 9. On the other-hand, Mr.Palak Thakkar, learned advocate for the respondent Nos.3 and 6 – insurance companies of Maruti Car No.GJ 15 C 4447 and Maruti Gypsy No.DD 03 1775 has submitted that the award of the learned Tribunal is just and proper and no interference is required and hence, the appeal of the appellant – original claimant must be dismissed with costs. 10. I have gone through the record and proceedings of the present appeal and there is no dispute with regard to the occurrence of the accident and that the claimant was travelling in Maruti Car NO.GJ 15 C 4447 and the car met with an accident with Maruti Gypsy No.DD 03 1775. As per the say of the claimant, immediately after the accident, the claimant was taken to the Government Hospital, Kesaryaji and thereafter as per the say of the claimant, he was treated as indoor patient at Rajasthan Hospital, Ahmedabad from 12.8.1995 to 21.8.1995 and subsequently, has taken treatment at Ankola Hospital, Mumbai from 15.10.1995 to 5.11.1995. As per the say of the claimant, immediately after the accident, the claimant was taken to the Government Hospital, Kesaryaji and thereafter as per the say of the claimant, he was treated as indoor patient at Rajasthan Hospital, Ahmedabad from 12.8.1995 to 21.8.1995 and subsequently, has taken treatment at Ankola Hospital, Mumbai from 15.10.1995 to 5.11.1995. The claimant has stepped into the witness box and has deposed at Exh.55 regarding the accident and injuries sustained by him and the treatment taken by him for a long time. The claimant has examined witness Arvind Halpati at Exh.73, witness Dinesh Nayak at Exh.74, witness Dr.Ushaben at Exh.81 and witness Dr.Ashish Deo at Exh.83 and some documents regarding medical expenses and permanent disability certificates of the claimant have been produced on record. The claimant has produced the certificate of Dr.Ushaben at Exh.82 and the Doctor has certified the claimant to have 50% of loss of vision in right eye and as per the certificate of Dr.Ashish Deo produced at Exh.84 permanent disability of right leg is 40%. It is pertinent to note that in the entire evidence, the claimant has not produced any documentary evidence about the treatment taken by him at Rajasthan Hospital, Ahmedabad or Ankola Hospital, Mumbai. In the deposition at Exh.55, the claimant has stated that he has taken treatment from Ashirwad Hospital, Vapi and also had taken physiotherapy treatment from Dr.Sandhyaben at Vapi and Dr.V.M.Shah at Jamnagar, but no documentary evidence to this effect has been produced by the claimant on record. During the cross examination, the claimant has categorically admitted that entire expenses that he had spent in the Rajasthan Hospital, Ahmedabad has been received by him in the medi claim, but other expenses have not been received, but the claimant has not produced the medical bills of any hospital. 11. The claimant has examined witness No.2 Arvind Mochibhai Halpati to show that the witness was working as an attendant and was being paid Rs.1500/- per month and witness No.3 - Dineshbhai Thakorbhai Nayak who has stated that he was doing the business of travels in the name of Parichay Travels and he had taken the claimant to Mumbai, Ankola and also to Dr.Chaudhary’s Hospital and Dr.V.M.Shah’s Hospital at Jamnagar, but no documentary evidence to this effect has been produced on record. The claimant has examined witness No.4 - Dr.Ushaben Shashikant Herenjal at Exh.81 and the disability certificate regarding loss of vision of the claimant is produced at Exh.82. On perusal of the certificate produced at Exh.82, it states that the claimant alleged to have accident eight years back and there is loss of binocular vision of 25% in the right eye and left eye is completely normal. Besides this certificate, there is no other document to prove that loss of vision in the right eye of the claimant was due to the accident in question and similarly, the claimant has examined witness Dr.Ashish Anil Deo at Exh.83 and the disability certificate is produced at Exh.84. In the certificate produced at Exh.84, there is no mention of any injury due to the accident and it is certified that the claimant had fracture of right femur on 1.8.1995 and thereafter, he had to undergo multiple operations. It also states that ilizarov had failed and re-interlocking nailing has been done at Jamnagar by Dr.V.M.Shah and the claimant has a limp, unable to squat, pain on walking more than 100 meters and stiffness in hip and knee for which physiotherapy is continued and accordingly disability has been calculated at 40%. During the cross examination, the witness has stated that in the certificate, he has not mentioned on what basis, the disability has been calculated and considering the disability certificates produced at Exh.82 and Exh.84, the learned Tribunal has assessed the disability of the claimant at 25% which is erroneous. Considering the 25% loss of binocular vision and the 40% disability of right leg as per the certificate produced at Exh.84 if the disability of 35% body as a whole is considered, it would be just and proper. 12. The claimant has produced the income tax returns of Assessment Year 1996-1997 at Exh.85 and as per the return, the income from the business profit is Rs.1,06,610/- and the tax of Rs.17,983/- has to be paid. The learned Tribunal has considered the income of the claimant at Rs.5000/- per month but considering the income tax return, the income for the assessment year 1996-1997 is Rs.1,06,610/- and on deduction of tax amount of Rs.17,983/-, the net annual income will be Rs.88,627/- and the monthly income Rs.7385/- and hence, if the monthly income of the claimant is considered at Rs.7250/-, it would be just and proper. The learned Tribunal has granted the amount of Rs.15,000/- as pain, shock and sufferings and has not awarded the amount towards transportation. Admittedly, the accident has occurred at Kesaryaji and immediately thereafter, the claimant was taken to the Government Hospital, Kesaryaji and was thereafter shifted to Rajasthan Hospital, Ahmedabad and has thereafter taken treatment at Ankola Hospital, Mumbai and the claimant has spent a huge amount on transportation from Kesariyaji to Ahmedabad and thereafter to Mumbai. The amount awarded by the learned Tribunal under the head of pain, shock and sufferings, medical expenses and special diet is also on the lower side and is required to be enhanced and accordingly, the award of the learned Tribunal is erroneous. The learned Tribunal has not awarded any amount for transportation charges and considering the treatment taken by the claimant, if an amount of Rs.10,000/- is granted towards transportation, it would be just and proper. 13. Learned advocate for the claimant has argued that the learned Tribunal has not granted any loss of future prospects and has only considered the amount of Rs.5000/- and considering the permanent disability of 25% and applying the multiplier of 9 has granted the amount of Rs.1,35,000/- as loss of future prospects. In the entire evidence, it has come on record that the claimant was partner of Comet Nugricus and the income tax return of the assessment year 1996-1997 is produced at Exh.85. The claimant has not produced any evidence to prove the type of work that he was doing and during the cross examination, the witness has stated that the partnership firm is running the business and they are four partners and he has not produced any evidence to show that there has been loss in the income of the partnership firm due to his accident. Hence, considering the permanent disability of 25% of loss of binocular vision and the fact that the claimant has limp and disability certificate produced at Exh.84 and the fact that the claimant is a partner of a firm having four partners, it cannot be said that the claimant has actually suffered any functional disability and that is the result of injuries suffered in the accident, the claimant has loss of functional disability considering the type of work that he was doing. 14. 14. The learned Tribunal has applied the multiplier of 9 and as per the judgment of the Honourable Supreme Court in the case of Sarla Verma and others Vs Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 as the claimant was 45 years of age on the date of the accident and he is entitled to the multiplier of 14 and it appears that the learned Tribunal has erred in applying the multiplier. 15. In view of the discussion above, considering the monthly income of the claimant to be Rs.7250/- per month and the disability of 35%, the loss would be Rs.2537.50 per month and yearly loss would be Rs.2537.50 x 12 = Rs.30,450/-. The claimant is entitled to multiplier of 14 and accordingly, the claimant would be entitled to Rs.30,450/- x 14 = 4,26,300/- as loss of future earnings. 16. In view of the aforesaid discussion, the claimant is entitled to the amount of compensation as under. Sr.No. Details Amount 1 Future loss of earnings Rs.4,26,300/- 2 Pain, shock and sufferings Rs.30,000/- 3 Actual loss of income Rs.43,500/- 4 Medical expenses, attendant expenses, special diet. Rs.35,000/- 5 Transportation charges Rs.10,000/- Total Rs.5,44,800/- 17. The learned Tribunal has awarded the amount of Rs.1,95,000/- when in fact, the claimants are entitled to the amount of Rs.5,44,800/- and the enhanced amount of Rs.3,49,800/- is to be paid by the respondent Nos.3 and 6 jointly and severally to the claimant. 18. In view of the above discussion, First Appeal No.2215 of 2008 filed by the appellant – original claimant is partly allowed. The impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Aux), Valsad in Motor Accident Claims Petition No.122 of 2006 (MACP No.280 of 1999 old) dated 30.8.2007 is hereby modified to the aforesaid extent. The respondent Nos.3 and 6 are hereby directed to deposit the enhanced amount of Rs.3,49,800/- before the learned Tribunal within a period of 12 weeks from the date of receipt of the order with interest at the rate of 6%. As the original matter is of 2006 and the First Appeal is of the year 2008, the learned Tribunal is directed to disburse the said enhanced amount to the claimants after due verification through RTGS or NEFT in the proportion as per the order of the learned Tribunal. Record and Proceedings be sent back to the concerned learned Tribunal forthwith. As the original matter is of 2006 and the First Appeal is of the year 2008, the learned Tribunal is directed to disburse the said enhanced amount to the claimants after due verification through RTGS or NEFT in the proportion as per the order of the learned Tribunal. Record and Proceedings be sent back to the concerned learned Tribunal forthwith. No order as to costs.