Sita Alias Shital Sandipbhai Parmar v. Kiritsinh P. Jadav
2024-02-15
GITA GOPI
body2024
DigiLaw.ai
JUDGMENT : GITA GOPI, J. 1. Challenge has been given by the injured claimant to the judgment of the Motor Accident Claims Tribunal (Auxiliary) and 5th Additional District Judge, Anand dated 24/11/2021 in MACP No. 303 of 2015. 2. The facts of the case as has been noted in the impugned judgment suggests that on 04/5/2015, the applicants of both the matters i.e. MACP No. 303 of 2015 and MACP No. 304 of 2015, were going towards village Vanchiel by travelling in trolley bearing registration no. GJ-23-V-8722 driven by opponent no. 3. It is stated that the trolley was in moderate speed and on the correct side of the road and when they reached near village Sisva Bhadran Road, they met with an accident since opponent no. 1 came driving vehicle bearing registration no. GJ-23-V-3477 in rash and negligent manner and while overtaking he came on the wrong side of the road and dashed his Icer Tempo with the trolley as a result of which both the applicants sustained injuries. 3. Mr. R.G. Dwivedi, learned advocate for the appellant submitted that the appellant claimant had deposed before the court that she was earning Rs. 5,000/- per month by doing agriculture and cattle husbandry business and inspite of that the learned Tribunal has considered monthly income of Rs. 3,500/-. Learned advocate further stated that if at all, facts of her earning were not believed, then her status as a house maker ought to have been considered and she should have been appropriately granted compensation as laid down in the judgment of Arvind Kumar Pandey and Others vs. Girish Pandey and Another in Civil Appeal No. 2512 of 2024 and Arising Out of SLP (C) No. 20918 of 2022. Learned advocate submitted that the Apex Court has taken the view that house wives should be compensated on the level of minimum wages schedule, so that her contribution in the house could be valued in terms of money on a standard equal to that of the persons who derive benefit under minimum wages schedule. Learned advocate further submitted that if the ratio laid down in case of Arvind Kumar Pandey (supra) is now to be followed, then as per the judgment of Mohd.
Learned advocate further submitted that if the ratio laid down in case of Arvind Kumar Pandey (supra) is now to be followed, then as per the judgment of Mohd. Sabeer @ Shabir Hussain vs. Regional Manager, U.P. State Road Transport Corporation, AIR 2023 SC 186 , the prospective rise in income is also required to be considered even in a injury case which the learned Tribunal has failed to do so. Hence, learned advocate submitted that though no dispute could be raised towards the assessment of 30% physical disability to consider as a functional disability, just and reasonable amount is required to be granted. 4. Per contra, Mr. Tanmay Karia, learned advocate for the respondent no. 2 submitted that the learned Tribunal has not believed the claimant, since she has not produced any documents to support her case with regard to her alleged earning and thus learned advocate submitted that the claimant has been appropriately compensated by considering her income of Rs. 3,500/- per month and by assessing 30% disability as well as applying multiplier of 18. Mr. Karia, learned advocate further submitted that the amount under the other head being medical expenses has been granted as per the medical bills being proved and the amount under the head of pain, shock and suffering, special diet, attendance charges and transportation charges are also given appropriately. 5. In case of Arvindkumar Pandey (supra), it has been observed in Para-7 and 8 as under: “7. Assuming that the deceased was not employed, it cannot be disputed that she was a homemaker. Her direct and indirect monthly income, in no circumstances, could be less than the wages admissible to a daily wager in the State of Uttarakhand under the Minimum Wages Act. 8. It goes without saying that the role of a homemaker is as important as that of a family member whose income is tangible as a source of livelihood for the family. The activities performed by a home-maker, if counted one by one, there will hardly be any doubt that the contribution of a home-maker is of a high order and invaluable. In fact, it is difficult to assess such a contribution 3 in monetary terms.” 6.
The activities performed by a home-maker, if counted one by one, there will hardly be any doubt that the contribution of a home-maker is of a high order and invaluable. In fact, it is difficult to assess such a contribution 3 in monetary terms.” 6. The Apex Court, thus, appreciated the fact that the contribution of a home maker could not be monitorily assessed by counting activities one by one, however, her direct and indirect monthly income in no circumstances could be less than the wages admissible to the daily wagers to the state under the Minimum Wages Act. 7. The material which has been brought to this Court to consider minimum wages in the State of Gujarat to the date of accident shows that the monthly income for unskilled labourer is Rs. 7,238/-. Hence, as per the case of Mohammad Shabir (supra), taking into consideration the age of the injured as 24 at the time of the accident, 40% prospective rise in income is required to be added which comes to Rs. 2,895/-. Hence, monthly income of the claimant would be considered as Rs. 10,133/-. 8. The 30% of the physical disability has been considered as a functional disability and hence annually the disability is required to be counted by applying multiplier of 18. Hence, future loss of income would come to Rs. 6,56,640/- (Rs. 10,133/- x 30% x 12 x 18). 9. As per the observation, relying upon the document Exh.32, the disability certificate by Dr. Kiran Patel, M. S. Orthopedic, the injured suffered OG-III-fracture on right side upper and ulna and medial epicondyle fracture and was treated at Civil Hospital, Ahmedabad. The said doctor was examined at Exh.31 who had deposed about the disability certificate in his examination-in-chief. The main person Dr. S.R. Kshatri having been expired, on the basis of the case papers, Dr. Kiran Patel has given the disability certificate, wherein it was noted that the right hand of the applicant was 44% disabled. 10. The Tribunal has considered the material medical papers, photographs and cross examination and had deemed fit to consider 30% disability of the body as a whole. 11. The photographs produced shows total disfigurement of the right hand and the marks of the injury are very obvious on the hands. The injured was treated in Civil Hospital, Ahmedabad. The doctor has noted 44% disability of the right hand. 12.
11. The photographs produced shows total disfigurement of the right hand and the marks of the injury are very obvious on the hands. The injured was treated in Civil Hospital, Ahmedabad. The doctor has noted 44% disability of the right hand. 12. In view of the fact, this Court would concur with the view of the tribunal, that the claimant would not be in a position to work for about three months. Hence, considering the income assessed as of Rs. 7,238/- per month, for a period of three months, the actual loss of income would come to Rs. 21,714/-. 13. Considering the pain, shock and suffering undergone and disfigurement of the hand, the amount under the head of pain, shock and suffering granted to Rs. 15,000/- is not unsettled by this Court, however, it is required to be observed that the right hand of the lady has been disfigured and the injury marks are very obvious hence, the Court considers that the such mark would bring down the level of confidence of a woman and would be subject of embarrassment before the family members and even before the society and, hence, she was required to be granted amount for the loss of amenities of life and enjoyment of life. Considering 30% disability, in proportional average of 44% disability of the right hand, 70% of the permanent disability in left upper extremity, the amount under the head of loss of amenities of life and enjoyment of life is required to be granted which this Court considers to assess as Rs. 20,000/-. 14. In view of the treatment and the injury suffered and as per the fact of the injuries on the hand, she would have taken assistance of some attendant during the recovery period as well as in the household work and had taken special diet to recover as well as must have spend for transportation, the amount granted of Rs. 10,000/- is required to be increased to Rs. 15,000/-. The medical expenses of Rs. 9,430/- has been considered. 15. In the result, calculation of the total compensation would come as under: Future loss of income Rs. 6,56,640/- Actual loss of income Rs. 21,714/- Pain, shock and suffering Rs. 15,000/- Loss of amenities of life and enjoyment of life Rs. 20,000/- Transportation, special diet etc. Rs. 15,000/- Medical expenses Rs. 9,430/- Total Rs. 7,37,784/- 16. The Tribunal has awarded Rs. 2,71,730/-.
6,56,640/- Actual loss of income Rs. 21,714/- Pain, shock and suffering Rs. 15,000/- Loss of amenities of life and enjoyment of life Rs. 20,000/- Transportation, special diet etc. Rs. 15,000/- Medical expenses Rs. 9,430/- Total Rs. 7,37,784/- 16. The Tribunal has awarded Rs. 2,71,730/-. The enhanced amount of compensation, thus, would come to Rs. 4,66,054/-. The said enhanced amount to be deposited with interest at the rate of 7.5% per annum within a period of eight weeks from the date of receipt of this order. 17. After the amount is deposited, from the said amount, 60% amount be paid in cash to the claimant after due verification of the identity by way of an account payee cheque or RTGS or NEFT and rest of the 40% amount be invested in a fixed deposit with any nationalized bank for a period of two years. Interest accruing on such Fixed Deposit shall be accumulated. After two years, the said amount be given to the claimant without any reference to the court. 18. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.