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2024 DIGILAW 535 (GUJ)

Jayantibhai Chhaganbhai Patel v. Maganbhai Chhaganbhai Nayak

2024-03-14

GITA GOPI

body2024
JUDGMENT : GITA GOPI, J. 1. The injured claimant has challenged the judgment dated 11.06.2007 passed by Motor Accident Claims Tribunal (Auxi.) Vyara, District Surat in MACP No. 387 of 1991. 2. Mr. Paresh Darji, learned advocate for the appellant referring to the facts of the case submitted that evidence had come on record that the claimant had suffered multiple fracture injuries in both the legs and hands. He was admitted in the hospital and steel rods and plates were inserted in both the legs and hand. Mr. Darji stated that he was operated for about seven times on his leg, but the learned Tribunal has not appropriately granted amount under the head of pain, shock and suffering. 2.1 Advocate Mr. Darji further submitted that the income of the claimant has been considered as Rs. 4,000/- per month, but the prospective rise in income has not been granted in accordance to the judgment of the Apex Court, taking into consideration the age of the claimant. Mr. Darji submitted that the bills regarding medical expenses were placed on record and in total the medical bills produced were to the tune of Rs. 1,22,593/- but the Tribunal has not believed the same considering to be as not proved and granted Rs. 25,000/- under the head of medical treatment and medicines. 2.2 Advocate Mr. Darji stated that production of the document on record couple with the fact that claimant himself had undergone treatment with various Doctors and bills from Viniktam Nursing Home of Dr. Shirish M.Desai were consented to be exhibited by the Insurance Company, and, thus there was no ground to doubt the medical bills produced by the claimant. 3. Advocate Mr. G.C. Mazmudar submitted that the Tribunal has considered the facts on record and has also relied upon the documentary evidence, and in view of the same, the Tribunal has considered the disability of 15% for the body as a whole and accordingly considering the income of Rs. 4,000/- has assessed future loss of income, which is just and proper. 3.1 Advocate Mr. Mazmudar submitted that the amount under head of pain, shock and suffering is also sufficiently granted, and the medical bills which were believed by the Tribunal has been considered in the compensation amount, thus, submitted that no indulgence of this Court is called for. 4. 4,000/- has assessed future loss of income, which is just and proper. 3.1 Advocate Mr. Mazmudar submitted that the amount under head of pain, shock and suffering is also sufficiently granted, and the medical bills which were believed by the Tribunal has been considered in the compensation amount, thus, submitted that no indulgence of this Court is called for. 4. The accident took place between two vehicles being Suzuki Motorcycle No. GJ-5-E-1517 and Truck No. GJ-5-T-1108. Both the vehicles had dashed with each other from the opposite direction. It was the case of the applicant that Truck No. GJ-5-T-1108 had come from opposite direction and on the wrong had dashed with the motorcycle. The Tribunal after considering the evidence on record and on appreciation has concluded that the accident had occurred because of the carelessness and negligent driving of opponent no. 1-driver of truck. 4.1 The evidence was proved on record by way of injury certificate dated 23.08.2005 at Exh.56, which was issued by Doctor Shirish M. Deasi, wherein the age of the injured was shown to be as 35 years. The claimant had also produced documents i.e. 7/12 extract at Exh.40 in relation to his agricultural activities and Form No. 8/A extract at Exh.41 and in his affidavit, he has stated that he owned 7 vighas land, which was cultivated jointly with family, and about 10 Vighas land at Devadh; further stated that he was cultivating about 15 acres land at Ganot. 4.2 The claimant has also produced statement of income for the year 1999-2000 from M/s. Jethabhai Dayaram and income from commission as vegetable agent, and income proof from Chalthan Vibhag Khand Udyog Sahkari Mandli Ltd. and certificate from Devedh Group Gram Panchayat, Devedh showing the valuation of the property owned by the family, before the Tribunal. The claimant stated that at the time of accident, they were cultivating sugarcane and were earning income of about Rs. 2.50 lakhs and he was earning Rs. 40,000/- per annum from cultivation as Ganot, and also owners a tractor. 4.3 The Tribunal has considered the income stated by the claimant as that of the joint family and by considering his contribution in the family, the learned Tribunal has assessed his income as Rs. 4,000/- per month. 5. 2.50 lakhs and he was earning Rs. 40,000/- per annum from cultivation as Ganot, and also owners a tractor. 4.3 The Tribunal has considered the income stated by the claimant as that of the joint family and by considering his contribution in the family, the learned Tribunal has assessed his income as Rs. 4,000/- per month. 5. In consideration to the fact that the claimant would have been managing the affairs of the joint family property, and would have been assisting his family in generating income, the Tribunal has rightly considered Rs. 4,000/- for his managerial skill; his age has been considered as 36 years, hence, as per judgment of National Insurance Company Ltd. vs. Pranay Sethi and Others, AIR 2017 SC 5157 , the prospective rise in income is required to be assessed as 40%. Hence, the prospective income of the claimant would come to Rs. 5,600/- [4,000 + 1,600 (40% of 4,000)]. 5.1 The Tribunal has considered 15% of physical disability to be considered as functional disability, hence, the amount would come to Rs. 840/- (5,600 x 15%). Considering the age of claimant as 36 years, as per Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the multiplier applicable would be 15. Hence, the amount under the head of future loss of income would come to Rs. 840 x 12 x 15 = Rs. 1,51,200/-. 5.2 The claimant has suffered multiple fracture on both legs and hands and therefore steel rods were inserted in both the limbs. He was operated for about five to seven times and medical evidence were produced on record to substantiate the physical injuries. Taking the fact into consideration that for about three months, he could not be in a position to deal with his daily routine and contributing in the agricultural activity, hence, considering the loss of income for three months, Rs. 12,000/- (4,000 x 3) is granted under the head of actual loss of income. 5.3 The certificate of injury shows permanent disability of 30% for the functional capacity of lower limb. The injuries are pulse thready, bleeding Tr. Thigh, Leg. CLW4-3” Thigh Ant. Med Aspect M/2, CLW Lip Face, X-ray comp, Comm, large butterfly frag. Rt. Fem M/2, Comm. Fr. Tr. Tib. Fib. (3) Lt. Tib M/2 (4) RT Ulna L/3 (5) Chest effusion and the operation for bilat closed nail tib. The injuries are pulse thready, bleeding Tr. Thigh, Leg. CLW4-3” Thigh Ant. Med Aspect M/2, CLW Lip Face, X-ray comp, Comm, large butterfly frag. Rt. Fem M/2, Comm. Fr. Tr. Tib. Fib. (3) Lt. Tib M/2 (4) RT Ulna L/3 (5) Chest effusion and the operation for bilat closed nail tib. In nailing Rem. Butterfly Frag. Deb. Vast, Lat, Int. The Doctor has noted as about 30% functional capacity of right lower limb. In Dr. Desai’s hospital, he was admitted and was operated on 07.09.1991, and was discharged on 29.09.1991. 5.4 In view of this fact, the amount granted as Rs. 25,000/- under the head of pain, shock and suffering is on the lower side. The claimant would be suffering the pain life long with plates and rods in the body. He had suffered operations, hence, this Court considers that Rs. 50,000/- would be a reasonable amount under the head of pain, shock and suffering to ameliorate the pain and suffering of the claimant. 5.5 The medical bills of Rs. 1,22,593/- were produced on record. There was no dispute regarding the treatment, which the claimant had taken. Considering the fact that it would be very difficult for an individual to call for each witness to prove the bills on record, the Tribunal was only required to see the genuineness of the documents, and since bills of Doctor Shirish M. Deasi were never disputed by the Insurance Company and the fact has come on record that the claimant had also taken treatment, and as the medical bills would not be always in his name, thus, there was no reason to doubt the bills. The Tribunal has considered Rs. 25,000/- for medical treatment and medicines, when the bills of Doctor Shirish Desai are not disputed. Hence, under the head of medical treatment and medicines, the amount of Rs. 50,000/- is granted. 5.6 The amount under the head of special diet, attendance charges and transportation granted as Rs. 6,000/- is required to be increased to Rs. 15,000/- taking into fact of hospitalization and need for special diet to recover and recuperate, hence, the amount under the head of special diet, attendance charges and transportation is increased to Rs. 10,000/-. 6. In view of the above, compensation under different heads would be: Heads Tribunal has granted Amount Future loss of income Rs. 1,15,200/- Rs. 1,51,200/- Actual loss of income Rs. 8,000/- Rs. 10,000/-. 6. In view of the above, compensation under different heads would be: Heads Tribunal has granted Amount Future loss of income Rs. 1,15,200/- Rs. 1,51,200/- Actual loss of income Rs. 8,000/- Rs. 12,000/- Pain, shock and suffering and enjoyment of life Rs. 25,000/- Rs. 50,000/- Medical expenses Rs. 25,000/- Rs. 50,000/- For attendants charges, special diet and transportation charges Rs. 6,000/- Rs. 10,000/- Total Rs. 1,79,200/- Rs. 2,73,200/- 7. The Tribunal has awarded total compensation as Rs. 1,79,200/- at the rate of 9% per annum. Now, the claimant would be entitled to get Rs. 94,000/- (2,73,200 - 1,79,200) as enhanced compensation at the interest rate of 7.5% from the date of claim petition. The additional amount be deposited before the concerned Tribunal within Six Weeks from the date of receipt of writ of this order. 8. In the result, the appeal is partly allowed. The impugned judgment and award dated 31.01.2018 passed by Motor Accident Claims Tribunal (Auxi.) Bhuj at Kachchch in M.A.C.P. No. 342 of 2002 stands modified to the aforesaid extent. No order as to costs. 9. The Tribunal concerned is directed to disburse total amount in favour of the original claimants, by Account Payee cheque/NEFT/RTGS, after due verification. 9.1 Record and Proceedings be sent back to the concerned tribunal.