BHAVINBHAI THAKORBHAI RATHOD v. KANUBHAI SANABHAI CHAUHAN
2024-01-09
GITA GOPI
body2024
DigiLaw.ai
JUDGMENT : GITA GOPI, J. 1. The injured claimant aged about 19 at the time of filing of MACP No. 629/97 has challenged the judgment delivered in MACP No. 629/97 on 20.12.2011 by MACT (Aux), Vadodara. 2. The facts of the case as pleaded by the claimant before the Tribunal suggest that he was serving as a cleaner-cum-labourer on truck bearing registration no. GJ-15 V-8683 owned by opponent no. 2. On 22.2.1997, he was returning in the truck after unloading the goods at Anand Taluka and was sitting besides the driver seat. The claimant had urged that the opponent no. 1 had driven the truck in excessive speed and was rash and negligent. When they reached near Village Vaghasi on National Highway no. 8, opponent no. 1 lost control over the vehicle and slided down the road and collided with the tree. As a result, the claimant sustained injuries on body. 3. Mr. Khan submitted that the Tribunal has granted compensation amount of only Rs. 3,30,800/- where the claimant has specifically proved before the Tribunal that he had lost his right leg below knee and the permanent disability has affected his livelihood as well as the marriage prospects. Mr. Khan submitted that the amputation of the right leg would require artificial limb which would not bring him in condition as was prior to the accident, but at least would help him to independently walk without any support and thus, stated that the learned Tribunal was required to grant the amount under the head of loss of amenities of life and loss of marriage prospects with the amount for artificial limb and for its maintenance and repair keeping in view the length of his life as he was 19 at the time of the accident. Mr. Khan submitted that the amount under the head of mental pain, shock and suffering should be relatable to the actual loss and the future physical loss and suffering which he would have to undergo. 4. Countering the arguments, Mr. Nanavati submitted that the Tribunal has compensated the claimant in accordance to the evidence on record. The future loss of income has been granted and even the amount under the head of replacement of limbs have been considered and the amount under the head of pain, shock and suffering and the loss of marriage prospects has also been given by the Tribunal. 5.
The future loss of income has been granted and even the amount under the head of replacement of limbs have been considered and the amount under the head of pain, shock and suffering and the loss of marriage prospects has also been given by the Tribunal. 5. The claimant was serving as a cleaner-cum-labourer on the truck. In the fact of amputation of the right leg the vocation undertaken by the claimant as a cleaner/labourer would be totally lost. Hence, considering the judgment in the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 , functional disability is required to be considered as 100%. 6. The Tribunal has considered income of Rs. 18,000/- per annum for the claimant while no prospective rise in income has been considered in light of the judgment in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 . With the age of 19 years, 40% prospective rise in income is required to be considered. Hence, monthly income is required to be considered as Rs. 1,500/- and yearly, the income would be considered at Rs. 25,200/- (Rs. 18,000/- + 40% i.e. Rs. 7,200/-). With the functional disability of 100%, there would be total loss of income and thus, applying the multiplier of 18, future loss of income would come to Rs. 4,53,600/- (Rs. 25,200/- x 100% x 18). 7. The claimant would not have been in a position to work or move around for about 6 months. Hence, the Tribunal has considered 6 months actual loss of income and considering the same, has granted Rs. 9,000/- which is appropriate. 8. The claimant would have expended money for his medical expenses. The medical expenses could not be proved. However, the evidence on record suggest that the claimant had suffered compound Gr-III fracture tibia-fibula right with absent distal pulses and toe movements with compound Gr-I fracture M/3 tibia left with head injury. He was shifted to Anand hospital and subsequently moved to SSG Hospital, Vadodara where he received treatment as an indoor patient from 14.2.1997 to 8.3.1997. During the treatment undertaken, his right leg was amputed below the knee by way of operation and was treated consecutively. As the amputation of the leg could not be cured, twice skin grafting was done by the Doctor and thereafter, plastering was done.
During the treatment undertaken, his right leg was amputed below the knee by way of operation and was treated consecutively. As the amputation of the leg could not be cured, twice skin grafting was done by the Doctor and thereafter, plastering was done. He was discharged from the hospital and he was advised to take follow up treatment once in 15 days. The scar of surgery was stumped of 8 cms. was noted. He was unable to walk on uneven surface and tends to fall while trying to do so. He is unable to walk long distance and walk fast even with prosthesis. He cannot tolerate prosthesis due to skin problems and has to avoid prosthesis legs at home and walks with crutches. The evidence suggest that his left knee movements are terminally restricted and there is crepitus due to early post traumatic osteoarthritis. Dr. Amul Pandya, M.S. Ortho has issued permanent partial disability to the effect of 70% of right side and 20% of left side. The disability certificate is produced at Exh.27. The learned Tribunal has considered 70% functional disability. However, taking into consideration the nature of work and that he would be suffering from 100% physical disability, the medical expenses were required to be appropriately granted but since the claimant could not prove the same, the amount under the head of medical expenses is enhanced from Rs. 3,000/- to Rs. 5,000/-. 9. The claimant would have been attended by the family members or any acquaintance. He would have expended money for transportation and special diet which would have been provided for the recovery and the sum under the said head is increased from Rs. 7,000/- to Rs. 30,000/-. 10. The Tribunal has granted an amount of Rs. 25,000/- under the head of mental pain, shock and suffering having observed of physical disability and the suffering undergone with the amputation and skin grafting and because of the inconvenience caused due to the skin problem to take support of artificial limb and the compulsion to walk with the clutches at home and further the fact of restriction in the knee movement, the amount under the head of mental pain, shock and suffering from Rs. 25,000/- is enhanced to Rs. 2,00,000/-. 11. The Tribunal has granted Rs. 25,000/- for artificial limb.
25,000/- is enhanced to Rs. 2,00,000/-. 11. The Tribunal has granted Rs. 25,000/- for artificial limb. The age of the claimant at the time of the accident was 19 and hence, considering the future need of repairs, maintenance and replacement of the artificial limb, it is enhanced from Rs. 25,000/- to Rs. 50,000/-. 12. Since 100% functional disability has been considered, this Court following the decision in the case of Raj Kumar (supra) considers to grant amount under the head of loss of amenities and enjoyment of life. However, the fact that the claimant because of his physical disability has lost his marriage prospects and considering his age, he is required to be appropriately compensated under the said head. The learned Tribunal has granted Rs. 10,000/- towards loss of marriage prospects. This Court considers that the same is on a very lower side. Hence, in proportion to the longevity of the life and the fact that at the early age of 19, he met with an accident, Rs. 1,00,000/- would be the amount which is to be considered for the loss of marriage prospects. Hence, the computation of the compensation is as under: Future loss of income Rs. 4,53,600/- Actual loss of income Rs. 9,000/- Medical expenses Rs. 5,000/- Special diet, attendant and transportation Rs. 30,000/- Mental pain, shock and suffering Rs. 2,00,000/- Artificial limb Rs. 50,000/- Loss of marriage prospects Rs. 1,00,000/- Total compensation Rs. 8,47,600/- 13. As the Tribunal has granted compensation of Rs. 3,30,800/- with interest at the rate of 7.5% per annum, the claimant would be entitled to the enhanced amount of compensation of Rs. 5,16,800/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The enhanced amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. 14. From the said amount, 80% of the amount be given to the claimant on verification of the identity and rest of 20% 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, total amount be given to the claimant without any reference to the court. 15. The impugned judgment and award be modified accordingly. The appeal is partly allowed.
Interest accruing on such Fixed Deposit shall be accumulated. After two years, total amount be given to the claimant without any reference to the court. 15. 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.