JAYANTILAL PARSHOTTAMBHAI vs. BHAGVATSINH RUPSINH

C/FA/22/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 22 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE R.P.DHOLARIA

================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ JAYANTILAL PARSHOTTAMBHAI....Appellant(s) Versus BHAGVATSINH RUPSINH & 2....Defendant(s) ================================================================ Appearance: MS AMRITA AJMERA, ADVOCATE for the Appellant(s) No. 1 MR ANAL S SHAH, ADVOCATE for the Defendant(s) No. 3 MR HEMANT B RAVAL, ADVOCATE for the Defendant(s) No. 1 NOTICE SERVED BY DS for the Defendant(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH Page 1 of 9

C/FA/22/2014 JUDGMENT and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 25/03/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Being aggrieved by and dissatisfied with the impugned judgement and award dated 14/2/2013 passed by the learned Motor Accident Claims Tribunal (Auxiliary), Dhrangadhra (hereinafter referred to as “the Tribunal) in Motor Accident Claim Petition No. 86 of 2005, appellant herein – original claimant has preferred the present First Appeal to enhance the amount of compensation awarded by the learned tribunal. 2.00. That in a vehicular accident between motorcycle driven by the appellant – original claimant and Truck bearing registration No.GJ-1-AT-4941 driven by the original opponent No.2, which was owned by the opponent No.1, which took place on 26/12/2004, appellant herein – original claimant sustained severe injuries and permanent partial disability. Therefore, the appellant – original claimant filed Claim Petition before the learned tribunal being Motor Accident Claim Petition No. 86 of 2005 claiming compensation of Rs.22 Lacs. It was the case on behalf of the claimant that due to the rash and negligent driving on the part of the driver of the truck the accident took place and he sustained severe injuries and permanent partial disability and it has affected his earning Page 2 of 9

C/FA/22/2014 JUDGMENT capacity. 2.01. That the claim petition was opposed by the original opponent Nos.1 and 2 by filing Written Statement at Ex.15. The claim petition was opposed by the opponent No.3 – Insurance Company by filing Written Statement at Ex.11. The Insurance Company took defence that the driver of the truck as well as claimant were not holding valid license. 2.02. That the learned tribunal framed the issues. 2.03. On behalf of the claimant, the injured himself came to be examined at Ex.22. The claimant also examined Mr.Nitinbhai Natvarlal Patel at Ex.29. To prove the permanent partial disability, medical treatment etc. the claimant also examined Dr.V.V. Sharma at Ex.34 and Dr.Vijay Ratilal Sheth at Ex.38. The claimant also led documentary evidence such as FIR, Panchnama of the place of accident, Certificate issued by Government Hospital Bavla and other documentary evidence with respect to the medical treatment and hospitalisation in SAL Hospital etc. 2.04. On behalf of the opponents no further evidence was led. 2.05. On appreciation of evidence and considering the place of accident on the basis of Panchnama of the place of incident and the fact that the accident has taken place on the Page 3 of 9

C/FA/22/2014 JUDGMENT cross road, the learned tribunal has held the driver of both the vehicles contributory negligence and has held the appellant – original claimant – driver of the motorcycle negligent to the extent of 25% and driver of the truck involved negligent to the extent of 75%. On appreciation of evidence and considering the statement of the appellant – original claimant at Rs.35,000/- per annum and permanent partial disability at 25% and considering the age of the appellant at the relevant time at 62 years and applying multiplier of 5, the learned tribunal has awarded Rs.43,750/- under the head of future economical loss. That by the impugned judgement and award the learned tribunal has awarded Rs.6,78,750/- under the different heads as under :- 1] Rs.00,43,750/- Towards future economical loss. 2] Rs.00,15,000/- Towards actual loss of income. 3] Rs.00,25,000/- Towards pain, shock and suffering. 4] Rs.05,70,000/- Towards actual medical expenditure 5] Rs.00,25,000/- Towards attendant charges, transportation and special diet etc. --------------------------- Rs.06,78,750/- Total ============ As the claimant was held 25% negligent, the tribunal has held that the claimant shall be entitled to total sum of Rs.5,09,062/- towards the compensation (75%). 2.06. Feeling aggrieved and dissatisfied with the Page 4 of 9

C/FA/22/2014 JUDGMENT impugned judgement and award passed by the learned tribunal in awarding Rs.5,09,062/- towards compensation, the claimant has preferred the present First Appeal to enhance the amount of compensation. 2.07. At the outset, it is required to be noted that Ms.Ajmera, learned advocate appearing on behalf of the appellant has stated at the bar that the appellant does not challenge the finding of the learned tribunal holding the appellant negligent to the extent of 25%. She has stated at the bar that the appeal be considered only on quantum. Under the circumstances, this Court is required to consider the appeal on quantum only. 3.00. Ms.Ajmera, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned tribunal has materially erred in awarding future economical loss considering the income of the claimant at Rs.35,000/- per annum only. It is submitted that looking to the Income Tax Return of the last three years, the learned tribunal ought to have considered the income of the claimant – injured at Rs.50,000/- per annum and ought to have awarded future economical loss and actual economical loss accordingly. It is further submitted that looking to the severe injuries and prolonged hospitalisation and operations performed, the learned tribunal has materially erred in awarding Rs.25,000/- only towards pain, shock and suffering. It is submitted that looking to the severe injuries sustained by the claimant and prolonged hospitalisation and medical treatment etc., the tribunal ought to have awarded at least Rs.1 Lacs under the head of pain, shock and suffering. It is further submitted that Page 5 of 9

C/FA/22/2014 JUDGMENT as the claimants remained in hospital as an indoor patient for more than 80 days, the tribunal ought to have awarded at least Rs.1 Lac towards attendance charges, transportation, special diet etc. Therefore, it is requested to allow the present appeal and modify the judgement and award passed by the tribunal accordingly. 4.00. Mr.Anal S. Shah, learned advocate has appeared on behalf of the respondent No.3 has submitted that in the facts and circumstances of the case, no error and/or illegality has been committed by the learned tribunal in awarding Rs.6,78,750/- towards compensation and after deducting 25% as the appellant is held to be contributory negligent, the learned tribunal has rightly awarded Rs.5,09,062/- to the appellant which in the facts and circumstances of the case is not required to be interfered with by this Hon’ble Court. 5.00. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned judgement and award as well as the documentary evidence on record, as stated hereinabove, as such this Court is required to consider the present appeal on quantum only. 5.01. At the outset, it has also come on record that at the relevant time the claimant – injured was aged 62 years. It has also come on record that as per the Medical Certificate of Dr.Vijay Ratilal Sheth produced at Ex.39, permanent partial disability sustained by the appellant injured is 48%, however the permanent partial disability as a whole is considered at 25% by consent. It has also come on record that the injured took treatment in different hospitals, Government Hospital, Page 6 of 9

C/FA/22/2014 JUDGMENT Bavla, SAL hospital, Ahmedabad, Medisurge Hospital, Ahmedabad and also from Civil Hospital, Ahmedabad and also took treatment and continued to take treatment from the various orthopedics and other doctors and as such he remained in hospital as an indoor patient for more than 80 days. He was also required to be operated on right leg. It has also come on record that the appellant injured received severe injuries in the vehicular in question for which he was initially treated at Bavla Government Hospital; thereafter shifted to SAL Hospital, Ahmedabad for his head injury and various operations were performed and thereafter he was shifted to Neurosurgeon Hospital and thereafter he was shifted to Medisurge Hospital for the injuries received by him in his leg. It has also come on record that asper the Income Tax Returns for the A.Y. 2002-2003 to A.Y. 2004-2005 his income was Rs.35,500/-, Rs.48,500/- and Rs.49,550/- respectively. 5.03. Considering the aforesaid facts and circumstances and the evidence on record, and taking the mean of income of last three years, the income of the appellant claimant was required to be considered at Rs.45,000/- per annum i.e. Rs.3,750/- per month and considering 25% permanent partial disability for the body as a whole and considering the age of the claimant at the time of accident at 62 years, multiplier of 5 is required to be applied and therefore, the claimant shall be entitled to Rs.78,750/- under the head of future economical loss. Consequently, the applicant shall also be entitled to Rs.22,500/- towards actual loss of income (as he remained in hospital for approximately six months). 5.04. Considering the fact that the injured sustained Page 7 of 9

C/FA/22/2014 JUDGMENT severe injuries on head as well as he was required to be operated in the right leg, and has remained in hospital as an indoor patient for more than 80 days, we are of the opinion that in the facts and circumstances of the case, the claimant shall be entitled to Rs.75,000/- towards pain, shock, the claimants shall be entitled to Rs.25,000/- towards loss of amenities of life and suffering. As the claimant injured was in hospital as indoor patient for more than 80 days, the claimants shall be entitled to Rs.1000/- per day towards attendance charge, special diet and accordingly, the claimant shall be entitled to Rs.80,000/- under the head of attendance charge, transportation and special diet. The claimant shall be entitled to Rs.5,70,000/- towards actual medical expenditure, hospital charges etc. Considering the facts and circumstances of the case, the claimants shall be entitled to Rs.8,51,250/- 1] Rs.00,78,750/- Towards future economical loss. 2] Rs.00,22,500/- Towards actual loss of income. (as the claimant – injured remained in hospital for approximately for six months). 3] Rs.00,75,000/- Towards pain, shock and suffering. 4] Rs.00,25,000/- Towards loss of amenities of the life. 5] Rs.05,70,000/- Towards actual medical expenditure, hospital charges etc. 6] Rs.00,80,000/- Towards attendant charges, transportation expenditure and special diet etc. ---------------------------- Rs.08,51,250/- Page 8 of 9

C/FA/22/2014 JUDGMENT ============ However, as the claimant injured is also held negligent to the extent of 25%, the claimant shall be entitled to Rs.6,38,438/-, rounded up to Rs.6,39,000/- with interest at the rate of 9% per annum from the date of claim petition till realisation. 6.00. In view of the above and for the reason stated above, present appeal succeeds in part. The impugned judgement and award passed by the learned tribunal is modified to the aforesaid extent. Appeal is partly allowed to the aforesaid extent. No cost. Sd/- (M.R.SHAH, J.) Sd/- (R.P.DHOLARIA,J.) Rafik Page 9 of 9