Gujarat High Court
Chhaganbhai Bhatubhai vs Bijalbhai Malabhai(Deleted) & 2 on 14 March, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/FA/2519/1994 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2519 of 1994
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
=============================================
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 or any order made thereunder ?
=============================================
CHHAGANBHAI BHATUBHAI....Appellant(s)
Versus
BIJALBHAI MALABHAI(DELETED) & 2....Defendant(s)
=============================================
Appearance:
MR DJ BHATT, ADVOCATE for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MR PALAK H THAKKAR, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 2
=============================================
CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 14/03/2017
CAV JUDGMENT
1. Heard learned advocate Mr. D. J. Bhatt for the appellant and learned advocate Mr. Palak H. Thakkar for respondent No.3 - insurance company. Respondent No.1 being driver of the vehicle in question has been deleted. Whereas respondent No.2 being owner Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 12 12:54:38 IST 2017 C/FA/2519/1994 CAV JUDGMENT of the vehicle in question, though duly served, has remained absent. Perused the record and proceedings received from the tribunal concerned.
2. The appellant is a victim of vehicular accident. He has challenged the award dated 25.11.1992 in M.A.C.P. No.25 of 1986 by the Motor Accident Claims Tribunal (Auxiliary) of Panchamahals at Godhra, who has while allowing the claim petition partly awarded a sum of Rs.1,57,000/- against his claim of Rs.2,73,000/-. Thereby, he prefers an appeal for the enhancement of quantum of compensation. When driver, owner or insurance company has not challenged such award in favour of the appellant, now it is admitted position that appellant has received injuries in vehicular accident and that because of such injuries, respondents are liable to pay compensation to the appellant. Therefore, details of accident and question of negligence need not be discussed in detail. Thereby, the issue to be dealt with in this appeal is limited to the quantum of compensation only.
3. For consideration of quantum of compensation that was awarded to the appellant, following information is material:-
Rs.4,320/- For future loss of income
Rs.2680/- Medicine, conveyance, attendants
and special diet.
Rs.1,50,000/- Pain, shock and suffering
3.1 For awarding Rs.4,320/- for future loss of income, the tribunal has considered Rs.600/- as monthly income of the Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 12 12:54:38 IST 2017 C/FA/2519/1994 CAV JUDGMENT appellant/victim and considering 3% disablement and thus loss of earning capacity, Rs.18/- is considered as monthly loss and applying 20 as a suitable multiplier considering the age of the victim as 22 years. Whereas for awarding Rs.2680/- towards medicine etc. no reason whatsoever is assigned, that how tribunal has arrived at such figure and that why there is a specific amount of Rs.2680/- i.e. odd amount towards medicine etc though there is no specific evidence produced to that effect on record, which goes to show that tribunal has decided to award lumpsum Rs.7000/- to the appellant and, therefore, considering the award of Rs.4320/- for loss of future income, an amount of Rs.2680/- is awarded towards different heads as above. Whereas for pain, shock and suffering while awarding Rs.1,50,000/- tribunal has considered that victim has became impotent on account of fractures sustained by him and relying upon a decision in case of A.S.Rajaram @ Raja Vamshyam Murthi vs. Joitaram Rawabhai Patel reported in (1982) XXIII (2) GLR 29, awarded such compensation
4. So as to appreciate the quantum of compensation and to scrutinize that whether above award is just and reasonable, one has to scrutinize the relevant evidence regarding age, income and injuries to victim. Appellant has produced on record of the tribunal several documents including FIR at exhibit 29, Panchnama of the place of incident at exhibit 30, injury certificate at exhibit 34, certificate of disablement at exhibit 35 and 45, and report of radiologist at exhibit 36.
4.1 Appellant has also examined himself at exhibit 38, Dr. Isuf Shaherwala at exhibit 44 and certificate issued by such doctor is at exhibit 45.
Page 3 of 8HC-NIC Page 3 of 8 Created On Sat Aug 12 12:54:39 IST 2017 C/FA/2519/1994 CAV JUDGMENT
5. The perusal of relevant documentary evidence referred herein above makes it clear that appellant - victim has received fractures of interiors of both pubic bones with scolioses. Dr. Arun Desai of Desai Orthopedic Hospital and Nursing Home has in his certificate dated 15.12.1988 at exhibit 35 endorsed that appellant has pain while walking, standing, squatting, passing urine and stool and while sitting on buttock. It has also been disclosed in the certificate that there is bony irregularity at the place of injury and there is limitation of motion. There is also endorsement that because of mal-alignment at fracture cite with irregular coleus formation there is deformity in functional position.
6. However, doctor has also endorsed that there is no loss of power, no loss of sensation and no westing of the body and, therefore remaining partial impairment is assessed only at 6%. However, with such assumption there is categorical disclosure that disability is pursuant to his involvement ofboth interior rami of pubic bone and, therefore, other physiological effects of such fractures has not been examined and considered while determining the disability.
7. Whereas in his deposition, appellant has categorically deposed on oath that his blood vessel is cut off in the incident and because of fractures of pubic bones which is between two legs has resulted into impotence, whereby he could not perform sexual activity with his wife and therefore his wife has left him. To prove his case appellant has produced certificate at exhibit 45 issued by the Dr. Isufi Sheharwala who is having degrees of MBBS, MCPS and DV & D and examined him at exhibit 44.
7.1 In his deposition on oath before the Court the witness being a Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 12 12:54:39 IST 2017 C/FA/2519/1994 CAV JUDGMENT doctor has specifically deposed as under .
"I possess the qualification of M.B.B.S, M.C.P.S.,D.V & D. On 12-11-1991, I examined one Chhaganbhai Bathubhai Bhil. He was complaining of inability to ejaculate semon and is having night discharge without proper erection since he had accidental injuries on 24-12-1985. He has received accidental injuries ever p-elvic region. His wife was separated him one year after he had received injury because he was unable to do intercourse.
On examination, he is having anaimia. His pelic senital regions are normal. His cardio vascular central nervous system, respiratory system, sqarto internal system are normal. He needs investigation to find out the cause of anemia. Injury on pelvic region may cause vascular damage which can cause impotence.
To test with regard to vascular injury, the person will have to incur expenses of about Rs.15,000/- to Rs.20,000/-. "
7.2 He has also confirmed that;
"The impact can block the arteries supplying blood far penile erections, and if it does impotence can be immediate. It could also occur gradually, as the lining of the injured artery develops scar tissue. This tissues builds up over the years, eventually blocking the artery. Old groin injuries are a major cause of impotence in men under thirty says Dr. Goldstein. Many keep their impotence a secret or it is wrongly diagnosed as a psychological problem. Microsurgery can correct the problem in 70 percent of cases. All the same men should take care while engaging in sports like cycling or karate."
7.3 Whereas though he was cross examined at length the respondent could not dis-prove his version or could not prove anything in their favour.
8. Therefore, so far as injuries of the appellant - victim is concerned, now it becomes crystal clear that there is serious injuries which resulted into impotence of the appellant and therefore irrespective of assumption of disability base upon the nature of fracture only, it becomes clear that appellant has Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 12 12:54:39 IST 2017 C/FA/2519/1994 CAV JUDGMENT received serious injuries which resulted into impotence and as such from such fact there is least or minimum chance of recovery and it does not result into great mental pain, shock and suffering only but an end of one's generation ahead of him. Thereby it would result into a position that in his old age appellant would have no support of his own family and thereby he has to remain under obligation of others. Such situation is grave and therefore though compensation may not be resulting into extraordinary beneficiary position of the victim, there must be just and reasonable award of compensation on such ground. By all means no amount can replace such disability and therefore even when in the case cited by the tribunal an amount of Rs.2,16,000/- to Rs.2,70,000/- was awarded for pain, shock and suffering. Therefore, at the relevant time, there cannot be any award less than such amount like Rs.1.50,000/- as awarded by the tribunal.
9. Similarly when appellant himself has confirmed that he has to spend Rs.300/- per his visit to the hospital and other amount of Rs.1000/- for medicines and some diet during hospitalization, an award of Rs.2680/- under the head of medicine, conveyance, special diet is also megre in nature.
10. So far as income is concerned, tribunal has not reduced the income of the petitioner when he has claimed that he is earning Rs.600/- per month but when tribunal has considered only 3% as disability because of fracture there is need to revise the amount of compensation on all heards.
11. It may eb pertinent to recollect the following decisions;
(1)M. Mehchand & Ors. vs. National Insturacne Company Ltd. Reported in 2010 Law Suit MAD 3656 wherein the Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 12 12:54:39 IST 2017 C/FA/2519/1994 CAV JUDGMENT division bench of the High Court of Madras has awarded Rs.1.50,000/- for loss of amenities of life including loss of marital life, inconvenience, hardship, mental stress and loss of sexual life, in addition to award of Rs.75,000/- towards pain and suffering for injuries. Therefore, practically Madras High Court has awarded Rs.2,25,000/- on combined head of pain, shock and suffering and loss of sexual life in judgment dated 08.12.2010.
(2)A. Roverts vs. United India Insurance Company Ltd. Reported in AIR 1999 SC 2977, the Honourable Supreme Court has enhanced the amount of compensation by awarding additional Rs.56,000/- under the head of pain, shock and suffering, when there were only fractures of pelvis and he was left with distended blander.
11.1 Thereby, though there was no disability like impotence because of injury on pelvis which may have adverse effect on future sexual life, an amount of Rs.1,00,000/- is awarded under the head of pain, shock and suffering. Whereas in case of A. S. Rajaram (supra) as back as in the year 1982 that there was no fracture of pelvis and no specific injury on any part of reproductive system and that there were few injuries on different part of body even when there was simply injury at particular part of the body, the division bench of this High Court has considered the result of such injury which reduces the victim to lead a miserable life, the awarded amount of Rs.75,000/- only on the head of pain, shock and suffering in addition to compensation on all other different heads. The division bench of this High Court has relied upon several judgment of different countries right from the year 1952 till 1977.
12. Therefore, considering the above fact, circumstances and evidence on record that minimum Rs.15,000/- is otherwise awarded towards pain, shock and suffering for simple fracture, there is Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 12 12:54:39 IST 2017 C/FA/2519/1994 CAV JUDGMENT scope of enhancement of compensation almost on all heads.
12.1 Therefore, though there cannot be a direct loss in earning capacity, it is to be held that 3% permanent disability considered by the tribunal is certainly on lower side and if doctor has observed that physical impairment is 6% there is no need to reduce such disability while considering the quantum of compensation even if there is admission by the victim.
12.2 Therefore, under the head of loss of earning capacity, appellant is entitled to additional amount of Rs.4320/- for future loss of income. Similarly, when petitioner has already deposed that he has to spend for special diet, transportation etc, amount under such head also needs to be doubled by additional award of Rs.2680/-
12.3 So far as loss of amenities of life, loss of sexual life, loss of marital life, inconvenience, hardship, mental stress because of impotence, when tribunal has awarded Rs.1,50,000/- additional award of Rs.50,000/- would certainly meet the ends of justice since it would be just and reasonable amount.
13. In view of above facts and circumstances, the appeal is partly allowed. Whereby additional amount of Rs.57,000/- is awarded in favour of the appellant. Such amount of compensation shall be paid by the respondent with 9% interest from the date of application till its realization with cost of this appeal.
14. The appeal is disposed of accordingly. R & P be sent back to the concerned tribunal forthwith.
(S.G. SHAH, J.) drashti Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 12 12:54:39 IST 2017