Gujarat High Court
Chunara Bhadiben Motibhai vs Vohra Ismailbhai Rehmanbhai Deleted on 4 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/1860/2019 JUDGMENT DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1860 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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CHUNARA BHADIBEN MOTIBHAI
Versus
VOHRA ISMAILBHAI REHMANBHAI DELETED
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1
DELETED for the Defendant(s) No. 1
MS VYOMA K JHAVERI(6386) for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/12/2023
ORAL JUDGMENT
1. The injured - claimant challenges the judgment dated 13.2.2013 passed by the MACT (Aux), Anand in Page 1 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined MACP No.1174 of 2006 (Old MACP no.1186 of 1993).
2. Facts of the case in brief can be noted as under:-
On 20.2.1993 at about 6.00 a.m., the claimant was crossing the road situated near over bridge at Anand. She was on her way to sell the goat feed. While crossing the road, opponent no.1 came driving S.T. bus bearing registration no. GRU-9857 in a rash and negligent manner and in excessive speed endangering human life, dashed with the claimant. As a result, she sustained injury as was admitted to SSG Hospital, Vadodara as an indoor patient. As per the claimant, she was admitted for about 3 times and in total, her medical treatment was continued for 154 days.
3. Advocate Mr. Dwivedi for the appellant submitted that the very fact of the evidence that on the date of the accident, she was heading for her work to sell the goat feed itself suggests that she is earning woman and also being married, is looking after her family. Hence, the learned Tribunal should have considered the income in proportion to Page 2 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined the work of the claimant as well as her contribution in the development of the family. 3.1 Advocate Mr. Dwivedi further submitted that the functional disability was required to be assessed as 100% since the injured had suffered 100% loss of power of muscles in right knee and ankle. 3.2 Advocate Mr. Dwivedi contended that the learned Tribunal has failed to consider the age to assess the future loss of income in accordance to consider the functional disability of the claimant and thus, stated that the amount under the head of pain, shock and suffering and loss of amenities of life being a woman has to be just and reasonable as at the time of the accident, the claimant was 35 years and would not be in a position to normally lead her life as was living earlier to the accident.
4. Vehemently contending against the arguments of learned advocate Mr. Dwivedi for the appellant, Advocate Ms. Vyoma Jhaveri for the respondent no.2 submitted that the evidence with regard to the Page 3 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined work of the claimant has not been produced on record to establish the fact of her earning to consider any loss of future income and submitted that at the most, the claimant as a woman can be compensated for her contribution in the family and accordingly, her loss has to be considered, where actually, there would not be any future loss of income and thus, stated that the amount in total compensated i.e. Rs.1,64,560/- is just and proper.
5. The claimant at the time of the accident was 35 years of age and hence, the multiplier applicable as per the decision in the case of Sarla Verma Vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 would be 16. The claimant was doing labour work as pleaded and on the date of the accident, she was on her way to sell goat feed and that fact prima facie establishes that she is a working woman coupled with the fact that she has been looking after the family. In view of the same, this Court considers that Rs.3,000/- per month as income is required to be assessed. Further, as per the decision in the case of National Insurance Page 4 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined Company Limited Vs. Pranay Sethi & Ors., (2017) 16 SCC 680, 40% prospective rise is required to be assessed and thus, her monthly income would come to Rs.4,200/-.
6. The evidence of Dr. Shantiswarup Ramjidas Kshatri at Exh.53 refers to the disability certificate, the history of the accident and the injury sustained with the opinion in regard to mobility and power loss with the assessment of stability and difference in weight bearing capacity. The Doctor, thus on examination of the finding during the examination, has formed an opinion that the claimant had remained with permanent partial physical mobility of 90% of right lower limb. The learned Tribunal has considered 45% disability for the body as a whole, which this Court considers just and proper.
7. The examination of the Doctor for assessing the physical disability is as under:-
"(1)(a) An operative scar with broad scar around it of 7"x4" on anterior-
medial and poeterio-medial aspect of right knee with healed sinus.
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(b) A scar of 3½" x 2" on posterior- lateral aspect of right knee.
(c) Five pin track scars on lateral aspect of right thigh and leg.
(d) Food drop with equines deformity of right foot
(e) Length of both lower limbs -
right leg had shortening of 1½"
(f) Douor site scars on left thigh. (2) Mobility loss:
At right hip joint, movements were normal.
At right knee, limb was fixed in extenaion and there was total loss of flexion movement at right knee.
At right ankle joint foot was fixed in equinus and there was total loss of all the movements at ankle joint.
(3) Power Loss:
Muscles at right hip had normal power. Muscles at right knee and at right ankle had power of gr. 0, (N-gr. V), thus loss of 100% power.
(4) Stability and difference in weight baring capacity:
There was average difference of 8.0 kgs. in weight bearing capacity of lower limbs with less on right side and body weight being 30 kgs.
(5) Squatting and cross legged Page 6 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined sitting was not possible.
(6) X-ray taken at this hospital on 6-9-10 showed following X-ray of right femur with knee and upper tibia showed bony ankylosis across medial and leteral femoral condyle with pin track holes in femur and tibia.
X-ray of right ankle with foot showed foot in equines at ankle joint with sclerosis and irregular articular surface of ankle joint.
Considering the examination findings, he has remained with permanent partial physical impairment of 90% (ninety percent) of right lower limb.
The Doctor on assessment has considered the functional disability as 90%.
8. It is required to be noted that the injury which could be observed in form of permanent disability is power loss of muscle at right knee and right ankle which is of 100%. The weight bearing capacity of the lower limb was found with an average difference of 8 kgs. The Doctor has opined that there will be difficulty in squatting and cross leg sitting. Accordingly, 45% functional disability assessed by the Tribunal is in Page 7 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined accordance to the evidence on record. Hence, future loss of income would come to Rs.3,62,880/- (Rs.1,890/- x 12 x 16). The history as noted by the Doctor as per his evidence, after sustaining the accident on 20.2.1993, she was treated at municipal hospital, Anand and thereafter, was transferred to SSG Hospital, Vadodara. The certificate of SSG Hospital, Vadodara no.28406 dated 20.2.1993 case no. 157773, EPR No.2234, shows the date of admission on 20.2.1993 and date of discharge is 30.6.1993 and readmitted on 10.8.1993 and thereafter, admitted on 24.8.1993 and again readmitted on 22.10.1993 and again the date of admission was 4.11.1993. Initially, the claimant has taken the treatment from municipal hospital and thereafter, was transferred to SSG Hospital, Vadodara. The discharge card showed compound grade II fracture of both femoral condyles of right knee, fracture of neck of fibula of right leg with fracture of upper end of right tibia with neuro vascular deficit, with fracture base of 2nd metatarsal of left foot. It appears from the evidence that after 20.2.1993, she was Page 8 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023 NEUTRAL CITATION C/FA/1860/2019 JUDGMENT DATED: 04/12/2023 undefined admitted for about 6 times. She was treated for eight surgical procedures for the wound and thereafter, again admitted and readmitted. The evidence shows that she is not in a position to put her feet down and is unable to stand or walk without the support of a crutch. Considering the fact of the actual admission in the hospital, Rs.36,000/- for the loss of one year is granted. Applying multiplier of 5 to the 45% functional disability towards the income of Rs.3,000/-, relying upon the decisions in the case of The New India Assurance Company Limited v. Satish Chandraa Sharma & Anr. passed in Civil Appeal no.1579 of 2022 (@SLP (C) no.14350 of 2019), Mohd. Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation reported in 2022 LiveLaw (SC) 1017 as well as Raj Kumar v. Ajay Kumar & Anr., reported in (2011) 1 SCC 343, Rs.75,000/- is assessed under the head of of pain, shock and suffering and loss of amenities of life. While considering the hospitalization and the need for special diet, attendant and transportation, Rs.15,000/- is granted.
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9. The claimant could prove only the medical evidence of Rs.10,000/- which she is entitled to receive. Hence, the total compensation would be computed as under:-
Future loss of income Rs.3,62,880/-
Actual loss Rs. 36,000/-
Pain, shock and suffering and Rs. 75,000/-
loss of amenities of life
Transportation, special diet Rs. 15,000/-
and attendant
Medical expenses Rs. 10,000/-
Total compensation = Rs.4,98,880/-
10. As the Tribunal has granted compensation of
Rs.1,64,560/-, the claimant would be entitled to the enhanced amount of compensation of Rs.3,34,320/- 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. Upon deposit, total amount be paid to the claimant.
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11. 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.
(GITA GOPI,J) Maulik Page 11 of 11 Downloaded on : Fri Dec 08 20:36:11 IST 2023