Gujarat High Court
Jyotsnaben Wd/O. Nileshkumar Jashbhai ... vs Khurshid Ahmad Naim Ahmad on 11 September, 2018
Author: S.G. Shah
Bench: S.G. Shah
C/FA/2745/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2745 of 2016
With
R/FIRST APPEAL NO. 2746 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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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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JYOTSNABEN WD/O. NILESHKUMAR JASHBHAI PAREKH
Versus
KHURSHID AHMAD NAIM AHMAD
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Appearance:
MR PARESH M DARJI(3700) for the PETITIONER(s) No. 1,2,3
MR GC MAZMUDAR(1193) for the RESPONDENT(s) No. 6
MR HG MAZMUDAR(1194) for the RESPONDENT(s) No. 6
RULE SERVED(64) for the RESPONDENT(s) No. 3,4,5
RULE UNSERVED(68) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 11/09/2018
ORAL JUDGMENT
1. Heard learned advocate Mr.Paresh Darji for the appellants and learned advocate Mr.H.G.Majmudar for the respondent No.6.-
Page 1 of 18C/FA/2745/2016 JUDGMENT Insurance Company of one of the vehicle involved in the accident, whereas, rest of the respondents though duly served, have chosen to remain absent from the procedures.
2. Both the appeals are arising out of a common judgment and award in Motor Accident Claims Petition Nos.403 to 406 of 1999 by Motor Accident Claims Tribunal, Surat. However, the appeals are mainly against the award in Motor Accident Claims Petition No.403 of 1999 and 404 of 1999, wherein, appellant No.1 is common applicant as an injured victim in First Appeal No.2746 of 2016 and as a widow of deceased victim in First Appeal No.2745 of 2016. Appellant No.2 and 3 in Appeal No.2745 of 2016 are son of the appellant No.1 and deceased-victim. The claim No.403 of 1999 arises from which First Appeal No.2745 of 2016 is preferred by the legal heirs of the dependent of the deceased-victim namely Nileshkumar Jashbhai Parekh. Whereas, claim No.404 of 1999 is preferred by appellant No.1 for the injuries sustained by her.
3. By impugned judgment and award dated 21.07.2016, the Tribunal has awarded the amount of Rs.5,48,750/- for the accidental death of Nileshkumar Jashbhai Parekh to his widow and children, whereas, in M.A.C.P. No.404 of 1999, Page 2 of 18 C/FA/2745/2016 JUDGMENT the Tribunal has awarded Rs.2,05,010/- to the injured-victim namely Jyotsnaben i.e. widow of Nileshkumar Jashbhai Parekh. Remaining two claim petitions are preferred by minor son of the couple to whom, Tribunal has awarded Rs.15,000/- and Rs.6,000/- respectively, for the injuries sustained by them, in the same accident. However, they have not challenged such award in this appeal.
4. Both the appeals are mainly on the issue of quantum of compensation, awarded by the Tribunal. Thereby, when none of the opponent has challenged the award under reference, it becomes clear that, there is no dispute regarding nature of accident, itself results into liability of Insurance Company to pay compensation to the claimants by indemnifying the owner of the vehicle. Therefore, minute details about incident etc. are not much material. It is undisputed fact that deceased and victims were passengers in Maruti Car No. GJ 5 PP 7277 driven, owned and insured by opponent/respondent Nos.4,5 and 6 respectively.
It is also undisputed fact that a Tanker No. GJ 6U 7294, driven, owned and insured by the opponent/respondent Nos.1,2 and 3 dashed with the Maruti Car of the victims because of rash and negligent driving by its driver.
Page 3 of 18C/FA/2745/2016 JUDGMENT 5. It is also undisputed fact that after recording evidence and appreciating available
evidence on record, the Tribunal has held the driver, owner and insurer of the Maruti Car as sole negligent and exonerated. Therefore, in absence of any challenge against such determination, the only issue remains in consideration in both the appeals is limited to quantum of compensation, that may be awarded to the claimants for the injuries/damages suffered by them.
6. For the purpose, factual details of insured in both the cases for consideration, of quantum of compensation and compensation awarded by the Tribunal, may be recollected as under:
(I) First Appeal No: 2745 of 2016
(MACP No.403 of 1999)
Victim: Nileshbhai Jashbhai Parekh
Date of Accident: 08.11.1998 Age ofthe Victim: 36 years (As per the School Leaving Certificate at Exh.64, the date of birth is 31.10.1962.) Occupation of the Victim: Accountant cum Typist in Zenith Processing Mills.
Page 4 of 18C/FA/2745/2016 JUDGMENT Income of the Victim: Rs.4,200/- (As per the Certificate by Zenith Processing Mills at Exh.92 confirm in that deceased was in the employment of the Company from 01.08.1986 till
08.11.1998 when he died in road accident. It is also stated in such certificate that deceased was handling accounting and software package also.) Claimants: Widow and two minor Based upon the above referred factual details, the Tribunal has considered only Rs.2,500/- as monthly income, ignoring the evidence on record, in the form of Exh.63 being gradation of the deceased and Exh.92, the salary certificate and considering 30% as prospective income, awarded the amount of Rs.4,38,750/- deducting 1/3 being personal expenses and applying 15 as suitable multiplier and also awarded Rs.10,000/- for funeral expenses and Rs.1,00,000/- for loss of conservatism and love and affection and thereby, total Rs.5,48,000/- with 9% interest.
7. The appellant has therefore contended that when there is documentary evidence produced on record regarding income of the deceased and that to when such income is quite reasonable and not Page 5 of 18 C/FA/2745/2016 JUDGMENT exaggerated in any manner, the Tribunal has even in absence of any evidence in rebuttal, failed to appreciate such income and considered only Rs.2,500/- as income of the deceased against the evidence of Rs.4,200/- i.e almost half and therefore, there is reason to modify the judgment suitably, so as to award just and reasonable compensation.
8. However, perusal of the oral evidence of the appellant / claimant who is also eye witness and claimant for her injuries has an audacity to say on oath before the Tribunal that though pay slip has been provided to her husband, she is not in a position to prove the Salary Register as well as Attendant Register and she is not ready to place on record the salary slip of her husband. She has also denied to produce a copy of Bank pass-book, for which the excuse was given that deceased was not having account with the Bank. It seems that such excuse is not well founded because if somebody does not want to disclose his / her account at the relevant time, there was no possibility to verify such fact. However, one thing is clear and certain that claimant wants to hide salary slip from the Court, when she categorically stated on oath that even if her husband is getting salary slip she does not want to produce it on record, this goes to show that Page 6 of 18 C/FA/2745/2016 JUDGMENT probably salary slip is disclosing less salary, then the salary claimed by the claimant in the claim petition and before this Court. Therefore, by all means, it becomes clear that deceased may not be getting Rs.4,200/- as salary per month. It cannot be ignored that document on Exh.92 i.e. undated certificate has been exhibited on record, without examining any witness to prove the documents or its contents only by order below Exh.97 an application for the purpose given by the claimant, though such application was objected by the opponent. However, while admitting such documents on record and endorsing it an exhibit, the Tribunal has no option but to observe that, parties shall be at liberty to raise all the issues pertaining to documentary evidence at the stage of final arguments because the Tribunal has exhibited the document only on the premises that it is original document and it provides details of income of the deceased. Therefore, at the time of final determination of the petition, when Tribunal has considered the income to the tune of Rs.2,500/- observing that applicant has not examined any witness from the company who was paying the salary and when neither pay slip nor other evidence is produced, holding that, mere production of certificate at Exh.92 would not be sufficient to have inference that deceased was earning such amount.
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9. In view of the above factual details, when there is no option for the Tribunal but to have some guess work to consider the income of the victim and thereby, when Tribunal has considered Rs.2,500/-, and thereafter, added 30% towards prospective income but deducted only 1/4 towards personal expenses instead of 1/3, when there are only two minors and thereby, even as per unit system 1/3 needs to be deducted towards personal expenses. Even liberal consideration would result into reaching the amount of future loss of income to Rs.4,07,000/-, considering Rs.4,000/- as prospective income instead of Rs.3,250/- taken by the Tribunal, but deducting 1/3 towards personal expenses and applying 15 as suitable multiplier. As against that the Tribunal has already awarded Rs.4,38,750/-, therefore, there is marginal difference of Rs.38,250/- only that too in favour of the claimant i.e. Tribunal has awarded Rs.38,250/- more than just and reasonable compensation. Moreover, the Tribunal has already awarded Rs.1,00,000/- for loss of conservatism and love and affection + Rs.10,000/- for funeral expenses i.e. total Rs.1,10,000/- for conventional heads. Therefore, relying upon the decision of Full Bench of Hon'ble the Supreme Court of Inida in the case of National Insurance Company Ltd. V/s Pranay Shetti reported in 2016 Page 8 of 18 C/FA/2745/2016 JUDGMENT (17) SCC 680 if conventional head is reduced by Rs.40,000/- then practically there is no scope of modification of award.
10. Though law of awarding compensation may be beneficial to the victims and though in general courts are liberal in granting compensation, but the fact remains that every litigant before the Court should come with clean hands and should not try to hide any documents or evidence from the Court. Therefore, the statement given by the widow that she is not ready and willing to place on record pay slip of her husband, there is reason to believe that the rest of factual discloser given by the claimant regarding income of the deceased has some exaggeration. However, the calculation hereinabove, makes it clear that even after liberal consideration, the scope of modification of the award is very little and therefore, I do not see any reason or substance to modify the award thereby, the appeal stands dismissed.
(II)First Appeal No: 2746 of 2016
(In MACP No.404 of 1999)
Victim: Injured Jyotsnaben Nileshkumar
Parekh
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C/FA/2745/2016 JUDGMENT
Age: 36 Years as per School Leaving (As
per Certificate at Exh.65)
Date of Birth: 13.02.1962
Occupation: House wife Income of the Victim:
No actual proof of income but the Tribunal
has considered Rs.2,000/- as monthly
earning capacity.
Injuries sustained and its result:
(1) There is evidence of fracture of the right lamina and pedicle with involvement of the body of the C2 vertebra with subluxatory rotationat C2-C3. Also there is suggestion of tear of the transverse ligament with epidural soft tissue, (scan no.18.11,18.12) most likely a hematoma, causing anterior compression of the over the lower medulla/upper cervical cord by it and the odontoid process. There is probable fracture of the anterior arch of C1 vertebra and right lamina of the C3 vertebra. Increased distance between the anterior arch of C1 and odontoid process (about 9.0 mm) suggests atlanto-axial dislocation.
(2) There is tear of the anterior longitudinal
ligament at C2 level with evidence of
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C/FA/2745/2016 JUDGMENT
prevertebral (retrophryngeal) heamatoma extending inferior from the clivus downwards upto the C5 vertebral level. Altered signal is seen in the paraspinal soft tissue at posterior arch of C1 vertebra appears occipitalised with suggestion of platybasia.
(3) The medulla and upper cervical cord is deviated to left. The lower medulla / upper cervical cord upto the C2-C3 disc level shows hyperintense signal on the proton, T2 Weighted and Fast Scan (T2*) images. This is isointense to the cord on the T1 Weighted images and represents cord ischemia / edema / contusion.
(4) There are small disc bulges with small peridiscal osteophytes at the C2-C3 to C4-C5 levels causing mild ventral indentation overthe cord with resultant mild tight canal at these discal levels.
(5) There is loss of normal cervical lordosis and the discs show loss of water content.
(6) The visualized remaining cervico-dorsal vertebral bodies. The other facet joints are unremarkable.
(7) The screened lumbar spine shows a small
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C/FA/2745/2016 JUDGMENT
postero- central disc herniation at the L5-S1
level and a disc bulge at the L4-L5 level.
(8) The conus medullaris terminates at the D12-
L1 level. (9) Fracture of the right lamina and pedicle extending into the body of the C2 vertebra with sublusation at the right C2-C3 spophyseal joint causing sublusatory rotation
at the C1-C2 and C2-C3 levels with suggestion of tear of the transverse ligament and presence of an epidural soft tissue, most likely a hematoma.
(10) Probable fracture of the anterior arch of C1 vertebra andright lamina of the C3 vertebra with atlanto-axial dislocation.
(11) Compression and displacement of the lower medulla / upper cervical cord by the epidural heamatoma nd the odontoid process with altered signal in the lower medulla / upper cervical cord upto the C2-C3 disc level representing cord ischemia / edema / contusion.
(12) Tear of the anterior longitudinal ligament at C2 level with prevertebral (retropharyngeal) hematoma extending inferior from the clivus downwards upt the C5 vertebral level with altered Page 12 of 18 C/FA/2745/2016 JUDGMENT signal in the paraspinal soft tissue at the C1 to C3 levels representing contusion / hematoma.
(13) Partial occipitalisation of atlas with platybasia.
(14) Small disc bulges with small peridiscal osteophytes at the C2-C3 to C4-C5 levels causing mild ventral indentation over the cord.
(15) There is evidence of small hyperdensity in left frontal region.
(16) Screening done through the upper cervical region reveals cranial shift of atlas vertebra with overlapping of C1, C2 vertebra and significant increase in the distance between the odontoid process-atlas.
(17) Small Haemorrhagic contusion in left frontal region. No evidence of extracerebral heametoma.
(18) Atlanto axial sublusation / dislocation with cranial shift of atlas vertebra (on screening).
(19) Senior Orthopedic Doctor Mr.R.O.Goswami has certified disability of the petitioner as 50% for the body as a whole in his deposition at Ex.52 Page 13 of 18 C/FA/2745/2016 JUDGMENT and certificate is at Ex.53.
11. During cross-examination of the Doctor namely Mr.R.O.Goswami at Exh.52, the Doctor has stated that he had stated that he had taken into consideration all the medical papers including treatment papers at Bombay but respondent could not appreciate the other documentary evidence in the form of treatment papers and city scan reported as well as MRI report of the petitioner. Therefore, it cannot be said that the petitioner has not suffered injuries and difficulties as narrated in all such documentary evidence which confirms that the petitioner was remained indoor patient in several hospital for her injuries on head and neck.
12. Base upon above evidence, the Tribunal has awarded following amount of compensation on different heads.
Future loss of income: Rs.1,15,200/- Actual medical expenses: Rs.23,000/- Pain, shock and suffering: Rs.35,000/- Actual loss of income: Rs.12,000/- Transportation & sp.Diet: Rs.15,000/-
and attendant charges
Total: Rs.2,00,510/-
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13. Therefore, when the Tribunal has failed to consider the prospective income of the injured victim and failed to award just and reasonable compensation on different heads, it would be appropriate to modify the impugned award on different heads considering additional Rs.3,000/- as actual earning capacity and taking Rs.1,000/- as prospective earning capacity because in fact, Hon'ble the Supreme Court has observed that earning capacity of house wife cannot be considered as less then Rs.5,000/-. Similarly considering the nature of injuries, treatment and disability being sustained so also actual difficulties suffered by the injured claimant. Amount of other different heads are also needs to be suitably modified as under, Therefore, considering Rs.4,000/- as average earning capacity would result into Rs.3,60,000/- for further loss of income considering Rs.2,000/- as monthly loss of income and applying 15 as suitable multiplier in additional to actual medical expenses Rs.50,000/- + for pain, shock and suffering Rs.1,50,000/-, + towards Loss of enmities of life Rs.1,50,000/-, + towards Actual loss of income: Rs.40,000/-, + for transportation, special diet and attendant charges: Rs.25,000/-. Therefore, applicant is entitled to total Rs.8,00,000/-. For the above Page 15 of 18 C/FA/2745/2016 JUDGMENT determination, I am relying upon following citations:
13.1 In Syed Sadiq (supra), Supreme Court has held that claimant being vegetable vendors involved in unorganized sector doing his own business, were not expected to produce documents to prove their monthly income and that claimant might have to change his artificial leg from time to time and therefore, was entitle for medical cost and incidental expenses with future prospect of income. Thereby Apex Court has considered 85% disablement and increased 50% of income as a future prospect and awarded total Rs.21,65,100/ by adding following amount of compensation in addition to what is awarded by the tribunal and High Court.
Cost of artificial leg: Rs. 50,000/ Pain and suffering: Rs. 75,000/ Loss of marriage prospectus: Rs. 50,000/ Loss of amenities: Rs. 75,000/ Medical and incidental cost: Rs.1,00,000/ Cost of litigation: Rs. 25,000/ 13.2 In Sanjay Kumar Vs. Ashok Kumar and others reported in 2014 (5)SCC 330, Supreme Court has awarded Rs.14,59,100/ for the amputation of right leg above knee considering 70% as loss of earning capacity. Wherein, now Apex Court has awarded Rs.1,50,000/ for pain, shock and suffering in Page 16 of 18 C/FA/2745/2016 JUDGMENT addition to Rs.1,00,000/ for loss of amenities of life, Rs.75,000/ for loss of expectation and Rs.25,000/ for cost of litigation.
13.3 In K.Janardan Vs. United India Insurance Co. Ltd. Anr. in Civil Appeal No. 5831 of 2002 on 09.05.2008, Supreme Court has considered that amputation of the right leg upto knee joint would result into 100% disability and thereby, restored the judgment and award of commissioner by setting aside the judgment of the High Court, reducing the compensation under Workmen's compensation Act, 1923.
13.4 In Mohan Soni Vs. Ram Avtar Tomar and others in Civil Appeal No. 237 of 2012 on 10.01.2012, Supreme Court has in case of amputation of leg below knee enhanced the amount of compensation awarded by the tribunal considering that earning capacity of the victim, may be as high as 100% but in no case, it would be less than 90%.
13.5 In Pratap Narain Singh DEO Vs. Srinivas Sabata and ANR. Reported in AIR 1976 222, the four judges of Supreme Court has upheld the reason of the commissioner under Workmen's Compensation Act that by loss of left hand above the elbow would render victim unfit for the work of carpenter which cannot be done by one hand and thereby he was at 100% loss of earning capacity.
13.6 In R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. And others reported in 1665 (1)SCC 551, Page 17 of 18 C/FA/2745/2016 JUDGMENT Supreme Court has awarded the amount of Rs.35,00,000/ because of paraplegia below the waist suffered by claimant which is considered as 100% disability wherein Rs.1,50,000/ was awarded for pain, shock and sufferings in addition to Rs.1,50,000/ for loss of amenities of life.
13.7. Thereby there would be additional award of Rs.6,84,440/.In view of the above discussion, the Appeal is partly needs to be allowed by awarding Rs.6,84,440/considering the case of Nagappa Vs. Gurudayal Singh reported in 2003 (2) SCC 274.
14. In view of the above discussion, the award in M.A.C.P. No.404 of 1999 is modified so as to confirm that the claimant is entitled to Rs.8,00,000/- towards compensation with 9% interest from the date of claim petition till its realization. Thereby, if respondents have already paid the amount for compensation as per award, then now they have to pay additional amount of Rs.5,99,490/- with interest and proportionate cost, within 12 weeks from the date of this judgment. The appeal is thereby partly allowed. Record and Proceedings be sent back forthwith.
(S.G. SHAH, J) PALAK Page 18 of 18