Gujarat High Court
Dr. Deepkumar Raojibhai Patel vs Siril Jipryan Macwan on 27 March, 2019
Author: R.M.Chhaya
Bench: R.M.Chhaya, S.H.Vora
C/FA/1407/2009 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1407 of 2009
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DR. DEEPKUMAR RAOJIBHAI PATEL
Versus
SIRIL JIPRYAN MACWAN & 1 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 27/03/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) Feeling aggrieved by and dissatisfied with the judgment and award dated 14.07.2016 passed by learned Motor Accident Claims Tribunal (Main), Vadodara (hereinafter referred to as "the Tribunal" for short) , in Motor Accident Claim Petition No.1431/1991, the appellant - original claimant preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short);
2. Heard Mr. MTM Hakim, learned counsel for the appellant - original Claimant and Mrs. Vasavdatta Bhatt, learned counsel for respondent No.2 - Gujarat State Regional Transport Corporation. At the request of learned counsel for the appellant, respondent No.1 has been deleted by this Court vide order dated 07.01.2015.
3. At the request of learned counsel for the parties, the appeal is taken up for its final disposal. Learned counsel for the parties have also provided the copies of evidence adduced before the Tribunal for perusal of this Court.
Page 1 of 8 C/FA/1407/2009 ORDER4. The following noteworthy facts emerge from the record of the appeal:-
4.1 That on 22.03.1991, the appellant - injured was going to attend the marriage ceremony of his nephew at Surat in his fiat car bearing registration No.GBQ 1955 at a moderate speed and with due care and caution by following a luxury bus in which the marriage party (relatives) was also travelling and thereby, the appellant was driving his car behind the said luxury bus. Further, when the appellant reached at village Vernama, one S.T bus bearing registration No.GJ-IZ-131 came from opposite side with excessive speed and with dazzling light and dashed with the fiat car. In the said accident, the appellant and other passengers received severe injuries.
4.2 It is the case of the appellant that, the said accident occurred due to rash and negligent driving of driver of S.T bus.
4.3 Therefore, the appellant filed a claim petition before the Tribunal under Section 166 of the Act claiming compensation of Rs.30,00,000/-, wherein the Tribunal partly allowed the claim petition and awarded compensation of Rs.6,23,000/- along with costs and interest @ 7.5 % per annum.
4.4 Being dissatisfied with the said compensation, the appellant has filed present appeal for enhancement of compensation.
5. Learned counsel for the appellant has contended the following main grounds :
(i) Even though the evidence was adduced before the Tribunal, the Tribunal has erred in granting lumpsum amount of Rs.3,00,000/- under the head of future loss of income;
(ii) Even though the Tribunal assessed the income of the appellant-injured at Rs.20,000/- p.m, it has wrongly determined at Rs.3,00,000/- as lost of future income by a Page 2 of 8 C/FA/1407/2009 ORDER thumb-rule.
(iii) Relying upon the judgment of this Court rendered in the case of M/s. Prakash Chemicals Ltd. Vs. K.S.Kaaniyara [1993 (1) GLH 149], it was contended that as held by this Court, income of the appellant-injured should have been calculated being 1/4th of the same considering the disability and the Tribunal ought to have awarded compensation under the head of future loss of income accordingly.
(iv) That the Tribunal has also erred in appreciating the evidence on record and has awarded only Rs.50,000/- under the head of pain, shock and sufferings. The plethora of evidence adduced before the Tribunal, establishes the fact that the appellant had to undergo extensive treatment at Vadodara and even thereafter at Breachcandy Hospital at Mumbai for at least 7 months.
(v) That, as the Tribunal has committed an error in determining the income of the appellant, it has also committed an error in awarding compensation under the head of actual loss of income, which should be accordingly to the income determined as contended above.
On the aforementioned grounds, learned counsel for the appellant- injured has submitted that the impugned judgment and award being erroneous deserves to be modified/altered by allowing this appeal.
6. Per contra, learned counsel for respondent No.2 - S.T Corporation has supported the impugned judgment and award and has contended that the Tribunal has committed no error in granting compensation. She also submitted that the Tribunal has rightly awarded lumpsum amount of Rs.3,00,000/- towards the future loss of income. She further contended that the evidence shows that the appellant is surgeon and even after the accident, the appellant being a doctor has not only established his new hospital, but is earning more then Page 3 of 8 C/FA/1407/2009 ORDER earlier. Thus, the Tribunal has committed no error in assessing compensation under the future loss of income and actual loss of income. She further contended that the Tribunal has on overall correct appreciation of the evidence on record rightly awarded compensation of Rs.50,000/- under the head of pain, shock and sufferings, which does not require any alteration.
On the abovementioned contentions, learned counsel for respondent No.2 has submitted that, present appeal being meritless, deserves to be dismissed.
No other or further submissions have been made by learned counsel for the parties.
7. Having considered the submissions made and on perusal of the record and proceedings, at the outset, it deserves to be noted that considering the manner in which the accident has taken place, the Tribunal has come to the conclusion that the appellant - injured was negligent to the extent of 40 % and other vehicle i.e. driver of ST Bus was negligent to the extent of 60 %. The said aspect is not controverted in the present appeal.
8. This Court in the case of M/s. Prakash Chemicals Ltd. (supra) has observed thus:
"19. The Tribunal has, as seen above, straightaway worked out the future economic loss on the basis of 30 % disability and Rs.2,600/- p.m. as has his emoluments. Now, how far the percentage of anatomical disability would be reflected in the loss of future income would depend upon a variety of factors. It would mainly depend upon the job or nature of work that the man is supposed to do, or is doing. Take the case of a manual labourer. If his leg has been shortened by one inch, and he has been left with a disability similar to the one Which Respondent No. 1 has been left, it would not be gainsaid that his earning capacity would be reduced substantially. As against that, the person who has to do table work, and is not required to do much of manual or physical work, even with the disability like the Page 4 of 8 C/FA/1407/2009 ORDER present, as is seen from the medical evidence, his future economic loss would not be of the same order, as it would be in the case of a manual labourer. We are alive to the fact that Respondent No 1 is not a person who has only to do table work. He is an Electrical Engineer. As said above, he would have to do some field work. Of course, there is no clear evidence about the extent of the field work Respondent No.1 has to do. But then, that he would have to do some amount of field work cannot be disputed, looking to the fact that he is an Electrical Engineer working with Gujarat Refinery. At the same time, the fact that he has, even with the disability, earned promotion though belatedly, is also required to be considered. Keeping all these factors in mind, we think, we have to strike a mean between the two extremes, one being loss of future earning equivalent in percentage to the anatomical loss, and the other being that even with the disability, he has been continued in service and he has earned his promotion. The Tribunal has taken Rs.780/- per month as the future economic loss of Respondent No. 1. In at our opinion, keeping all the relevant facts in mind, that figure is on such a high side as would require interference at the hands of this Court, even keeping in mind the fact that this Court normally would not interfere with the assessment of a damages, if it is within reasonable brackets. Keeping all the aforesaid relevant factors in mind, in our opinion, Rs. 500/- per month should be taken to be the future economic loss of Respondent No. 1. The assessment on that basis, believe would be just and reasonable. Rs 500/- per month would work out to Rs.6,000/- per annum, and taking 10 as the multiplicand or years purchase factor which has been adopted by the Tribunal,to which no exception has been taken by any side, the figure would come to Rs. 60,000/. Adding that figure to the undisputed figure of Rs.26400/-, the grant total would come to Rs.86400/-. The contribution of Respondent No.1 in the causation of the accident is apportioned by the Tribunal at 50 % and that apportionment is not changed. Respondent No.1 is, therefore, to get compensation in the sum of Rs.43,200/- The appeal, in so far as as the amount of the award is concerned shall have, therefore, to be accordingly allowed.
20. This takes us to the second submission of Mr. Shelat. The accident happened in the campus or premises of IPCL. Respondent No.1 in his deposition, has stated that security guard remains present at the gate of IPCL and one has to enter the gate after taking permission. The accident Page 5 of 8 C/FA/1407/2009 ORDER occurred on the road owned by IPCL. There is a road divider in the middle of the road. Surykant Chimanlal, who was one of the claimants in the other casein this group, in his cross-examination stated that the incident occurred in the compound of IPCL. He said that before entering the premises, one has to take permission from the guard at the gate. The Tribunal has taken these statements appearing in the evidence to hold that the place where the accident happened is a private campus, and is not a public place. It was on that basis that the Tribunal exonerated the Insurance Company from its liability to satisfy the award.
21. The panchnama of the place of the accident drawn by police in presence the panchas, soon after the accident has been admitted in evidence by the consent of all the parties. It is at Exh.49 on the record of the case. The panchnama shows that the place of the accident was within the IPCL campus. It was on the main internal road of the campus. The road was divided into two lanes - upper land and lower lane and the two lanes are separated by road dividers made of cement concrete. The two lanes of the road as such were tar surfaced lanes. The width of each of the two lanes of the road was 23'5". Thus, the panchnamaa makes it clear that the road was sufficiently wide road. It was a tar road. The two lanes were divided by cement concrete dividers. There is also evidence to show that there were electrical poles at intervals on the road. At the time of hearing of this appeal, it was a conceded position that IPCL is a huge complex having a staff township within the permises, and quite a large number of vehicles enter the complex every day. We were told that in the IPCL complex, about 10,000 employers may be working, and staff buses quite large in number might be plying within the complex. It is also not in dispute that all sorts of persons having business or commercial relations with IPCL, such as contractors, businessmen, transporters, etc. have to visit the complex day in and day out. There is evidence to show that there is a medical centre or medical complex within the IPCL complex. These facts would clearly show the magnitude of the IPCL complex. It is in light of these facts that we would have to decide whether the place where the accident happened, should or should not be considered to be a 'public place', within the meaning of that expression used in the relevant provisions of the Act."
9. It clearly establishes the fact that the Tribunal while assessing the income of the appellant has come to the Page 6 of 8 C/FA/1407/2009 ORDER conclusion that the income can be assessed at Rs.20,000/- p.m, however, while computing compensation under the head of future loss of income, given a lumpsum amount of Rs.3,00,000/-. Following the ratio laid down by this Court in the case of M/s. Prakash Chemicals Ltd. (supra) and taking into consideration the income of the appellant to be Rs.20,000/- p.m, the future loss of income deserves to be calculated as under:
Rs.20,000/- Income p.m
- 25 % (¼ deduction)
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Rs.5,000/- Future loss of Income
x 12 Months
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Rs.60,000/- Income p.a.
10. Considering the age of the appellant on the date of
accident being 32 years, multiplier of 16 would be applicable and thus, future loss of income would come to Rs.9,60,000/- (Rs.5,000/- x 12 months x 16 multiplier). As the income has determined at Rs.20,000/- p.m, upon reappreciation of the evidence on record, the appellant could not work for a period of 7 months as a doctor and therefore, the actual loss of income would come to Rs.1,40,000/- (Rs.20,000/- X 7 months).
11. As far as the contention as regards the pain, shock and sufferings are concerned, the evidence on record clearly shows that the appellant had to undergo extensive treatment at Vadodara and thereafter, at Mumbai that too by renowned surgeon of Mumbai.
12. Record further indicates that the appellant had to undergo three orthopedic operations, had lost his six teeth and also suffered from temporary paralysis and therefore, in opinion of this Court, the appellant would be entitled to Rs.1,00,000/- under the head of pain, shock and sufferings.
13. In light of the aforesaid, the appellant would be entitled to get total compensation as under:
Page 7 of 8 C/FA/1407/2009 ORDER Rs.9,60,000/- Future loss of income
+ Rs.1,40,000/- Actual loss of income
+ Rs.1,25,000/- Medical expenses as awarded
by the Tribunal
+ Rs.1,00,000/- Pain, shock and sufferings
+ Rs. 8,000/- Special diet, transportation
and attendant charges as awarded
by the Tribunal
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Rs.13,33,000/- Gross income
- Rs. 5,33,200/- 40 % negligence of the appellant
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Rs.7,99,800/-
14. As the Tribunal has awarded total compensation of
Rs.3,73,800/-, the appellant would be entitled to get
additional amount of Rs.4,26,000/- with proportionate costs and interest at the rate of 7.5 % p.a. from the date of filing of claim petition till its realization.
15. Hence, present appeal is partly allowed. The judgment and award dated 14.07.2016 passed by learned Motor Accident Claims Tribunal (Main), Vadodara, in Motor Accident Claim Petition No.1431/1991 stands modified to the aforesaid extent. Rest of the judgment and award remains unaltered. It is clarified that respondent No.2 - S.T Corporation shall deposit said additional amount before the Tribunal within a period of four months from the date of receipt of this order. Record and proceedings be remitted back to the concerned Tribunal forthwith.
(R.M.CHHAYA, J) (S.H.VORA, J) S U C H I T Page 8 of 8