Gujarat High Court
Prakashbhai Rambhai @ Ramdas Patel ... vs Ahmedabad Municipal Transport ... on 4 April, 2019
Author: R.M.Chhaya
Bench: R.M.Chhaya, S.H.Vora
C/FA/617/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 617 of 2009
With
R/FIRST APPEAL NO. 1106 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE S.H.VORA
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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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PRAKASHBHAI RAMBHAI @ RAMDAS PATEL THROUGH
Versus
AHMEDABAD MUNICIPAL TRANSPORT CORPORATION THROUGH & 1
other(s)
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No.
1,1.1,1.2
MR HS MUNSHAW(495) for the Defendant(s) No. 1
RULE SERVED(64) 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 : 04/04/2019
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) Page 1 of 12 C/FA/617/2009 JUDGMENT
1. Being dissatisfied with the judgment and award dated 14.08.2008 passed by the Motor Accident Claims Tribunal (Aux), Court No. 19, Ahmedabad in MACP No. 171 of 2000, the injured claimant has preferred First Appeal No.617 of 2009 and the Ahmedabad Municipal Transport Service has preferred First Appeal No. 1106 of 2000 under section 173 of the Motor Vehicles Act, 1988. As both these appeals arise out of the same award rendered by the Tribunal and therefore, were heard together and disposed of by this common judgment and order.
2. The following facts emerge from the record of the appeal 2.1 That the accident took place on 29.03.1999 at about 11. AM wherein while deceased Hasmukhbhai Jayantilal Patel, the present claimantPrakash Rambhai Patel and one friend Mukesh Bhikhabhai Patel were standing by the side of the road and their scooter having been parked on the side of the road near Municipal Bus Stop of Ghatlodiya Patiya on Sarkhej Gandhinagar Highway and while they were busy talking with each other, the bus belonging to AMTS bearing registration no.GRU8570 being route no.71/1 came from Gota being driven in full speed and in rash and negligent manner dashed with the scooter bearing registration no. GJ2M1269 and all the three persons Page 2 of 12 C/FA/617/2009 JUDGMENT standing by the side of the road. All the three persons sustained serious injuries and were given primary treatment at Sola Civil Hospital and then ultimately, shifted to Civil Hospital, Ahmedabad. The present original. Claimantpresent appellant Prakashbhai was admitted to the Civil Hospital. The FIR was lodged being I C.R. No. 74/99 with Sarkhej Police Station, Ahmedabad District Rural and PrakashbhaiAppellant of First Appeal No. 617/09, being mentally upset, preferred the claim petition through his parents being natural guardian under section 166 of the Act and claimed compensation of Rs.30 lakhs. It was the say of the original claimant that he was aged 21 years and had to undergo hospitalisation from 29.03.1999 to 15.05.1999 for 47 days in Civil Hospital at Ahmedabad and has suffered Hemiplegia (left half part of the body). It was the case of the original claimant that the original claimant has suffered permanent disability of the body as a whole to the tune of 50%.
2.2 The original claimant examined himself at exhibit 36 and also examined two witnesses, Mukeshbhai Bhikbhabhai Patel and Vasant Shankarbhai Patel at exhibit 45 and 46 who are eye witnesses. Over and above the same, the original claimant relied upon the documentary evidence such as FIR at exhibit 37, charge Page 3 of 12 C/FA/617/2009 JUDGMENT sheet at exhibit 62, original marksheet of 12th standard securing 77.33% at exhibit 41, admission card in neurosurgical ward at exhibit 42, concession certificate of Civil Hospital at exhibit 43, injury certificate at exhibit 44, disability certificate of Dr. Balkishan Desai at exhibit 48, original medical bills at exhibit 54, prescriptions at exhibit 55 to 58, School leaving certificate at exhibit 68, certificate of Gujarat University at exhibit 69, injury certificate at exhibit 70, disability certificate issued by Civil Hospital showing 50% permanent partial disability at exhibit 71. The Tribunal after appreciating the evidence on record, considered the income of the original claimantinjured at Rs.3,000/ per month and awarded a sum of Rs.1,53,800/ under the head of future economic loss, Rs.25,000/ as pain, shock and suffering, Rs.18,000/ as actual loss of income, Rs. 50,000/ as medical expenses, Rs.50,000/ towards loss of amenities and Rs.30,000/ for special diet, transportation and attendant charges and thus awarded a sum of Rs.3,26,800/ as compensation with interest at the rate of 7.5% p.a. from the date of filing of the claim petition till its realisation. Being aggrieved by the same, First Appeal No. 167 of 2009 is preferred by the appellantinjured claimant through his natural guardian and parents and Page 4 of 12 C/FA/617/2009 JUDGMENT First Appeal No. 1106 of 2009 is preferred by the AMTS.
3. Heard Mr. Paresh Darji, learned advocate for the original claimants and Mr. Hemant Munshaw, learned advocate with Mr. R.M. Chauhan, learned advocate for AMTS in both the appeals and also perused the original record and proceedings.
4. Mr. Paresh Darji, learned advocate appearing for the original claimant in First Appeal No. 617 of 2009 contended as under
1) That the Tribunal has failed to appreciate the permanent disability of the original claimant. Mr. Darji relied upon the deposition of Dr. Balkishan Navinchandra Desai at exhibit 47, and contended that even today, the injured claimant suffers from Hemiplegia and left half part of body is nonfunctional. Mr. Darji contended that because of the injuries sustained in the accident, the appellant original claimant has not been able to study further and is not in a position to do any work and therefore, the permanent disability of the body as a whole should be counted at least to the extent of 50%.
2) It was further contended that considering the permanent nature of injuries, following the ratio laid down by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Page 5 of 12 C/FA/617/2009 JUDGMENT Sethi, reported in 2017 (16) SCC 680, the appellantoriginal claimant would be entitled to prospective income as because of the accident, the future of the appellant is badly affected.
3) It was further contended that even though the appellantclaimant had to undergo treatment as indoor patient at Civil Hospital, Ahmedabad for about 47 days, the Tribunal has awarded a meager amount of Rs.25,000/ under the head of pain, shock and suffering, which should be suitably enhanced. It was also contended that similarly, the Tribunal has awarded a meager amount of Rs.50,000/ under the head of loss of amenities and Rs.30,000/ under the head of special diet, transportation and attendant charges, which should be suitably enhanced. Mr. Darji contended that considering the nature of injuries sustained by the appellant original claimant, the Tribunal ought to have awarded some amount for future medical expenses.
4) Mr. Darji contended that the Tribunal has wrongly applied the multiplier of 17 while computing the future loss of income as even as per the School Leaving Certificate produced on record, the appellantoriginal claimant was 21 years old on the date of the accident and therefore, appropriate multiplier of 18 Page 6 of 12 C/FA/617/2009 JUDGMENT deserves to be applied in the case of the appellantoriginal claimant.
On the aforesaid grounds, it was therefore contended that the award deserves to be modified accordingly and First Appeal No. 617 of 2009 deserves to be allowed to the aforesaid extent. It was also contended by Mr. Darji that First Appeal No. 1106 of 2009 filed by AMTS being meritless, deserves to be dismissed.
5. Per contra, Mr. Munshaw, learned counsel appearing with Mr. Chauhan, learned advocate for AMTS has contended that the Tribunal has wrongly believed the income of the insured at Rs.3,000/ per month and also wrongly assessed the disability to the extent of 25% of the body as a whole. It was contended that the Tribunal has committed no error in awarding Rs. 25,000/ towards pain, shock and suffering and Rs.18,000/ as actual loss of income, Rs.18,000/, Rs.50,000/ towards loss of amenities and Rs.30,000/ as special diet, transportation and attendant charges. On the aforesaid contention, it was therefore contended that the appeal filed by AMTS being Appeal No. 1106 of 2009 deserves to be allowed and the award deserves to be modified accordingly. It was contended that the appeal filed by the original claimants being First Appeal No. 617 of 2009 being meritless, deserves to be dismissed.
Page 7 of 12C/FA/617/2009 JUDGMENT
6. No other or further submissions have been made by the learned counsel appearing for the parties.
7. Upon considering the submission made and on re appreciation of the evidence on record, it is quite evident that the original claimant has sustained permanent disability. The Tribunal has appreciated the evidence on record in form of disability certificate as well as certificate issued by Dr. Parimal Tripathi and the prescription of Dr. Pranav Kharod at exhibit 58 as well as certificate issued by Dr. Balkisan N. Desai at exhibit 48, injury certificate issued by Civil Hospital, Ahmedabad at exhibit 44. These evidence cumulatively indicate that the appellant has sustained serious injuries. Considering the deposition of Dr. Balkishan Desai at exhibit 47, which is heavily relied upon by the learned counsel appearing for the original claimant even before us, it clearly bornes out that Dr. Balkishan has not treated the original claimant but examined the original claimant for determination of the disability. In his crossexamination, he has deposed that disability of the limb is to the extent of 50%, however, disability of the body as a whole is 25%. Upon reappreciation of this piece of evidence read with the deposition of Dr. Balkishan Desai as an expert, we are of the opinion that the Tribunal has committed no error Page 8 of 12 C/FA/617/2009 JUDGMENT in assessing the permanent disability of the body as a whole at 25% and therefore, the contention raised by the learned counsel for the appellantoriginal claimant that the permanent disability of the body as a whole should be assessed at 50% deserves to be negatived.
8. The School Leaving Certificate on record clearly establish the fact that the original claimant appellant was 21 years and that his date of birth was 16.10.1978 and therefore, the appellantoriginal claimant was 21 years old on the date of the accident and thus, the appellant would be entitled to multiplier of 18 instead of
17. Following the ratio laid down by the Apex Court in the case of Pranay Sethi (supra), considering the degree of injuries received and considering the age of the original claimant, the original claimant would also be entitled to prospective income to the extent of 50% even though it is an injury case. As far as income is concerned, the same is not a matter of dispute and therefore, the original claimant would be entitled to compensation under the head of Future Loss of Income as under Rs. 3000/ + Rs.1500/ (50% prospective income) + Rs.9000/(25% disabilityRs.750/ p.m.) = Rs.13,500/ p.m. X 18 = Rs.2,43,000/
9. The record indicates that the original claimant had to undergo extensive treatment at Civil Hospital for 47 days as indoor patient and Page 9 of 12 C/FA/617/2009 JUDGMENT thereafter, there is evidence on record to show that the original claimant had to undergo treatment and had to pass through pain, shock and suffering and therefore, on reappreciation of the evidence on record, we are of the opinion that the original claimant would be entitled to compensation of Rs.1,50,000/ towards pain, shock and suffering. Similarly, the appellant would be entitled to higher amount as compensation under the head of special diet, transport and attendant considering the long and extensive treatment taken by the original claimant, which shall be assessed at Rs.50,000/ in facts of this case. Similarly, the original claimant has sustained serious injuries at a tender age of 21 years and upon appreciating the evidence on record, more particularly, the fact that the original claimant could not carry on studies further, the Tribunal has deemed it fit to award a sum of Rs. 50,000/ as loss of amenities. On inquiry by the Court, it is stated at the bar that even though the appellant has not studied further, he has settled down in his life and has family of his own and upon considering the said fact and upon re appreciation of the evidence, the appellant would be entitled to some more amount under the head of loss of amenities which can be assessed at Rs.1,00,000/ instead of Rs.50,000/.
However, the contention raised by Mr. Darji,
learned counsel appearing for the original
Page 10 of 12
C/FA/617/2009 JUDGMENT
claimant that some amount should be awarded as compensation for future medical expenses, in facts of this case, cannot be considered. There is no evidence on record to support the same. Rest of the award does not require any modification.
10. As far as the contention raised by Mr. Munshaw that the driver of the AMTS bus is solely made responsible is quite evident from the manner in which the accident has taken place. Upon reappreciating of the evidence in form of FIR as well as panchnama of the scene of occurrence, the accident has taken place on the turn of the road wherein three persons were standing and were talking with each other and had parked their scooter on the side of the road. Upon reappreciation of the evidence of Mukeshbhai Bhikbhabhai Patel and Vasant Shankarbhai Patel at exhibit 45 and 46 who are eye witnesses, the Tribunal has rightly come to the conclusion that the driver of the AMTS bus was solely responsible for the accident as the manner in which the bus was being driven is evident from the evidence and therefore, the driver of the bus was solely responsible for the accident.
11. In light of the aforesaid, the original claimant would be entitled to compensation as under Page 11 of 12 C/FA/617/2009 JUDGMENT Future Loss of Income Rs.2,43,000/ Pain shock and suffering Rs.1,50,000/ Actual loss of income Rs. 18,000/ Medical expenses Rs. 50,000/ Loss of amenities Rs.1,00,000/ Special diet, transportation and attendant charges Rs.50,000/ Rs.6,11,000/ =============
12. As the Tribunal has awarded total compensation of Rs.3,26,800/, the appellant original claimant would be entitled to additional amount of Rs.2,84,200/ with proportionate costs and interest at the rate of 7.5% p.a. from the date of filing of the claim petition till its realisation.
13. The impugned judgment and award stands modified accordingly. AMTS shall deposit the additional amount of Rs.2,84,200/ before the Tribunal within a period of three months from the date of receipt of this order. Record and Proceedings be sent back to the Tribunal forthwith.
Hence, First Appeal No. 617 of 2009 and First Appeal No. 1107 of 2009 are disposed of accordingly.
(R.M.CHHAYA, J) (S.H.VORA, J) BIJOY B. PILLAI Page 12 of 12