Gujarat High Court
Palakben Alpeshbhai Shah vs Keyurbhai Kamleshbhai Adesara on 12 February, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2770/2022 JUDGMENT DATED: 12/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2770 of 2022
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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PALAKBEN ALPESHBHAI SHAH
Versus
KEYURBHAI KAMLESHBHAI ADESARA & ORS.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 5
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/02/2024
ORAL JUDGMENT
1. The injured claimant has challenged the judgment dated 20.01.2022 passed by Motor Page 1 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in M.A.C.P. No.98 of 2014. The claimant lady has raised the ground inter alia contending that the functional disability should have been considered as 100%, and when both the parties, on the evidence on record, have consented for considering 60% disability for body as a whole, the assessment of 30% by the Tribunal is erroneous.
2. Mr. Nishit A.Bhalodi, learned advocate for the appellant submitted that the claimant was running a Beauty Parlour, and she had produced the income tax returns for the assessment years 2011-2012, 2012-2013 and 2013-2014 at Exh.61 to
62. Mr. Bhalodi submitted that when the evidence has come on record that the claimant has difficulty in vision and is suffering from diplopia (double vision), and has undergone surgery, and further the accident has led to disfigurement, and the claimant has difficulty in Page 2 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined speech and even suffering from deafness in the right ear, and has also sustained head injuries with fractures, and now she cannot work completely, 100% functional disability is required to be considered.
2.1 Advocate Mr. Bhalodi referring to the disability certificate produced at Exh.90 and 91 submitted that on perusal of the disability certificate, the advocate of insurance company has consented to consider the permanent disability as 50% for the assessment, which has been done, which Mr. Bhalodi submits that, Exh.90 is in connection with head injury, while Exh.91 is in connection with injuries on hips on both the limbs, where the insurance company has assented to consider 10% disability for body as a whole.
2.2 Advocate Mr. Bhalodi submitted that the injury suffered by the claimant, has made her Page 3 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined jobless and now she cannot continue with her Beauty Parlour work and, therefore, the functional disability should have been considered as 100%. Mr. Bhalodi has not pressed for any other grounds raised in the appeal memo.
3. Countering the argument, Advocate Mr. Rathin P.Raval stated that the Tribunal had not found any stuttering in the speech or any cramping, and, therefore the Tribunal has very rightly observed that it cannot blindly follow the endorsement of the advocates on record. Advocate Mr. Raval submitted that the guidance for considering the functional disability, is to follow the judgment of Raj Kumar And Another Vs. Ajay Kumar And Another, reported in 2011 ACJ,1; equivalent to: (2011) 1 SCC 343, which could be on a sound footing to consider the functional disability.
4. Advocate Mr. Tanmay B.Karia supported Page 4 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined the argument of Advocate Mr. Raval, further stating that the Tribunal has examined the evidence on record and has considered the aspects of physical disability as well as the injury to the sense organs (receptor), and has in detail examined the issues of speech component as well as mental health.
5. Exh.90, disability certificate, issued by Doctor Balkisan N.Desai for assessment of the disability for the injury that has been caused on the head of the claimant following the vehicular accident. The Doctor had observed that the claimant has right sided hemiparesis, difficulty in speech, difficulty in vision & diplopia (double vision), and also having recent frequent epileptic attacks, deafness in right ear and disfigurement of the face, since head injury. The C.T. scan of the brain was done, which revealed subarachnoid hemorrhage along anterior interspheric fissure, basal cistern and genu of Page 5 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined corpus callosum, large intra-parenchymal hemorrhage along the genue of corpus callosum, tentorial hemorrhage along left side and generalized cerebral edema. She was intubated and ventilated.
5.1 For further treatment, she was transferred to Hope Neurocare Hospital in Ahmedabad, with endotracheal tube. Her C.T. angio of brain was done on 22.04.2013, which revealed saccular aneurysm from distal right anterior cerebral artery. Her C.T. brain showed 52 x 25 mm sized intraparenchymal hemorrhage involving midline cingulate gyrus and subarachnoid hemorrhage along bilateral high fronto-parietal cortical sulci. She was treated conservatively with ventilator support and remained unconscious. Her CT angio of brain was repeated on 06.05.2013, which showed increase in the size of aneurysm with presence of adjacent right frontal lobe hematoma and intraventricular Hemorrhage. She was Page 6 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined operated craniotomy and clipping of aneurysm was done on 07.05.2013. Simultaneously, orthopedic surgery for pelvis fracture was done, and post operatively, she remained unconscious. Thereafter, she was transferred to Siddhi Vinayak Hospital on 21.05.2013, and on transfer, she had tracheostomy tube and was on Ryle's tube feeding and gradually weaned off tracheostomy. 5.2 Further observations were that, again on 17.12.2014, her C.T. scan was done, which revealed changes of gliosis in right para satital frontal lobe and infract in left thalamus, and again on 29.12.2014, her C.T. scan was done, which revealed changes of glosis in right parasagital frontal lobe. She had extensive treatment for her diplopia in Nagri Eye Hospital since 25.04.2014 and diagnosed to be having exophoria due to superior rectus and lateral rectus muscle of the right eye and inferior rectus weakness of the left eye. In spite of her Page 7 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined regular follow-ups, the diplopia persisted.. she has right sided hemiparesis. Neurologically, her muscle power in right upper limb is 3 to 4 and her deep tendon reflexes are brisk in right upper limb. It has been further observed that she has motor dysphasia (difficulty in speech) and gets stammering while speaking. She has diplopia (double vision), which is due to irreversible injury to the upper cranial nerves. She has a large scar of surgery, over the high froto- parietal region in para median region. She has rounded bony depression over the high forehead near the midline, disfiguring her face. She has other two such bony deressions over the parietal region.
5.3 The Doctor has not considered the deafness and disfigurement in assessing the disability, and according to his calculation, 30% assessment could be for right upper limb paresis + 24% for diplopia (double vision) + 20% for Page 8 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined right lower limb paresis + 20% for speech difficulty and 10% for infrequent epileptic attacks, thus, according to him taking the assistance of Kessler's method of calculation, the total calculation of the Doctor is 69.4%. Doctor Prafulla N.Shah has given the disability certificate with respect to hips and lower limbs.
6. The observation by the Tribunal that the replies given by the claimant during the trial were consistent and without any cramping in speech, cannot be made a basis for assessment, since the evidence was in fact given by way of affidavit and the cross-examination would be in minimum words, itself could not be made a base for the assessment for functional disability, where evidence on record by way of examination of the Doctors, shows the vision loss, speech loss and further an effect in nerves.
6.1 The applicant-claimant would not be in a Page 9 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined position to continue with the work, hence, it appears that the advocate of insurance company on record has justly put up an endorsement after considering the disability of the claimant. 100% functional disability would not be a just assessment, though the applicant may be having difficulty in conducing her day-to-day activity, but would be in a position to independently do so.
6.2 Considering the disability, as has been assessed, and the work of the claimant, this Court concurs with the endorsement of the advocates on record to consider 60% disability. The Tribunal has considered the income of the claimant as Rs.15,958/-, hence, by assessing 60% functional disability, and applying same multiplier of 16, annually the future loss would come to Rs.18,38,362/- (15,958 x 60% x 12 x 16). Rest of the amount would require no consideration, at this present stage, as the Page 10 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined amount for the medical expenses and treatment has been granted, and even amount under pain, shock and suffering, attendance charges, died and transportation with actual loss of income have already been assessed by the Tribunal. Hence, the only increment would be an addition to the future loss of income, which has been assessed as Rs.9,19,181/-. While, as per present computation, it would come to Rs.18,38,362/-. Thus, the claimant would be entitled to get additional amount of Rs.9,19,181/- (18,38,362 - 9,19,181). 6.3 The additional amount of Rs.9,19,181/- be deposited before the Tribunal within eight weeks from the date of receipt of copy of this judgment at the rate of 7.5%.
6.4 The Tribunal is directed to disburse 50% amount thereof in favour of the original claimant by Account Payee cheque/NEFT, after due verification; the remaining 50% shall be invested Page 11 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024 NEUTRAL CITATION C/FA/2770/2022 JUDGMENT DATED: 12/02/2024 undefined in Fixed Deposit with any nationalized Bank in the name of the original claimant for two years. Thereafter, the same be given along with accumulated interest to the claimant without any reference to the Court.
7. In the result, the appeal is partly allowed. The impugned judgment and award dated dated 20.01.2022 passed by Motor Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar in M.A.C.P. No.98 of 2014, stands modified to the aforesaid extent. No order as to costs.
(GITA GOPI,J) Pankaj Page 12 of 12 Downloaded on : Fri Feb 23 21:10:26 IST 2024