Gujarat High Court
Bhavik @ Bhavin Dwarkadas Vithlani vs Ganpatsinh Manubha Jadeja on 19 January, 2021
Author: A.S. Supehia
Bench: N.V.Anjaria, A.S. Supehia
C/FA/2015/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2015 of 2018
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 1 of 2018
In R/FIRST APPEAL NO. 2015 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA Sd/-
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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BHAVIK @ BHAVIN DWARKADAS VITHLANI
Versus
GANPATSINH MANUBHA JADEJA & 1 other(s)
================================================================
Appearance:
MR PREMAL S RACHH(3297) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 2
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
================================================================
CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 19/01/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA) (1) The present appeal is directed against the judgment and award dated 09.01.2018 passed by the Motor Accident Claims Tribunal (Main), Page 1 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT Rajkot ('the Tribunal' for short) in Motor Accident Claim Petition No.993 of 2010, whereby the Tribunal has partly allowed the claim petition of the appellant by observing that the claimant is entitled to recover an amount of Rs.26,13,600/ with the proportionate cost with interest @9% per annum, from the date of the claim petition till realization from the opponents respondents herein jointly and severally.
(2) Short facts of the case are that : On 20.02.2010 the claimant was driving a scooty motorcycle bearing registration no.GJ03CM 2383 at the left side of the road, cautiously and in a moderate speed and when he reached on Kalavad Road, Near Old Jakat Naka, Rajkot at that time, driver of one Toofan Jeep bearing registration no.GJ10W1774 came from behind by driving the Toofan Jeep in a rash and negligent manner, endangering human life and the said Toofan Jeep dashed with the scooty motorcycle of the appellant and the accident took place. It is further the case of the claimant that this accident has taken place due to rash and negligent driving on the part of driver of the Toofan Jeep, due to which the claimant sustained serious injuries.
Page 2 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022C/FA/2015/2018 JUDGMENT (3) The Tribunal, after examining the entire
record and medical condition of the appellant, awarded compensation of Rs.26,13,600/ with 9% interest, as aforesaid. Different heads, under which the Tribunal awarded the amount, are stated as below:
Heads Amount
Future loss of income 12,09,600=00
Pain, shock & suffering 2,00,000=00
Loss of amenities and enjoyment 1,00,000=00
of life
Attendant Charges, Special diet 1,00,000=00
and Transportation
Medical expenses 8,04,000=00
Physiotherapy treatment and 1,00,000=00
massage charges
Future medical expenses 1,00,000=00
Total compensation ... ... 26,13,600=00
(4) Learned advocate Mr.Premal Rachh appearing on behalf of the appellantoriginal claimant has submitted that the Tribunal has wrongly taken into consideration the income of the appellant as Rs.4,000/ per month only on the ground that no cogent evidence regarding the income is placed on record. Learned advocate submitted that the Tribunal has further erred in not appreciating that there is sufficient evidence on record in the form of examination of the appellant's father (Exh.32), deposition of witness (Exh.52) (practicing Income Tax Page 3 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT Advisor), documentary evidence (Exh.54 to Exh.57) (Audit Reports and Ledgers of Salary Expenses), pleadings etc., which clearly suggests that the appellant had left studies after First Year B.Com. and was earning monthly salary of Rs.12,000/ by managing the affairs of the firm i.e. Balaji Telecom owned by father of the appellant. It is also submitted that the appellant was aged about 22 years and had no bad habits and was hale and hearty at the time of the unfortunate accident.
(4.1) Learned advocate appearing on behalf of the appellantoriginal claimant has urged that the Tribunal has erred in awarding an amount of only Rs.2,00,000/ under the head of pain, shock and sufferings and Rs.1,00,000/ towards loss of amenities and enjoyment of life. It is contended that there is sufficient evidence on record - oral as well as documentary, in the form of examination of Dr.Dineshbhai Kanjibhai Gajera (Exh.44), Medical Certificate issued by Dr.Gajera (Exh.45), which clearly opines 100% disability and vegetative condition of the appellantoriginal claimant, which is prevalent even till date. It is also submitted that considering the fact that the Tribunal has already assessed 100% functional Page 4 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT disability of the appellant with regard to the serious injuries caused to him and in future also he would require constant assistance and medical treatment. It is submitted that the Tribunal ought to have appreciated the aforesaid evidence led by the appellant keeping in mind the settled legal position as also the legislative intent behind enactment of this benevolent piece of legislation.
(4.2) Learned advocate Mr.Rachh has further submitted that the Tribunal has erred in awarding in all total amount of only Rs.1,00,000/ for future medical expenses and Rs.1,00,000/ towards attendant charges, special diet and transportation by ignoring the relevant evidence. He has referred to the deposition of witness Dr.Dineshbhai Gajera (Exh.44), who has opined that the future medical expenditure would be around Rs.10,000/ per month. It is submitted that the appellant is bedridden since the date of the accident and is almost living in a state of coma. It is submitted that for all these years, the appellant has been incurring huge expenses of almost Rs.1,00,000/ per month towards medical treatment, daily physiotherapy and massages, medicines, daily attendants charges of medical staff/helpers, etc. which Page 5 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT will continue in future as well. It is submitted that considering, the condition of the appellant, the amount awarded for future medical expenses is on much lower side. Hence, the same may be enhanced.
(4.3) Learned advocate for the appellant has submitted that the Tribunal has erred in awarding an amount of only Rs.1,00,000/ for physiotherapy treatment and massage charges. It was submitted that the Tribunal has further erred in not appreciating that there is sufficient evidence on record in the form of examination of physiotherapists Mr.Ravibhai Khant (Exh.48) and Mr.Hitendrasinh Jadeja at (Exh.51), vouchers for the payment made by the appellant at Exh.49 and Exh.58 to Exh.60 etc., which clearly suggest that the appellant has incurred huge expenses towards physiotherapy and massage.
(4.4) In support of his submissions, learned advocate Mr.Premal Rachh has placed reliance on the judgment of the Apex Court in the case of Kajal vs. Jagdish Chand, 2020 (4) S.C.C.
413. He has submitted that as per the judgment of the Apex Court, the claimant would be entitled to the additional compensation towards heads of pain, shock and sufferings, loss of amenities and enjoyment of life, Page 6 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT future medical treatment and expenses, attendant charges, special diet and transportation. He has submitted that the Tribunal has erred in calculating the amount towards the aforesaid heads. It is further asserted by the learned advocate Mr.Rachh that assuming that the charges of attendants are not proved before the Tribunal then also, as per the observations made by the Apex Court in the aforesaid judgement the claimant would be entitled to the amount of Rs.10,00,000/ towards the head of attendant charges and special diet and transportation. It is further submitted that considering the examination of physiotherapists Mr.Ravibhai Khant (Exh.48) and Mr.Hitendrasinh Jadeja at (Exh.51), it is proved that they were engaged for the well being of the claimant. It is submitted that as observed by the Apex Court in the aforenoted case, in fact in the case of the attendant charge, the same is to be assessed as per the notification of the State Government with regard to the charges of labourers. He has submitted that in the present case the State Government in the year 2010 had fixed wages of skilled labourers as Rs.4,210/ and accordingly the compensation is to be enhanced by amount of Rs.16,00,000/ approx. with regard to the charges of physiotherapists.
Page 7 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT
(5) A fortiorari, learned advocate Mr.Mehta
assisted by learned advocate Ms.Masumi V.
Nanavaty has submitted that the impugned
judgement and award does not require any
interference. It is vehemently submitted that the additional documents which are produced along with the civil application cannot be considered by this Court for enhancing the compensation as there is serious dispute with regard to its authenticity. It is submitted that the vouchers regarding the payment to the attendant/helpers appear to be forged as they bear same signs and same cheque numbers which is highly improbable. Thus, it is submitted that such vouchers produced before this Court by way of additional evidence are required to be discarded. It is submitted that the Tribunal has not believed such vouchers and has rightly assessed the compensation granted under the heads of physiotherapist charges and special diet and transportation as Rs.1,00,000/ It is submitted that with regard to the compensation under the head of pain, shock and sufferings, amount of Rs.2,00,000/ is appropriately awarded as the injured is conscious and not in coma. It is further submitted that the injured was aged about 22 years and was not married and his educational qualification was 1st Year B.Com. fail and hence, the amount awarded by the Tribunal may Page 8 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT not be enhanced on any of the heads. In support of her submissions, reliance was placed on (CAV) judgement dated 11.04.2012 passed by this Court in First Appeal No.705 of 2012 (Rameshbhai Ramnikbhai Vyas vs. Ismail Ibrahim & Suleman Ibrahim & Anr.) as well as judgement of the Apex Court reported in the case of National Insurance Co. Ltd. Vs. Keshav Bahadur, (2004) 2 S.C.C. 370.
No further submissions are advanced by either of the parties.
(6) We have heard the learned advocates appearing on behalf of the respective parties and have also perused the relevant evidence.
(7) As regards the additional evidence produced before this court in Civil Application No.1 of 2018 is concerned, this Court is not taking any cognizance since it is seriously disputed as being forged and concocted. Hence, the present judgement is premised on the evidence which is proved before the Tribunal.
(8) The facts with regard to the injuries are not disputed. The Tribunal, after a detailed examination and on the basis of the documentary and oral evidence, has recognized Page 9 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT the disability of the claimant at 100%. Dr.Dineshbhai Kanjibhai Gajera, who has treated the injuredclaimant, is examined at Exh.44 and he has categorically stated that the functional disability of the injured can be at 100%. The claimant is in a vegetative state (Unresponsive Wakefulness Syndrome). Vegetative state is when a person is awake but showing no signs of awareness. He was of 21 years and 11 months years of age at the time of accident. The educational qualification is First Year B.Com fail. It is also established that the claimant has neither produced any evidence with regard to his salary or nor income tax return for proving his income. No passbook of any bank account is also produced. Thus, no fault or lacuna can be attributed to the Tribunal in fixing the monthly income of the claimant as Rs.4000/. The tribunal has assessed the monthly loss of the income of the claimant is assessed as Rs.5,600/ p.m., which comes to Rs.67,200/ per annum accordingly. The multiplier of 18 is adopted and future loss of income is assessed at Rs.12,09,600/. The Tribunal, after considering the evidence on record - oral as well as documentary has precisely assessed the future loss of income at Rs.12,09,600/.
Page 10 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022C/FA/2015/2018 JUDGMENT (9) At this stage, it would be appropriate to
refer to the observations made by the Apex Court in the case of Kajal (supra). In the said case, the Apex Court, while examining the case of fatal accident, whereby a young girl of 12 years had suffered 100% physical disability, has been awarded the compensation under the following heads:
S.No. Heads Amount
(i) Expenses relating to Rs.2,50,000/
treatment, hospitalization
and transportation.
(ii) Loss of earnings (family Rs.51,000/
members).
(iii) Loss of future earnings. Rs.14,66,000/
(iv) Attendant Charges. Rs.21,60,000/
(v) Pain, suffering loss of Rs.15,00,000/
amenities.
(vi) Loss of Marriage prospects. Rs.3,00,000/
(vii) Future medical treatment. Rs.5,00,000/
(10) With regard to the fixing of attendant charges the Apex Court in the case of Kajal (supra) has observed thus:
"25: Having held so, we are clearly of the view that the basic amount taken for determining at tendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden.Page 11 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022
C/FA/2015/2018 JUDGMENT She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs.4846/ per month. We, therefore, assess the cost of one at tendant at Rs.5,000/ and she will require two attendants which works out to Rs.10,000/ per month, which comes to Rs.1,20,000/ per annum, and using the multiplier of 18 it works out to Rs.21,60,000/ for attendant charges for her en tire life. This takes care of all the pecuniary damages."
(11) A perusal of the observations made by the Apex Court reveals that though there was no evidence adduced with regard to the attendant charges, the Apex Court has considered the notification of the State of Hariyana of 2010 with regard to the fixation of wages for workmen. The Apex Court has considered Rs.4,846/ p.m. of the skilled workman and accordingly fixed the expenses of two (02) attendants and accordingly has awarded Rs.21,60,000/.
(12) In the present case, it is accepted by both the sides that in the year 2010, the wages fixed by the State Government with regard to the skilled labourers was Rs.4,210/.The Physiotherapists, who were engaged for the treatment of the claimant are examined at Exh.48 and Exh.51. Dr.Dineshbhai Kanjibhai Gajera is examined at Exh.44. In his deposition he has stated that the claimant Page 12 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT will permanently require the services of attendants and nursing in future. The Tribunal has awarded an amount of Rs.1,00,000/ for attendant charges and special diet and transportation as Rs.1,00,000/ on the ground that the evidence with regard to their expenses/charges is not founded to be trustworthy. In the considered opinion of this Court, even if such evidence is not founded to be reliable, the fact of engaging the physiotherapists and attendant is proved and as per the parameter prescribed by the Apex Court in the case of Kajal (supra), the wages of attendants and physiotherapists can be fixed as per the norms fixed by the state government for the skilled labourers. Since the exact wages are not proved before the Tribunal, this Court is of the considered opinion that looking to the wages of the skilled labourers, which is fixed by the State Government as Rs.4,210/, in the year 2010, it would be appropriate to fix the expense of Rs.3,500/ for physiotherapist(s) and Rs.2,500/ for attendant and Rs.1,000/ for special diet and transportation. The said expenses are rounded off as Rs.7,000/ per month which comes to Rs.84,000/ per annum. Using the multiplier of 18, the total amount works out to be Rs.15,12,000/. Thus, while meeting with the exigencies of the future Page 13 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT attendant charges, accordingly the compensation towards the under the heads of attendant charges, special diet and transportation can be enhanced from Rs.1,00,000/ to Rs.15,00,000/. With regard to the compensation under the head of pain, shock and suffering, the Tribunal has awarded Rs.2,00,000/.
(13) In the present case, the claimant is of 22 years of age and has suffered 100% disability. In the considered opinion of this Court, looking to condition of the claimant who is in vegetative state, paralyzed and paraplegic and, the amount of Rs.2,00,000/ awarded towards the pain, shock and sufferings by the claims tribunal is too meager amount and hence, the same requires to be enhanced. The Tribunal has awarded Rs.1,00,000/ under the head of loss of amenities and enjoyment of life. It will be apposite to refer to the observation of the Apex Court in the case of Kajal (supra) with regard to the pain, suffering and loss of amenities.
"Pain, Suffering and Loss of Amenities 26 Coming to the non pecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs.3,00,000/ . In Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Ors., 2013 (10) SCALE 668 this Court while Page 14 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT dealing with the issue of award under this head held that it should be at least Rs.6,00,000/ , if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suf fering from severe hysteria and above all she is left with a brain of a nine month old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate.
27 One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding compensation. While awarding this amount we are not only taking the physical dis ability but also the mental disability and vari ous other factors. This child will remain bed ridden for life. Her mental age will be that of a nine month old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9 month old child. This girl will miss out playing with her friends. She cannot communicate; she cannot en joy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she can not have children who she can love let alone grandchildren. She will have no pleasure. Her is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs.15,00,000/ .
Loss of marriage prospects 28 The Tribunal has awarded Rs.3,00,000/ for loss of marriage prospects. We see no reason to interfere with this finding."Page 15 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022
C/FA/2015/2018 JUDGMENT Thus, the Apex Court has awarded
Rs.15,000,00/ towards shock and suffering and Rs.3,00,000/ for loss of marriage prospects considering the vegetative condition and age of the girl. In the present case the claimant was 22 years aged unmarried boy when the accident had occurred. He would be unable to enjoy his youth, pleasure of marital life. He would not be having any child, he will also loose love of his grandchildren as he is in vegetative condition. The Apex Court has noted the decision in the case of Mallikarjun Vs. Divisional Manager, the National Insurance Company Limited and Ors., 2013 (10) SCALE 668 in which the Apex Court while dealing with the issue of award under this head held that it should be at least Rs.6,00,000/ , if the disability is more than 90%. The claimant is 100% disabled in the present case and is in a vegetative stage. Hence, the amount awarded towards the loss of amenities and enjoyment of life by the Tribunal of Rs.2,00,000/ is disgraceful and the same is enhanced to Rs.10,00,000/. The loss of marriage prospects is further assessed as Rs.2,00,000/. Thus, the total compensations under the heads of pain, shock and suffering is enhanced to Rs.10,00,000/ from Rs.2,00,000/ and for loss Page 16 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT of amenities and enjoyment of life it is enhanced to Rs.2,00,000/ from Rs.1,00,000/ as awarded by the Tribunal.
(14) As regards the compensation under the head of future medical treatment and expenses is concerned, the same is also enhanced to Rs.3,50,000/ from Rs.1,00,000/ as awarded by the Tribunal. Thus, the amount with regard to the aforesaid heads are enhanced as follows based on the parameters and principles prescribed in Kajal (supra):
Heads Amount (in Enhanced Differential Rs.) amount (in amount awarded by Rs.) (in Rs.) the Tribunal awarded by this Court Future loss of 12,09,600=00 - -
income
Pain, shock & 2,00,000=00 10,00,000=00 8,00,000=00
suffering
Loss of amenities 1,00,000=00 2,00,000=00 1,00,000=00
and enjoyment of
life
Attendant Charges, 1,00,000=00
Special diet and
Transportation 15,00,000=00 13,00,000=00
Physiotherapy 1,00,000=00
treatment and
massage charges
Medical expenses 8,04,000=00 - -
Future medical 1,00,000=00 3,50,000=00 2,50,000=00
expenses
Total compensation 26,13,600=00 30,50,000=00 24,50,000=00
Thus, the total amount of compensation would be as below:Page 17 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022
C/FA/2015/2018 JUDGMENT
Awarded by the Tribunal = 26,13,600=00
Enhanced by this Court = 24,50,000=00
Total = 50,63,600=00
as against the compensation of Rs.26,13,600/ awarded by the Tribunal.
The judgement and award of the Tribunal is modified accordingly to the aforesaid extent.
(15) Accordingly, the claimant becomes entitled to the additional compensation of Rs.24,50,000/ over and above the awarded by the Tribunal.
(16) With regard to the judgement cited by the respondentCompany in the cases of Keshav (supra) and Rameshbhai (supra), in our considered opinion the same would not apply to the facts of the present case since the fixation of determination of the compensation is covered by the recent decision of the Apex Court in the case of Kajal (supra).
(17) The aforesaid amount of Rs.50,63,600/, including additional compensation awarded as above, with the interest @9% per annum shall be deposited before the Motor Accident Claims Tribunal in terms of the present judgement, after deducting the amount if already paid by Page 18 of 19 Downloaded on : Wed Jan 12 02:16:24 IST 2022 C/FA/2015/2018 JUDGMENT the respondentCompany within a period of eight (08) weeks from today. The Motor Accident Claims Tribunal shall keep the entire amount in a Fixed Deposit in a nationalized bank for a period of five (05) years. After a period of five (05) years, the Tribunal shall keep renewing the amount on the same terms till further orders. The claimant shall be entitled to receive quarterly interest that may accrue on the fixed deposit so that they can spent such amount for medical and related facilities services to be given to the injured.
(18) The entire amount of the compensation, including the amount enhanced by this Court shall carry interest of 9% per annum from the date of filling of the claim petition till its deposit.
(19) Appeal is allowed to the aforesaid extent. No costs.
(20) As a consequence, Civil Application No.1 of 2018 also stands disposed of.
Sd/ .
(N.V.ANJARIA,J)
Sd/ .
(A.S.SUPEHIA,J)
NVMEWADA
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