Gujarat High Court
Jyoti @ Jyotsnaben Ajitbhai Kukreja vs Fakirmohmad Ibrahim Dulla on 5 July, 2019
Author: R.M.Chhaya
Bench: R.M.Chhaya, B.N. Karia
C/FA/1504/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1504 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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JYOTI @ JYOTSNABEN AJITBHAI KUKREJA
Versus
FAKIRMOHMAD IBRAHIM DULLA & 2 other(s)
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Appearance:
MR VILAV K BHATIA(5338) for the Appellant(s) No. 1
DELETED(20) for the Defendant(s) No. 1
MR R G DWIVEDI(6601) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 05/07/2019
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the Motor Accident Claims Tribunal (Auxi) City Civil Court, Ahmedabad dated 30.09.2011 passed in MACP No. 40 of 1993, the original claimant has preferred the present appeal under Section 173 of the Motor Vehicles Act, 1988.
Page 1 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019C/FA/1504/2013 JUDGMENT 2.0. The following facts emerge from the record of the appeal are as under:
2.1. It is the case of the appellant - original claimant that she is medical graduate with a degree of MBBS and was pursuing MS degree in medical when the Accident occurred. According to the appellant original claimant, the accident took place on 6.12.1992 at about 10. a.m. It is the case of the appellant - original claimant that she was driving hear Kinetic Honda on correct side of the road and she reached Parsi Agiyari, Ahmedabad, Mini Bus bearing no.
GJ5T8884 came from the opposite side being driven in rash and negligent manner and with an excessive speed and dashed with the Kinetic Honda of the appellant, because of which, Scooter was swayed away upto 30 to 40 ft along with Mini Bus. According to the appellant, she was admitted to the hospital as indoor patient for about a week and was operated and because of the accident, she could not pursue her further studies. An FIR was lodged with the jurisdictional police station at Exh.56 and panchnama was also prepared at Exh.57. The appellant filed claim petition under Section 166 of the Act and claim compensation of Rs.50,00,000/. The appellant was examined at Exh.46 and other two witnesses were also examined by the appellant i.e. Dr. Vaishal Nareshchandra Vora at Exh.83 and Ajitbhai N Kukreja at Exh.86. The appellant also relied upon the documentary evidence as under:
Exh. No. Particulars 56 Certified copy of the complaint. 57 Certified copy of the panchnama. 58 RC Book of offending vehicle Page 2 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT 59 Xerox copy of opponent No.1 licence 60 Xerox copy of insurance policy. 61 Injury certificate 62 Prescription 63 Medical Bill 64 Green Cross Blood Bank's cash receipt. 65 Cash Receipt 6671 Prescriptions and cash memos 72 Prescription 73 Receipt 74 Photo Bill 75 Consultation fee Receipt 76 Xray receipt 77 Letter 78 Cash Memo of Scooter damage 7980 Certificates 47 Memorandum of marriage 48 Gujarat University Certificate 49 School leaving certificate 50 Gujarat Medical Council's certificate 51 NIFL Municipal Medical College Certificate 52 Shahpur Mill Compound Certificate 53 Birth date certificate 54 Dr. Hansal Bachech certificate 55 Degree Certificate 93 Disability certificate 88 Income Tax returns 89 Degree Certificate 90 Clinic Receipt 91 Disability certificate 84 Disability certificate. Page 3 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT
2.2. It was the case of the appellant that she was intern after her degree of MBBS and was getting stipend of Rs,2600/ per month. The appellant also relied upon the disability certificate at Exh. 91 and 84. The Tribunal determined the income of the appellant at Rs.3000/ per month and upon considering the certificate issued by Dr. N.M. Shah at Exh. 91, considered 10% permanent disability of the body as a whole and applying multiplier of 18, awarded a sum of Rs. 64,800/ as compensation under the head of future loss of income. The Tribunal after appreciation of evidence on record, awarded Rs.10,000/ under the head of pain, shock and suffering, Rs.6000/ as actual loss of income, Rs.18676/ as reimbursement of the medical expenses and Rs.3000/ under the head of attendant charges, transportation and special diet.
2.3. Considering the evidence on record, the Tribunal come to the conclusion that driver of both the vehicles i.e. present appellant driver of the Kinetic Honda and driver of the minibus, both were negligent in the ratio of 25%: 75% and thus, after deducting 25%, awarded compensation of Rs.81357/ to the appellant with 7.5% from the date of filing of the claim petition till its realization while partly allowing the claim petition.
2.4. Being aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the present appellant has preferred this appeal.
3.0. Heard Mr. V.K. Bhatia, learned advocate for the appellant and Mr. R.G. Dwivedi, learned advocate for the respondent no.3 Page 4 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT Insurance Company. Though served, nobody appears on behalf of the respond no.2. Respondent no.1 as per the record has been deleted vide order dated 13.01.2015 passed by this Court and have also perused the original Record and Proceedings.
4.0. Mr. Bhatia, learned advocate for the appellant has contended as under:
(I). That the Tribunal has committed an error in assessing the income of the deceased at Rs.3000/ per month. Mr. Bhatia has submitted that the appellant has proved the fact that the appellant was possessing degree of MBBS and was getting stipend and was also to pursue her further study of master of surgery. Mr. Bhatia contended that considering the said aspect the Tribunal has straightway determined the income of the deceased at Rs.3000/ which should be enhanced as prayed for.
(II). Mr. Bhatia contended that the Tribunal has also erred in considering the disability of the body as a whole to the extent of 10% even though the certificate at Exh.91 clearly established the fact that the appellant has acquired at least 15% permanent disability of the body as a whole.
(III). Mr. Bhatia also contended that even though there is evidence on record to show that almost for three months, the appellant had to undergo treatment, both as indoor and outdoor patient, the Tribunal has considered actual loss of income only for two months.Page 5 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019
C/FA/1504/2013 JUDGMENT (IV)Mr. Bhatia also further contended that considering the nature of the injuries received by the appellant and treatment and agony which the appellant had to undergo, is not properly considered by the Tribunal and the Tribunal has awarded a meager amount of Rs.3000/ and Rs.15,000/ under the head of pain, shock and suffering and special diet and transportation charges, which should be suitably enhanced.
(V). Mr. Bhatia further contended that the Tribunal has also erred in considered the appellant as driver of the Kinetic Honda negligent to the extent of 25%. Referring to the FIR at Exh.56 and Panchnama at Exh.57, Mr. Bhatia contended that the Tribunal has failed to appreciate the said evidence and has committed an error in coming to the conclusion that the appellant was also negligent.
Mr. Bhatia submitted that the manner in which the accident has occurred, the driver of the minibus was alone was responsible for the same as he was driving minibus at an excessive speed that too on wrong side and according to Mr. Bhatia driver of minibus was solely negligent for the accident. On the aforesaid ground, Mr. Bhatia contended that appeal be allowed and the impugned judgment and award be modified.
5.0. Per contra, Mr. Dwivedi, learned advocate for the respondent Insurance Company has supported the impugned judgment and award. Mr. Dwivedi contended that appellant has not been able to prove the income. Mr. Dwivedi referring to the deposition of the appellant at Exh.46 contended that the appellant has clearly deposed that she was doing internship and was earning Page 6 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT Rs.2600/ per month. However, even though fact is not supported by any documentary evidence and therefore, Mr. Dwivedi contended that the Tribunal has correctly assessed the income of the deceased at Rs.3000/ per month.
5.1. Mr. Dwivedi contended that the appellant has also not examined Dr. N M Shah who gave disability certificate at Exh.91 and considering both the disability certificate, the Tribunal has correctly assessed the 10% permanent disability of the body as a whole, which is also proper.
5.2. Mr. Dwivedi further submitted that even according to the appellant and considering the school leaving certificate at Exh.49, it is quite clear that the appellant was 26 years old on the date of accident and therefore, the appellant would be entitled to multiplier of 17 and not 18 as wrongly granted by the Tribunal. Mr. Dwivedi also further submitted that the Tribunal has rightly awarded actual loss of income for two months considering the evidence and the same does not require any alteration. Mr. Dwivedi further submitted that considering the fact that the injuries were not so serious, the Tribunal has rightly awarded the compensation under the pain, shock and suffering and special diet, which also does not require any alteration. Mr. Dwivedi further contended that considering the evidence on record, the Tribunal has rightly come to the conclusion that the appellant was also negligent to the extent of 25% and therefore, the contentions as regards negligence raised by the appellant is deserved to be negatived. On the aforesaid ground, Mr. Dwivedi contended that the appeal being merit less Page 7 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT and deserve to be dismissed.
6.0. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.
7.0. Upon considering the submissions made by the learned advocates for the respective parties as well as original Record and Proceeding of the case as well as paper book, it is quite clear that deposition of the appellant at Exh. 46, there is nothing on record to show that income of deceased was in any manner more than 2600/ per month, which the appellant earned as stipend being intern. In absence of any income and even considering the version of the appellant herself who was 26 years old on the date of accident, the Tribunal has correctly assessed income of the appellant at Rs.3000/ per month.
7.1. Upon perusal of the disability certificate at Exh.91, which is issued by the Dr. N.M. Shah, it shows that as per the opinion of the Doctor who was an expert, the appellant had acquired 15% permanent disability of the body as a whole. It is no doubt true that Doctor is not examined, however considering the nature of injuries, permanent disability of the body as a whole can be assessed at 15% instead of 10% as considered by the Tribunal 7.2. Upon reappreciation of evidence on record, the appellant had taken exhaustive treatment for at least for two months and there is evidence on record to show that for considerable time, the appellant could not resume her work. Upon reappreciation of the Page 8 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT evidence on record, we come to the conclusion that the appellant suffered actual loss of income for at least three months. The certificate at Exh.61 issued by the Dr. Parikh shows that the appellant had to take treatment for 12 weeks i.e. three months and hence, the appellant would be entitled to actual loss of income for three months instead of two months. Similarly, considering the agony, exhaustive treatment, which the appellant was required to take, the agony through which the appellant has passed, the appellant would be entitled to more amount as compensation under the head of pain, shock and suffering as well as special diet and attendant charges than what is awarded by the Tribunal. Upon re appreciation of evidence on record and in facts of this case, the appellant would be entitled to Rs.20,000/ as compensation under the head of pain, shock and suffering and Rs.15000/ as compensation under the head of Special Diet and Attendant charges etc. 7.3. As far as the medical reimbursement is concerned, the Tribunal has rightly considered the evidence on record and has granted Rs.18676/, which does not require any modification 8.0. Upon reappreciation of evidence on record, more particularly, FIR and Panchnama of the scene of occurrence and the manner in which the accident has occurred, the Tribunal has committed an error in attributing 25% negligence to the appellant. The minibus was being driven on wrong side and at an excessive speed. The respondent Insurance Company has not examined the driver of the minibus and upon reappreciation of the evidence, it Page 9 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT cannot be said that the accident occurred also because of negligence on the part of the appellant. The FIR at Exh.56 and Panchnama at Exh.57 clearly indicates that scooter of the appellant was dragged for 30 to 40 ft. The Tribunal has therefore, committed an error in coming to the conclusion that both the drivers i.e. appellant is negligent to the extent of 25% and the driver of the minibus was negligent to the extent of 75%. The evidence clearly shows that accident occurred only because of negligence on the part of the driver of minibus and driver of the minibus was thus solely negligent.
8.1. Having come to the aforesaid conclusion, therefore, the appellant would be entitled to compensation under the head of future loss of income as under:
"Rs. 3000/ pm (income) + (15% disability ) 450 x 12 x 17 (multiplier) 91,800/ + Rs. 9000/ (actual loss of income of three months) + Rs.20,000/ (Pain, Shock and Suffering) + Rs.18676/ (medical expenses) + Rs.15,000/ (Special diet and attendant charges) = 1,54,476/"
8.2. As the Tribunal has granted Rs. 81,357/, the appellant would be entitled to additional compensation of Rs. 73,119/ with 7.5% from the date of filing of the petition till its realization. The respondent no.3 Insurance Company shall deposit additional amount as awarded by this Court with the Tribunal within a period of three months from the date of receipt of the present order.
9.0. The appeal is thus, partly allowed and the impugned Page 10 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019 C/FA/1504/2013 JUDGMENT judgment and award stands modified to the aforesaid extent. However, there shall be no order as to cost. The record and proceeding be transmitted back to the learned Tribunal forthwith.
sd/ (R.M.CHHAYA, J) sd/ (B.N. KARIA, J) KAUSHIK J. RATHOD Page 11 of 11 Downloaded on : Wed Jul 10 23:47:14 IST 2019