1.0 Admit. Shri Parth Tolia, learned advocate waives service of notice of admission on behalf of respondent no.1. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the present Second Appeal is taken up for final hearing.
2.0 The following substantial question of law arise for the determination of the present Second Appeal.
(I).Whether in the facts and circumstances of the case, both the courts below have erred in awarding future economic loss considering the permanent partial disability of 70% of the body as a whole?
2.1. Respondent hereinoriginal claimant instituted Special Civil Suit No. 66 of 2002 in the Court of learned Civil Judge (S.D.), Patan claiming damages/ compensation of Rs. 5 lacs for injury suffered due to electric shock. It was the case of the original plaintiff that due to electric shock, she sustained serious injury and her left hand was required to be amputated fro, elbow and she also lost her one finger of the right hand. It was the contention on behalf of the plaintiff that she was earning Rs.125/ per day by selling Milk but due to accident, she is unable to earn during her entire life. On appreciation of evidence, the learned trial Court held that she sustained injury due to electric shock at the time when she was cleaning utensil at her residential house, all of sudden defendant electric wire fell on the plaintiff from the 11 K.V. Line. That considering medical certificate the learned trial Court held that she has sustained 70% permanent partial disability and considering the income of the plaintiff at Rs.3000/ per month and considering the age of the plaintiff as 22 years applying multiplier of 17, the learned trial Court held that the plaintiff is entitled to get future economic loss at Rs.4,28,400/. The learned trial Court also held that the plaintiff is entitled to Rs.3000/ by way of loss of income. The learned trial Court also held that the plaintiff is entitled to Rs.25000/ towards pain, shock and suffering. The learned trial Court also held that plaintiff is entitled to lump sum compensation of Rs.10,000/ towards medical expenses, transportation charges etc. Consequently the learned trial Court by judgment and decree dated 30.9.2008 partly allowed the suit directing the appellant hereinoriginal defendant to pay sum Rs. 4,66,400/ towards the compensation along with 9% interest from the date of suit till realization.
2.2. Feeling aggrieved and dissatisfied with judgment and decree passed by the learned trial Court dated 30.9.2008 passed in Special Civil Suit No. 66 of 2002, the appellant preferred Regular Civil Appeal No.12 of 2009 before the District Court, Patan and learned 2nd (Adhoc) Additional District Judge, Patan by impugned judgment and order dated 30.12.2011 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dated 30.9.2008 passed in Special Civil Suit No.66 of 2002.
2.3. Feeling aggrieved and dissatisfied with the impugned judgment and decree/ order passed by both the Courts below, the appellant has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0 Shri Dipak Dave, learned advocate for the appellant has stated at the Bar that the appellant is not disputing and / or challenging the finding given by both the Courts below that original plaintiff sustained injury due to electric shock which was due to the negligence on the part of appellantoriginal defendant. He has stated at the bar that present appeal be considered only qua quantum of the compensation awarded by the learned trial Court.
3.1. Shri Dave, learned advocate for the appellantoriginal defendant has vehemently submitted that both the Courts below have materially erred in awarding future economic loss to the plaintiff considering permanent partial disability at 70%. It is submitted that in the facts and circumstances of the case, both the Courts below ought to have considered 60% of the permanent partial disability while awarding future economic loss instead of 70% as considered by both the Courts below. He has also tried to make grievance with respect to the interest awarded by both the Courts below at the rate of 9% p.a. By making above submissions, it is requested to modify the impugned judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court.
4.0 Shri Parth Tolia, learned advocate for the original plaintiff has stated at the bar under the instruction from his client that he is not objection if the impugned judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court is modified to the extent that the future economic loss be considered and awarded at the rate of 60% instead of 70% as considered by both the Courts below. So far as interest awarded at the rate of 9% p.a. is concerned, it is submitted by Shri Tolia, learned advocate for the respondentoriginal plaintiff that as the accident had taken place in the year 2002 and considering the rate of interest prevailing at the relevant time, the both Courts below have not committed any error and / or illegality in awarding interest at the rate of 9% p.a. Therefore, it is requested to pass an appropriate order.
5.0 Heard the learned advocates for the respective parties at length and considered the judgment and order passed by both the Courts below as well as evidence on record which have been produced before this Court by the learned advocates for the respective parties for perusal of the Court. Having heard the learned advocates for the respective parties and it appears to the Court that in the facts and circumstances of the case both the Courts below have materially erred in awarding future economic loss to the plaintiff considered 70% disability. Considering the overall facts and circumstances of the case, the contention on behalf of the appellant that both the Courts below ought to have awarded future economic loss considering 60% disability deserve consideration. As stated above, the claimant has also agreed to accept the same and to award future economic loss considering 60% disability. Under the circumstances, to the aforesaid extent the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court is required to be modified.
5.1. Now, so far as the contention on behalf of the appellant that learned trial Court has committed an error and/ or illegality in awarding compensation along with interest at the rate of 9% is concerned, considering the fact that the accident has taken place in 2002 and considering rate of interest prevailing at the relevant time and for the subsequent period, it cannot be said the learned trial Court has committed any error and / or illegality in awarding compensation along with interest at the rate of 9% p.a. In the facts and circumstances of the case, awarding of compensation along with interest at the rate of 9% p.a. does not require any interference.
6.0 In view of the above and for the reasons stated above, present appeal succeed in part. It is held that the plaintiff shall be entitled to Rs. 3,67,200/ towards future economic loss; Rs. 3000/ by way of loss of income; Rs.25000/ towards pain, shock and suffering; Rs.10,000/ towards medical expenses, transportation charges etc. Thus, in all the plaintiff shall be entitled to a total sum of Rs. 4,05,200/ along with interest at the rate of 9% p.a from the date of filing of the suit till realization. The appellant herein original defendant is hereby directed to deposit the aforesaid amount with the learned trial Court along with interest and cost within a period of four weeks from today after deducting whatever amount is deposited with the learned trial Court. On deposit of the entire amount the learned trial Court is directed to see that 90% to the total amount deposited is invested in any Nationalized Bank of plaintiffs choice for a period of 7 years with specific condition that there shall not be any loan and / or advance on the said fixed deposit without prior permission of this Court. However, the plaintiff shall be entitled for periodical interest on the same. The balance 10% amount shall be paid to the plaintiff by Account Payee Cheque by the learned trial Court on proper identification and verification and specifically informing the plaintiff what amount she is entitled to and what amount shall be deposited in Fixed Deposit. Appeal is allowed to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs. In view of disposal of main Second Appeal, no order in Civil Application No.2274 of 2012 and is accordingly disposed of.
“kaushik”
sd/ ( M. R. Shah, J. )