IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 2981 of 1996 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA ========================================== ===============
========================================== =============== YOGESHCHANDRA LAXMISHANKAR DAVE Versus KANUBHAI DHULABHAI PATEL & ORS.
========================================== =============== Appearance:
MR CHIRAG PATEL with MR BS PATEL, ADVOCATE for the Appellant. Respondent No.1 DELETED .
MR VIBHUTI NANAVATI, ADVOCATE for the Respondent No. 3 RULE SERVED for the Respondent No. 2 ========================================== =============== CORAM: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA Date : 28/12/2012 CAV JUDGEMENT
1. This First Appeal is at the instance of a claimant under the provisions of Section 110A of the Motor Vehicles Act, 1939 and is directed against an award dated 14th February 1996 passed by the Motor Accident Claims Tribunal [Main] at Bharuch in MACP No. 311 of 1987 whereby the Tribunal awarded a sum of Rs.5,59,000/- in favour of the appellant with interest at the rate of 12% per annum from the date of filing of the application till the date of realization.
2. There is no dispute that on 11th March 1985 at about 10.30 AM, the appellant, while driving his motor cycle and proceeding towards Bharuch, met with an accident with a truck owned by the opponent No.2 which came from the opposite direction from Bharuch side. According to the appellant, the opponent No.1, was driving the truck in full speed in a rash and negligent manner on the wrong side of the road, hit the motor cycle of the appellant, as a result, the motor cycle was dragged upto a distance of 20 ft. to 25 ft. and thereafter, the opponent No.1 ran away from the scene of occurrence. The appellant was seriously injured and was initially taken to Amod Primary Health Centre and thereafter, was shifted to SSG Hospital, Vadodara, where he was admitted as an indoor patient. The medical treatment of the appellant continued upto 5th January 1987 and even thereafter, he was further required to take medical treatment for complete cure. During the period, as many as eight operations were performed on his body. He sustained permanent partial disablement of his leg which was shortened by 11/4 inch. As a result of such injury, he was unable to move his left leg from the portion of knee and the effect of paralysis has been noticed from the ankle joint of the left leg.
2.1 Initially, the appellant claimed a sum of Rs.5,00,000/- as compensation but subsequently, the same was increased to Rs.10,00,000/-.
2.2 At the time of the accident, the appellant was aged 33 years and was in service as Supply Inspector in the cadre of Deputy Mamlatdar at Bharuch.
2.3 As per medical certificate dated 11th March 1985 issued by the Medical Officer, SSG Hospital, Vadodara [Exh.193], the following injuries were found on the body of the appellant:-
1. CLW on left thigh 10”X5” X compressed fracture of shaft femur.
2. Three abrasions on left fore-arm 1” size.
3. Swelling, tenderness and deformity on left-Arm.
4. Fracture of left femur and fracture of left ankle medial malliolus.
2.4 Further, as per the evidence of Dr. S.S. Trivedi at Exh. 247, an Orthopaedic Surgeon and Professor of Orthopaedic, SSG Hospital Vadodara, who treated the appellant at the relevant time, the appellant sustained the following injuries:- [see page 39 of the judgment]
1. Compound Commuted fracture – shaft femur [left]
2. Fracture lateral condyle – left femur
3. Fracture, midial mallolus on left side
4. Lateral nerve palsy.
2.5 The appellant had also taken treatment at the private clinic of Dr. Ashok Bhatt, who, in his deposition at Exh. 137 has proved the medical certificate Ex.138 and the details of the treatment as mentioned therein. Going through the same, it appears that the appellant has undergone prolonged treatment including various surgical operations.
2.6 It, thus, appears from the record that the appellant was in hospital for a total period of 538 days at different hospitals and in all 14 operations were performed on his body during the said period. It also appears that at first, the appellant took treatment at Primary Health Centre, Amod, thereafter at SSG Hospital Vadodara and finally from a private Orthopaedic Surgeon, Dr. Ashok J. Bhatt.
2.7 Considering the nature of the injuries, the Doctor was of the view that the disability is 76% of the left leg and functional disability was 38% of the body as a whole.
2.8 At the time of the accident, the actual income of the appellant was Rs.1518/- a month.
2.9 The learned Tribunal below, on consideration of the materials on record found that the driver of the truck was solely responsible for the accident.
2.10 On consideration of the evidence, the learned Tribunal awarded the following compensation:-
PECUNIARY LOSS Rs.1,29,142-00 Actual loss of income Rs.3,35,553-00 Total under pecuniary loss NON-PECUNIARY LOSS:
Rs. 68,400-00 Future loss of income Rs. 50,000-00 Pain, shock and sufferings and mental torture.
Rs.2,23,400-00 Total under non-pecuniary loss ============= Rs.3,35,553-00 Total under pecuniary loss Rs.2,23,400-00 Total under non-pecuniary loss Rs.5,58,953-00 Grand total of pecuniary & non-pecuniary loss, [rounded off to Rs.5,59,000/-.
2.11 Thus, out of the aforesaid total amount of compensation, according to the Tribunal, Rs.3,35,553-00 was under the head of actual pecuniary losses and Rs.2,23,400/- was under the head of non- pecuniary losses.
3. It appears that the Insurance Company has accepted the award and has not preferred any appeal while the claimant has preferred this appeal praying for enhancement.
4. Heard Mr. Chirag Patel, the learned advocate appearing for the appellant and Mr. Vibhuti Nanavati, the learned advocate appearing for the respondent No.3-Insurance Company.
5. After hearing the learned counsel for the parties and after going through the materials on record, I find that in the facts of the present case, the learned Tribunal below, by assigning detailed reasons, has arrived at a conclusion that the accident occurred due to sole negligence of the driver of the truck, whereby the appellant sustained serious injuries. The extent of the injuries has also been proved by production of all documents. The age of the appellant is also proved as he was in Government service. Similarly, there is also no dispute as regards his income.
6. In the circumstances, the findings of the Tribunal below on the issue of actual pecuniary losses of Rs.3,35,553-00 has been established and there is no scope of disturbing such findings.
7. The only question that, therefore, falls for determination in this appeal is whether in the facts of the present case, the Tribunal below was justified in awarding a sum of Rs.2,23,400/- as non-pecuniary losses having regard to the fact that the victim was aged 33 years at the time of the accident and has become 38% disabled as regards the whole body and 76% as regards the left leg.
8. We have already pointed out that the victim was in Government Service in the cadre of Deputy Mamlatdar at the time of the accident. It has also come on record that 14 surgical operations have been performed on his body in order to cure him, and even after such prolonged treatment whereby he remained as indoor patient for 538 days, he could not be cured fully.
9. The Tribunal has awarded a sum of Rs.1,00,000/- under the head of pain, shock and sufferings [Rs.50,000/-] and loss of amenities of life [Rs.50,000/-] of the appellant, who was a young, bright government servant, which, in my opinion, cannot be said to be adequate.
10. Having regard to the serious nature of the injuries suffered by the appellant, I am of the view that the total sum of Rs.1,00,000/- awarded by the Tribunal under the head of pain, shock and suffering and loss of amenities of life cannot be said to be sufficient for compensating him for the pain, shock and suffering and loss of amenities of life. In the circumstances, the award under the head of pain, shock and sufferings and loss of amenities of life is enhanced to Rs.1,70,000/- instead of Rs.1,00,000/- awarded by the learned Tribunal below at the rate of Rs.50,000/- each under both these heads separately.
11. Thus, in the facts of the present case, I do not disturb the findings on any other heads except that the award under the head of pain, shock and suffering and loss of amenities of life is enhanced by a further sum of Rs.70,000/- with interest at the rate of 12% from the date of filing of the petition till 31st December 1999 and at the rate of 8% from 1st January 2000 till realization. The Insurance Company is directed to deposit the additional award with interest as directed hereinabove before the Tribunal within a period of two months from today, and immediately on receipt of the aforesaid amount, the Tribunal shall forthwith release the entire amount so deposited to the claimant, upon proper verification. The amount ordered to be kept in Fixed Deposit in the award also be disbursed to the claimant forthwith, if not already disbursed.
12. The appeal is allowed to the aforesaid extent only. In the facts of the case, there will be, however, no order as to costs.
13. Registry is directed to forthwith return the Record & Proceedings to the Tribunal.
(BHASKAR BHATTACHARYA,CJ) mathew