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Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1170 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-========================================================== 1 Whether Reporters of Local Papers may be allowed YES to see the judgment ? 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ? 4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== BHARATBHAI BABUBHAI RATHOD Versus RANJITSINH M. GOHIL & 2 other(s) ========================================================== Appearance: MR HARSHIT S TOLIA(2708) for the Appellant(s) No. 1 MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3 RULE SERVED for the Defendant(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 13/01/2022 ORAL JUDGMENT 1. The present First Appeal under Section 173 of the Motor Vehicles Act, 1988 is filed by the present appellant claimant being aggrieved by and dissatisfied with the judgment and award passed by the Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 1 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
learned Motor Accident Claims Tribunal (Aux. ), Bhavnagar in Motor Accident Claim Petition No. 555 of 1995 dated 17. 08. 2007, by C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 which, the Tribunal has dismissed the claim petition. 2. The brief facts of the case are that, the appellant, along with his son viz., Suraj, was travelling from Mumbai to Bhavnagar in luxury bus bearing registration No. GJ-04-U-9922 on 21. 08. 1995. The driver of the luxury bus viz., Rajendrasinh-respondent No. 2 herein was driving the bus in the middle of the road in rash and negligent manner and in excessive & uncontrollable speed on the Tarapur-Bhavnagar highway and thereby dashed with the truck loaded with iron rod at 5:00 am in early morning on 22. 08. 1995 near village Pipli. As a result thereof, upper side of the right hand of the appellant was crushed and dislocated from the elbow and lying on the road. Offence was registered initially before the 'A' Division Police Station, Bhavnagar as the claimant was admitted in Sir T. Hospital Bhavnagar for treatment and thereafter the complaint was transferred to Dholera Police Station as the accident has occurred in the territorial jurisdiction of the Dholera Police Station where it was numbered as CR-I No. 39 of 1995 for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code and Sections 177 and 184 of the Motor Vehicles Act against respondent No. 2-Rajendrasinh Surendrasinh Chudasama (Driver of the luxury bus). Investigation was carried out and charge-sheet was filed against respondent No. 2. The summons was issued by the Tribunal to opponents No. 1 to 3. The issues were framed at Exh. 14 by the Tribunal and evidence is also recorded. After hearing the rival parties and after considering the evidence on record, the Tribunal has rejected the claim of the claimant-appellant. Hence, the present appeal is filed by the appellant-claimant before this Court. 3. 1 Learned advocate Mr. S. B. Tolia for the appellant-claimant has submitted that, after the accident, the claimant was immediately C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 taken to the Sir T. Hospital, Bhavnagar and was treated as an indoor patient. The right hand of the appellant was crushed and therefore, his right hand was amputated by surgery from the upper portion of the elbow. He was admitted for a considerable long period and according to the expert medical opinion, the claimant sustained 80% permanent disability, for which a certificate is issued by the Orthopedic Surgeon of Sir T. Hospital, Bhavnagar. He has submitted that at the relevant time, the appellant was a physical instructor at Dakshina Murty Vinay Mandir, Secondary Division, Bhavnagar and was earning Rs. 5,000/-per month. Due to this injury and due to amputation of his right hand below elbow, he was not in a position to function his duty as a physical training instructor and therefore, on 15. 10. 1999, he was compelled to give his resignation from the school. He has also submitted that the injury sustained by the appellant is dangerous to his life and it causes severe bodily pain and unable to follow his ordinary pursuits. The appellant is dependent on others for his daily routine works. The appellant has also suffered severe mental agony, pain, shock and suffering as he was bed ridden for a considerable long time. The appellant has spent huge amount towards medicines, transportation, life charges, nutritious food, etc. He has submitted that he has taken medical advice from the expert of Mumbai and Pune about having artificial hand, but due to some technical issues, the artificial hand could not be transplanted. Further, it is submitted that the appellant faced financial hardship due to this accident and therefore, the appellant has filed claim petition being MACP No. 555 of 1995 to get compensation initially for Rs. 2 lakhs, which was enhanced later on to Rs. 5 lakhs before the Motor Accident Claims Tribunal (Aux. ), Bhavnagar. Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 2 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
3. 2 Learned advocate Mr. S. B. Tolia for the claimant has further submitted that the Tribunal has erred in not allowing the claim C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 petition on the very erroneous ground and has also erred in appreciating the evidence in proper perspective. He has taken this Court through the documentary evidence-the complaint-Exh15, Panchnama Exh. 16, Panchnama of the scene of offence-Exh. 17, Copy of the salary certificate of the appellant-Exh. 70, Copy of the medical case papers of the appellant, Copy of the Insurance Policy-Exh. 18, Copy of the disability certificate issued by the Orthopedic Surgeon-Exh. 19, Copy of the deposition of the driver-Exh. 72 and has submitted that the said driver himself is negligent and it is a root cause for happening of such accident as he was driving on State Highway with an excessive and uncontrollable speed and also on the middle of the road.. He has pointed out from the panchnama-Exh. 16 that it shows the portion of the hand which is dislocated from the elbow and he has also indicated that between window Nos. 6 and 7, blood stains were found. He has also indicated that it was found from the Panchnama that the truck or any other vehicle was touched near window Nos. 6 and 7 of the luxury bus on the driver side where the driver is also having mirror to see the things happening in the bus or backside of the driver cabin. He has also pointed out from the another Panchanam at Exh. 17 which shows that no break marks, neither of luxury bus nor of the truck were found on the road. He has indicated that the width of the road is about 60 feet and therefore, things are lying in the middle of the road which indicate that accident happened due to rash and negligent driving of the driver of the luxury bus. 3. 3 Learned advocate for the appellant has also indicated that from the deposition of Rajendrasinh (Driver of the bus), though he has not filed any written statement in the claim petition, but as witness of opponent No. 3-Insurance Company, has deposed before the Tribunal that the appellant was sitting on Seat No. 27 which is C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 located near window on the backside of the driver and as per his say, the driver of the truck has taken sudden turn on the road and therefore, the claimant has received injuries, as claimant has kept his hand outside the window and for that, the conductor of the bus has also warned the claimant not to keep the hand outside the window as the driver has found from his mirror that the claimant was keeping his hand from the outside the window. In the cross-examination, he has admitted that the road is having about 55 feet width and also having about 3-4 feet kachcha road in addition to the asphalt road of 55 feet. He has also admitted in his cross-examination that he has seen the truck from the distance of about 80 feet and he has also admitted that on his left side, no vehicle was driving and he has also admitted that though the left side of luxury bus was available, he has not taken the bus on the extreme left of the road where the truck was coming towards luxury bus. 3. 4 Mr. Tolia, learned advocate for the appellant claimant has also drawn attention of this Court to the injury certificate issued by the Orthopedic Surgeon of the Sir T. Hospital, Bhavnagar dated 22. 09. 1995, by which, permanent disability of the appellant was assessed at 80% and therefore, he prays that findings of the Tribunal that the appellant is solely negligent for commission of such accident is highly erroneous and is required to be interfered with. He has also pointed out about the salary certificate, which shows that he was earning Rs. 6,631/-per month at the time of resignation from the job (due to such inability) in the year 1999. Therefore, learned advocate for the appellant has submitted that some contributory negligence can be attributed to the appellant, but he has lost his service, the amount of compensation is required to be granted and accordingly, he prays to allow Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 3 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
the appeal. He has also drawn attention about the judgment reported in 2012(10) SCALE 516 (K. Suresh versus New C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 India Insurance Co. Ltd. ) and also indicated the judgment of the Hon'ble Apex Court in the case of Erudhaya Priya versus State Express Transport Corporation Ltd., reported in AIR 2020 SC 4284 and prayed that some reasonable amount of compensation can be granted by allowing the appeal. 4. 1 Per Contra, learned advocate Mr. Vibhuti Nanavati for the respondent No. 3-Insurance Company of the luxury bus has submitted that, after service of summons, Opponent No. 3-Insurance Company (present appellant) has filed written statement vide Exh. 12 by admitting that the insurance of the vehicle involved in the accident is valid insurance and is existing one at the time of accident. It is averred in the written statement that the claim of the claimant is not genuine and bonafide, as accident occurred due to his own negligence and therefore, opponent No. 3-Insurance Company has prayed to dismiss the claim petition. 4. 2 He has opposed the contentions raised by the appellant. He has indicated from the deposition of the driver of luxury bus, it is undisputed fact that the claimant was keeping his hand outside the window. It is also borne out from the deposition of the driver that though the claimant was requested by the cleaner / conductor not to keep the hand outside the window, he had continued to do the same, and due to his sole negligence, the accident occurred and therefore, no liability can be fastened on the Insurance Company. He has also submitted that the Panchnama speaks about no break marks by both the vehicles and therefore, it can not be ascertained as to which vehicle has caused the accident. He has further submitted that the deposition of the witness who is sitting near the claimant-Tusharbhai that nothing has come out from it though he has considered as an eye-witness. He has also submitted that the C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 Tribunal has rightly considered the documentary evidence as well as oral evidence and dismissed the claim petition of the claimant without assessing any amount of compensation and solely on the ground that the claimant himself was responsible for occurrence of the accident. He has also indicated that claim petition itself was not maintainable as claimant has not impleaded driver, owner and insurance of the other vehicle (truck) as party respondents in the claim petition. Therefore, he has submitted that the Tribunal has not committed any error in rejecting the claim petition and present appeal is meritless. 5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants. 6. 1 I have heard learned advocates for the respective parties and I have perused the record and proceedings of the claim petition. I have also considered the Panchnama which reveals that admittedly, the part of the hand of the claimant was found on the road. It is also clearly reveals from the Panchnama that the Truck was dashed somewhere near window Nos. 6 & 7 of the luxury bus on Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 4 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
the driver side. It is also an uncontroverted fact that there is 50 feet width of the pakka road and also having 4 feet kachcha road on each side. Even then, the accident appears to be occurred somewhere in the C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 middle side of the road. It also transpires from the depositions of the witnesses i. e. deposition of the claimant himself-Exh. 65, deposition of an eye-witness-Tusharbhai Chauhan-Exh. 68 and the deposition of Rajendrasinh-Exh. 72 and more important that the driver of the luxury bus-Rajendrasinh has admitted that he has seen the truck from the distance of about 80 feet away. He has also admitted that the width of the road is sufficient and he could have taken his bus on the extreme left side of the road as sufficient space is available, but it seems that due to excessive and uncontrollable speed and due to negligence on the part of the driver of the luxury bus, the said accident could not be avoided. It is needless to say that the appellant is also equally responsible in occurrence of the accident as nobody is permitted to keep his hand outside from any vehicle when travelling in the vehicle which is moving on the road. 6. 2 Further, the driver of the luxury bus, though served, has not filed any written statement, but has deposed as witness of opponent No. 3 at Exh. 72 and one co-passenger of the bus viz., Tusharbhai Raghuvirbhai Chauhan at Exh. 69 and the claimant has deposed at Exh. 65 and documentary evidence are also produced by the respective parties and after considering the submissions made by the respective parties, the Tribunal has dismissed the claim petition on the ground that the accident has occurred due to the negligence of the claimant himself as he has kept his hand outside the window of the bus and therefore, he is not entitled to get any compensation due to his own negligence. 6. 3 Therefore, looking to the overall situation, Panchnama and the deposition of the witnesses, the Tribunal has committed an error in dismissing the claim petition on the ground of negligence of the claimant himself and I found it just and proper to attribute the C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 negligence to the driver of the luxury bus as well as the claimant himself in the proportion of 40% of the driver of the luxury bus and 60% of the claimant. Therefore, on the aspect of negligence, the contributory negligence should be assessed as 40% of the driver of the luxury bus and 60% of the claimant himself, as other vehicle-Truck is not impleaded as party respondent, nor any charge-sheet is filed against the driver of that vehicle, but charge-sheet is filed against the driver of the luxury bus and therefore, in the peculiar facts and circumstances of the case, the negligence apportion as above is just and proper in the interest of justice. 6. 4 Now, the aspect of ascertaining the amount of compensation, which can be awarded to the claimant, is considered as under : 6. 4. 1 I have considered the salary certificate of the claimant which is produced on record which is proved in accordance with law and found not disputed by any of the respondents and therefore, the salary of Rs. 6,893/-per month can be considered as actual income of the claimant. Since the claimant at the time of accident is of 45 years of age, therefore, in view of the decisions of Hon'ble Apex Court in the case of National Insurance Co. Ltd., versus Pranay Shethi reported in (2017) 16 SCC 680 and in the case of Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121, 25% prospective income can be added towards prospective income and Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 5 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
therefore, Rs. 6,893/-plus Rs. 1,718/-, which comes to Rs. 8,611/-towards prospective income per month. 6. 4. 2 Thereafter, considering the disability aspect, it seems that 80% is assessed as disability of the hand by the Doctor, who is Orthopedic Surgeon. In absence of any oral evidence of that Doctor, I found fit to follow the normal practice to take 50% of that certificate C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 towards disability, hence, the disability of body as a whole that comes to 40% (1/2 of 80% of the certificate). Hence, Rs. 8,611/-is considered as loss of prospective income per month, of which 40% disability, that amount comes to Rs. 3,444/-per month which annually calculated as Rs. 41,332/-and applying multiplier of 14 in view of the decision in the case of Sarla Verma (supra), it comes to Rs. 5,78,660/-as the amount of compensation under the head of loss of prospective income which should be assessed. There is amputation in the hand below elbow and the appellant remains in hospital for a longer period, he has suffered mental and physical pain and also suffered monetary loss. I found that in view of recent decision of the Hon'ble Apex Court in the case of Erudhaya Priya (supra), more particularly Para : 7 of the said judgment, the amount under the various heads should be awarded, is considered as under : "7. There are three aspects which are required to be examined by us : (a) the application of multiplier of '17' instead of '18'; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others 1. In para 42 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others. v. Delhi Transport Corporation and Another 2. In the age group of 15-25 years, the multiplier has to be '18' along with factoring in the extent of disability. The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be '18' and not '17'. C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 (b) Loss of earning capacity of the appellant with permanent disability of 31. 1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan and Others3 and Sandeep Khanuja v. Atul Dande and Another4. We extract below the principle set out in the Jagdish case (supra) in para 8:"8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects :Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 6 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
(i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life. " [emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i. e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well-established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1€ years from August 2011 to January 2013. The nature of injuries had been set out as under:-"Nature of injury : C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 (i) compound fracture shaft left humerus (ii) fracture both bones left forearm (iii) compound fracture both bones right forearm (iv) fracture 3rd, 4th and 5th metacarpals right hand (v) subtrochanteric fracture right femur (vi) fracture shaft left femur (vii) fracture both bones left leg" We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 7 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31. 1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 59. 3, considering the age of the appellant, would be 50% of the actual salary in the present case. (c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish C/FA/1170/2008 JUDGMENT DATED: 13/01/2022 case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court. " 6. 5 In view of above and in the facts of the present case, the amount under the head of pain, shock and suffering should be awarded an amount of Rs. 1 lakh. Further, under the head of transportation and under the head of loss of comfort and amenities amount should also be awarded Rs. 1 lakh., and an amount of Rs. 50,000/-lump-sum should be awarded towards the medical expenses and hospitalisation expenses looking to the prolonged treatment of the claimant. So total comes to Rs. 8,28,660/-after deducting negligence of 60% of the claimant, remaining 40% of this amount would come to Rs. 3,31,464/-which should be awarded with 7. 5% p. a. from the date of claim petition till its realisation, which would meet the ends of justice, in the peculiar facts and circumstances of the present case. 7. For the reasons recorded above, the following order is passed. 7. 1 The present appeal is allowed to the aforesaid extent. 7. 2 The impugned judgment and award passed by the Motor Accident Claims Tribunal (Aux. ), Bhavnagar dated 17. 08. 2007 in Motor Accident Claim Petition No. 555 of 1995 is quashed and set aside. 7. 3 It is ordered that the appellant-claimant is entitled to get Rs. 3,31,464/-, as the amount of compensation, with 7. 5% p. a. interest, as stated and calculated hereinabove, from respondent No. 3 C/FA/1170/2008 JUDGMENT DATED: 13/01/2022-Insurance Company from the date of claim petition till its realisation. 7. 4 Respondent No. 3-Insurance Company is directed to deposit the amount of compensation Rs. 3,31,464/-with 7. 5% interest per annum from the date of claim petition till its realisation, before the concerned Claims Tribunal, within a period of 8 weeks from the date of receipt of this order. 7. 5 On depositing the same, the Tribunal concerned is directed to pay the said amount to the present appellant-claimant, by account payee cheque, after following due procedure, in accordance with law. Bharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 8 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |
7. 6 Record and proceedings be sent back to the concerned Tribunal, forthwith. Sd/-(SANDEEP N. BHATT,J) M. H. DAVEBharatbhai Babubhai Rathod vs Ranjitsinh M. Gohil on 13 January, 2022 Indian Kanoon-http://indiankanoon. org/doc/86146178/ 9 | Bharatbhai_Babubhai_Rathod_vs_Ranjitsinh_M_Gohil_on_13_January_2022.PDF |