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FA/150/1988 15/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 150 of 1988
With
CROSS
OBJECTION No. 25 of 2006
In
FIRST APPEAL No. 150 of 1988
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
GUJARAT
STATE ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
THAKORBHAI
PURSHOTTAMDAS PARIKH & 1 - Defendant(s)
=========================================================
Appearance
:
MR
MD PANDYA for
Appellant(s) : 1,
MR YN OZA for Defendant(s) : 1,
None for
Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/02/2010
ORAL
JUDGMENT
Heard
learned advocate Ms. Mayaben Desai for learned advocate Mr. M.D.
Pandya appearing on behalf of appellant Corporation and learned
advocate Ms. Thula for learned senior advocate Mr. Y.N. Oza appearing
on behalf of respondent claimant.
The
appellant corporation has challenged award passed by MACT, Baroda in
MACP No.892 of 1983 decided on 13th November 1986. The
claims tribunal has awarded total amount of compensation
Rs.3,87,100/- with 12% interest in favour of respondent claimant.
Learned
advocate Ms. Desai raised contention before this Court that decision
of claims tribunal in respect of deciding negligence of ST driver
100% is erroneous finding contrary to record. She submitted that
claims tribunal has not considered panchnama properly and decided
sole negligence of ST driver. She submitted that 65% disability to
earning capacity of claimant is not reduced because he remained in
service received regular salary upto the retirement. Therefore,
question of reducing earning capacity has been wrongly considered by
claims tribunal. She submitted that there is no loss of earning
capacity because physical disability having no adverse effect to the
earning capacity of claimant. She also submitted that it is a case of
contributory negligence even though negligence of claimant has been
ignored by claims tribunal. Ex.27 evidence of claimant Thakorbhai
Purshottamdas should not have to accept his testimony if it is
closely scrutinized the evidence of claimant. The claims tribunal
ought to have been held that the claimant has failed to prove that
opponent No.1 drove ST Bus No.GRR-8327 belonging to second opponent
to claim petition rashly and negligently and thereby caused injuries
to claimant. The claimant was driving his scooter at an excessive
speed and was in hasty and was dashed with on coming bus which was on
its correct side. That fact has been ignored by claims tribunal while
deciding sole negligence of ST bus driver. She submitted that it is a
clear case of sole negligence of claimant. The accident had occurred
at the junction of three roads; the front of the Rajmahel Tope, near
Diamond Jubilee Building, Rajmahel Road, National Highway No.8. The
claims tribunal has not considered the case of ST Corporation that
scooterist was driving the scooter in middle of the road had taken
sudden turn to his right side without any sign and signal and doing
so has dashed his scooter with bus. The documentary evidence on
record panchnama Ex.42 and judgment of Criminal Court Ex.43 supports
to the contentions of appellant. She submitted that it is an amply
established that place of accident was the middle of road and
panchnama shows that the edge of the road of west of the place of
accident was eight steps (kadam), that is, about 16 feet and towards
east edge of the road was at a distance of 18 feet and that the
accident had taken place on Motibaug turning. She also submitted that
amount of compensation which has been awarded by claims tribunal is
on higher side and reason which has been assigned by claims Tribunal
in paragraph 26 and 27 for not relying upon testimony of ST driver is
erroneous finding which requires interference by this Court. She
emphasis that claims tribunal has not closely scrutinized the
evidence of Dr. Sukitu Trivedi recorded at Ex.38. She submitted that
claims tribunal has committed error in not properly bearing in mind
the aspect about disablement percentage when considering the
disablement of limbs and total disablement of body taken as a whole
from the medical point of view and the impact of such physical
disablement upon the earnings and earning capacity keeping in view,
inter alia, avocation of the victim present as well as future
possibility. She further submitted that claims Tribunal has committed
gross error in awarding Rs.40,000/- on the head of pain, shock and
suffering, which is on higher side and Rs.20,000/- for future
economic loss per year and accepting that loss would continue for
further period of 12 years, erred in assessing in awarding
Rs.2,40,000/- under the head of loss resulting from the loss of
earning capacity. Therefore, amount of Rs.2,40,000/- has been wrongly
awarded which is apparently also on higher side.
Learned
advocate Ms. Thula for claimant raised contentions in support of
cross objection that loss of income of wife about 11 months has been
ignored because wife was working as an employee and her salary was
not considered by claims tribunal. The amount of compensation which
has been worked out by claims tribunal is on lower side and claimant
is entitled more amounts in respect of diet, room charges, medical
bills and actual loss of income 11 months and salary of wife is not
taken into account, who attended the claimant. Therefore, present
Cross- Objection has been filed by claimant.
I
have considered submissions made by both learned advocates appearing
on behalf of respective parties. I have also perused award passed by
claims tribunal. The total claim was made by claimant for Rs.5 lakhs
for the accidental injuries sustained by him during motor vehicular
accident which was occured on 23rd May 1983.
According
to claimant, the accident had occurred on 23rd May 1983 at
12 noon near Diamond Jubilee Cottage Industries within city of
Baroda. According to him, there was ‘Vastu Puja’ ceremony of his new
bungalow and that he had given to distribute invitation card and was
returning back. It is his case that he had reached near the spot of
occurrence at about 12 noon and was on his scooter, according to him,
ST Bus No.GRR-8327 being driven by opponent came there and above said
vehicle was being driven in rash and negligent manner and at an
excessive speed. It is also the case of claimant that opponent No.1
had lost the control over his vehicle and violent dash was given to
his vehicle and result of which, vehicle viz., scooter and himself
were dragged along with ST bus for a distance of about 30 to 40 feet
and he had received various injuries including the fractures on the
head, the fore-arm and the leg and as a result of which, he was
required to be removed to the SSG Hospital and was also requires to
stay there as an indoor patient for a pretty long time. For claiming
compensation, according to him, he had received various injuries and
fractures on head, the fore-arm and the leg. There is a fracture on
the right fore-arm along with fracture of right patella and fracture
of the index finger and also injuries to his face which was
disfigured which he had required plastic surgery to be performed upon
him. According to him, because of injuries received by him on the
lower leg, it was later on thought it fit and proper to amputated his
leg below the knee joined and operation was performed and he was
suffered the amputation of the right leg from below the knee joint.
The claimant was working at the time when accident was occurred as an
Assistant Administrative Officer in United India Assurance Co. Ltd.,
and later on, he was promoted and his total salary was Rs.2,587/-.
The estimate claim of claimant as narrated in paragraph 7 is as under
:
7. Moreover
it is the case of the applicant that looking to the injuries and the
amputation of the right leg he is entitled to the future loss as
enumerated as under:
Rs.45,000/- –
Future loss of non-promotion
Rs.15,000/- –
Expenses for removal of plate
Rs.10,000/- –
Expenses for plastic surgery
Rs.10,000/- –
Expenses for operation of
removal of stifness
Rs.5,000/- –
Operation of plastic surgery on
left side of face near ear to
remove scar which are spread on
face
Rs.30,000/- –
Extra injections, fruits, extra
food like Omlet to maintain
the ragour
Rs.3,600/- –
Physio therapy treatment for
four months
Rs.5,000/- –
Rickshaw expensed for 25 days
in a months
Rs.35,000/- –
Pain and sufferings because of
amputation of right leg
Rs.35,000/- –
Permanent disability of right
hand and other leg
Rs.50,000/- –
80 per cent disability because
of amputation of right leg
above knee portion.
The
S.T. Corporation has filed reply Ex.16 and Ex.13 and raised
contention against claim petition while denying averments made in
claim petition. After considering pleadings of both parties, issues
have been framed by claims tribunal by Ex.17. 90% disability has been
denied by appellant Corporation. The claims tribunal after
considering evidence on record which has been appreciated in
paragraph 26 to 29 are under :
26. Thus,
during the cross-examination also the opponent No.1 has tried to say
that he was not at all guilty for the accident but it is
unequivocally clear from his evidence that he had not seen the
scooterist before the accident and was able to locate the scooter
only after the accident had taken place. In view of this position,
he cannot be believed when he says that the scooter had taken the
right hand side turn without giving any sign or signal. When he had
not seen the scooterist at all he can never testify regarding the
action taken by the scooterist at the relevant time. Moreover,
though he has denied allegation that the scooter was dragged
alongwith his vehicle for about 30′ he has admitted that he could
stop his bus only after covering a distance of 8′ ft. Moreover, his
say regarding the speed of his vehicle also cannot be accepted. If
his vehicle were to be running at the speed of about 25 KM he would
have been able to stop his vehicle right on the spot of the
occurrence.
27. Moreover
his version that he was driving his bus slowly on the correct side of
the road also cannot be accepted. It requires to be appreciated that
there is a road divider and the scooter was on the correct side but
the bus had entered on the side where the scooter was passing and a
dash was given to the scooter. It is also the case of the applicant
that the scooter was dragged for a pretty long distance. The
abovesaid case is indeed denied by the opponent No.1 but his evidence
would go to show definitely that he could stop his vehicle only after
covering a distance of about 8′. the cumulative effect of the
abovesaid evidence would lead this Tribunal to hold that the accident
was the result of rash and negligent driving on the part of the
opponent No.1 who was driving his vehicle at the relevant time.
28. This
view of the Tribunal gets the further support from the Panchnama at
Ex.42. The bare look to this panchnama at Ex.42 would reveal that
the bus had covered a distance of 45′ ft. after dashing with the
scooter. The scooter was lying beneath the rear wheel of the ST bus.
It means that the scooter was dragged alongwith the ST bus for a
distance of about 45′. At the time of the Panchnama also the scooter
was found to be lying beneath the wheel of the ST bus. Moreover,
looking to the position of the vehicles it further becomes clear that
the ST bus had entered into the incorrect side of the road. The dash
was given to the scooter on its front part because the front part was
found to have been broken and damaged. It therefore, becomes clear
that the bus had entered into the incorrect side of the road and a
dash was given to the scooter and later on the scooter was dragged
alongwith the bus for a distance of 45′. The scooterist/ was also
dragged alongwith the abovesaid scooter.
29. It
therefore conclusively follows as noticed by this Tribunal that the
accident was the result of rash and negligent action on the part of
the opponent No.1 who was driving the ST bus at the relevant time.
This issue therefore, requires to be decided in the affirmative and
the same hereby accordingly decided.
The
aforesaid observations made by claims tribunal while appreciating
oral evidence as well as documentary evidence and relied upon
panchnama Ex.42 even bare look to this panchnama, it would reveal
that bus had covered a distance of 45 feet after dashing with
scooter. The scooter was found to be lying beneath the wheel of ST
bus. Moreover, looking to position of vehicles, it further becomes
clear that ST bus had entered into incorrect side of the road. The
dash was given to scooter on its front part because the front part
was found to have been broken and damaged. Therefore, it becomes
clear that bus had entered into the incorrect side of the road and a
dash was given to scooter and later on, the scooter was dragged along
with bus for a distance of 45 feet. Therefore, Issue No.1 which has
been decided by claims tribunal affirmative holding that accident is
occurred due to sole negligence of ST bus driver.
The
question of quantum has been examined by claims tribunal after
considering evidence of claimant and Dr. Suketu Trivedi Ex.38 and
evidence of Dr. Trivedi has proved the certificate which is at Ex.39.
The relevant discussion of evidence of Dr. Trivedi is made in
paragraph 32 to 34 are quoted as under :
32. The
applicant has examined Dr. Suketu Trivedi at Ex.38. He has stated
that Thakorbhai Purshottambhai was admitted as Indoor patient in the
SSG Hospital, Baroda on 23-5-83 and wad discharged on 13-8-83. Dr.
Trivedi has further testified that the applicant had multiple
fractures of the right lower limb, the fracture shaft right humerus
and fracture middle phalanx left index with multiple CLWs. He has
further stated that the patient had the injury on the artery and
nailing of the fractures and the exploration of the injured artery
was done on 23-5-83.
33. Dr.
Trivedi has further testified that later on the right lower limb was
affected by gangrene and therefore the right leg was amputated from
above the knee joint on 27-5-83. he has further stated that he
patient was operated on 19-7-83 for the fracture humerus and the
plating and the bone grafting was done. He has further stated that
the injured applicant wad discharged on 13-8-83. Dr. Trivedi has
proved the certificate which is at Ex.39.
32. Dr.
Trivedi has further testified as under :
On
my last examination I found that the fracture of shaft humerus right
was well united. There was terminal restriction of abduction and
roration of right shoulder. He had above knee amputation on right
side stump length being 14.1/2 from greater trauchanter.
Disablement is assessed at 60 per cent for the loss of lower limb and
5 per cent for the loss of movement at right shoulder. Total
disablement is assessed at 65 per cent.
33. Therefore
from the abovesaid evidence of Dr.Trivedi it would further become
clear that later on the fracture of the shaft humerus was found to be
well-united but the applicant has suffered the right knee amputation
and the length of the same is 14-14.1/2 from greater trauchanter.
It is also clear that the permanent disability incurred by the
applicant would come to 65 per cent.
34. Moreover,
Dr. Trivedi has stated that the patient may have to undergo operation
for the removal of the nail on the right humerus and would be
required to stay in the hospital for a period of five days. He has
further stated that he would not be able to drive a scooter in future
and that now no plastic surgery is required to be performed upon
him.
In
view of aforesaid evidence which has been discussed by Dr. Trivedi
and also injury received by claimant has been discussed and described
which resulted the permanent disability incurred to claimant would
come to 65%. On that basis, claims tribunal has examined matter while
keeping in mind total emoluments received by claimant Rs.3,910/- as
per pay-slip Ex.35 as discussed in paragraph 42 and 43 which are
quoted as under :
42. It
is evident from the pay slip at Ex.35 that applicant earns that the
total emoluments of Rs.3910/- PM on the date of the trial. He has
incurred the permanent partial disability of 65 per cent as testified
by Dr. Suketu Trivedi at Ex.38. The monthly loss at the rate of 6
per cent would come to Rs.2600/-. The yearly loss would come to
Rs.29,200/-. Accepting that this loss would continue for a further
period of 12 years the figure would come to Rs.3,38,400/-.
43. It
requires to be appreciated that the
applicant is still in the service and as a matter of fact he has not
incurred any loss in his present income. It is indeed true that
there is the loss in the earning capacity. In view of this position,
this Tribunal is of the
opinion that the economic loss resulting from the loss in the earning
capacity should be computed at the rate of Rs.20,000/- per year.
Accepting that this loss would continue for a further period of 12
years, the applicant should get an amount of Rs.2,40,000/- on the
head of the loss resulting from the loss of earning capacity. The
total figure, therefore, would come to Rs.3,87,100/- which the
applicant should get from the opponent together with costs and
interest.
In
view of aforesaid discussion made in paragraph 42 and 43, claims
tribunal has rightly come to conclusion that monthly loss at the rate
of 65% would come to Rs.2,600/- and yearly, it comes to Rs.29,200/-
and looking to age of claimant, 12 multiplier has been rightly
applied and on that basis, amount of compensation has been worked
out, which has been rightly worked out by claims tribunal. For that,
contentions raised by learned advocate Ms. Desai cannot be accepted
because detailed reasons have been given by claims tribunal while
appreciating entire evidence on record. For that, according to my
opinion, claims tribunal has not committed any error which requires
interference by this Court. The contentions raised by claimant in
support of Cross-objection cannot be accepted, because, claims
tribunal has awarded reasonable just and proper compensation to
claimant in respect of each head and not awarded any compensation on
lower side as contended by learned advocate of claimant. Therefore,
there is no substance in Cross-objection filed by claimant.
Therefore,
according to my opinion, claims tribunal has perfectly justified in
passing award of compensation in favour of claimant while deciding
sole negligence of driver of ST bus and looking to injury about 65%
permanent disability with an amputation of right leg below knee and
considering period of indoor patient and pain, shock and suffering, a
reasonable amount has been awarded which cannot consider to be on
higher side.
Therefore,
there is no substance in present First Appeal. Accordingly, present
First Appeal filed by appellant Corporation as well as
Cross-objection field by claimant are dismissed. No order as to
costs.
The
amount, if any, deposited by appellant Corporation before registry of
this Court, be transmitted to claims tribunal concerned, immediately.
It
is directed to claims tribunal concerned to pay whatever amount of
compensation accruing with interest lying with it to Thakorbhai
Purshottamdas Parikh by account payee cheque, after proper
verification, immediately.
R.
& P., if available, be sent back to claims tribunal concerned,
forthwith.
Sd/-
[H.K.
RATHOD, J.]
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