RAJPUT ARVINDSING GIRVATSINH THROUGH v. RAJABMIYA NANNUMIYA MALEK
Court: High Court of Gujarat
Bench: HONOURABLE MS. JUSTICE GITA GOPI
Judgment date:
Case summary
High Court of Gujarat judgment dated 2024-03-20. RAJPUT ARVINDSING GIRVATSINH THROUGH v. RAJABMIYA NANNUMIYA MALEK. Read the judgment and case details on...
Judgment text
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 5489 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE GITA GOPI ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== RAJPUT ARVINDSING GIRVATSINH THROUGH Versus RAJABMIYA NANNUMIYA MALEK & ORS. ========================================================== Appearance: MR RC JANI(357) for the Appellant(s) No. 1 MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3 RULE NOT RECD BACK for the Defendant(s) No. 2 UNSERVED EXPIRED (R) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MS.
JUSTICE GITA GOPI Date : 20/03/2024 ORAL JUDGMENT 1. The challenge is given by the injured claimant to the judgment dated 31. 01. 2008 passed by Motor Accident Claims Tribunal, Kheda t Nadiyad in MACP No. 48 of 1995. 2. Learned advocate Mr. Vishrut Jani for Advocate Mr. R. C. Jani for the appellant submitted that 10% contributory negligence hs been erroneously concluded, which is contrary to the evidence on record. Further stated that t income proof was on record, and the learn Tribunal has considered that same, however, h s made deduction from the income, which is not permissible, and submitted that only the tx would be deducted, and, thereafter the income h s to be assessed accordingly. 2. 1 Advocate Mr. Jani submitted that injury suffered by the claimant had forced him to retir from the job as clerk-cum-cashier from the Bank, and the fact of early retirement has been prov by certificate, Exh.
58, which was issued by t Branch Manager of the Bank, and that fact h s been corroborated by way of deposition, Exh. 59, of the Branch Manager. Hence, Advocate Mr. Jani submitted that after the accident his mentl health was not stable, which could not allow him to continue in job, and, thus had to resign; thus, urged to consider the disability as 100%. 3. Per contra, learned advocate Mr. Nanavati submitted that the fact of resignin from job owing to the mental health condition o the claimant on account of the accident, coul not be proved, and, thus stated that it was only because of inquiry pending against him that h was constrained to resign from the service, whi was accepted on 08. 12. 1995, and, thus, would not entitle him to claim 100% functional disability. 4. The facts, as could be culled out, suggest that on 14. 07.
1994 at 8:20 night hours, the applicant serving in Kheda Distrit Madhayasatha Co-operative Bank, Balasinor, ws proceeding towards Sangot from Balasinor on his Motorcycle No. GJG-2054. He reached towards canl near I. T. I. College on Savaliya Road driving his motorcycle on the correct side of the road. At that time, it is stated that, Tanker No. GJ-2T- 8735, owned by opponent no. 2 insured wit opponent no. 3, came in full speed, in rash an negligent manner from the wrong side and dash the motorcycle; thereby the present claimant as motorcyclist was thrown down and sustain serious injuries on the head and immediately w s taken to Balasinor Hospital, and thereaftr shifted to Ahmedabad Hospital. 4. 1 The Tribunal has considered the fat that the accident had occurred on pakka tar roa , which is 22 ft. in width with 3 ft. border on t side of the road. The bullet, on which t claimant was travelling, was facing north at 20 ft. away from the canal. The front wheel, whi got separated, was bend.
Dicky, head light, mudguard of the bullet were broken. The damage to the bullet was found to be of Rs. 12,000/-. Whil according to the panchnama, the Tribunal observ that on the northern side of the bullet at about 30 ft. away on the northern side of the canal on left hand side, the Tanker was found lying in t drainage, and the rear side of the Tanker was on the kachha margin area of the road, with t front in the drainage. It was noted that t Tanker was facing toward east and the front portion of the Tanker was found to be bend. T wheel marks by applying brakes was found upto 5 ft. at length from the rear side of the Tanker. 4.
2 The FIR was given by one Nileshkumr Shantilal Suthar, who was a pillion rider to t bullet, who had joined that claimant while was on the road, after filling the petrol from petrol-pump, they were heading towards Balasinor, an according to the complainant, the Tanker dash them and caused injuries, and he stated that t Tanker had gone on the road and landed in t gutter on the side of the road. As per his complaint, the driver left his vehicle and fl away from the place of incident. 4. 3 The complainant, who had given t complaint, was examined at Exh. 29. His affidavit in examination-in-chief, further states that, they were on correct side of the road, and on a very normal speed, while the Tanker had come in a full speed, in a rash and negligent manner, an the Tanker driver had ran over the bullet. 4. 4 It appears that this deposition of t witness has not been challenged by t respondents. The witness – Surendrabhi Girvatsinh Rajput, who gave evidence at Exh.
24, was the younger brother of the claimant. His deposition is in form of affidavit o examination-in-chief, which was produced t Exh. 24, he had stated about the accident and evn the fact of claimant loosing memory power, an also about his mental and physical condition. According to him, the Tanker No. GJ-2T-8735 h come on the wrong side and had dashed with t motorcycle and the claimant along with t motorcycle was flunged down, and stated that t direction of motorcycle also got changed, and t claimant suffered sever injuries. In the cross-examination, the witness admit that he has no personal knowledge of the accident. 5. Exh. 65, Doctor Balkisan N. Desai, Neurosurgeon, had assessed permanent disability sustained because of the head injury on account of the vehicular accident. The claimant h complaint of headache, loss of memory an intelligence, excessively loosing temperament, severe stubbornness, behavioral changes etc.
T Doctor had noted that after the head injury following the vehicular accident on 14. 07. 1994, he had become unconscious. His primary treatment was at Balasinor Hospital and then ws transferred to Ahmedabad for expertis neurosurgical treatment. He was admitted t Rajasthan Hospital and his C. T. Scan of the brain was done, which was suggestive Os cerebral Oedem with multiple contusions and sub. Arachnoi haemorrhage. He was treated conservatively. remained unconscious for few days. His follow-up scan of the brain was done on 08. 08. 1994, and h regular follow-ups after his discharge from t hospital. His higher functions like memory an intelligence are depleted, and he was referred to clinical psychologist and psychotherapist for psychometry for assessing I. Z. , memory and B. G. T. which are all affected and are subnormal, and h has emotional disturbances under unusual stress.
The Doctor has opined that his symptoms were du to his head injury, causing brain contusion an sub, archnoid haemorrhage, causing parenchyml and organic brain damage, resulting in n irreversible brain damage, producing permanent disability, which is assessed at 57. 5% body as a whole, according to Kessler’s Y Dr. R. M. Jhala. 6. The factum of resigning owing to som department inquiry could not be proved on recor . The claimant had retired on 30. 09. 2006, whi fact was proved by the Branch Manager of t Bank, and the document of Doctor could also prov that his mental health was not appropriate to continue in the job, hence, there has been 100% loss in income to the claimant, which can b considered as functional disability. 7. The income, at the time of accident, o the claimant was Rs. 7,542/-. Rs. 500/- was t income tax and Rs. 20 was the professional tax. Deducting Rs. 520/-, the income receivable woul be 7,022/-. The claimant was 42 years and 9 months of age at the time of accident.
T multiplier applicable would be 15. Considerin the job in the Bank in accordance to the age, 30% prospective rise in income is to be considere , which comes to Rs. 2,106/-. Hence, the monthly income would come to Rs. 9,128/-. Annually, applying the multiplier of 15 with 100% functional disability, the future loss of incom would come to Rs. 16,43,040/-. 8. The claimant, as per the recor considered by the Tribunal, could not have earn for about six months, hence, considering t evidence on record at Exh. 46, the Tribunal h s granted amount for six months under the head o actual loss of income. However, the resignation of claimant was accepted on 08. 12. 1995, t Exh. 51, and the salary record as produced t Exh. 46, shows the salary upto May, 1995. Henc , no amount is granted under the head of actul loss of income. 9. The medical expenses, as could be prov is Rs. 20,000/-. The Tribunal has grant Rs. 5,500/- for special food and diet, Rs. 3,500/-for attendance charges, Rs.
2,230/- s transportation charges. Hence, under the head o medicines, doctors fees, special diet, attendan charges and transportation charge, Rs. 31,320/-has been granted. 9. 1 The Tribunal has granted only Rs. 15,000/- under the head of pain, shock an sufferings. The said amount is on a very lowr side, as the injury has affected the mentl condition of the claimant, which had led to retirement from the job, since his condition w s not suitable to carry on with his job. The sai mental condition would continue through out his life, and that pain suffering would be largr than that of the physically incapacitated person, as the same would have come as a shock to t claimant, which had led to loss of job, henc , this Court considers that amount of Rs. 2,00,000/-is required to be allowed under the head of pain, shock and sufferings. 9. 2 Learned advocate Mr. Jani has prayed for amount for the loss of amenities of life.
T said contention cannot be entertained in view o the observation in para-15 of Raj Kumar An Another Vs. Ajay Kumar And Another, reported in (2011) 1 SCC 343. The Hon’ble Supreme Court whil observing that if the compensation is awarded by treating the loss of future earning capacity as 100%, the need to award compensation separately under the head of loss of amenities or loss o expectation of life may disappear and as result, only a token or nominal amount may b awarded under those heads. Para-15 is reproduc hereinbelow: “15.
It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. ” 9. 3 The amount as paid under pain, shock an suffering would be sufficient to take care of t token amount, thus, has not been separately granted. 10. In accordance to the evidence, which h s come on record of Nileshkumar Shantilal Suthar, the complainant, whose evidence has not ben challenged by way of cross-examination, and t FIR read with panchnama, the fact remains tht the accident had taken place at the night hours. The claimant was on his own side of the roa .
While the Tanker had come on the wrong side, an the brake marks on the road shows the speed at which the Tanker was running on road. The Tankr driver was not examined before the Tribunal. T fact of he being on the wrong side itsel suggests that he was rash and negligent in his driving. The dash was very hard, as the bullt also lost its direction, and the Tanker h landed in the drainage on the side of the road. 10. 1 Considering the facts and evidence on record, this Court is of an opinion that Tankr driver is 100% negligent. The evidence of ey witness - Nileshkumar Shantilal Suthar has not been challenged. The Tribunal has attributed 10% negligence to the claimant observing that t claimant could have seen the Tanker coming from the opposite. The said observation would fallacious on record, since the evidence itsel proves that the Tanker had come on the wrong si of the road.
The claimant driver would not hav even imagined of a Tanker to enter his side o the road, and the requirement of maintainin distance would be, for the vehicle going ahead on the road. The driver of the vehicle would have to be mindful of those vehicles, which are on his side of the road, while could not have evn imagine of any vehicle crossing the road, to com on the wrong side to cause the accident. In viw of the fact, that the accident occurred in nigt hours and the Tanker driver had come on the wron side of the road, 100% negligence is to attributed to the Tanker driver. 11. In view of the above, compensation undr different heads would be: Heads Amount Future loss of income Rs. 16,43,040/- Medicine, Doctor Fees,Rs. 31,320/-attendance charges and transportation Pain, shock and sufferings Rs. 2,00,000/- Total Rs. 18,74,360/- 12. The Tribunal has granted amount o Rs. 3,27,000/-, however, after deducting 10% negligence on the part of the claimant, grant Rs.
2,95,000/- at the rate of 9% per annum from the date of claim petition till 31. 12. 2002 and at the rate of 7. 5% per annum from 01. 01. 2003 till the amount is finally deposited before t Tribunal. 12. 1 Thus, the claimant would be entitled to get Rs. 15,79,360/- (18,74,360 – 2,95,000) s enhanced compensation at the interest rate o 7. 5% from the date of claim petition till realization. The enhanced amount be deposit before the concerned Tribunal within eight weeks from the date of receipt of writ of this order. Total amount be paid to the claimant. 12. 2 It is stated by Advocate Mr. Jani tht the claimant would be in a position to collet the amount. It is directed that the total amount be deposited in the Bank Account of the claimant by Account Payee Cheque/NEFT/RTGS on verification of identity. 13. In the result, the appeal is partly allowed. The impugned judgment and award dat dated 31. 01. 2008 passed by Motor Accident Claims Tribunal, Kheda at Nadiyad in MACP No.
48 of 1995 stands modified to the aforesaid extent. No ordr as to costs. 14. Record & Proceedings be sent back to t concerned tribunal forthwith. (GITA GOPI,J) Pankaj
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