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MAHMADBHAI GALUBHAI SHAIKH V/S MOMIN ABDULBHAI FIROJBHAI (DELETED IN LOWER COURT) & OTHERS, decided on Monday, May 1, 2017.
[ In the High Court of Gujarat at Ahmedabad, First Appeal No. 1627 of 2004. ] 01/05/2017
Judge(s) : MOHINDER PAL
Advocate(s) : Mehulsharad Shah. Defendants D2, Amit C. Nanavati, D3, K.K. Nair.
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  "2017 AAC 1424"  ==   ""  







    Oral:1. Aggrieved from the judgment and award dated 9.7.2002 passed by the Motor Accident Claims Tribunal (Aux.) Mehsana in MACP No.741 of 1990 awarding a sum of Rs.2 15 500/- against the claim of Rs.4 Lacs the claimant has come in appeal.2. An accident took place on 4.12.1989 at about 6.00 p.m. when the claimant was going on Scooter bearing Registration No. GAW 8317 on Ahmedabad Delhi Highway. When he reached near Sunrise Hotel Sidhpur a truck dashed with the scooter as a result of which the claimant sustained various fractures on pelvis and other parts of the body. Thereafter in a claim petition bearing Motor Accident Claim Petition No.741 of 1990 the Tribunal awarded aforementioned amount of Rs.2 15 500/- towards compensation with costs and interest @ 9% per annum vide its judgment and award dated 9th July 2002. Aggrieved from this award the present appeal has been preferred.3. Learned counsel for the petitioner has submitted that the claimant was 41 years of age at the time of accident. He was known as a tailor in the city. As a result of accident he sustained fractures on right leg left leg and his urinary parts were also crushed. In order to substantiate the fact regarding injuries the claimant has produced disability certificate. The claimant has further examined Doctors who were put to cross-examination in the Court. Learned counsel has submitted that the Tribunal has considered the income of the claimant at the rate of 2500/- per month but at the relevant time he was earning much more than what has been considered by the Court.4. It has been argued that for future loss of income pain shock and suffering the Tribunal has awarded Rs.20 000/- which requires interference as the appellant has been crippled because of the injuries. Under these circumstances at-least Rs.2 Lacs should have been awarded for pain shock and suffering. Learned counsel has further argued that Tribunal has considered the disability of the claimant to the extent of 35% which was against the evidence of the Doctors. According to him functional disability of the appellant is to the extent of 100% as he cannot lift his legs and lie on the bed or sit on the chair. In support of these submissions he has relied upon the judgments in the case of Jakir Hussein v. Sabir and others reported in (2015) 7 SCC 252 and in the case of Rajan v. Soly Sebastian and another reported in (2015) 10 SCC 506.5. On the other hand these arguments have been controverted by the learned counsel for the Insurance Company by referring to the pleadings of the petitioner where the fact regarding disability to the extent of 100% is not mentioned. He has also referred to the income tax returns; wherein his income has increased after the accident. Learned counsel has also argued that disability was required to be proved by examining the Doctor who has treated the patient. In support of his argument he has relied upon the judgment in the case of Rajesh Kumar Alias Raju v. Yudhvir Singh and another reported in (2008) 7 SCC 305.6. This Court has considered the submissions of both the sides. Accident in question is not in dispute. It is also not in dispute that after accident appellant has remained admitted as indoor patient in various hospitals. The disability of the appellant has been proved by examining the Doctors who has stated that the appellant was disabled to the extent of 25% on the right leg and 22% on the left leg. According to him the disability of the appellant as a whole has been assessed at the rate of 50%. Further according to Doctor disability suffered by the petitioner cannot be halved by treating it to be a disability of particular limb.7. It will be relevant to note that apart from aforementioned disability of the legs appellant has further sustained the disability of lower part of the body for which Dr. Gaurang Majmudar has been examined who has deposed that disability of lower part of the body is to the extent of 50%. Adding aforementioned both the disabilities it comes to 95%. The Tribunal while dealing with the disability part has reduced the disability to the extent of 20% on the ground that disability certificate is issued by Orthopedic Surgeon. This Court is of the considered opinion that once there is a disability of 25% and 22% concerning both the legs and 50% disability of the upper portion involving the urinary track the disability assessed by the Tribunal as 20% is incorrect. It will be relevant to note that the petitioner has developed a fistula at the urinary track and urine has made 5 different tracks which cannot be cured at this stage. The appellant has to carry a separate urine pouch if he has to move outside or even to remain lying on the bed. He has lost control over passing of the urine. Under these circumstances if a person has so many complications after the accident disability as assessed by the Tribunal to be 20% or 50% becomes meaningless. The appellant has to remain with the assistance of some family member for rest of his life. As has come on record his life has been crippled. He could not perform the same functions which he was performing prior to the date of accident. He cannot sit on the chair or lie on the bed. He will require special kind of toilet as he cannot sit on the ground. With all these complications the award passed by the Tribunal of Rs.2 15 500/- is on lesser side which is required to be enhanced. Though learned counsel for the respondent has referred to the judgment according to which the Doctor who has actually treated the patient was required to be examined however there cannot be a set formula in assessing the disabilities of a person on the basis of which compensation can be awarded. There has to be a guess work which may very from a person to person and patient to patient.8. Under these circumstances the award passed by the Tribunal is modified. This Court is convinced that the ends of justice will be met if the award amount is increased from Rs.2 15 000/- to Rs.4 00 000/-. The petitioner will be further entitled to interest at the rate of 6% per annum from the date of filing of claim petition till realization of the amount.9. Learned counsel for the respondent-Insurance Company has stated that he will advise the Insurance Company to deposit the enhanced amount within a stipulated period. The gesture shown by learned counsel for Insurance Company is appreciated. However it is made clear that if the amount is not deposited within a period of 6 weeks from today the claimant shall be entitled to interest at the rate of 9% from the date of claim petition till realization of actual amount. This appeal is allowed to the aforesaid extent.