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Gujarat High Court
Judgename :M.S.SHAH, K.M.MEHTA
SATISHKUMAR RASIKLAL DOCTOR - Appellant
Versus
BALDEVBHAI CHHAGANBHAI THAKORE - Respondent
FIRST APPEAL 7715 Of 1999
Decided On : 08/18/2006
Whether claimant entitled for enhancement of compensation amount?
Head Note :
(a) Motor accident - Compensation - Medical expenses - Reimbursed under insurance policy of injured - Claim for - Admissibility - The insured injured contributed his own money for which he received the amount from Insurance Company - The receipt of money by injured has no correlation to the compensation computed as against the tortfeasor for his negligence on account of accident - Hence deduction made by Tribunal on this account is contrary to legal position and liable to be set aside.
Head Note :
(b) Motor accident - Compensation to loss of future earning - Subsequently when worked at higher salary - Admissibility.
Held :
But for the permanent disability suffered by him, after retirement the claimant would have been able to secure employment with a private establishment in view of his wide experience as an X-ray Technician at the Civil Hospital. The applicant was serving in an organization which allowed him to work and at a higher salary in view of pay revision, but that did not mean that the accident did not diminish his earning capacity. [Para 13]
In view of the settled principles, the finding of the Tribunal that because the applicant was earning Rs. 5,500/- and at the time of retirement he was earning Rs. 11,000/- and, therefore, there is no loss of earning capacity is clearly unwarranted. The Tribunal ought to have considered the disability suffered by the applicant and the principles in this behalf.
[Para 14]
Head Note :
(c) Motor accident - Compensation - For pain, shock and suffering and amenities of life - Quantum - Determination - Finding of.
Held :
A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. While fixing compensation for pain and suffering as also for loss of amenities of life, features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned." [Para 16]
It is clear that on the date of accident (i.e., 19.10.1993), the applicant was 53 years old and ultimately he retired somewhere in 1998-99 at the age of 58 years. So since 1993 the applicant was walking with a limp and he had difficulty in squatting and sitting cross legged. In view of this it is established that applicant has suffered severe loss of amenities of life right from 1993 till 1998 and even thereafter today in 2006 i.e., for about 13 years. In view of this finding of fact, award of Rs. 10,000/- for pain, shock and suffering is on the lower side. [Para 17.1]
In the facts and circumstances of the case, therefore, Court awarded compensation of Rs. 25,000/- for pain, shock and suffering and for loss of amenities of life. [Para 17.2]
Head Note :
(d) Motor accident - Compensation - Injury - Quantum - Award of - Claim for enhancement - Sustainability - Against the claim of Rs. 2 lakhs, MACT awarded petition merely Rs. 24,000/- - Court however considering the claim under various head enhanced the amount of compensation to Rs. 1,30,000/-.
Held :
The appellant-claimant is accordingly entitled to the following amounts:
(i) Rs. 11,000/- for medical expenses - which amount was erroneously deducted by the Tribunal on the ground of reimbursement by the Insurance Company.
(ii) Rs. 66,000/- For Loss of future earning capacity
(iii) Rs. 25,000/- For pain, shock and suffering & loss of amenities of life;
(iv) Rs. 19,000/- For loss of past income for 3½ months
(v) Rs. 9,000/- Transportation charges, special diet and other Misc. expenses,
Rs. 1,30,000/- Total [Para 19]
The award dated 13.07.1999 of the Tribunal is modified and it is held that the respondents are jointly and severally liable to pay the appellant compensation of Rs. 1,30,000/- with proportionate costs and with interest at the rate of 9% per annum. Since the Tribunal had awarded only Rs. 24,000/- the Insurance Company will deposit the additional amount of Rs. 1,06,000/- (Rupees one lakh six thousand) with interest at the rate of 9% per annum on such amount from the date of the claim petition till realization and with proportionate costs within two months from the date of receipt of the certified copy of this judgment.
[Para 20]
Law Laid Down :
The insured contributes his own money for which he receives the amount from Insurance Company - It has no co-relation to the compensation computed against the tortfeasor for the negligence on account of accident.
Case Law Analysis :
Helen C. Rebellow vs. Maharashtra State Road Transport Corporation,1999 ACJ 10 (para 37) [Para 9.1];; United India Insurance Co. Ltd. vs. Patricia Jean Mahajan, 2002 (6) SCC 281 [Para 9.2];; Life Insurance Corporation of India vs. Heirs & Legal Representatives of Decd. Naranbhai Munjabhai Vadhia, 1972 (13) GLR 920 [Para 9.3];; Amthiben MaganLal vs. Superintendent, Geophysicist, ONGC, reported in 17 GLR 910 [Para 9.4];; Ramanlal Ranchhoddas Shah v. Asthi Gustadji Rustomji & Ors., 19 GLR 990 [Para 9.5];; Nirmaladevi Dilipkumar Gandhi vs. Gulamnabi Usmanbhai Shaikh, 19 GLR 620 (624) [Para 9.6];; Ramanlal Ranchhoddas Shah vs. Asthi Gustadji Rustomji & Ors., 19 GLR 990 (paras 27 to 29) [Para 12.1];; State of Gujarat vs. Somabhai Dhurabhai Sindhava, 34 (2) GLR 1043 [Para 12.2];; Divisional Controller, KSRTC vs. Mahadeva Shetty, 2003 (7) SCC 197 [Para 16];; R.D. Hattangadi vs. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 [Para 16] -Relied on
Mohanbhai Gemabhai vs. Balubhai Savjibhai, 1994 ACJ 260 [Para 8].-Distinguished
Conclusion :
Tribunal award of Rs. 24,000/- as compensation is modified and amount of compensation is enhanced to Rs. 1,30,000/- only.
Cases Referred :
Parry vs. Cleaver, 1969 (1) AER 555 = 1969 (1) AER 535;; LIC vs. LR of the deceased Naranbhai, 12 GLR 920;; Daish vs. Wauton, 1972 (2) QB 262;; Cunningham vs. Harrison, 1973 (3) WLR 97;; Union of India vs. Asmathnarayan, 1993 (1) GLH 1044 = 1993 (2) GCD 62 (Guj.);; Babu Mansa vs. Ahmedabad Municipal Corporation, 19 GLR 492;; State of Gujarat vs. Somabhai Dhurabhai Sindhava, 34 (2) GLR 1043.
Decided in Favour of :
Appellant
Appeal Partly Allowed
( 1 ) SATISHKUMAR Rasiklal Doctor, original claimant, has filed this appeal under Section 173 of the Motor Vehicles Act against the judgment and award dated 13. 7. 1999 passed by the Motor Accident Claims Tribunal, Ahmedabad in MAC Petition No. 59 of 1994. The learned Judge by the impugned award has directed the driver, owner and Insurance Company of Fiat car No. GJ-1k-1160 jointly and severally to pay the claimant Rs. 24,000/- with interest at the rate of 12% per annum from the date of the petition till realization, within one month from the date of the order, failing which the interest shall be charged at the rate of 15% per annum thereafter.
( 2 ) IN the claim petition before the Tribunal, it was the case of the applicant that on 19. 10. 1993 at about 12. 15 PM the applicant was going on his scooter towards his house situated in Adarsh Society, Near Swastik Cross Roads, Navrangpura, Ahmedabad and when the applicant was taking turn near Bhagvati Chambers, opponent No. 1 while driving his Fiat Car overtook his scooter from left side and suddenly stopped his car and opened the door of the driver s seat. As a result thereof, the said door of the car dashed with the scooter of the applicant and hence the applicant fell down on the road and sustained serious injuries. According to the applicant, he sustained injuries because of rash and negligent driving by opponent No. 1 and, therefore, the applicant prayed for compensation of Rs. 2 lakhs.
2. 1 Though opponent Nos. 1 and 2 were duly served, they did not remain present before the Tribunal. Opponent No. 3 " Insurance Company had resisted the application by filing reply at Exh. 19 wherein the Insurance Company generally denied the allegations made in the application, but admitted that the offending Fiat Car was insured with opponent No. 3 " Insurance Company.
( 3 ) AFTER going through the documentary and oral evidence the Tribunal came to the conclusion that the applicant had proved that the applicant sustained injuries because of rash and negligent driving by opponent No. 1 while driving the Fiat Car. As regards the compensation, in all the Tribunal awarded Rs. 24,000/- as damages under the following heads:-
Rs. 10,000/- towards pain, shock and suffering;
Rs. 10,000/- towards loss of amenities of life
Rs. 01,000/- towards medical expenses,
Rs. 01,000/- towards transportation charges,
Rs. 02,000/- towards special diet and other misc. expenses and
Rs. 24,000/- TOTAL
1]. The Tribunal also held that in this case as the doctor s fees and other medical expenses of which original papers were produced before the Insurance Company and as the applicant had also taken insurance of personal accident and the Insurance Company had reimbursed Rs. 11,000/- to the applicant towards the medical expenses, the applicant would not be entitled to any amount. The Tribunal further held that at the time of accident the applicant was earning Rs. 5500/-somewhere in 1993 whereas at the time of his retirement in the year 1998, his pay had increased to Rs. 11,000/ -. Thus, the Tribunal observed that there was nothing on record to suggest that the physical disability, as suggested by the learned advocate for the applicant, had in any way affected the earning capacity of the applicant. On the contrary, from the oral evidence of the applicant, it transpired that the applicant had continued in service and retired in normal course and his pay had become almost double after the accident. Hence, the applicant was not entitled to any amount under the head of future economic loss. Being aggrieved by the award, the original claimant has filed this appeal.
( 4 ) MS Sunita Ahuja with Ms Pragya A Jha for the appellant " claimant has made the following submissions :-
1]. The personal accident policy under which the appellant received Rs. 11,000/-was taken out by the appellant by paying premium from his own pocket and the Tribunal erred in disallowing the claim of Rs. 11,000/- for medical expenses on the grou
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