TASVINABEN RAJESHBHAI SHAH Vs. SANJIVBHAI S SHAH & 2
LAWS(GJH)-2016-6-407
HIGH COURT OF GUJARAT
Decided on June 13,2016

Tasvinaben Rajeshbhai Shah Appellant
VERSUS
Sanjivbhai S Shah And 2 Respondents

JUDGEMENT

- (1.) Feeling Aggrieved And Dissatisfied With The Impugned Judgment and award passed by the learned Motor Accident Claims Tribunal, at Mirzapur, Ahmedabad (Rural) [hereinafter referred to as "Tribunal"] in Motor Accident Claim Petition No.1211/2004 by which the learned Tribunal has partly allowed the said claim petition and has awarded a total sum of Rs.2,30,100/ to the original injured claimant towards injury and the permanent partial disablement sustained by her, the original injured claimant has preferred the present First Appeal.
(2.) That In A Vehicular Accident Which Occurred On 09.09.2003, The appellant herein original injured claimant sustained serious injuries on the back side of the head, over right leg. She sustained permanent partial disability. There was a brain hemorrhage and therefore, she was admitted in the hospital and remained in the hospital as indoor patient where she was operated. According to the claimant, she sustained 24% permanent partial disablement neurologically and 15% orthopedic permanent partial disability of the body as a whole. Therefore, the original injured claimant filed the aforesaid petition before the learned Tribunal claiming a total sum of Rs.10 lakh towards compensation under the different heads. It was the case on behalf of the original claimant that she was a partner in a partnership firm of her husband and was getting Rs.4,000/ per month towards salary. It was the case on behalf of the original claimant that she was filing the income tax return also. Therefore, the original claimant claimed a total sum of Rs.10 lakh under different heads. [2.1] That on appreciation of evidence the learned Tribunal held the driver of the Scooter No.GJ1BD2157 rash and negligent due to which the accident occurred and the claimant sustained serious injuries. That on appreciated of evidence the learned Tribunal has considered and assessed permanent partial disability of the body as a whole at 35% and after assessing the income of the claimant at Rs.46,000/ has awarded a total sum of Rs.2,30,100/ under different heads as under: JUDGEMENT_407_LAWS(GJH)6_2016.htm
(3.) Shri Paresh M. Darji, Learned Advocate Appearing On Behalf Of The appellant herein original claimant has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has materially erred in awarding Rs.2,30,100/ only towards the compensation for the injury and the permanent partial disability sustained/suffered by the appellant. [3.1] It is further submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that as the learned Tribunal has materially erred in awarding Rs.1,77,100/ only towards future loss of income by considering the permanent partial disability at 35%. [3.2] It is further submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that as per the medical evidence of Dr. Desai at Exh.47, the claimant suffered neurological 24% permanent partial disability of the body as a whole. It is submitted that the appellant also sustained 15% orthopedic permanent partial disability of the body as a whole. It is submitted that therefore the learned Tribunal ought to have awarded future loss of income considering the permanent partial disability at 39%. [3.3] It is further submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that the learned Tribunal has materially erred in awarding Rs.20,000/ only towards pain, shock and suffering. [3.4] It is submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that the appellant herein original claimant sustained head injuries and brain hemorrhage and considering prolonged hospitalization and medical treatment and the fact that the claimant also sustained fracture on his left leg, the learned Tribunal ought to have awarded at least Rs.75,000/ towards pain, shock and suffering. [3.5] It is further submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that the learned Tribunal has materially erred in awarding future loss of income applying the multiplier of 11. [3.6] It is submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that looking to the age of the appellant at the time of accident i.e. 48 years at the time of accident, the learned Tribunal ought to have applied the multiplier of 13. [3.7] It is further submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that the learned Tribunal has materially erred in awarding future loss of income assessing / considering the income of the injured claimant at Rs.46,000/ per annum instead of Rs.48,000/ as per the income tax return. [3.8] It is further submitted by Shri Darji, learned advocate appearing on behalf of the original claimant that the learned Tribunal has materially erred in not awarding any amount towards actual medical expenses incurred by the claimant on the ground that the claimant received the entire amount towards medical bills from the insurance company under the policy of mediclaim. In support of his above submissions, he has relied upon the decision of the Division Bench of this Court in the case of Oriental Insurance Co. Ltd. vs. Kokilaben Wd/o. Arvindbhai Chhaganbhai Dodiya & Ors., 2015 3 GLR 2681 (Para 4.12) and another decision of this Court in the case of Satishkumar Rasiklal Doctor vs. Baldevbhai Chhaganbhai Thakor and Ors., 2007 14 GHJ 263. Shri Darji, learned advocate appearing on behalf of the original claimant has also relied upon the decision of the Hon'ble Supreme Court in the case of Vimal Kanwar and Ors. vs. Kishore Dan and Ors., 2013 7 SCC 476 (Paras 18 and 19). Making above submissions and relying upon above decisions, it is requested to allow the present first appeal and modify the impugned judgment and award accordingly.;


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