C/FA/2485/2018 ORDER DATED: 20/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2485 of 2018
With
CIVIL APPLICATION (FOR SUBSTITUTE SERVICE) NO. 1 of 2019
In R/FIRST APPEAL NO. 2485 of 2018
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ISHWARDAN HARIDAN GADHVI
Versus
OSMAN LATIF TRAPA & 7 other(s)
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Appearance:
MR.JAY S SHAH(7244) for the Appellant(s) No. 1
for the Defendant(s) No. 7
DS AFF.NOT FILED (N) for the Defendant(s) No. 5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 6,8
NOTICE SERVED for the Defendant(s) No. 1,2,7.1
NOTICE UNSERVED for the Defendant(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/02/2023
ORAL ORDER
1. Challenge has been given to the judgment and award passed by learned Motor Accident Claims Tribunal (Aux.), Mehsana dated 6.4.2018 in Motor Accident Claims Petition No.1053 of 2005.
2. The grounds raised are that learned Tribunal has not considered functional disability of the claimant who was driver and had suffered from the accident and had Page 1 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 sustained right leg amputation from shaft of femur. The claimant also suffered injuries on the left leg.
3. Mr.Jay Shah, learned advocate for the appellant submitted that injuries suffered by the claimant have made him disable totally and would not be in a position to even carry on any other work much less the work as driver which was his profession. Thus, it is submitted that 100% functional disability ought to have been assessed by learned Tribunal. It is submitted that learned Tribunal has erred in considering only 45% and permanent physical disability assessed by the Doctor is at 59.95% for body as a whole. Mr.Shah further submitted that no consent had been given by the claimant to consider 45% disability. While referring to purshis Exh.63, Mr.Shah submitted that endorsement is only from the side of the insurance company. He submitted that learned Tribunal was required to assess independently functional disability of the claimant.
4. Mr.Maulik Shelat, learned advocate appearing for the insurance company, supporting the impugned judgment Page 2 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 and award, has submitted that the claimant was required to prove that owing to the physical disability, the claimant would have suffered functional disability and thus, in support of the endorsement made by the insurance company on the document at Exh.63, Mr.Shelat submitted that functional disability is required to be assessed at 45%.
5. Mr.H.G.Mazmudar, learned advocate appearing for respondent No.3 - insurance company has adopted the arguments advanced by Mr.Maulik Shelat, learned advocate for respondent Nos.6 and 8.
6. In the case of Rajkumar Vs Ajay Kumar and another, reported in (2011) 1 SCC 343, the Apex Court while observing permanent physical disability has laid down that the Tribunal is required to assess the effect of permanent disability on the earning capacity of the injured and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money to arrive at the future loss of earnings by applying standard multiply method for arriving at the loss of Page 3 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 dependency. The Apex Court, thus, in paragraph 16 has laid down the role of the Tribunal in a case when the Doctor gave evidence before the Tribunal. The Apex Court has further observed that in case the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute the Medical Board and can refer the claimant to such Medical Board for assessment of the disability.
7. In paragraph 13 of the judgment, the Apex Court has observed about the earning capacity ascertaining the effect of permanent disability on it. The Apex Court has referred about the three steps. Paragraph 13 reads thus :
"13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant Page 4 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 could still effectively carry on the activities and functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."
The Apex Court has summarized the principles in paragraph 19 as under.
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of Page 5 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 profession, occupation or job, age, education and other factors.
8. Here, in this case, the claimant was, at the time of accident, driver by profession. In his oral evidence by way of affidavit Exh.32 produced the certificate from Sadguru Transport, Mehsana at Mark 32/17 where it has been certified that the claimant was serving as driver. The evidence before the learned Tribunal at Exh.32 suggests that the claimant, after the accident, was taken to Bhachau Civil Hospital and because of serious injuries, was thereafter taken to Bhuj Hospital and during his stay as indoor patient from 30.6.1996 to 6.7.1996, the claimant was operated and rod as well as plate were fixed in the right leg and had plaster on the left leg. The claimant further stated that again he was admitted as indoor patient at Bhuj Hospital and thereafter he was taken to Orthopedic Surgeon, Mehsana in ambulance where Dr.G.K.Patel, Orthopedic Surgeon attended him. The claimant was admitted in the said hospital from 10.7.1996 to 2.12.1996 i.e. for 145 days and he was operated thrice. Since it was Page 6 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 found that his right leg could not be treated completely, his right leg from knee was amputated. He deposed before the learned Tribunal that both his legs were seriously injured. He was operated from tibia fibula which was open fracture, sustained fracture on right leg femur and fracture on the fibula of left leg; his right leg was treated with external fixation (antenna). The claimant also had to undergo bone grafting, femur fracture was treated with nail and screw. Dr.G.K.Patel and Dr.Mahesh Kandoi have treated the claimant and he had to make huge payment for medical expenses.
9. As per the deposition of claimant, Dr.G.K.Patel had given opinion regarding his physical disability, right leg permanent disability was assessed at 55%, while left leg at 11% and the Doctor had opined that there would not be any improvement and thus, the claimant had stated that the Doctor had assessed his physical disability at 56.95%, whereas Mr.Shah submitted that there is typographical error and actually, the Doctor has assessed the physical Page 7 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 disability at 59.95%.
10. The claimant further stated that now he would not be in a position to drive the vehicle and thus, he has suffered 100% functional disability.
11. Considering the evidence on record and in view of the principles laid down by the Apex Court in the case of Rajkumar (supra), this Court also is of the considered view that the claimant being driver would not be in a position to carry on his profession as he has suffered injuries in both his legs and thus, his functional disability is required to be assessed at 100%.
12. As per the facts of the case, on 29.6.1996 the claimant has started from Bhuj to Mehsana in truck bearing No.GJ-02-U-9029 and when he was on national highway No.8 near Pool No.324/1 Bhachau, truck trailer bearing No.GJ-06-T-6354 was coming from opposite side fully loaded with boxes which were extended from both the sides of trailer, while another truck bearing No.GJ-12-T-6354 was Page 8 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 following trailer truck and had tried to overtake truck trailer but because of the extended goods on the body part of the truck trailer, the said truck could not succeed in overtaking and thus, the truck following truck trailer suddenly applied brakes and resultantly, the claimant also applied the brakes of his truck, but all the three vehicles dashed and therefore, accident occurred wherein the claimant sustained injuries.
13. Learned Tribunal has considered the income of the driver at Rs.1500/- per month and also considered Rs.750/- as prospective rise in income and hence, the income has been assessed at Rs.2250/-. This Court does not find any reason to interfere with the assessment made by learned Tribunal. However, as per the reasons given hereinabove and following the judgment of the Apex Court in the case of Rajkumar (supra), 100% functional disability is to be considered keeping in view the fact that the claimant was driver and in future, he would not be in a position to continue with his work. Keeping in mind the fact that the claimant was 39 years of age at the time of Page 9 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 accident, multiplier of 15 would be applicable. Thus, the claimant would be entitled to compensation at Rs.4,05,000/- (Rs.2250 x 12 x 15) . This Court does not want to interfere with other amounts on various heads awarded by learned Tribunal as the same are in consonance with the minimum wages and economic standard prevalent at the relevant point of time. Thus, the claimant would be entitled for the following amount.
1 Future loss of income Rs.4,05,000/-
2 Actual loss of income Rs.0,13,500/-
3 Transportation, special diet, Rs.0,05,000/-
attendant charges.
4 Medical expenses Rs.0,76,267/-
5 Pain, shock and suffering Rs.0,10,000/-
Total Rs.5,09,767/-
14. Learned Tribunal has awarded Rs.2,87,017/- at the rate of 9% interest per annum. Hence, enhanced amount would be Rs.2,22,750/- which the respondent insurance company would be required to pay the claimant within six weeks from the receipt of the writ of this Court. However, it is directed that enhanced amount would be Page 10 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023 C/FA/2485/2018 ORDER DATED: 20/02/2023 deposited at the rate of 7.5% interest from the date of the claim petition. The impugned award is modified to the extent indicated hereinabove.
15. Accordingly, the First Appeal stands disposed of. Pending Civil Application/s also stands disposed of accordingly.
(GITA GOPI,J) H.M. PATHAN Page 11 of 11 Downloaded on : Wed Feb 22 20:45:16 IST 2023