C/FA/2220/2019 JUDGMENT DATED: 21/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2220 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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MOHAMMAD IKARAM NISAR SHAIKH
Versus
PRAVINKUMAR VALCHANDBHAI PATEL
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR HARDIK P MEHTA(6943) for the Defendant(s) No. 6
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 21/02/2023
ORAL JUDGMENT
1. The challenge has been given to the judgment and award dated 16.11.2007 passed in MACP Page 1 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 No.137 of 2008 by MACT (Aux), Panchmahals at Godhra on the ground that though physical disability as well as functional disability of the appellant - claimant was proved, the learned Tribunal, keeping aside the legal principles established under various judgments of the Hon'ble Apex Court, has awarded a meager amount of Rs.9,999/-.
2. Mr. Hemal Shah, learned advocate for the appellant submits that it is very unfortunate that the Tribunal forgot the object of the Act of the benevolent legislation and though there are guidelines and judgments which can assist the Court in deriving at just, fair and reasonable compensation, the Tribunal, in this case, has awarded lumpsum amount without any justification or any reasoning to support the same.
Page 2 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 Adv. Mr. H.P. Mehta for the Oriental Insurance Co. Ltd. submits that they have been exonerated and no liability has been laid down.
3. Mr. Palak Thakkar, learned advocate for the respondent - insurance Company submits that the learned Tribunal has considered the case of the claimant who had urged himself to be a labourer, but could not produce any evidence to substantiate the fact and further, the claimant has failed to examine the Doctor to prove his physical disability, nor any medical bills have been produced to substantiate the injuries. Hence, the lumpsum amount which was granted would meet the ends of justice and thus, supporting the judgment, Mr. Thakkar submits that the judgment requires no interference of this Court.
Page 3 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023
4. The facts of the case suggest that the appellant-claimant on 30.7.2007 was traveling in a rickshaw from Dahod and it is stated that tempo bearing registration no. GJ-9 V-2553 came from behind and dashed the rickshaw. As a result, the rickshaw turned turtle and the appellant suffered partial disability.
5. At the time of the accident, the claimant was aged about 18 years and was earning Rs.3,000/- per month by doing labour work. He suffered loss of hearing capacity in one ear, lacerated wound on the right side and sustained head injuries and the Doctor had assessed his disability as 25%.
6. The claimant examined himself at Exh.37. The FIR was produced at Exh.40, Panchnama at Exh.41 and the charge-sheet counter at Exh.42. MLC certificate at Exh.43 and the Page 4 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 disability certificate at Exh.57 were produced by the claimant, while driving license of the opponent no.1, R.C. Book, investigation report, insurance policy of vehicle no. GJ-9 V-2553 were produced from Exhs.46 to 49 respectively. The driving license of opponent no.4 at Exh.50, R.C. book permit and insurance policy of vehicle no. GJ-20 T-1352 were produced vide Exhs.51 to 53 respectively. The accident is not in dispute and the learned Tribunal, relying upon the evidence on record, held the driver of tempo no.GJ-9 V-2553 negligent and because of negligence of the driver, it has been observed that the claimant sustained injuries in the accident.
7. The learned Tribunal, though had come to the conclusion that the claimant had sustained injuries in the accident and the evidence was given by the claimant that he had Page 5 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 suffered permanent hearing impairment and submitted injury certificate, which discloses that he was treated in the hospital and had produced the disability certificate at Exh.57, had not considered the same on the ground that the claimant has failed to examine the Doctor who had issued the disability certificate. Hence, the Tribunal came to the conclusion that the disability is not proved.
8. The Hon'ble Apex Court in the case of Raj Kumar v. Ajay Kumar & Anr., reported in (2011) 1 SCC 343 has observed as under:-
"11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into Page 6 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'.
While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or Page 7 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage."
9. It has been observed about the assessment to be made by the Tribunal regarding the functional disability of the claimant. Here, the disability of the claimant is shown as 25% because of the hearing impairment sustained in the accident and thus, following the judgment in the case of Raj Kumar (supra), 25% disability is to be considered and 12.5% of the body as a whole, if considered, would be just and proper.
10. The learned Tribunal has considered that the claimant was doing labour work, but had failed to prove and had assessed notional income of the deceased at Rs.2,250/- per Page 8 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 month. Hence, taking into consideration the date of accident and keeping in view the minimum wages schedule, the income of Rs.2,600/- per month is required to be considered considering the age of the claimant as 18 years at the time of the accident and 40% addition is to be made towards future prospective rise. Hence, the income per month would be considered as Rs.3,640/- (Rs.2,600/- + 40% rise= Rs.1,040/-). 12.5% permanent disability is to be considered and accordingly, functional disability is assessed and thus, on the monthly income, the annual disability applying the multiplier of 18, future loss of income would come to Rs.98,280/-. Rs.3,640/- X 12.5% = Rs.455/-. Rs.455/- X 12 X 18 = Rs.98,280/-.
11. The learned Tribunal has not even granted any amount under the head of pain, shock and Page 9 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 suffering, medical expenses, actual loss of income, special diet, attendant charges and transportation. Considering the disability which the claimant sustained and the treatment undergone, reasonable amount is to be granted under all heads. Considering the period of hospitalization, actual loss of income of 3 months is granted and considering the hearing impairment and the head injuries, he would have taken at least 3 months period for recovery. No medical bills have been produced on record, but considering the treatment undergone and the documents on record regarding the disability certificate, aggregate amount is to be granted. Thus, the computation of the compensation would be as under:- Future loss of income Rs.98,280/- Pain, shock and suffering + Rs.15,000/- Special diet, attendant and + Rs.10,000/- transportation charges Page 10 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 Medical expenses + Rs.5,000/- Actual loss of income + Rs.7,800/- Total compensation = Rs.1,36,080/-
12. As the Tribunal has granted Rs.9,999/- as compensation money, the appellant-claimant would be entitled to enhanced amount of compensation of Rs.1,26,081/- at the rate of 7.5% interest per annum from the date of filing of the application till its realization. The respondent no.3 - insurance Company is directed to deposit Rs.1,26,081/- with interest at the rate of 7.5% per annum within eight weeks from the date of receipt of writ of this Court.
13. Out of the said amount, 70% of the amount be invested in a Fixed Deposit with any nationalized Bank, initially for a period of two years, (which shall be renewed from time to time) without any reference to this Court, or till the final disposal Page 11 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023 C/FA/2220/2019 JUDGMENT DATED: 21/02/2023 of the appeal, whichever is earlier. Insofar as the remaining 30% amount is concerned, the same shall be disbursed in favour of the claimant after proper verification. Interest on such Fixed Deposit shall be paid to the claimant periodically.
14. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 12 of 12 Downloaded on : Wed Feb 22 20:52:33 IST 2023