C/FA/1690/2017 JUDGMENT DATED: 22/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1690 of 2017
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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SHRI BABULAL DEVJIBHAI MAHESHWARI
Versus
DRIVER NOT KNOWN & 4 other(s)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
KRUPALI N BHATT(9455) for the Defendant(s) No. 3
MR YOGI K GADHIA(5913) for the Defendant(s) No. 5
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/02/2023
ORAL JUDGMENT
1. The challenge is given to the judgment and award dated 30.12.2016 passed by the MACT (Aux), Bhuj-Kutch in MACP no.383 of 2006.
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2. Facts of the case suggest that the claimant-
victim was returning from Medta (Rajasthan) to Kachchh by driving the tanker on the left side of the road and as stated, in a moderate speed. At about 14:00 hrs., a truck bearing registration no. RJ-14 2-G1738 came from opposite direction and dashed with the tanker. It is alleged that the truck was driven in a rash and negligent manner and came on the wrong side of the road and dashed and collided with the tanker. The appellant, thus, sustained injuries.
3. The appellant - claimant has raised the ground that the learned Tribunal has considered physical disability at 30% and the Orthopedic Surgeon has assessed the disability at 64% and that the surgeon has deposed that the appellant cannot drive vehicle or do heavy work. Learned advocate Mr. Hemal Shah has relied upon the judgments Page 2 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 in the cases of Minu Raut & Anr. v. Satya Pradyumma Mohapatra & Ors., reported in 2013 ACJ 2544 SC, Kala Devi v. Bhagwan Das, reported in 2014 (12) Scale 513, Rekha Jain v. National Insurance Co. Ltd., reported in 2013 SAR (Civil) 921, New India Assurance Co. Ltd. v. J.P. Jethva & Anr., reported in 2009 (1) GLH 447, Ramanbhai K. Darji v.
Babusinh Thakor, reported in 2002 (2) GLH (UJ) 7 and GSRTC v. B.N. Parmar & Anr., reported in 1992 ACJ 484 Guj. as well as the other decisions, to submit that the claimant was a driver and hence, should be considered as a skilled worker and has urged the Court to consider his income in line of those observed by the Courts in the judgment referred by him and further states that when the Doctor has assessed the physical disability and considering the work of the claimant, being a driver, Mr. Shah states Page 3 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 that 100% permanent functional disability ought to have been considered by the Tribunal.
4. While countering the same, learned advocate Ms. Rupali Bhatt submits that the learned Tribunal has assessed the income of the claimant at Rs.5,000/- per month, while taking into consideration the date of accident as 11.4.2006 and even the claimant driver is to be considered as skilled worker, then, the assessment of the monthly income ought to have been in accordance to the inflation index and the cost of living, which has been suitably bifurcated in the schedule of minimum wages of the State of Gujarat. Ms. Bhatt submits that the income which is assessed by the Tribunal is much more on a higher side, which would itself include the factum of prospective rise in future income and thus, submits that the Page 4 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 assessment so made by the Tribunal requires no interference of this Court.
5. She further states that the Doctor who had deposed before the Court is not the one who had treated the claimant and even if the deposition is to be believed, then, it is not the case of any amputation of any limb to consider 100% functional disability of the claimant and thus, submits that the injury so sustained would allow the claimant to do some other work, where his earning capacity would not be affected and thus, Ms. Bhatt submits that the assessment is regarding the physical disability considering it as a functional disability of 30% is just and in accordance to the evidence on record.
6. Ms. Bhatt further states that medical bills have been granted as the learned Tribunal Page 5 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 has granted Rs.50,000/- under the head of pain, shock and suffering and even on other heads, which are just and reasonable.
7. The learned Tribunal has granted compensation under various heads as under:-
Future loss of income Rs.2,34,000/- Medical expenses Rs.22,389/- Special diet, attendant and Rs.5,000/- transportation Pain, shock and suffering Rs.50,000/-
Actual loss Rs.20,000/-
Total Rs.3,31,389/-
8. In the case of Raj Kumar v. Ajay Kumar & Anr., reported in (2011) 1 SCC 343, the Hon'ble Apex Court has laid down the methodology to be adopted by the Tribunal to ascertain the effect of permanent disability on the actual earning capacity which involves three steps. The necessary observations are as under:-
Page 6 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 "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 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."
9. Prior to considering the effect on the actual earning capacity, the Hon'ble Apex Court has directed the Tribunal to decide Page 7 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 whether there would be any permanent disability and for that the Tribunal is required to consider and decide with reference to the evidence on record.
Paragraph 12, thus, laid down as under:-
"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of Page 8 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity."
10. In connection with the evidence of the Doctor, the Hon'ble Apex Court, in the said judgment of Raj Kumar (supra), has observed as under:-
"17. 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 whether it is only with reference to a limb. If the percentage of permanent disability is stated Page 9 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 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.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of Page 10 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
11. While summarizing the whole aspect, the principles has been discussed in Paragraph 19, which reads as under:-
"19. We may now summarise the principles discussed above:
(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 Page 11 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 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 profession, occupation or job, age, education and other factors."
12. Here in this case, the learned Tribunal has considered the income of the claimant at Rs.5,000/- per month and on that, 30% disability has been assessed. It is not the case of the claimant that he had sustained any amputation. Dr. H.M. Hadiya, who has Page 12 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 been examined by the claimant, has given the disability certificate and Dr. Hadiya, in his affidavit-in-chief, has placed reliance upon the history given by the patient that prior to the accident, he was working as driver and with disability, he cannot drive any type of vehicle. Thus, it was concluded by the Doctor that the driver has permanent disability. The evidence of the Doctor is in connection with the job of the claimant, as being a driver, the injury is with regard to knee joint, ankle joint and hip joint movement, which would certainly affect his work as a driver, but that would not make him 100% incapable of doing any work. The physical disability has been considered as 30% by the learned Judge for the body as a whole and there is no reason to vary the assessment so made following the judgment in the case of Raj Kumar (supra) and Page 13 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023 C/FA/1690/2017 JUDGMENT DATED: 22/02/2023 accordingly, the learned Tribunal has granted the money compensating loss of earning capacity. The amount under the head of pain, shock and suffering is also in consonance with the sufferings and further medical expenses is granted and therefore, this Court does not find any reason to interfere in the observations and the judgment and award passed by the Tribunal.
The learned Tribunal, on appreciation of the evidence, has considered the sole negligence of the driver of truck no. RJ-14 2-G1738 and therefore, there is no dispute to the conclusion made in affirmative for issue no.1.
13. Accordingly, the appeal stands dismissed.
(GITA GOPI,J) Maulik Page 14 of 14 Downloaded on : Fri Feb 24 20:47:39 IST 2023