NEUTRAL CITATION
C/FA/2459/2019 JUDGMENT DATED: 20/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2459 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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SURESH BABUBHAI VANIYA
Versus
BADHEER ALARAKHA SANDHI (DAL)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 6
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 7
RULE UNSERVED for the Defendant(s) No. 1,2
SERVED BY AFFIX. (R) for the Defendant(s) No. 4,5
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NEUTRAL CITATION
C/FA/2459/2019 JUDGMENT DATED: 20/09/2023
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/09/2023
ORAL JUDGMENT
1. Challenge in this appeal at the instance of the appellant - original claimant - injured is to the judgment and award dated 16.03.2018 passed in Motor Accident Claim Petition No. 1101 of 2008 (claim petition) by the learned Motor Accident Claims Tribunal (Auxiliary), Rajkot, (the Tribunal) inter alia on the grounds that the income has not been considered as per the work undertaken by the appellant, who was working as a Cleaner in the truck at the relevant point of time and further, the functional disability has not been considered.
2. The facts of the case are that on 21.01.2008 at about 8:00 in the morning, the appellant - claimant was on service as a Cleaner on a Truck bearing registration No. GJ-1-AT-2252, which was being plied on Sardhar - Atkot road. The accident had occurred between the truck and a Tanker bearing registration No. GJ-12-U-6233. Both Page 2 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023 NEUTRAL CITATION C/FA/2459/2019 JUDGMENT DATED: 20/09/2023 undefined the vehicles were in full speed and being driven in rash and negligent manner and owing to the accident, the appellant - claimant sustained injuries on the right leg with fracture and even sustained grievous injuries on his left thigh and in vertebra, and had four fractures and after the accident, was remained almost bedridden and gradually, after the operation and treatment, improved, but still, the injury has left him with 44% permanent disability.
3. Learned advocate Mr. Hemal Shah for the appellant - claimant submitted that the learned Tribunal has not gone into the details with regard to the functional disability and the monthly income was also assessed as Rs.2,800/- of the Claimant, which he states, even not, according to the Minimum Wage Schedule.
4. Per contra, learned advocates Mr. Chirayu Mehta and Mr. Tanmay Karia for the respective respondents - insurance companies submitted that the amount which has been assessed is just and proper and requires no interference at the hands of this Court. Page 3 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023
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5. The total amount, which has been granted is Rs.1,23,200/-. The learned Tribunal has considered 16% disability but has not delved into the actual injuries sustained by the appellant - claimant to find out the functional disability, which would affect the work of the appellant as a Cleaner. The disability certificate was proved on record, which was issued by a doctor of Yash Hospital and according to the doctor, the disability would be 44% of the limb. The injury examination was on the hip and the thigh and the finding that he was not in a position to squat and sit cross legged and suffered shortening of leg and accordingly, the learned Tribunal could have relied upon the decision of the Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 and assessed the functional disability. However, it appears that the Tribunal has not entered into the aspect of functional disability as laid down in the said decision. The Apex Court, in paragraphs 9 to 11 has considered the aspect of assessing the loss of earning capacity with a word of caution to the Tribunal that it should not mechanically apply the percentage of permanent disability as percentage of loss of earning capacity. The relevant observations as Page 4 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023 NEUTRAL CITATION C/FA/2459/2019 JUDGMENT DATED: 20/09/2023 undefined reproduced herein below:
"9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a Page 5 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023 NEUTRAL CITATION C/FA/2459/2019 JUDGMENT DATED: 20/09/2023 undefined compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanently 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. D.M., National Insurance Co. Ltd.).
5.1 Thus, considering the work of the appellant - claimant as being Cleaner on the truck and on the date of accident, he was on the truck (as a Cleaner), this Court considers that 44% disability for the limb was required to be considered. Taking this factor into consideration, 22% functional disability is considered as disability for the body as a whole, which ought to have been granted. 5.2 The income on the date of accident being 22.01.2008, keeping in mind the Minimum Wage Schedule, is to be considered as Rs.3,000/- per month. Considering 22% disability, as aforesaid, and Page 6 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023 NEUTRAL CITATION C/FA/2459/2019 JUDGMENT DATED: 20/09/2023 undefined applying a multiplier of 17, as his age at the time of accident was 28, the total amount under the head of future loss would come to Rs.1,34,640/- (Rs.3,000 x 22% x 12 x 17). The appellant - claimant had suffered injury in both the legs, thigh, vertebra and in the initial period, he was totally physically handicapped and had suffered operation and gradually could improve and at present, as it has been submitted, he is still walking with stick, and thus, taking this fact into consideration and that in future too, he would suffer because of the injuries sustained, this Court considers that reasonable amount under the head of Pain, Shock and Suffering is required to be granted and is, accordingly, assessed as Rs.50,000/-. 5.3 During the course of treatment and hospitalization, the appellant - claimant would have received support and assistance of the family members, who might have attended to his needs and further, there would be expenses for the transportation during the hospitalization. Considering the totality of the facts and circumstances, under the head of Special Diet, Attendant Charges and Transportation Charges, Rs.25,000/- is granted. The medical Page 7 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023 NEUTRAL CITATION C/FA/2459/2019 JUDGMENT DATED: 20/09/2023 undefined expenses is considered as Rs.10,000/-. The appellant - claimant might not have recovered for a period of about eight months in view of the injuries sustained. Considering the monthly income of Rs.3,000/-, the actual loss of income would come to Rs.24,000/-. Thus, the computation of total compensation would be as under:
Head Award of Modified
Tribunal (Rs.) Amt. (Rs.)
Future loss of income 81,600/- 1,34,640/-
Medical Expenses 5,000/- 10,000/-
Special Diet, Attendant and 10,000/- 25,000/-
Transportation
Pain, Shock and Suffering 25,000/- 50,000/-
Actual loss of income 1,600/- 24,000/-
Total 1,23,200/- 2,43,640/-
Difference (enhanced amount) 1,20,440/-
6. For the forgoing reasons, the appeal succeeds and is accordingly, allowed in part. The impugned judgment and award, as aforesaid, is hereby modified to the aforesaid extent and it is held that the appellant shall be entitled to total compensation of Rs.2,43,640/-. The difference amount of Rs.1,20,440/- shall be deposited within a period of 08 (eight) weeks before the Tribunal Page 8 of 9 Downloaded on : Thu Sep 21 20:43:18 IST 2023 NEUTRAL CITATION C/FA/2459/2019 JUDGMENT DATED: 20/09/2023 undefined concerned. The appellant - claimant would be entitled to interest at the rate of 7.5% per annum on such enhanced amount. 6.1 Upon the amount so deposited, 25% of the amount be invested in a Fixed Deposit with any nationalized Bank, for a period of three years. Insofar as the remaining 75% amount is concerned, the same shall be disbursed in favour of the original claimant, after proper verification. Interest on such Fixed Deposit shall be paid to the claimant periodically. On completion of three years, the FDR amount shall be disbursed to the claimant, without any reference to this Court, following due procedure. However, the original FDR, in the name of the claimant, shall be kept in the custody of the Nazir of the Tribunal. No any advance, loan or encashment against the Fixed Deposit be permitted by anyone.
6.2 R&P be transmitted back forthwith.
[ Gita Gopi, J. ]
hiren
/SB-1
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