Gujarat High Court
Jasubhai Krishnakant Soni vs Pravinkumar Gagaldas Desai on 7 January, 2025
NEUTRAL CITATION
C/FA/3117/2009 ORDER DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3117 of 2009
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JASUBHAI KRISHNAKANT SONI
Versus
PRAVINKUMAR GAGALDAS DESAI & ORS.
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Appearance:
MR HARNISH V DARJI(3705) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/01/2025
ORAL ORDER
The present First Appeal is preferred by appellant against the judgment and award delivered by the learned Motors Accident Claim Tribunal (Auxiliary) at Ahmedabad in Motor Accident Claim Petition No.452 of 1992 dated 28/4/2000 whereby the learned tribunal awarded compensation of Rs.4,23,250/- with running interest @ 12% per annum from the date of filing of proper petition till realization.
2. The short facts of the case are that out of vehicular accident which took place on 18/8/91 at about 12-00 near adve Ashram and on noon way of Gandhi Bridge to Shahpur square. According to the petitioner he was travelling on bicycle on left side of the road at that time the opponent No : 1 come on his scooter from the back side of the petitioner without blowing horn with full speed was driving rashly, negligently and carelessly and had dashed on right side of the petitioner and knocked him. Thereafter he fled away by keeping his scooter at the site of the accident. According to the petitioner he had serious injuries on his both legs, spinal code and due to the injuries, his lower part of the body below the waist was absolutely useless and that he is not in a position to move and Page 1 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025 NEUTRAL CITATION C/FA/3117/2009 ORDER DATED: 07/01/2025 undefined thereby his whole life is spoiled. With the description of his physical injuries and present physical problem he is facing compensation of Rs.6,50,000/-- is sought and the learned tribunal after considering the evidence on record has awarded compensation as stated in paragraph 1 of this judgment.
3. Heard learned advocates appearing for the parties.
4. Learned advocate Mr.Darji for the claimant would argue that this is a case of 100% functional disability. He would submit that claimant suffered burst fracture of D12 vertebral body resulted into paraplegia below waist and the lower limb has become deadwood. He would submit that though tribunal has taken Rs.1,250/- as income of the claimant in absence of any documentary evidence, considering the fact that claimant is required to take assistance of some other person through out to his life, the tribunal ought to have taken income on higher side. He would submit that tribunal has not granted loss of future prospect and therefore the same is required to be granted. He would also submit that tribunal has also granted very low amount for attendant charges and not granted any amount under the head of loss of sexual life. He would submit that considering the prolong treatment the amount under the head of pain, shock and suffering is also required to be granted on higher side.
4.1 By making above submissions, he would submit to allow this appeal and enhance the amount of compensation.
5. On the other hand, learned Advocate Mr.Parikh for the insurance company would submit that tribunal has rightly taken the monthly income at Rs.1,250/- as compared to the minimum wage in the year 1991. He would submit that accident took place in year 1991 and judgment is Page 2 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025 NEUTRAL CITATION C/FA/3117/2009 ORDER DATED: 07/01/2025 undefined delivered in year 2000 and thus the amount granted under the PSS is also proper and thus just and fair compensation is awarded by the tribunal, this Court may not disturb the judgment and award delivered by the tribunal.
6. I have heard the learned advocates for the parties and given anxious consideration to the rival submissions and examined the R & P. It is undisputed that claimant received injuries out of the road accident and remained under the big trauma. Fact of accident is revealed from the FIR and Panchnama drawn post accident is not quarrel issue of occurrence of accident and evidentiary value of these two documents are not discussed at length.
7. The claimant having received injuries from road accident was taken to the V. S. Hospital where he remained as indoor patient for the period commencing from 18/08/1991 to 22/08/1991 as is evident from Exh.25 with following injuries.
"Compression fracture D12 c purupuresis."
7.1 The certificate issued by the Gujarat Cancer and Research Institute also noted the following finding after examining the claimant and gave Impression as under:
"...There is seen burst fracture of D12 vertebral body with posterior displacement of fracture fragment..."
Impression:
Post traumatic status.
Burst fracture of D12 vertebral body with posterior displacement of fracture fragment. There is resultant compression of distal cord and conus medullaris with cord contusion."
7.2 Later on, Dr. Mukul Pandit issued physical permanent impairment
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NEUTRAL CITATION
C/FA/3117/2009 ORDER DATED: 07/01/2025
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certificate at Exh.30 and after having noted all these aspect found the claimant to be 85% permanent partial disable.
8. Now, in background of this aspect, if the business in which the claimant is involved is seen, according to the pleadings, he was ferrying of the clothes on scooter to sell them; and was earning his livelihood. The claimant is examined as PW 1 at Exh.21 and he has on oath stated about the injuries received by him out of road accident. No cross-examination is done by the insurance company on the aspect of injury as well as physical disability.
9. Dr.Mukul Pandit is also examined as PW 2 at Exh.29 and has stated that due to Burst fracture of D12, the claimant became paraplegia and could not move without any help or assistance from lower part of his body. Problem in the nature of passing of urinal and bowl is also noted and without assistance both kind of nature's call cannot be attended.
Noticeable, the claimant was married at the time of road accident and since his lower part of body became dyfunctional on become paraplegia, he also has lost his sexual life. All these aspects are required to be kept in mind while deciding just and fair compensation.
10. To assess the impact of injury and physical disablement on earning capacity, at this juncture, let refer to decision in case of in Rajkumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, it has been observed 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;Page 4 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025
NEUTRAL CITATION C/FA/3117/2009 ORDER DATED: 07/01/2025 undefined
(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 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.
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.
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15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation."
11. Reference may be invited to the decision in case of Jithendran Vs. New India Assurance Co. Ltd. & Anr., AIR 2021 SC 5382, it has been observed as under:-
"11. The Motor Vehicles Act is in the nature of social welfare legislation and its provisions make it clear that the compensation should be justly determined. Justice A.P. Misra in Helen C. Rebellow & Ors. v. Maharashtra SRTC & Anr., reported in (1999) 1 SCC 90, held the following on the contours of 'just' compensation.
The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just.
A person therefore is not only to be compensated for the injury suffered due to the accident but also for the loss suffered on account of the injury and his inability to lead the life he led, prior to the life- altering event. Justice D.Y. Chandrachud speaking for a three judges' bench in Jagdish Vs. Mohan & Ors., reported in AIR 2018 SC 1347 makes the following relevant observation on the intrinsic value of human life and dignity that is attempted to be recognised, through such compensatory awards, Page 6 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025 NEUTRAL CITATION C/FA/3117/2009 ORDER DATED: 07/01/2025 undefined "...the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law."
12. The Courts should strive to provide a realistic recompense having regard to the realities of life, both in terms of assessment of the extent of disabilities and its impact including the income generating capacity of the claimant. In cases of similar nature, wherein the claimant is suffering severe cognitive dysfunction and restricted mobility, the Courts should be mindful of the fact that even though the physical disability is assessed at 69%, the functional disability is 100% in so far as claimant's loss of earning capacity is concerned.
14. The test for determining the effect of permanent disability on future earning capacity involves the following 3 steps as was laid down in Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343 and reiterated by Justice Indu Malhotra in Chanappa Nagappa Muchalaoda Vs. Divisional Manager, New India Insurance Company Limited, (2020) 1 SCC 796.
15. The above yardstick to be adopted in such exigencies was reaffirmed by Justice S. Ravindra Bhat in Pappu Deo Yadav Vs. Naresh Kumar others, (2020) SCC Online 752 : AIR 2020 SC 4424. The following was set out by the three Judges' Bench:
"13. The factual narrative discloses that the appellant, a 20-year-old data entry operator (who had studied up to 12th standard) incurred permanent Page 7 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025 NEUTRAL CITATION C/FA/3117/2009 ORDER DATED: 07/01/2025 undefined disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re-assessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so a functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity."
"20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some 'proportionate' principle, which was illogical and is Page 8 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025 NEUTRAL CITATION C/FA/3117/2009 ORDER DATED: 07/01/2025 undefined unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case."
12. Applying the aforesaid ratio to the case on hand, evidently, the claimant was aged 29 years old at the time of road accident, due to injury received from accident he became paraplegic. Lower part of his body became dyfunction for all kind of daily work and even for purpose of living life, he continuously requires assistance. As noted herein above, claimant was 100% dyfunctional and considering the social and economical background of the claimant belonging to weaker section of the society to grant compensation liberally, I adopt Rs.1,500/- as income of the claimant which is just and fair. In absence of any proof of income, following the ratio in case of National Insurance Company Ltd. Vs. Pranay Shethi [(2017) 16 SCC 680], 40% rise is granted for the loss of future prospect since claimant having aged between 26 to 30, the multiplier of 17 is applied. Thus, the future loss of income is granted accordingly.
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13. Now, question arises as to what could be the just and fair amount of compensation under the other heads. Firstly, the PSS which is granted at Rs.1,00,000/-. To be noted that no material compensation can completely negate trauma and suffering that injured and his family faces, law only knows language of monetary compensation. In such cases, it then becomes to duty of court to translate provisions of monetary compensation into a fabrication that helps injured and his family in coping with their loss. To be noted that claimant has suffered burst fracture of D12 vertebral body resulted into paraplegia below waist and the lower limb has become deadwood. The claimant is also unable to pass urine and bowl without the assistance. Thus, the claimant is required continuous assistance to live his life and therefore considering the range of trauma the claimant received, the compensation granted under the PSS is enhanced from Rs.1.00 Lakh to Rs.2.50 Lakh. No actual loss of income can be assessed in this case where the claimant himself has lost his earning capacity and, albeit it is granted for one year at rate of Rs.1,500/- per month. Insofar as the amount granted under the head of Special Diet is concerned, it is also on lower side and therefore it is increased from Rs.20,000/- to Rs.50,000/- considering the nature of injuries received.
14. Under the head of loss of amenities and loss of sexual life, the compensation is required to be granted as the claimant is married at the time of road accident and aged 29 years and therefore it is granted at Rs.2.00 Lakh under the head of loss of sexual life. The learned tribunal has granted Rs.30,000/- under the head of medical expenses which is increased to Rs.50,000/- considering the nature of injuries received by the claimant.
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15. To be noted further that the condition of the claimant shows that he would be in need of an attendant. The family members would be required to take care of the claimant. The claimant cannot be expected to rely upon the gratuitous service of his acquaintance and family members and thus, placing reliance on the judgment in the case of Kajal Vs. Jagdish Chand, reported in (2020) 4 SCC 413, I propose to grant compensation under the head of attendant charges. Keeping in mind the condition of the appellant, making a conservative estimate of one attendant at Rs.1,000/- per month, the annual expenses for the attendant charges would come to Rs.12,000/- and using the multiplier of 17, the amount comes to Rs.2,04,000/- under the head of attendant charges for the claimant's entire life.
16. Thus, Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future Loss of Income 4,28,400/-
Rs.1,500/- (+) 40% future prospect (x) 12 months
(x) 17 multiplier.
Actual loss of income (Rs.1,500/- x 12) 18,000/-
Pain, shock and suffering 2,50,000/-
Medical Expenses 50,000/-
Special Diet 50,000/-
Attendant charges [Rs.1,000/- (x) 12 (x) 17 2,04,000/-
multiplier]
Total 10,00,400
Already awarded by the tribunal 4,23,250/-
Enhanced amount of compensation 5,77,150/-
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NEUTRAL CITATION
C/FA/3117/2009 ORDER DATED: 07/01/2025
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17. Therefore, I hold that the claimants are entitled to get the total amount of compensation of Rs.10,00,400/- , which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
18. For the reasons recorded above, the following order is passed.
19. The present appeal is partly allowed.
20.1 The Insurance Company is directed to deposit the enhanced amount Rs.5,77,150/- with 9% p.a. interest from the date of claim petition till its realization before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
20.2 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
20.3 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
20.4 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 12 of 12 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 23:05:35 IST 2025