Gujarat High Court

Digambar Naran Padale vs Arjan Sanaj Varu on 15 December, 2021

Bench: Hemant M. Prachchhak

     C/FA/4835/2006                               JUDGMENT DATED: 15/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4835 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            Yes

3    Whether their Lordships wish to see the fair copy                  No
     of the judgment ?

4    Whether this case involves a substantial question                  No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
                        DIGAMBAR NARAN PADALE
                                 Versus
                       ARJAN SANAJ VARU & 2 other(s)
================================================================
Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1
MR JENIL SHAH for the Appellant
MR SAMEE URAIZEE for the Appellant
MR RITURAJ M MEENA WITH MR NAYAN RAVANI (3224) for the
Defendant(s) No. 3
RULE NOT RECD BACK(63) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 15/12/2021

                             ORAL JUDGMENT

1. This appeal is filed by the appellant - original claimant

C/FA/4835/2006 JUDGMENT DATED: 15/12/2021

seeking enhancement of the compensation amount awarded by

the Motor Accident Claims Tribunal (Aux.), Kachchh at Bhuj

(hereinafter referred to as "the Tribunal) vide impugned

judgment and award dated 27.12.2005 passed in M.A.C.P.

No.763 of 1995.

2. Brief facts of the present case are that on 29.04.1995, the

claimant was working as cleaner in truck bearing registration

no.GJ-10-T-9690 and was going to Mithapur from Panadhro, at

that time, at about 5.00 p.m., when the truck reached near

temple of Khodiar Mata, the driver of opponent no.2 came from

opposite direction driving a truck bearing registration no.GTP-

7716 in rash and negligent manner and in excessive speed,

collided with truck No.GJ-10-T-9690, due to which the claimant

sustained serious injuries like permanent disability. Hence, the

claimant had preferred M.A.C.P. No.763 of 1995, which came to

be partly allowed by the Tribunal vide order dated 27.12.2005

and awarded compensation of Rs.1,03,700/- as against his claim

of claiming Rs.3,00,000/-.

3. Heard Mr.Samee Uraizee, learned counsel with Mr.Jenil

Shah, learned counsel with Mr.Mehul Shah, learned senior

C/FA/4835/2006 JUDGMENT DATED: 15/12/2021

counsel appearing for the appellant - claimant and Mr.Rituraj

Meena, learned counsel with Mr.Nayan Ravani, learned counsel

appearing for the respondent no.3. Though served, nobody

appears on behalf of respondent no.2.

4. Mr.Samee Uraizee, learned counsel appearing for the

appellant - claimant has submitted that the Tribunal has not

properly considered and appreciated the quantum while

awarding the amount of compensation in favour of the claimant.

He has also submitted that the Tribunal has not properly

appreciated and applied the multiplier. He has submitted that

the Tribunal has not properly awarded the amount under the

head of pain, shock and suffering. He has submitted that the

Tribunal has awarded compensation of Rs.1,03,700/- as against

the claim of Rs.3,00,000/-. He has submitted that the claimant

would not be in a position to work as a cleaner in truck or

labourer and such functional disability of the appellant was

required to be considered as a whole and permanent and not

merely 16% as assessed by the Tribunal. He has submitted that

the Tribunal has to appreciate the fact that the appellant has

taken the treatment as an indoor patient and thereafter as an

outdoor patient in hospitals at Jamnagar and Bhuj. He has

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submitted that this is a fit case to award Rs.3,00,000/- as

compensation. He has submitted that the Tribunal has erred in

not assessing the prospective rise in the income of the appellant

and the Tribunal ought to have considered income of Rs.6,000/-

per month. He has submitted that the Tribunal has committed an

error in awarding Rs.5,000/- under other heads instead of

Rs.30,000/- towards medical expenses and Rs.5,000/- towards

attendant charges. He has submitted that the Tribunal has to

award interest at the rate of 15% instead of 9%. He has prayed

to modify the amount awarded and substitute the amount as

prayed for. He has relied upon the decision in the case of Syed

Sadiq Etc. Vs. Divisional Manager, United India Insurance

Company, (2014) 2 SCC 735.

5. Mr.Rituraj Meena, learned counsel for the respondent no.3

has submitted that the Tribunal has not committed any error in

passing the impugned judgment and award. He has prayed for

dismissal of the appeal and confirmation of the award.

6. In the case of Syed Sadiq (supra), the Hon'ble Supreme

Court has held in paragraphs no.10, 11, 12, 13, 14 and 26 as

under:-

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10. Further, it is evident from the material evidence on record that the appellant claimant was 24 years old at the time of occurrence of the accident. It is also established on record that he was earning his livelihood by vending vegetables. The issue regarding calculation of prospective increment of income in the future of self employed people, came up in Santosh Devi v. National Insurance Company Limited, (2012) 6 SCC 421, wherein this Court has held as under: (SCC pp. 428-29, paras 14-18)

"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self- employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.

15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.

16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody

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could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.

17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."

Therefore, considering that the appellant/ claimant was self employed and was 24 years of age, we hold that he is entitled to 50% increment in the future prospect of income based upon the principle laid down in the Santosh Devi case (supra).

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11. Further, regarding the use of multiplier, it was held in the Sarla Verma v. DTC, (2009) 6 SCC 121 which was upheld in Santosh Devi case (supra), as under: (Sarla Verma case, SCC p. 140, para 42)

"42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

Therefore, applying the principle of Sarla Verma in the present case, we hold that the High Court was correct in applying the multiplier of 18 and we uphold the same for the purpose for calculating the amount of compensation to which the appellant/ claimant is entitled to.

12. With respect to the medical expenses incurred by the appellant/claimant, he has produced medical bills and incidental charges bills marked as Exs. P-25 to P-201 and prescriptions at Exs. P-202 to P-217 on the basis of which the Tribunal awarded a compensation of [pic]60,000/- under the head. However, considering that the appellant might have to change his artificial leg from time to time, we shall allot an amount of [pic]1,00,000/- under the head of medical cost and incidental expenses to include future medical costs.

13. Thus, the total amount which is awarded under the head of 'loss of future income' including the 50% increment in the future, works out to be [pic] 17,90,100/- [([pic]65,00/- x 85/100 + 50/100 x 85/100 x [pic]6,500/-) x 12 x 18].

14. Further, along with compensation under conventional heads, the appellant/claimant is also entitled to the cost of litigation as per the legal principle laid down by this Court

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in the case of Balram Prasad v. Kunal Saha. Therefore, under this head, we find it just and proper to allow Rs. 25,000/-."

26. Further, towards loss of amenities, the Tribunal has awarded Rs.10,000/-. However, considering the disability stated by the doctor and the amount of discomfort and unhappiness he has to undergo in the future life, the High Court has awarded Rs.20,000/- under this head. We intend to observe that the amount awarded by the High Court under this head is very meager and inadequate considering the age and the amount of disability. Therefore, under this head, we award a sum of Rs.50,000/-."

7. In the case of Kajal Vs. Jagdish Chand and others,

(2020) 4 SCC 413, the Hon'ble Supreme Court has held in

paragraph no.33 as under:

"33. We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in motor accident claim petitions, the Court must award just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor."

8. While determining the loss of income, the Court must have

to keep in mind the principles enumerated by the Hon'ble

Supreme Court in the case of G. Ravindranath alias R.

Chowdary Vs. E. Srinivas and another, (2013) 12 SCC 455

wherein the Hon'ble Supreme Court has held and observed in

paragraphs no.12, 15 and 16 as under:-

12. It is settled law that compensation in personal injury

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cases should be determined under the following heads:

Pecuniary damages (special damages)

12.1 (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure.

12.2 (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability;

12.3 (iii) Future medical expenses.

Non-pecuniary damages (General damages)

12.4 (iv) Damages for pain, suffering and trauma as a consequence of the injuries.

12.5 (v) Loss of amenities (and/or loss of prospects of marriage).

12.6 (vi) Loss of expectation of life (shortening of normal longevity).

12.7 In routine personal injury cases, compensation will be awarded only under Heads (i), (ii) (a) and (iv).

12.8 It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the Heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

15. In Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd, 2011 13 SCC 236, this Court observed: (SCC p.239, paras 7-8)

"7. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The courts have time and again observed that the

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compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

8. The term 'disability', as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case."

16. In Kavita v. Deepak, 2012 8 SCC 604, the Court referred to earlier precedents and held: (SCC p. 613, para

19)

"19. In the light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.""

9. I have considered the submissions canvassed by the

learned counsel appearing for both the parties and record and

proceedings and perused the materials placed on record. I have

considered the evidence led by both the parties and perused the

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FIR at Exhibit 29, panchnama at Exhibit 30, primary certificate of

disability at Exhibit 31. In the present case, the claimant was

working as cleaner in the truck and he was unable to work as

cleaner / labourer looking to the injury and permanent functional

disability. So far as the income of the claimant is concerned, he

has produced the salary certificate at Exhibit 38 issued by D. K.

Transport, Bhuj showing the fact that he was working as cleaner

in the year 1995. It appears from the record that the claimant

was remained as an indoor patient in different hospitals for

different purpose and more particularly in paragraph no.14, the

Tribunal has observed that the claimant is suffering permanent

partial disablement as 16% as a whole. This fact is absolutely

erroneous and, therefore the present appeal requires

consideration to the that extent. The compensation is required to

be redetermined as under:-

 Future loss of income                                           Rs.3,62,800/-
 Rs.2400 x 40% = Rs.960
 Rs.2400 + Rs.960 = Rs. 3360

Rs.3360 X 50% functional disability = Rs.1680 Rs.1680 x 12 = Rs.20,160 Rs.20,160 X 18 Pain, shock and sufferings Rs. 20,000/- Medical expenses, special diet & attendant charges etc. Rs. 10,000/-

Rs.3,92,800/-

Tribunal awarded the compensation Rs.1,03,700/-

Rs.2,89,100/-

C/FA/4835/2006 JUDGMENT DATED: 15/12/2021

10. Though the claimant has restricted his claim at

Rs.3,00,000/-. But, as per the decision of the Apex Court in the

case of Kajal (supra), if the Court thinks it fit that the amount of

compensation requires to be enhanced by considering just

compensation, then, I am of the opinion that the amount of

Rs.3,92,800/- is just and proper compensation out of the

compensation awarded at Rs.1,03,700/- by the Tribunal and the

remaining amount of compensation of Rs.2,89,100/- is