Rameshbhai Bhimjibhai Alias ... vs Rajeshbhai Alias Rajendrabhai ...
2021 Latest Caselaw 3597 Guj

C/FA/6051/2019                                                               JUDGMENTDt: 01/03/2021
RAMESHBHAI BHIMJIBHAI ALIAS BHIMABHAI           Versus RAJESHBHAI ALIAS RAJENDRABHAI POPATBHAI
PARMAR

            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                              R/FIRST APPEAL NO. 6051 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                 RAMESHBHAI BHIMJIBHAI ALIAS BHIMABHAI
                                      Versus
            RAJESHBHAI ALIAS RAJENDRABHAI POPATBHAI PARMAR
==================================================================
Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE NOT RECD BACK(63) for the Defendant(s) No. 1,2,4,5,6,7
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     CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
                                       and
            HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                        Date : 01/03/2021

                                      ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. The Appellant-Claimant Rameshbhai Bhimjibhai alias Bhimabhai has filed the present Appeal seeking an Enhancement of the Compensation for the Motor Accident which accordingly to Appellant happened on 25.2.2010 at about 8:30 a.m. when the Applicant was

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traveling as a pillion rider on the motorcycle bearing Registration NO.GJ-23-F-9958 (Ownership of Opponent No.4 being driven by the Opponent NO.5) and when they reached Nr. Depara Patiya, Limbdi- Ahmedabad Highway at that time one car bearing Registration No.GJ-3- CA-6446 (Ownership of Opponent No.1 and being driven by Opponent No.2) dashed with the Motorcycle and the Applicant sustained injuries and the said incident only took place because of the Opponent No.2 was driving his vehicle in excessive speed, endangering human life, in rash and negligent manner. The complaint was filed before Pansina Police Station against the Opponent No.2. At the time of accident, the Applicant was of 26 years having good health and no disability and the Applicant was earning monthly Rs.5000/- from diamond polishing work and Rs.25,000/- per year from Agriculture Work. Due to grievous injuries including fracture, the Applicant was treated in a hospital and not able to do his routine work for long period and incurred huge expenses for medicines etc., and sustained disability. Therefore, he has filed Petition for compensation of Rs.25,00,000/- with the interest @ 18% against the Opponents.

2. The learned Tribunal after discussing the evidence produced by both the parties has granted the total Compensation of Rs.7,18,619/- to be paid to the Claimant-Appellant with Interest @ 9% p.a. from the date of Petition till realization.

3. The learned counsel for the Appellant Ms. Amrita Ajmera has submitted before us that the Compensation awarded by the learned Tribunal calls for enhancement, because the Appellant was also engaged in the side business and was earning more than what has been held to be the annual income by the learned Tribunal and awarding loss of future income, the same has been computed only @ 25% towards future

C/FA/6051/2019 JUDGMENTDt: 01/03/2021 RAMESHBHAI BHIMJIBHAI ALIAS BHIMABHAI Versus RAJESHBHAI ALIAS RAJENDRABHAI POPATBHAI PARMAR

prospects of increased income, whereas as per the decision of Hon'ble Supreme Court in the case of Sarla Verma (Smt.) vs. Delhi Transport Corporation [2009 Vol 6 SCC 121] the same should have been @ 40% and she has also submitted that the reimbursement of Medical Expenses at Rs.26,619/- is also on very lower side as the Appellant-Claimant had to undergo three surgeries and could also get implanted the Artificial Limbs if proper compensation for the same was also granted by the learned Tribunal.

4. Per contra, leaned counsel for the Insurance Company Mr.Kirti Pathak has submitted that the adequate and fair compensation has been awarded to the Claimant-Appellant and the case does not call for any further enhancement of the Compensation.

5. For artificial limbs aspect of the matter, she submitted that there was no medical advice for the same and therefore, the same cannot be granted.

6. She has relied upon the decision of the Supreme Court in the case of Raj Kumar vs. Ajay Kumar & Anr. [(2011)1 SCC 343] in which the Hon'ble Supreme Court laid the following principles for computing the compensation in the case of injuries. The relevant portion of the said judgement is quoted below and for ready reference:

"10. 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

C/FA/6051/2019 JUDGMENTDt: 01/03/2021 RAMESHBHAI BHIMJIBHAI ALIAS BHIMABHAI Versus RAJESHBHAI ALIAS RAJENDRABHAI POPATBHAI PARMAR

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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions;

and in that event the loss of earning capacity will not be 100% as in the case of a driver or

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carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 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. Be that as it may.

C/FA/6051/2019 JUDGMENTDt: 01/03/2021 RAMESHBHAI BHIMJIBHAI ALIAS BHIMABHAI Versus RAJESHBHAI ALIAS RAJENDRABHAI POPATBHAI PARMAR

13. 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 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

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of profession, occupation or job, age, education and other factors."

6.1. She has further relied in the case of National Insurance Company Ltd. vs. Pranay Sethi & Ors. [AIR 2017 SC 5157]. The relevant portion of the said judgement is quoted below and for ready reference:

"59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the

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two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self- employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to

C/FA/6051/2019 JUDGMENTDt: 01/03/2021 RAMESHBHAI BHIMJIBHAI ALIAS BHIMABHAI Versus RAJESHBHAI ALIAS RAJENDRABHAI POPATBHAI PARMAR

think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-

employed or on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable."

6.3. She has further relied in the case of Pappu Deo Yadav vs. Naresh Kumar & Ors. Civil Appeal No.2567 of 2020 decided on 17.9.2020 by Hon'ble Supreme Court. The relevant extract is quoted below:

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"21.This Court is also of the opinion that the Courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning Rs.12,000/- could not be discarded substantially, to the extent of brining it down to Rs.8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns fro AY 2011-2012, when no levy existed for anyone earning less than Rs.1,60,000/- per annum. The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellant's monthly earnings at Rs.8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs.8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40%, the income should be taken as Rs.14,000 for the purpose of calculation of compensation. Accordingly, this Court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/- (i.e. Rs.14,000/- x 12 x 65% x 18) or Rupees Nineteen Lakhs Sixty Five Thousand Six Hundred Only.

22. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and

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disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.

23. The High Court's assessment of amounts payable under other heads (such as compensation for medical expenses, compensation for pain and suffering, compensation for special diet and attendant, conveyance charges, loss of amenities and enjoyment of life, disfigurement and loss of income during treatment), do not call for interference. In view of the above conclusions, the impugned judgment is hereby modified; the sum of Rs.19,65,600/- shall be substituted in place of the

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amount of Rs.7,77,600/-, considering the enhancement towards loss of earning capacity and future prospects."

7. Having heard the learned counsel for the parties, we are satisfied that the present Appeal of Claimant calls for a reasonable lumpsum enhancement of the compensation awarded by the Tribunal in the light of the aforesaid Judgements. There is no dispute or quarrel on the propositions laid down by the Hon'ble Supreme Court in the Judgements relied on by the learned counsel for the Insurance Company as well as the learned counsel for the Appellant-Claimant. We are of the opinion that the Compensation awarded by the learned Tribunal under the Head of Medical Expense only to the extent of Rs.26,619/- and actual loss of income only to the extent of Rs.20,000/- in such a case calls for the enhancement. To arrive at a figure of just and fair compensation in the facts of the present case, we are of the opinion that an adhoc lumpsum enhancement of Rs.1,50,000/- will meet the ends of justice. Therefore, we allow the present Appeal of the Claimant-Appellant and enhance the figure of Rs.7,18,619/- as awarded by the learned Tribunal by a further sum of Rs.1,50,000/-. The other parts of the Award of the learned Tribunal will remain intact.

8. With these observations and directions, the amount computed in terms of above Order for enhancement with interest may be deposited by the Insurance Company within a period of three months. The total of amount of compensation may be disbursed to the Claimant-Appellant to the extent of 50% by way of Account Payee Cheque in his favour and the remaining 50% amount may be kept deposited in the State Bank of India in interest bearing Fixed Deposit for a period of 5 years.

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9. With these observations, the Appeal is disposed of. No costs.

(DR. VINEET KOTHARI,J)

(BIREN VAISHNAV, J) NAIR SMITA V.