Gujarat High Court
Pravinbhai Vashrambhai Rabari vs Sureshbhai Shankarbhai Bhatiya on 16 February, 2023
Bench: A.S. Supehia
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5305 of 2019
FOR APPROVAL AND SIGNATURE: sd/-
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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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 ?
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PRAVINBHAI VASHRAMBHAI RABARI
Versus
SURESHBHAI SHANKARBHAI BHATIYA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/02/2023
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original
claimant against the judgment and award dated 09.01.2019
passed by the Motor Accident Claims Tribunal (Aux.), District
Vadodara in M.A.C.P. No.493 of 2016, wherein and whereby,
the Tribunal has awarded the total amount of Rs.3,51,544/-
towards the compensation with 9% interest.
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
2. At the outset, learned advocate Mr.Bhalodi, appearing for
the appellant-claimant has submitted that the claimant would
be restricting the claim in the present appeal towards the
award of compensation by adopting the multiplier of 18
instead of 5, which has been awarded by the Tribunal. It is
submitted that the appellant would not claim any future loss of
income, looking to the disability of the body as a whole with
18%. In support of his submissions, learned advocate
Mr.Bhalodi, has placed reliance on the judgment of the Apex
Court in the case of Erudhaya Priya Vs. State Express Transport
Corporation Ltd., 2020 ACJ 2159.
3. The claimant, at the time of accident, which had occurred
on 23.10.2015, was serving as an Engineer at Munjal Auto
Company and earning an amount of Rs.20,980/- per month
towards his salary. Accordingly, the documentary evidence at
Exh.31 in the form of salary slip was produced. The Tribunal,
after relying upon oral as well as documentary evidence, has
determined the amount of Rs.20,980/- per month. The
evidence also reveals that at the time of accident, the claimant
was 24 years and 10 months. The Tribunal, after considering
the injury of the claimant as a whole body of 18% permanent
disability, adopted the multiplier of 5 and has determined the
compensation.
4. As noticed hereinabove, learned advocate Mr.Bhalodi,
has confined the appeal with regard to multiplier of 5 instead
of 18. It is thus submitted that accordingly, the compensation
may be enhanced.
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
5. Per contra, learned advocate Mr.Thomas, appearing for
the respondent No.3 - Insurance Company has submitted that
the award is appropriately passed and the same may not be
interfered with. It is submitted that looking to the permanent
disability of 18% of the claimant, who was serving as an
Engineer, the Tribunal has precisely adopted the multiplier of
5 while determining the compensation. It is thus submitted
that the award may not be interfered. Learned advocate
Mr.Thomas, has placed reliance on the decision of this Court in
the case of Rameshbhai Ramnikbhai Vyas vs. Ismail Ibrahim
and Suleman Ibrahim, 2012 (2) GCD 1388.
6. I have heard the learned advocates for the respective
parties. The evidence, which has been considered by the
Tribunal is also perused.
7. Since a short issue is involved in the appeal with regard
to the multiplier, I am examining determination of the
compensation with regard to the multiplier adopted by the
Tribunal. The Tribunal, while awarding compensation, has
adopted the multiplier of 5, looking to the age and injury of the
claimant.
8. It is established from the record that when the accident
had occurred, the claimant was of 24 years and 10 months of
age and hence, as per the judgments of the Apex Court in the
case of National Insurance Co. Ltd. Vs. Pranay Sethi, 2017 ACJ
2700 (SC) as well as in the case of Sarla Verma Vs.Delhi
Transport Corporation, 2009 ACJ 1298 (SC), for the age group
of 15-25 years, the multiplier has to be 18. In the present case,
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
it appears that the Tribunal has determined the multiplier of 5
by considering the claimant as a government employee, by
placing reliance on the judgment in the case of Rameshbhai
Raminkbhai Vyas (supra). Unquestionably, the claimant
cannot be said to be a government servant, as he was serving
as an Engineer in Munjal Auto Company and having monthly
salary of Rs.20,980/-. Thus, the reliance placed by the Tribunal
in the case of Rameshbhai Raminkbhai Vays (supra) is
misplaced, as the same appears to have been given in the
context of disability suffered by a government employee. In
the case before the Division Bench, the claimant was serving
as a teacher in a school, whereas in the present case, the
appellant - claimant was serving in a private auto company
and hence, the law enunciated by the Division Bench in the
case of Rameshbhai Raminkbhai Vays (supra) cannot be
applicable to the claimant.
9. At this stage, it would be apposite to refer to the
observations made in the case of Erudhaya Priya (supra),
wherein the Supreme Court, in an injury resulted into the
disability of 31.1% as a whole body, has adopted the
multiplayer of 18 instead of 17, which was awarded by the
Tribunal. The Supreme Court has observed thus : -
"6. We heard learned counsels for the parties. They have
also filed short synopses of their respective claims and
rebuttals thereof, with the appellant enlisting the
principles which can apply to her case, the law being now
well settled in like cases.
7. There are three aspects which are required to be
examined by us:
(a) the application of multiplier of '17' instead of
'18'; The aforesaid increase of multiplier is sought on
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
the basis of age of the appellant as 23 years relying on
the judgment in National Insurance Company Limited v.
Pranay Sethi and Others1. In para 42 of the said
judgment, the Constitution Bench effectively affirmed the
multiplier method to be used as mentioned in the table in
the case of Sarla Verma (Smt) and Others. v. Delhi
Transport Corporation and Another. 2. In the age group of
15- 25 years, the multiplier has to be '18' along with
factoring in the extent of disability.
The aforesaid position is not really disputed by learned
counsel for the respondent State Corporation and, thus,
we come to the conclusion that the multiplier to be
applied in the case of the appellant has to be '18' and
not '17'.
(b) Loss of earning capacity of the appellant with
permanent disability of 31.1% In respect of the
aforesaid, the appellant has claimed compensation on what
is stated to be the settled principle set out in Jagdish
v. Mohan & Others3 and 1 (2017) 16 SCC 680 2 (2009) 6 SCC
121 3 (2018) 4 SCC 571 Sandeep Khanuja v. Atul Dande &
Another4. We extract below the principle set out in the
Jagdish case (supra) in para 8:
"8. In assessing the compensation payable the settled
principles need to be borne in mind. A victim who suffers
a permanent or temporary disability occasioned by an
accident is entitled to the award of compensation. The
award of compensation must cover among others, the
following aspects:
(i) Pain, suffering and trauma resulting
from the accident;
(ii) Loss of income including future income;
(iii) The inability of the victim to lead a
normal life together with its amenities;
(iv) Medical expenses including those that
the victim may be required to undertake
in future; and
(v) Loss of expectation of life."
[emphasis supplied]
The aforesaid principle has also been emphasized in an
earlier judgment, i.e. the Sandeep Khanuja case (supra)
opining that the multiplier method was logically sound
and legally well established to quantify the loss of
income as a result of death or permanent disability
suffered in an accident.
In the factual contours of the present case, if we
examine the disability certificate, it shows the
admission/hospitalization on 8 occasions for various
number of days over 1 ½ years from August 2011 to January
2013. The nature of injuries had been set out as under:
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
"Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft left femur
(vii) fracture both bones left leg"
We have also perused the photographs annexed to the
petition showing the current physical state of the
appellant, though it is stated by learned counsel for the
respondent State Corporation that the same was not on
record in the trial court. Be that as it may, this is the
position even after treatment and the nature of injuries
itself show their extent. Further, it has been opined in
para 12 of Sandeep Khanuja case (supra) that while
applying the multiplier method, future prospects on
advancement in life and career are also to be taken into
consideration.
We are, thus, unequivocally of the view that there is
merit in the contention of the appellant and the
aforesaid principles with regard to future prospects must
also be applied in the case of the appellant taking the
permanent disability as 31.1%. The quantification of the
same on the basis of the judgment in National Insurance
Co. Ltd. V. Pranay Sethi, 2017 ACJ 2700 (SC),, more
specifically para 59.3, considering the age of the
appellant, would be 50% of the actual salary in the
present case."
10. In the present case, as per the certificate of the doctor at
Exh.27, the claimant has suffered fracture of dislocation of
right hip joint with fracture of acetabulum right side and he has
been fitted with plates and screws in situ. As referred in the
certificate, he is unable to run and facing difficulty in squatting
and sitting cross-legged. The total disability of right law limb is
determined as 38%. The Tribunal has determined the disability
18% as a whole body.
11. Thus, as per the law enunciated by the Apex Court in the
aforementioned judgment, the Tribunal has fallen in error while
determining and adopting the multiplier of 5, instead of 18 and
C/FA/5305/2019 JUDGMENT DATED: 16/02/2023
hence, the compensation awarded by the Tribunal is altered
and determined as below : -
S.No. Particulars Amount
1. Income @ Rs.20,980/- p.m. Rs.8,15,702/-
Rs.20,980/- X12X18X18
2. Actual Future loss of income Rs.41,960/-
3. Medical Expenses Rs.68,000/-
4. Pain, Shock and Suffering Rs.10,000/-
5. Special Diet, Attendant & Rs.5000/-
Transportation Expenses
Total Compensation of Rs. Rs.9,40,662/-
Awarded Amount Rs.3,51,544/-
Enhanced Amount Rs.5,89,118/-
12. Thus, the total compensation is fixed to Rs.9,40,662/-,
however the Tribunal has awarded an amount of Rs.3,51,544/-
which is required to be deducted from the compensation
arrived at by this Court. Thus, the claimant would be entitled to
an additional amount of Rs.5,89,118/- with 6% interest from
the date of filing of the claim petition till the realization of the
amount. Accordingly, the impugned judgment and award
passed by the Tribunal is modified to the aforesaid extent. The
enhanced amount along with the interest shall be deposited
before the Tribunal within a period of 12 weeks, which shall be
disbursed to the claimant after due verification.
13. In view of the above, the First Appeal is partly allowed.
Record and proceedings shall be returned to the concerned
Tribunal forthwith.
sd/-
(A. S. SUPEHIA, J)
MB/ 11
