Ishwardan Haridan Gadhvi vs Osman Latif Trapa
2023 Latest Caselaw 1675 Guj

      C/FA/2485/2018                               ORDER DATED: 20/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2485 of 2018

                               With
     CIVIL APPLICATION (FOR SUBSTITUTE SERVICE) NO. 1 of 2019
                 In R/FIRST APPEAL NO. 2485 of 2018
==========================================================
                        ISHWARDAN HARIDAN GADHVI
                                 Versus
                       OSMAN LATIF TRAPA & 7 other(s)
==========================================================
Appearance:
MR.JAY S SHAH(7244) for the Appellant(s) No. 1
for the Defendant(s) No. 7
DS AFF.NOT FILED (N) for the Defendant(s) No. 5
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 6,8
NOTICE SERVED for the Defendant(s) No. 1,2,7.1
NOTICE UNSERVED for the Defendant(s) No. 4
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 20/02/2023

                                ORAL ORDER

1. Challenge has been given to the judgment and

award passed by learned Motor Accident Claims Tribunal

(Aux.), Mehsana dated 6.4.2018 in Motor Accident Claims

Petition No.1053 of 2005.

2. The grounds raised are that learned Tribunal has

not considered functional disability of the claimant who was

driver and had suffered from the accident and had

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sustained right leg amputation from shaft of femur. The

claimant also suffered injuries on the left leg.

3. Mr.Jay Shah, learned advocate for the appellant

submitted that injuries suffered by the claimant have made

him disable totally and would not be in a position to even

carry on any other work much less the work as driver which

was his profession. Thus, it is submitted that 100%

functional disability ought to have been assessed by learned

Tribunal. It is submitted that learned Tribunal has erred in

considering only 45% and permanent physical disability

assessed by the Doctor is at 59.95% for body as a whole.

Mr.Shah further submitted that no consent had been given

by the claimant to consider 45% disability. While referring

to purshis Exh.63, Mr.Shah submitted that endorsement is

only from the side of the insurance company. He submitted

that learned Tribunal was required to assess independently

functional disability of the claimant.

4. Mr.Maulik Shelat, learned advocate appearing for

the insurance company, supporting the impugned judgment

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and award, has submitted that the claimant was required to

prove that owing to the physical disability, the claimant

would have suffered functional disability and thus, in

support of the endorsement made by the insurance

company on the document at Exh.63, Mr.Shelat submitted

that functional disability is required to be assessed at 45%.

5. Mr.H.G.Mazmudar, learned advocate appearing

for respondent No.3 - insurance company has adopted the

arguments advanced by Mr.Maulik Shelat, learned advocate

for respondent Nos.6 and 8.

6. In the case of Rajkumar Vs Ajay Kumar and

another, reported in (2011) 1 SCC 343, the Apex Court

while observing permanent physical disability has laid down

that the Tribunal is required to assess the effect of

permanent 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 terms of

money to arrive at the future loss of earnings by applying

standard multiply method for arriving at the loss of

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dependency. The Apex Court, thus, in paragraph 16 has

laid down the role of the Tribunal in a case when the Doctor

gave evidence before the Tribunal. The Apex Court has

further observed that in case the Tribunal is not satisfied

with the medical evidence produced by the claimant, it can

constitute the Medical Board and can refer the claimant to

such Medical Board for assessment of the disability.

7. In paragraph 13 of the judgment, the Apex Court

has observed about the earning capacity ascertaining the

effect of permanent disability on it. The Apex Court has

referred about the three steps. Paragraph 13 reads thus :

"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

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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."

The Apex Court has summarized the principles in

paragraph 19 as under.

(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 of

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

8. Here, in this case, the claimant was, at the time

of accident, driver by profession. In his oral evidence by way

of affidavit Exh.32 produced the certificate from Sadguru

Transport, Mehsana at Mark 32/17 where it has been

certified that the claimant was serving as driver. The

evidence before the learned Tribunal at Exh.32 suggests

that the claimant, after the accident, was taken to Bhachau

Civil Hospital and because of serious injuries, was

thereafter taken to Bhuj Hospital and during his stay as

indoor patient from 30.6.1996 to 6.7.1996, the claimant

was operated and rod as well as plate were fixed in the right

leg and had plaster on the left leg. The claimant further

stated that again he was admitted as indoor patient at Bhuj

Hospital and thereafter he was taken to Orthopedic

Surgeon, Mehsana in ambulance where Dr.G.K.Patel,

Orthopedic Surgeon attended him. The claimant was

admitted in the said hospital from 10.7.1996 to 2.12.1996

i.e. for 145 days and he was operated thrice. Since it was

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found that his right leg could not be treated completely, his

right leg from knee was amputated. He deposed before the

learned Tribunal that both his legs were seriously injured.

He was operated from tibia fibula which was open fracture,

sustained fracture on right leg femur and fracture on the

fibula of left leg; his right leg was treated with external

fixation (antenna). The claimant also had to undergo bone

grafting, femur fracture was treated with nail and screw.

Dr.G.K.Patel and Dr.Mahesh Kandoi have treated the

claimant and he had to make huge payment for medical

expenses.

9. As per the deposition of claimant, Dr.G.K.Patel

had given opinion regarding his physical disability, right leg

permanent disability was assessed at 55%, while left leg at

11% and the Doctor had opined that there would not be any

improvement and thus, the claimant had stated that the

Doctor had assessed his physical disability at 56.95%,

whereas Mr.Shah submitted that there is typographical

error and actually, the Doctor has assessed the physical

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disability at 59.95%.

10. The claimant further stated that now he would

not be in a position to drive the vehicle and thus, he has

suffered 100% functional disability.

11. Considering the evidence on record and in view of

the principles laid down by the Apex Court in the case of

Rajkumar (supra), this Court also is of the considered view

that the claimant being driver would not be in a position to

carry on his profession as he has suffered injuries in both

his legs and thus, his functional disability is required to be

assessed at 100%.

12. As per the facts of the case, on 29.6.1996 the

claimant has started from Bhuj to Mehsana in truck bearing

No.GJ-02-U-9029 and when he was on national highway

No.8 near Pool No.324/1 Bhachau, truck trailer bearing

No.GJ-06-T-6354 was coming from opposite side fully

loaded with boxes which were extended from both the sides

of trailer, while another truck bearing No.GJ-12-T-6354 was

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following trailer truck and had tried to overtake truck trailer

but because of the extended goods on the body part of the

truck trailer, the said truck could not succeed in overtaking

and thus, the truck following truck trailer suddenly applied

brakes and resultantly, the claimant also applied the brakes

of his truck, but all the three vehicles dashed and therefore,

accident occurred wherein the claimant sustained injuries.

13. Learned Tribunal has considered the income of

the driver at Rs.1500/- per month and also considered

Rs.750/- as prospective rise in income and hence, the

income has been assessed at Rs.2250/-. This Court does

not find any reason to interfere with the assessment made

by learned Tribunal. However, as per the reasons given

hereinabove and following the judgment of the Apex Court

in the case of Rajkumar (supra), 100% functional disability

is to be considered keeping in view the fact that the

claimant was driver and in future, he would not be in a

position to continue with his work. Keeping in mind the

fact that the claimant was 39 years of age at the time of

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accident, multiplier of 15 would be applicable. Thus, the

claimant would be entitled to compensation at

Rs.4,05,000/- (Rs.2250 x 12 x 15) . This Court does not

want to interfere with other amounts on various heads

awarded by learned Tribunal as the same are in consonance

with the minimum wages and economic standard prevalent

at the relevant point of time. Thus, the claimant would be

entitled for the following amount.

1        Future loss of income                      Rs.4,05,000/-
2        Actual loss of income                      Rs.0,13,500/-
3        Transportation,    special           diet, Rs.0,05,000/-
         attendant charges.
4        Medical expenses                           Rs.0,76,267/-
5        Pain, shock and suffering                  Rs.0,10,000/-
         Total                                      Rs.5,09,767/-

14. Learned Tribunal has awarded Rs.2,87,017/- at

the rate of 9% interest per annum. Hence, enhanced

amount would be Rs.2,22,750/- which the respondent

insurance company would be required to pay the claimant

within six weeks from the receipt of the writ of this Court.

However, it is directed that enhanced amount would be

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deposited at the rate of 7.5% interest from the date of the

claim petition. The impugned award is modified to the

extent indicated hereinabove.

15. Accordingly, the First Appeal stands disposed of.

Pending Civil Application/s also stands disposed of

accordingly.

(GITA GOPI,J) H.M. PATHAN