Gujarat High Court

Shri Babulal Devjibhai ... vs Driver Not Known on 22 February, 2023

Bench: Gita Gopi

     C/FA/1690/2017                                   JUDGMENT DATED: 22/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 1690 of 2017


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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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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                      SHRI BABULAL DEVJIBHAI MAHESHWARI
                                    Versus
                         DRIVER NOT KNOWN & 4 other(s)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
KRUPALI N BHATT(9455) for the Defendant(s) No. 3
MR YOGI K GADHIA(5913) for the Defendant(s) No. 5
RULE NOT RECD BACK for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 4
RULE UNSERVED for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 22/02/2023

                               ORAL JUDGMENT

1. The challenge is given to the judgment and

award dated 30.12.2016 passed by the MACT

(Aux), Bhuj-Kutch in MACP no.383 of 2006.

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

2. Facts of the case suggest that the claimant-

victim was returning from Medta (Rajasthan)

to Kachchh by driving the tanker on the left

side of the road and as stated, in a

moderate speed. At about 14:00 hrs., a truck

bearing registration no. RJ-14 2-G1738 came

from opposite direction and dashed with the

tanker. It is alleged that the truck was

driven in a rash and negligent manner and

came on the wrong side of the road and

dashed and collided with the tanker. The

appellant, thus, sustained injuries.

3. The appellant - claimant has raised the

ground that the learned Tribunal has

considered physical disability at 30% and

the Orthopedic Surgeon has assessed the

disability at 64% and that the surgeon has

deposed that the appellant cannot drive

vehicle or do heavy work. Learned advocate

Mr. Hemal Shah has relied upon the judgments

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

in the cases of Minu Raut & Anr. v. Satya

Pradyumma Mohapatra & Ors., reported in 2013

ACJ 2544 SC, Kala Devi v. Bhagwan Das,

reported in 2014 (12) Scale 513, Rekha Jain

v. National Insurance Co. Ltd., reported in

2013 SAR (Civil) 921, New India Assurance

Co. Ltd. v. J.P. Jethva & Anr., reported in

2009 (1) GLH 447, Ramanbhai K. Darji v.

Babusinh Thakor, reported in 2002 (2) GLH

(UJ) 7 and GSRTC v. B.N. Parmar & Anr.,

reported in 1992 ACJ 484 Guj. as well as the

other decisions, to submit that the claimant

was a driver and hence, should be considered

as a skilled worker and has urged the Court

to consider his income in line of those

observed by the Courts in the judgment

referred by him and further states that when

the Doctor has assessed the physical

disability and considering the work of the

claimant, being a driver, Mr. Shah states

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

that 100% permanent functional disability

ought to have been considered by the

Tribunal.

4. While countering the same, learned advocate

Ms. Rupali Bhatt submits that the learned

Tribunal has assessed the income of the

claimant at Rs.5,000/- per month, while

taking into consideration the date of

accident as 11.4.2006 and even the claimant

driver is to be considered as skilled

worker, then, the assessment of the monthly

income ought to have been in accordance to

the inflation index and the cost of living,

which has been suitably bifurcated in the

schedule of minimum wages of the State of

Gujarat. Ms. Bhatt submits that the income

which is assessed by the Tribunal is much

more on a higher side, which would itself

include the factum of prospective rise in

future income and thus, submits that the

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

assessment so made by the Tribunal requires

no interference of this Court.

5. She further states that the Doctor who had

deposed before the Court is not the one who

had treated the claimant and even if the

deposition is to be believed, then, it is

not the case of any amputation of any limb

to consider 100% functional disability of

the claimant and thus, submits that the

injury so sustained would allow the claimant

to do some other work, where his earning

capacity would not be affected and thus, Ms.

Bhatt submits that the assessment is

regarding the physical disability

considering it as a functional disability of

30% is just and in accordance to the

evidence on record.

6. Ms. Bhatt further states that medical bills

have been granted as the learned Tribunal

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

has granted Rs.50,000/- under the head of

pain, shock and suffering and even on other

heads, which are just and reasonable.

7. The learned Tribunal has granted

compensation under various heads as under:-

Future loss of income Rs.2,34,000/- Medical expenses Rs.22,389/- Special diet, attendant and Rs.5,000/- transportation Pain, shock and suffering Rs.50,000/-

         Actual loss                                             Rs.20,000/-
         Total                                               Rs.3,31,389/-

8. In the case of Raj Kumar v. Ajay Kumar &

Anr., reported in (2011) 1 SCC 343, the

Hon'ble Apex Court has laid down the

methodology to be adopted by the Tribunal to

ascertain the effect of permanent disability

on the actual earning capacity which

involves three steps. The necessary

observations are as under:-

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

"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."

9. Prior to considering the effect on the

actual earning capacity, the Hon'ble Apex

Court has directed the Tribunal to decide

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

whether there would be any permanent

disability and for that the Tribunal is

required to consider and decide with

reference to the evidence on record.

Paragraph 12, thus, laid down 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;

(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

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

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."

10. In connection with the evidence of the

Doctor, the Hon'ble Apex Court, in the said

judgment of Raj Kumar (supra), has observed

as under:-

"17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-

medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."

11. While summarizing the whole aspect, the

principles has been discussed in Paragraph

19, which reads as under:-

"19. 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

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

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

12. Here in this case, the learned Tribunal has

considered the income of the claimant at

Rs.5,000/- per month and on that, 30%

disability has been assessed. It is not the

case of the claimant that he had sustained

any amputation. Dr. H.M. Hadiya, who has

C/FA/1690/2017 JUDGMENT DATED: 22/02/2023

been examined by the claimant, has given the

disability certificate and Dr. Hadiya, in

his affidavit-in-chief, has placed reliance

upon the history given by the patient that

prior to the accident, he was working as