Gujarat High Court

Bhupatbhai Gemabhai Bariya vs Rajeshkumar Rameshchandra Parikh on 30 November, 2023

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/1313/2009                               JUDGMENT DATED: 30/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 1313 of 2009


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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                  BHUPATBHAI GEMABHAI BARIYA
                            Versus
          RAJESHKUMAR RAMESHCHANDRA PARIKH & 3 other(s)
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Appearance:
MR ADNAN KHAN ADVOCATE FOR MR MTM HAKIM(1190) for the
Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
MR HS MUNSHAW(495) for the Defendant(s) No. 4
RULE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 30/11/2023

                             ORAL JUDGMENT

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1. The challenge is given by the injured

claimant under section 173 of the M.V. Act

against the judgment and award dated 31.03.2008

passed by the Motor Accident Claims Tribunal

(Aux.) Dist. Kheda at Andiad in MACP No.1049 of

1992.

2. Advocate Mr. Adnan Khan for Mr. M.T.M.

Hakim, learned advocate for the appellant

submitted that the learned Tribunal has erred in

not appreciating the evidence on record, that

because of the vehicular accident, the appellant

had suffered grievous injury, which had led to

amputation.

2.1 Advocate Mr. Khan submitted that

grievous injury on the right leg has resulted

into amputation of right lower limb knee,

amputation stump 2.5 inch from knee joint and

tenderness over amputation stump with irregular

shape of amputation stump and a close fracture

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bimalleolar pott's left side with crush injury of

left foot with amputation of great toe left side,

and further there was fracture on neck at second

metatarsal left side and fracture base of fifth

metatarsal left side.

2.2 Advocate Mr. Khan submitted that 100%

functional disability ought to have been assessed

by the Tribunal granting just and sufficient

amount under the head of pain, shock and

suffering and loss of income with loss of future

prospects. Mr. Khan submitted that the applicant,

at the time when the claim petition was filed,

was aged 26 years, who was labourer doing

centering work on contract basis.

3. Countering the argument, Advocate Mr.

Mazmudar and Advocate Mr. Munshaw for the

respondent no.3 and 4 respectively, submitted

that the learned Tribunal after having assessed

the evidence on record granted compensation

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amount, which is just and proper. Both the

advocates submitted that 35% disability for body

as a whole was considered by the Tribunal, and by

applying multiplier of 17, the future loss of

income has been granted, and the amount under the

head of pain, shock and suffering of Rs.50,000/-

is submitted to be reasonable.

4. The facts of the case, as was observed

by the Tribunal suggest that the present

applicant was travelling as a passenger in S.T.

Bus No.GJ-1Z-368, and reached near Nadiad from

Shekheshwar via Ahmedabad and Kheda, and after

leaving Nadiad while going towards Dakor and

after having travelling 15 kilometers, they

passed the flag stand of Adinar and at about

19:00 hours bus collided with the offending

vehicle motor tempo Tata-407 bearing registration

no.GQG 7429. As a result, the bus dashed with a

tree and the applicant sustained severe injuries.

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5. The injured applicant had filed his

affidavit at Exh.24 to adduce evidence that he

sustained fracture on left leg and also fracture

on his right leg, and got injuries on other parts

of his body. He was taken in Civil Hospital,

Nadiad, where he was admitted, but because of

severe injuries he was transferred to S.S.G.

Hospital, Baroda, wherein he was operated for his

leg and was taken as an indoor patient for 43

days. During this time, he was operated on

03.02.1992 and thereafter his right leg was

amputated on 15.02.1992. His follow up treatment

was continued as outdoor patient. The medical

certificate at Exh. 32 was produced.

5.1 The learned Tribunal observed that on

examination, the Doctor found amputation of right

lower limb below knee, amputation stump 2.5 inch

from knee joint, tenderness over amputation

stump, irregular shape of stump. The claimant

injured was admitted in Civil Hospital, Nadiad

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and then admitted in S.S.G. Hospital, Baroda for

crush injury of right leg with compound

communited segmental fracture Tibia Fibula right

side with losed fracture bimalleolar Pott's left

side with crush injury of left foot with

amputation of great toe left side with fracture

neck of second matatarsal left side with fracture

base of fifth matatersal left side. Dr. Yogesh

Parikh expressed his opinion at Exh.32 that

patient was suffering permanent disability of 70%

in right and left leg and according to Kessler

Rule, it was for body as a whole.

5.2 The learned Tribunal has observed that

nothing has been brought in cross examination to

discredit the testimony of Doctor Yogesh Parikh,

hence, learned Tribunal safely relied upon the

evidence to observe that one of the leg of the

applicant was amputated below knee and the

patient had 35% disability for body as a whole.

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5.3 The learned Tribunal has further

observed that the applicant was doing centering

work. It was urged before the Tribunal that he

was earning an income of Rs.3,000/- to maintain

his family; however, the said earning was

observed as not proved in absence of any proof

and, therefore, the learned Tribunal assessed the

notional income as Rs.1,500/-; considering the

age of the applicant as 26 years applying the

multiplier of 17 to the income of Rs.18,000/-

with 35% disability, the learned Tribunal granted

Rs.1,07,100/- under the head of future loss of

income.

5.4 The learned Tribunal awarded total

compensation of Rs.1,92,100/- under the different

heads, as under:

Heads                                              Amount
Future loss of income                       Rs.1,07,100/-
Actual Loss of income                       Rs.    18,000/-
Pain, shock and suffering                   Rs.    50,000/-






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Expenses of medical                   treatment Rs. 10,000/-
and medical bills
Transportation                                          Rs.      2,000/-
Attendant charges                                       Rs.      3,000/-
Special diet                                            Rs.      2,000/-
Total                                                   Rs.1,92,100/-

6. Advocate Mr. Khan has relied upon the

judgment of Mohd. Sabeer alias Shabir Hussain Vs.

Regional Manager, U.P. State Road Transport

Corporation, reported in AIR 2023 SC 186, to

submit that the functional disability would

severely impact the earning capacity of the

present applicant, since he is a labourer doing

centering work, which would require total support

of his legs, and since, one of the leg has been

amputated and the left foot with amputation of

great toe left side, Advocate Mr. Khan submitted

that 35% functional disability assessed by the

Tribunal is not in accordance to the evidence on

record; thus, submitted that at least, 70%

functional disability is required to be

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considered.

7. In case of Raj Kumar vs. Ajay Kumar,

reported in (2011) 1 SCC 343, the Hon'ble Supreme

Court has considered the concept of functional

disability for the assessment of future loss of

income due to permanent disability. Paras 8 to 14

of the said judgment are as under:

"8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the

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period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

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9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference

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to the whole body, cannot obviously exceed 100%.

10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning

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capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanently 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the

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decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd.

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

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is no permanent disability then there is no question of 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.

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

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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.

14. 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

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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 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."

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7.1 In Raj Kumar v. Ajay Kumar (supra), this

Court laid down the heads under which

compensation is to be awarded for personal

injuries.

"6. The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special damages)

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


      (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.

      (iii)         Future medical expenses.






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Non-pecuniary damages (General damages)

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

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

       (vi)            Loss        of          expectation                 of
       life           (shortening         of            normal
       longevity).
       In        routine        personal              injury        cases,

compensation will be awarded only under heads (i), (ii) (a) and (iv). 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."

8. In view of the evidence on record

regarding the amputation of leg and the toe and

the evidence of Doctor Yogesh Parikh, which has

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not been discredited, and considering the work of

the applicant, the submission of considering 70%

functional disability is required to be accepted

and accordingly in view of principle laid down in

Raj Kumar vs. Ajay Kumar (supra), 70% functional

disability is assessed by this Court.

9. The per annum income of Rs.18,000/- has

been considered by the Tribunal. No evidence has

been produced by way of documentary evidence to

prove the income, hence, Rs.18,000/- (1,500 x 12)

per annum income is assessed; however, in

accordance to the judgment of National Insurance

Company Ltd. v. Pranay Sethi and Ors., reported

in AIR 2017 SC 5157, considering the age of the

applicant below 40, observing the standard laid

down, 40% addition is to be made as prospective

rise; thus, on Rs.18,000/- assessing 40% rise in

income, Rs.7,200/- is added to the per annum

income, which comes to Rs.25,200/- (18,000 x 40%

= 7,200/-, 18,000 + 7,200 = 25,200/-).

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9.1 Assessing 70% functional disability on

the said amount, the future loss of income per

annum would be Rs.17,640/- (25,200 x 70%), and

applying the multiplier of 17, future loss of

income would come to Rs.2,99,880/- (17,640 x 17).

9.2 The medical expenses of Rs.10,000/- has

been proved on record; while the amount granted

under the head of special diet, transportation

and attendance charges of Rs.7,000/- is on the

lower side. The claimant had undergone two

operations and had been indoor patients for about

43 days and thereafter too had gone for follow up

treatment, therefore, it would be just to grant

Rs.20,000/- under the head of special diet,

transportation and attendance charges.

Accordingly, considering the work of the

applicant, actual loss of income is assessed for

a year of Rs.18,000/-.

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9.3 The tribunal has granted Rs.50,000/-

under the head of mental pain, shock and

suffering. Considering the physical disability by

way of amputation, fracture at the neck,

hospitalization and the operations undergone,

relying on the judgment reported in Mohd. Sabeer

alias Shabir Hussain Vs. Regional Manager, U.P.

State Road Transport Corporation (supra), under

the head of mental pain, shock and suffering,

Rs.2,00,000/- is granted.

9.4 Considering the age of the claimant and

the injury suffered with amputation, he would not

be in a position to enjoy the life as he had

prior to the accident. The physical disability

also brings disadvantage to his day-to-day

functioning and would also have a bearing on

social status, thus, under the head of loss of

amenities of life & loss of enjoyment of life,

relying on the judgment reported in Mohd. Sabeer

alias Shabir Hussain Vs. Regional Manager, U.P.

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State Road Transport Corporation (supra),

Rs.2,00,000/- is granted under the head of loss

of amenities of life & loss of enjoyment of life.

10. In view of the above, compensation under

different heads would be:

                   Heads                                     Amount
Future loss of income                              Rs. 2,99,880/-
Medical Expense                                    Rs.       10,000/-
special        diet,     transportation Rs.                  20,000/-
and attendance charges
Actual loss of income                              Rs.       18,000/-
Mental    pain,            shock            and Rs. 2,00,000/-
suffering

Loss of Amenities of life & Rs. 2,00,000/-

loss of enjoyment of life Total Rs. 7,47,880/-

11. The Tribunal has granted compensation of

Rs.1,92,100/-. The enhanced amount of

Rs.5,55,780/- [7,47,880 - 1,92,100] be deposited.

12. On the issue of negligence, opponent

nos.1 to 4 have been made liable to indemnify the

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claimant and liability of opponent nos.3 and 4

has been laid down in equal proportion,