Gujarat High Court

Punambhai Arjanbhai Patni vs New India Assurance Company ... on 5 September, 2023

Bench: Gita Gopi

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     C/FA/697/2019                              JUDGMENT DATED: 05/09/2023

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  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 697 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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     Whether Reporters of Local Papers may be
 1                                                                   NO
     allowed to see the judgment ?
 2 To be referred to the Reporter or not ?                           NO
     Whether their Lordships wish to see the fair copy
 3                                                                   NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution               NO
   of India or any order made thereunder ?

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            PUNAMBHAI ARJANBHAI PATNI
                          Versus
       NEW INDIA ASSURANCE COMPANY LIMITED
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Appearance:
MR SACHIN D VASAVADA(3342) for the Appellant(s) No. 1
MR JM BAROT(143) for the Defendant(s) No. 2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 05/09/2023

                           ORAL JUDGMENT

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1. Challenge in this appeal is to the judgment and award dated

13.07.2018 passed by the learned Motor Accident Claims Tribunal,

Ahmedabad (the Tribunal) in Motor Accident Claim Petition No.

917 of 2006 (claim petition).

2. Factual matrix of the claim petition, as can be drawn from the

facts stated before the learned Tribunal, are to the effect that on

15.02.2006 at about 9 a.m., the claimant was going on a Matador,

bearing registration No. GJ-09-T-4681 for labour work. The

Matador was being driven by the opponent No. 1 in the claim

petition and as per the claimant, while passing through three roads of

Jamtha, as the said opponent No. 1 was driving the Matador rashly

and negligently, in full speed, he lost control over the steering, as a

result of which, the Matador turned turtle. The claimant came under

the Matador and sustained serious injuries and during the treatment,

both the legs of the claimant below the Knee were amputated. It is

also contended that left Thigh was operated and screws and plates

were inserted therein.

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3. Learned advocate Mr. Sachin Vasavda for the appellant

submits that Motor Accident Claim Petition Nos. 9, 10 and 405 of

2008 were filed by the other claimants before the Motor Accident

Claims Tribunal (Auxiliary) at Patan, where, the awarded amount

has already been disbursed and no challenge has been given to the

judgment and award in the same, by the insurance company and

submitted that the insurance company was made liable to pay the

compensation amount in all the three claim petitions and thus, stated

that the principle of res judicata should be made applicable and the

liability of the insurance company, in the present matter, has to be

affirmed, submitting that the judgment and award that had come in

the Motor Accident Claim Petition Nos. 9, 10 and 405 of 2008 were

declared on 19.06.2017 and 18.05.2017, respectively, while the

impugned judgment and award was delivered subsequently, on

13.07.2018.

4. As against this, learned advocate Mr. Sunil Parikh for the

insurance company, while resisting the appeal, submitted that the

learned Tribunal has rightly exonerated the insurance company from

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the liability to pay the compensation inasmuch as the claimant was

not travelling as an employee of the insured vehicle but was a part of

the marriage party and the said fact was very well substantiated by

the versions of the other claimants in the other claim petitions, where

they have stated that they were the part of the marriage party. He

submitted that after dealing with the said aspect in depth, the

Tribunal has arrived at such a conclusion, which requires no

interference at the hands of this Court.

5. The Tribunal, in the present matter, had held that the claimant

was illegal occupant of the goods carriage vehicle, which was to be

used for the purpose of transportation of the goods. The Tribunal

has also observed that at the time of the accident, the vehicle was

used for the purpose of carrying the marriage party. The said fact

was pleaded and appreciated in Motor Accident Claim Petition Nos.

9, 10 and 405 of 2008 and the learned Tribunal at Patan, on the basis

of the principle of res ipsa loquitur, has laid down the liability and

has held the driver of the vehicle negligent. The liability of paying

the compensation was laid down on the insurance company in all the

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three claim petitions. Further, it is reported that the insurance

company has not challenged the said findings of the Tribunal at

Patan, laying the liability of the insurance company, meaning

thereby, the same has attained finality. This Court considers that the

learned Tribunal at Ahmedabad ought to have appreciated such

findings and should have laid down the liability of paying the

compensation upon the insurance company as the vehicle was

insured with them on the date of accident. In view of the same, the

findings of the Tribunal at Ahmedabad exonerating the insurance

company from the liability to pay the compensation is hereby set

aside.

5.1 The claimant had affirmed before the Tribunal that he was

working as a Cleaner and Labourer and was earning Rs.4,000/- per

month. The claimant has failed to produce any documentary

evidence to substantiate his claim. However, the learned Tribunal,

considering the work of Cleaner and Labourer, has considered the

monthly income of the claimant as Rs.3,000/-, which according to

this Court, is just and appropriate.

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5.2 The claimant had produced the Certificate of Sheth N. L.

General Hospital, vide exh. 42, assessing the permanent disability of

95%. However, the learned Tribunal has observed that the doctor,

who had issued the Certificate, exh. 42 is not examined, but both the

parties have agreed to consider the disability at 80% for the body as

a whole. However, it appears that the Tribunal has not entered into

the facts of functional disability as laid down in the decision of the

Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar and Another,

(2011) 1 SCC 343. The Apex Court, in paragraphs 9 to 11 has

considered the aspect of assessing the loss of earning capacity with a

word of caution to the Tribunal that it should not mechanically apply

the percentage of permanent disability as percentage of loss of

earning capacity. The relevant observations as reproduced herein

below:

"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

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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 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 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

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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 decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. D.M., National Insurance Co. Ltd.).

5.3 The Tribunal was required to required to assess the fact of

functional disability of the claimant, which appears to have not been

done. The claimant was present before this Court on 01.09.2023. It

has not come on record that the claimant is not in a position to do

any work. Though, amputated below Knee, he was found diligent to

do the work and as per his say, he was earning his income to look

after his family. Thus, this Court considers that 55% functional

disability should be assessed in view of the fact that the claimant is

in a position to work to sustain himself and his family. Thus, 55%

disability would bring about loss of Rs.1,650/- (Rs.3,000 x 55%)

from his monthly income. Hence, applying the multiplier of 15

considering his age as 40 years at the time of accident, the income

loss would come to Rs.2,97,000/- (Rs.1,650 x 12 x 15). The amount

under other heads are appropriately granted. Hence, the total

computation of compensation would be as under:

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Head Award of Modified Tribunal (Rs.) Amt. (Rs.) Future loss of income 4,32,000/- 2,97,000/-

Medical Expenses                               72,000/-               72,000/-
Special Diet, Attendant and                    10,000/-               10,000/-
Transportation
Pain, Shock and Suffering                      50,000/-               50,000/-
Actual loss of income                            9,000/-               9,000/-
                             Total            5,73,000/-           4,38,000/-

6. For the forgoing reasons, the appeal succeeds and is

accordingly, allowed in part. The impugned judgment and award, as

aforesaid, is hereby modified to the aforesaid extent and it is held

that the appellant shall be entitled to compensation of Rs.4,38,000/-

from the respondents herein - original opponent Nos. 2 and 3, who

are jointly and severally liable to pay the same, with interest at the

rate of 7.5% per annum from the date of claim petition till

realization. The awarded amount shall be deposited within a period

of 08 (eight) weeks before the Tribunal concerned.

6.1 Upon the amount so deposited, 30% of the amount be invested

in a Fixed Deposit with any nationalized Bank, for a period of three

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years. Insofar as the remaining 70% amount is concerned, the same

shall be disbursed in favour of the original claimant, after proper