Gujarat High Court
Prakash Dilipbhai Pagi vs Shailesh Kantibhai Pagi on 5 September, 2023
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2630/2023 JUDGMENT DATED: 05/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2630 of 2023
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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PRAKASH DILIPBHAI PAGI
Versus
SHAILESH KANTIBHAI PAGI
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 05/09/2023
ORAL JUDGMENT
1. Advocate Mr. Adnan A.Khan for Advocate
Mr. V.A. Mansuri for the appellant submitted that
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the challenge is given by the claimant-injured to
the judgment and award dated 24.11.2022 by Motor
Accident Claims Tribunal (Main), Panchmahals at
Godhra in MACP No.133 of 2018, only on the ground
that though the learned Tribunal has followed the
judgment of Hon'ble Supreme Court of Mallikarjun
Vs. Divisional Manager, National Insurance
Company Limited And Another, reported in (2014)
14 SCC 396, and had also considered the
disability of 15% for body as a whole; however,
has failed to adopt the same; though the Hon'ble
Supreme Court has observed the yardstick laid
down that in case of disability up to 10 to 30%,
a lumpsum and rough estimate of Rs.3,00,000/- is
to be awarded.
2. Advocate Mr. Khan submitted that the
exceptional circumstances, as has been laid down,
to take a different yardstick would be the cases,
where the matters would stand on different
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footing like a permanent disability in the form
of bedridden condition of the child, where he
would be totally reliant on attendance and there
would be necessity of future medical expenses or
other needs, where the compensation is to be
awarded beyond the maximum limit of six lakhs.
While, the Hon'ble Supreme Court in Mallikarjun
(supra) has laid down the yardstick relying upon
the fact that the structure formula, as per
Second Schedule to Motor Vehicle Act, would be
unfair and improper to be followed in case of the
child victims, claimants. For children there is
no income, and, therefore observed that the main
elements of damage in case of child victim are
the pain, shock, frustration, deprivation of
ordinary pleasures and enjoyment associated with
healthy and mobile limbs.
3. Advocate Mr. Khan submitted that the
learned Tribunal relied on the disability
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certificate at Exhibit-38, which was actually for
35%, but since the parties had accepted to adopt
15% disability for body as a whole by way of
pursis at Exhibit-31, the disability factor got
slash down, and according to the disability
certificate, the effect of the accidental
injuries are difficulty in walking, difficulty in
sitting, pain at the site of injury, dribbling of
urine and burning maturation. Though that fact
has been observed in the judgment, the learned
Tribunal has considered that, those evidence of
physical impairment are not permanent in nature
and, therefore, came to an opinion to grant only
the award of Rs.1,50,000/- with medical expenses,
as proved at Exh.37, of Rs.49,000/-.
4. Advocate Mr. V.C. Thomas submitted that
the learned Tribunal has relied on the judgment
of Mallikarjun (supra), and has also observed the
proposition of law laid down therein, and came to
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an opinion that physical impairment are not
permanent in nature. Advocate Mr. Thomas stated
that the amount granted by the Tribunal is just
and reasonable.
5. In case of Mallikarjun (supra), the
Hon'ble Apex Court was dealing with the case of a
minor aged about 12 years, who was hit by a
motorcycle, who suffered the injuries, as under:
"(a) Right lower 1/3 leg deformity,
movements restricted diagnosis of
fracture.
(b) Two abrasions over left elbow
posteriorly over olecranon both
measuring 4 x 1 cm.
(c) Abrasion over dorsal aspect
right hand at the base of index
finger."
6. The Apex Court while dealing with the
damage in case of the child victims, has observed
in para-8 as under:
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"8. While considering the claim by a
victim child, it would be unfair and
improper to follow the structured
formula as per the Second Schedule
to the Motor Vehicles Act for
reasons more than one. The main
stress in the formula is on
pecuniary damages. For children
there is no income. The only
indication in the Second Schedule
for non- earning persons is to take
the notional income as Rs.15,000/-
per year. A child cannot be equated
to such a non-earning person.
Therefore, the compensation is to be
worked out under the non- pecuniary
heads in addition to the actual
amounts incurred for treatment done
and/or to be done, transportation,
assistance of attendant, etc. The
main elements of damage in the case
of child victims are the pain,
shock, frustration, deprivation of
ordinary pleasures and enjoyment
associated with healthy and mobile
limbs. The compensation awarded
should enable the child to acquire
something or to develop a lifestyle
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which will offset to some extent the
inconvenience or discomfort arising
out of the disability. The
appropriate compensation for
disability should take care of all
the non-pecuniary damages. In other
words, apart from this head, there
shall only be the claim for the
actual expenditure for treatment,
attendant, transportation, etc."
6.1 The yardstick laid down for the
compensation is in para-12, which reads as under:
"12. Though it is difficult to have
an accurate assessment of the
compensation in the case of children
suffering disability on account of a
motor vehicle accident, having
regard to the relevant factors,
precedents and the approach of
various High Courts, we are of the
view that the appropriate
compensation on all other heads in
addition to the actual expenditure
for treatment, attendant, etc.,
should be, if the disability is
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above 10% and upto 30% to the whole
body, Rs.3 lakhs; upto 60%, Rs.4
lakhs; upto 90%, Rs.5 lakhs and
above 90%, it should be Rs.6 lakhs.
For permanent disability upto 10%,
it should be Re.1 lakh, unless there
are exceptional circumstances to
take different yardstick."
7. Here, in the present case, the
disability, as was assessed by the Doctor was
35%, but both the Advocates on record consented
for 15%, and the learned Tribunal thereafter went
on to elaborate that the impairment was not a
permanent in nature. This observation was not
supported by way of any assistance of any medical
book, as has been laid down in case of Raj Kumar
And Another Vs. Ajay Kumar And Another, reported
in (2011) 1 SCC 343. In the said case, 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
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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
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
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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.
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
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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
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
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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
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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
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.
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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 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
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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
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
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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
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
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`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."
8. Here, in the present matter, since the
victim is a child and being a non-earning member,
specific yardstick has been laid down to
compensate them, as it has been found that it is
difficult to have an accurate assessment of the
compensation. Hence, yardstick laid down has been
formed after having considered relevant factors,
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precedents and approach of various High Courts.
The Tribunal had no reason to deviate from the
line of the judgment of Mallikarjun (supra) and
not compensate as per the degree of disability
suffered by the child. The learned Tribunal has
failed to bring out the case to wriggle from the
laid yardstick to take a different view. The
admitted position of the disability, as was
adopted by both the parties on record was 15%. If
the learned Tribunal had any doubt in the
disability certificate issued by the Doctor, then
could have sent the same for verification from
the Medical Board of Civil Hospital, where, in
this case, no such approach was adopted.
9. In view of the above, following the
yardsticks of Mallikarjun (supra), and as the
disability has been accepted as 15% for body as a
whole, the claimant child is entitled to the
amount of Rs.3,00,000/- under the head of Pain
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and suffering already undergone and to be
suffered in future, mental and physical shock,
hardship, inconvenience, and discomforts, etc.
and loss of amenities in life on account of
disability.
10. Thus, the compensation under the
different heads would be computed as under:
Heads Amount
Pain and suffering already 3,00,000/-
undergone and to be suffered
in future, mental and
physical shock, hardship,
inconvenience, and
discomforts, etc. and loss of
amenities in life on account
of disability
Medical expense 49,000/-
Total 3,49,000/-
11. The Tribunal has awarded total
compensation as Rs.1,99,000/-. Now, the claimant
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would be entitled to get Rs.1,50,000/- (3,49,000
- 1,99,000) as enhanced compensation at the rate
of 7.5%.
12. In the result, the appeal is allowed in
the aforesaid terms. The impugned judgment and
award dated 24.11.2022 passed by Motor Accident
Claims Tribunal (Main), Panchmahals at Godhra in
M.A.C.P. No.133 of 2018 stands modified to the
aforesaid extent. No order as to costs.
13. Record & Proceedings, if any, be sent
back to the concerned tribunal.
(GITA GOPI,J)
Pankaj
