Gujarat High Court
Suresh Babubhai Vaniya vs Badheer Alarakha Sandhi (Dal) on 20 September, 2023
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2459 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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SURESH BABUBHAI VANIYA
Versus
BADHEER ALARAKHA SANDHI (DAL)
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 6
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 7
RULE UNSERVED for the Defendant(s) No. 1,2
SERVED BY AFFIX. (R) for the Defendant(s) No. 4,5
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/09/2023
ORAL JUDGMENT
1. Challenge in this appeal at the instance of the appellant -
original claimant - injured is to the judgment and award dated
16.03.2018 passed in Motor Accident Claim Petition No. 1101 of
2008 (claim petition) by the learned Motor Accident Claims
Tribunal (Auxiliary), Rajkot, (the Tribunal) inter alia on the grounds
that the income has not been considered as per the work undertaken
by the appellant, who was working as a Cleaner in the truck at the
relevant point of time and further, the functional disability has not
been considered.
2. The facts of the case are that on 21.01.2008 at about 8:00 in
the morning, the appellant - claimant was on service as a Cleaner on
a Truck bearing registration No. GJ-1-AT-2252, which was being
plied on Sardhar - Atkot road. The accident had occurred between
the truck and a Tanker bearing registration No. GJ-12-U-6233. Both
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the vehicles were in full speed and being driven in rash and
negligent manner and owing to the accident, the appellant - claimant
sustained injuries on the right leg with fracture and even sustained
grievous injuries on his left thigh and in vertebra, and had four
fractures and after the accident, was remained almost bedridden and
gradually, after the operation and treatment, improved, but still, the
injury has left him with 44% permanent disability.
3. Learned advocate Mr. Hemal Shah for the appellant - claimant
submitted that the learned Tribunal has not gone into the details with
regard to the functional disability and the monthly income was also
assessed as Rs.2,800/- of the Claimant, which he states, even not,
according to the Minimum Wage Schedule.
4. Per contra, learned advocates Mr. Chirayu Mehta and Mr.
Tanmay Karia for the respective respondents - insurance companies
submitted that the amount which has been assessed is just and proper
and requires no interference at the hands of this Court.
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5. The total amount, which has been granted is Rs.1,23,200/-.
The learned Tribunal has considered 16% disability but has not
delved into the actual injuries sustained by the appellant - claimant
to find out the functional disability, which would affect the work of
the appellant as a Cleaner. The disability certificate was proved on
record, which was issued by a doctor of Yash Hospital and
according to the doctor, the disability would be 44% of the limb.
The injury examination was on the hip and the thigh and the finding
that he was not in a position to squat and sit cross legged and
suffered shortening of leg and accordingly, the learned Tribunal
could have relied upon the decision of the Hon'ble Supreme Court in
Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 and
assessed the functional disability. However, it appears that the
Tribunal has not entered into the aspect of functional disability as
laid down in the said decision. 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
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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
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
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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 decisions of this court
in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and
Yadava Kumar v. D.M., National Insurance Co. Ltd.).
5.1 Thus, considering the work of the appellant - claimant as
being Cleaner on the truck and on the date of accident, he was on the
truck (as a Cleaner), this Court considers that 44% disability for the
limb was required to be considered. Taking this factor into
consideration, 22% functional disability is considered as disability
for the body as a whole, which ought to have been granted.
5.2 The income on the date of accident being 22.01.2008, keeping
in mind the Minimum Wage Schedule, is to be considered as
Rs.3,000/- per month. Considering 22% disability, as aforesaid, and
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applying a multiplier of 17, as his age at the time of accident was 28,
the total amount under the head of future loss would come to
Rs.1,34,640/- (Rs.3,000 x 22% x 12 x 17). The appellant - claimant
had suffered injury in both the legs, thigh, vertebra and in the initial
period, he was totally physically handicapped and had suffered
operation and gradually could improve and at present, as it has been
submitted, he is still walking with stick, and thus, taking this fact
into consideration and that in future too, he would suffer because of
the injuries sustained, this Court considers that reasonable amount
under the head of Pain, Shock and Suffering is required to be granted
and is, accordingly, assessed as Rs.50,000/-.
5.3 During the course of treatment and hospitalization, the
appellant - claimant would have received support and assistance of
the family members, who might have attended to his needs and
further, there would be expenses for the transportation during the
hospitalization. Considering the totality of the facts and
circumstances, under the head of Special Diet, Attendant Charges
and Transportation Charges, Rs.25,000/- is granted. The medical
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expenses is considered as Rs.10,000/-. The appellant - claimant
might not have recovered for a period of about eight months in view
of the injuries sustained. Considering the monthly income of
Rs.3,000/-, the actual loss of income would come to Rs.24,000/-.
Thus, the computation of total compensation would be as under:
Head Award of Modified
Tribunal (Rs.) Amt. (Rs.)
Future loss of income 81,600/- 1,34,640/-
Medical Expenses 5,000/- 10,000/-
Special Diet, Attendant and 10,000/- 25,000/-
Transportation
Pain, Shock and Suffering 25,000/- 50,000/-
Actual loss of income 1,600/- 24,000/-
Total 1,23,200/- 2,43,640/-
Difference (enhanced amount) 1,20,440/-
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 total compensation of
Rs.2,43,640/-. The difference amount of Rs.1,20,440/- shall be
deposited within a period of 08 (eight) weeks before the Tribunal
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concerned. The appellant - claimant would be entitled to interest at
the rate of 7.5% per annum on such enhanced amount.
6.1 Upon the amount so deposited, 25% of the amount be invested
in a Fixed Deposit with any nationalized Bank, for a period of
three years. Insofar as the remaining 75% amount is concerned, the
same shall be disbursed in favour of the original claimant, after
proper verification. Interest on such Fixed Deposit shall be paid to
the claimant periodically. On completion of three years, the FDR
amount shall be disbursed to the claimant, without any reference to
this Court, following due procedure. However, the original FDR,
in the name of the claimant, shall be kept in the custody of the Nazir
of the Tribunal. No any advance, loan or encashment against the
Fixed Deposit be permitted by anyone.
6.2 R&P be transmitted back forthwith.
[ Gita Gopi, J. ]
hiren
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