Gujarat High Court
Savaji Chimaji Suthar vs Abdul Osman Jat on 16 April, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2723/2019 JUDGMENT DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2723 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SAVAJI CHIMAJI SUTHAR
Versus
ABDUL OSMAN JAT & ANR.
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Appearance:
MR HEMAL SHAH(6960) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) 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 : 16/04/2024
ORAL JUDGMENT
1. By way of this Appeal, the Appellant-claimant has
challenged the judgment and award dated 13.08.2018
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passed by the learned Motor Accident Claims Tribunal
(Auxi.), Bhuj in M.A.C.P. No.626 of 2004.
2. The facts giving rise to the present Appeal can be put
succinctly as under :-
On 05.07.2004 at 8.00 hours, the appellant was
proceeding from Village Dador to Zalu on his bicycle.
The appellant was driving the bicycle as per the rules
and regulations and when he reached the place of
accident, the respondent No.1 came alongwith his
Jeep bearing Registration No.GJ-12-W-4761 in a rash
and negligent manner and at an excessive speed, as a
result of which the driver lost control over the
steering, dashed and collided with the bicycle and
caused accident. Due to the accident, the appellant
fell down on the road with the bicycle and sustained
serious injuries including fracture injuries.
3. Learned Advocate for the appellant-claimant Mr.
Hemal Shah submitted that the prospective rise in
income is required to be considered while assessing
the functional disability. It is further submitted
that the permanent disability had been proved by the
evidence of the Doctor who had deposed by
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documentary evidence of 71% disability for the body
as a whole. It is further submitted that the learned
Tribunal ought to have been assessed accordingly and
any deduction in the assessment should have been by
way of examining the same with the medical context,
otherwise evidence of the Doctor, being an expert is
required to be believed. It is further stated that in
view of the 71% disability, the amount under the
head of pain, shock and suffering as awarded by the
learned Tribunal are on the lower side.
4. Countering the above arguments, learned Advocate
for the respondent - Insurance Company Mr. Yogi K.
Gadhia submitted that the income of the injured has
not been proved, as in absence of any evidence to
specify the actual earning, the learned Tribunal was
required to place reliance on the Minimum Wages
Schedule for the claimant, who had claimed to be
working as a Carpenter. It is also submitted that the
physical disability which has been assessed by the
learned Tribunal should only be entertained where
after having recorded the evidence of the Doctor, the
learned Tribunal has assessed 35% permanent
disability for the body as a whole.
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5. Heard learned Advocates for the respective parties
and perused the records of the case. The claimant,
who was aged 45 years at the time of accident had
produced the MLC Certificate at Exhibit 38; he had
urged before the learned Tribunal that he was doing
carpentry work and his monthly income would be
Rs.3,000/- to Rs.4,500/- per month. The learned
Tribunal had found that no cogent or reliable
evidence was produced in support of the contention
about his income and merely considering the accident
to be of the year 2004 has assessed the income as
Rs.3,000/- per month. In absence of any
documentary evidence to support the same, the
learned Tribunal was required to place reliance on
the Minimum Wages Schedule which is adopted by
the State and random assessment should be avoided
by the learned Tribunal where the standard payable
to unskilled / skilled persons is determined by the
State by way of Minimum Wages Schedule. Thus,
this Court considering the Minimum Wages Schedule
has assessed the income of the claimant to be
Rs.2,300/- per month.
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6. In the case of Mohd. Sabeer @ Shabir Hussain Vs.
Regional Manager, U.P. State Road Transport
Corporation reported in 2022 LiveLaw (SC) 107, it
has been observed that in cases of permanent
disablement caused by a motor accident, the claimant
is entitled to future loss of income, not only on the
current income but also as rise in future prospects.
Further, socio-economic background of the claimants
must be considered while awarding compensation in
cases of permanent disability. Persons from
marginalized sections of the society already face
severe discrimination due to a lack of social capital,
and a new disability more often than not compounds
to such discrimination. It was further held by the
Hon'ble Apex Court that even if the income of the
claimant had increased after the accident, it would
not be enough grounds to disable him from claiming
compensation for future prospect as the rise in
income may be attributed to multiple other factors.
Just compensation must be interpreted in such a
manner as to place the claimant in the same position
as he was before the accident took place.
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7. Considering the decision of the Hon'ble Apex Court
in the case of National Insurance Company Limited v.
Pranay Sethi and Others reported in 2017 16 SCC 680
and Mohd. Sabeer @ Shabir Hussain (supra), the
prospective rise in income is assessed @ 25%. Thus,
an amount of Rs.575/- get added to the monthly
income of Rs.2,300/- which comes to Rs.2,875/- per
month.
8. The appellant has produced the Disability Certificate
vide Exhibit 55 where the appellant has been assessed
with the permanent disability of left upper limb of
upper limb by 56% and left lower limb by 35% and
body as a whole @ 71.4%, i.e. 71%. Dr. Abhinav
Kotak was examined vide Exhibit 54 and in his cross
examination, he has denied to that suggestion that
the disability for the body as a whole has been
wrongly assessed. The record suggests that the
claimant had sustained '# Radius / Ulna Lt. + # L/E
Radius Lt close without DNVD close and # Tibial
condyle Ltd. undisplaced close without DNVD and
blunt injury on the abdomen.' The Doctor has very
specifically stated that the disability for the body
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would come to 71%. The appellant is a carpenter by
profession. Thus, this injury would certainly affect
his working capacity because of the injury suffered in
upper and lower limb. Thus, the disability assessed
for the body as 71% is required to be considered as
functional disability.
9. Considering 71% functional disability and applying
the multiplier of 14, annually, and considering the
monthly income of Rs.2,875/-, the future loss is to be
assessed which comes to Rs.3,42,930/- (Rs.2,875/- per
month x 71% x 12 months x 14 multiplier).
10. The learned Tribunal has granted Rs.15,000/-
under the head of pain, shock and suffering. The
injury which has been suffered by the appellant as a
carpenter would be life long and hence, he would not
be in a position to continue with his work, the
suffering would continue and he would fail to
undertake the work which was being done earlier to
sustain his family. In view of the above, the
amount under the head of pain, shock and suffering
is required to be enhanced from Rs.15,000/- to
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Rs.50,000/-, to alleviate the pain.
11. Correspondingly, considering the injury and the
time taken, which would be taken for four months
for recovery, the amount under the head of Special
Diet, Attendant's Charges and Transportation is
increased to Rs.15,000/-. The medical expenses of
Rs.29,118/- has been proved.
12. Considering the injury and the time taken for
recovery, this Court considers that the actual loss of
income for a period of four months is required to be
compensated as Rs.9,200/-.
13. Thus, the computation can be made as under :-
Details Amount (Rs.)
Future loss of income 3,42,930/-
Pain, Shock and Suffering 50,000/-
Special Diet, Attendant's Charges 15,000/-
and Transportation
Medical Expenses 29,118/-
Actual loss of income 9,200/-
TOTAL 4,46,248/-
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14. The learned Tribunal has awarded an amount of
Rs.2,36,500/- with rate of interest @ 9% per annum,
which the respondent/s are liable to deposit, with the
enhanced amount as Rs.2,09,748/- (Rs.4,46,248/-
minus Rs.2,36,500/). In the result, the present
respondent/s are directed to deposit the amount
within a period of EIGHT (8) WEEKS from the date
of receipt of writ of the order of this Court. It is
further directed that the claimant would be entitled
to receive the enhanced compensation with rate of
interest @ 7.5% per annum from the date of the
application till the date of its realization.
15. After deposit of the above enhanced amount, it
is directed that the appellant-claimant be paid the
total amount by account payee cheque / NEFT /
RTGS, after carrying the necessary procedure for
verification of his identity.
16. In view of the above, the Appeal is allowed and
the judgment and award dated 13.08.2018 passed by
the learned Motor Accident Claims Tribunal (Auxi.),
Bhuj in M.A.C.P. No.626 of 2004 stands modified to
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the above extent. Record and proceedings, if any,
be sent back to the concerned Court / Tribunal
forthwith.
Sd/-
(GITA GOPI, J)
CAROLINE
