Gujarat High Court

Sanjay Muljibhai Rathod vs Bachubhai Babubhai Rathod on 19 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

                                                                                      NEUTRAL CITATION




     C/FA/3268/2019                                 JUDGMENT DATED: 19/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3268 of 2019


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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                          SANJAY MULJIBHAI RATHOD
                                   Versus
                      BACHUBHAI BABUBHAI RATHOD & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) 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 : 19/02/2024

                               ORAL JUDGMENT

1. The injured claimant has challenged the judgment

dated 3.10.2018 passed by MACT (Special), Rajkot

in MACP no.503/08.

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2. Advocate Mr. Hemal Shah for the appellant

submitted that the Tribunal was required to take

the assistance of minimum wages schedule for

assessing the monthly income as the claimant being

from the labour class, he would not have been in a

position to prove the income by way of any

documentary evidence. Relying on the judgment in

the case of Mohd. Sabeer @ Shabir Hussain v.

Regional Manager, U.P. State Road Transport

Corporation, 2022 Live Law (SC) 1017 and also the

judgment in the case of Erudhaya Priya v. State

Express Trnasport Corporation Ltd. passed by the

Hon'ble Apex Court in Civil Appeal no.2811-2812 of

2020, Advocate Mr. Shah submitted that loss of

earning capacity would have to be assessed by

granting prospective rise in income to the

claimants since such disability would continue

throughout the life.

2.1 Advocate Mr. Shah stated that the physical

disability is a way to find the functional

disability and the Tribunal is required to follow

the directions given in the case of Raj Kumar v.

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Ajay Kumar & Anr., (2011) 1 SCC 343 and urged to

consider 40% functional disability of the claimant

being from labour class and had stated that the

actual loss of income is required to be considered

accordingly and that the medical expenses of

Rs.50,946/- has been proved before the Tribunal

but the amount under the head of pain, shock and

suffering amount and amount under the head of

special diet, attendant and transportation have

not been proportionately paid.

3. Countering the arguments, Advocate Mr. Tanmay

Karia for the insurance company submitted that the

income is required to be proved by way of

documentary evidence and since the claimant has

failed to do so, an amount of Rs.2,200/- be

considered as just and reasonable amount. Advocate

Mr. Karia also submitted that the functional

disability gets assessed, if proved by way of

medical evidence and in the present matter, Mr.

Karia stated that the physical disability has not

resulted into functional disability to be assessed

accordingly and thus, stated that the amount under

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other heads are considerably just which does not

require indulgence of this Court.

4. In the case of Mohd. Sabeer @ Shabir Hussain

(supra), it has been held that even if the income

of the claimant had increased after the accident,

it would not be enough ground to disable him from

claiming compensation for future prospect as the

rise in income may be attributed to multiple other

factors and that in cases of permanent disablement

caused by a motor accident, the claimant is

entitled to not just future loss of income, but

also future prospects. It was further held that

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.

5. The prospective rise in income is to be considered

even in case of person who comes from a labour

class since on regular basis, the State Government

could also assess the minimum wages to be granted

to the skilled/unskilled and semi-skilled

labourers. As has been noted in the case of Mohd.

Sabeer @ Shabir Hussain (supra), persons from

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marginalized sections of the society already face

severer discrimination due to a lack of social

capital, and a new disability more often than not

compounds to such discrimination. In the case of

Mohd. Sabeer @ Shabir Hussain (supra), the Hon'ble

Apex Court having referred to the decision in the

case of Raj Kumar (supra) has considered the facts

of the case to note that the appellant in the

matter is not a salaried person, but is a self-

employed and to augment his income, he is most

definitely required to move around and the

physical disability therefore would effect his

mobility and accordingly, functional disability

was considered by the Hon'ble Apex Court.

6. In the case of Erudhaya Priya (supra), the nature

of injuries were noted and the Hon'ble Apex Court

while considering has referred to the principles

laid down in the case of Jagdish v. Mohan & Ors.,

(2018) 4 SCC 571 to support finding of loss of

income including the future income. The relevant

Paragraph is reproduced hereunder:-

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"8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:

                (i)       Pain, suffering and                       trauma
                resulting from the accident;

                (ii)      Loss           of       income       including
                future income;

                (iii)     The inability of the victim

to lead a normal life together with its amenities;

(iv) Medical expenses including those that the victim may be required to undertake in future; and

(v) Loss of expectation of life.

[Emphasis supplied]"

7. The Hon'ble Apex Court has thereafter observed

that the principles laid down in the case of

Jagdish (supra) has been emphasized in the

judgment of Sandeep Khanuja v. Atul Dande & Anr.,

(2017) 3 SCC 351 opining that the multiplier

method was logically sound and legally well

established to quantify the loss of income as a

result of death or permanent disability suffered

in an accident.

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8. Here in this case, the claimant sustained

vehicular injuries on 17.12.2007. As per the facts

of the case at about 04.00 p.m., he was traveling

as a pillion rider on motorcycle bearing

registration no. GJ-25 D-242 and were at Baypa

cross road, near Gondal. It is stated that the

driver of the motorcycle, opponent no.1 was in

full speed and in rash and negligent manner

driving the motorcycle which slipped. As a result,

accident occurred. The fact of the accident was

noted before the Police Station and the Station

Diary Entry no.24/07. The injury certificate (MLC)

of Civil Hospital, Gondal was produced on record

and according to the medical evidence, the

claimant suffered fracture on right as well as

left leg and also fracture on the left hand.

Exhs.40 to 62 were produced which are medical

papers as well as the bills and the claimant could

prove the medical expenses of Rs.50,964/- by those

documents as well as Exh.83.

9. The disability certificate at Exh.78 is issued by

Dr. Dinesh Chauhan of Yash Hospital, Rajkot and

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accordingly, the Doctor has assessed permanent

disability of 56%, while 24% disability was

consented by both the advocates on record and

accordingly, the learned Tribunal has considered

functional disability of 24%. Both the advocates

on record had given consent for assessment to

assist the Court. Hence, this Court also is of the

opinion that there is no reason to upset the said

finding of 24% functional disability. However, it

is required to be noted that the claimant is from

a labour class. According to the date of the

accident, the minimum wages would be to the level

of Rs.2,800/- and considering 24% as functional

disability, applying the multiplier of 18, with

the annual income, future loss of income would

come to Rs.2,03,212/- (Rs.2,800/- + Rs.1,120/-

(40%) x 18 x 12 x 24%).

10. The actual loss of four months has been considered

and hence, in accordance to the income assessed

hereinabove, the amount under the head of actual

loss of income would come to Rs.11,200/-. The

medical expenses of Rs.50,946/- have been proved

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before the Tribunal.

11. The amount under the head of pain, shock and

suffering has been granted as Rs.12,500/-, which

this Court is of the view that it is on lower side

since the claimant had undergone treatment for the

fractures of both the lower limbs as well as left

hand. Hence, this Court considers it appropriate

to grant an amount of Rs.20,000/-. In the same

proportion, the claimant would have taken special

diet for recovery and his family members and other

persons would have attended him during the course

of treatment and also he may have expended money

for transportation. Hence, the amount under the

head of special diet, attendant and transportation

is enhanced from Rs.10,000/- to Rs.15,000/-. Thus,

the computation would be as under:-

Rs.2,03,212/- Future loss of income Rs. 11,200/- Actual loss of income Rs. 50,946/- Medical expenses Rs. 20,000/- Pain, shock and suffering Rs. 15,000/- Special diet, attendant and transportation Rs.3,00,358/- Total compensation

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12. As the Tribunal has granted compensation of

Rs.1,97,000/- with interest at the rate of 9% per

annum, the claimant would be entitled to the

enhanced amount of compensation of Rs.1,03,358/-

with interest at the rate of 7.5% per annum from

the date of filing of the claim petition till its

realization. The enhanced amount is directed to be

deposited within eight weeks from the date of

receipt of writ of this Court. Let total amount be

paid to the claimant on verification of the

identity.

13. The impugned judgment and award be modified