Gujarat High Court
New India Assurance Co Ltd vs Hajisha Jusabsha Saikh on 3 January, 2025
NEUTRAL CITATION
C/FA/378/2014 ORDER DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 378 of 2014
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NEW INDIA ASSURANCE CO LTD
Versus
HAJISHA JUSABSHA SAIKH & ANR.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company being aggrieved and dissatisfied with the judgment
and award dated 22.10.2013 passed by the Motor Accident
Claims Tribunal, Kutch at Bhuj in Motor Accident Claim
Petition No.227 of 2008.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on
15.11.2007, the claimant was proceeding from Aurangabad to
Beed road. The vehicle being Truck bearing No.GJ-12-Y-7434
met with an accident near village Aadun. The owner of the
vehicle was driving the vehicle in rash and negligent manner and
he lost control over the vehicle and said vehicle had capsized. As
a result, the accident took place and claimant sustained severe
injuries. The claimant has filed aforestated claim petition under
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Section 166 of the Motor Vehicle Act, 1988 claiming
compensation of Rs.6,00,000/-. The learned Tribunal vide
impugned judgment and award dated 22.10.2013 has granted
compensation to the tune of Rs.6,53,000/-. Hence, the present
appeal.
3. Learned advocate Mr.Mazmudar appearing for the
Insurance Company disputed the finding of the learned Tribunal
as far as assessing the physical and functional disability said to
have been sustained by the claimant. He referred to para 10 and
11 of the impugned judgment and award and submitted that out
of the road accident, the claimant has received compound
Grade-III fracture and dislocation of left elbow and decree of
flexion of the left elbow has been fixed at 90%. He would further
submit that for such disability the claimant has produced on
record physical disability certificate issued by Dr.Suresh A.
Doshi valuing 90%. He would further submit that the doctor has
not treated the claimant and yet on referring the document has
fixed the physical disability to 90%. Learned Tribunal having
referred the book of Dr.R.M.Zala made presumptive assertion
that the functional disability could be worked out at 54%. He
would further submit that continuing the presumptive inference
in absence of evidence, learned Tribunal went to believe that
claimant is now unable to perform his job what he was doing
prior to road accident. Mainly upon above argument, learned
advocate Mr.Mazmudar submits that since the taking up of
physical and functional disability is irrational and illogical, the
appeal may be allowed to that extent and matter may be
remanded to the learned Tribunal for fresh hearing of
assessment of physical and functional disability.
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4. Contrawise, learned advocate Mr.Hiren Modi to sustain the
impugned judgment and award would submit that the left elbow
of the claimant who was heavy goods vehicle driver has been
reduced to 90% flexion. He would further submit that learned
Tribunal did not believe 90% physical disability certified by
Dr.Suresh Doshi, but referred to book of Dr.R.M.Zala and on its
own evaluated functional disability to 54% and applied 30%
future prospects to the income for granting just and fair
compensation. Therefore he submits that learned Tribunal has
not committed any error in granting total compensation of
Rs.6,53,000/-. Therefore, he submits to dismiss the appeal.
5. I have heard learned advocates for both parties and
perused the documentary as well as oral evidence on record
minutely. Firstly let me refer para 10 and 11 of the impugned
judgment which reads as under :
"10. The claimant had sustained injuries on left upper
limb. The said injury was received on 15.1 1.2007 in a
vehicular accident. He was admitted in the hospital at
Aurangabad from 15.11.2007 to 20.11.2007. He had
sustained compound grade III fracture and dislocation of
left elbow. He was operated and fixation was done. His
left elbow had fixed in 90 degree flexion and there was
no movement noticed. The said injury has been assessed
to 90% by the witness Dr. Suresh A. Doshi who deposed
at Exh.27. During the cross examination, it is found that
he has not treated the patient but he referred the
document. So far as the latest position is concerned his
disability could have been very easily assessed. Though
there was no amputation, it is opined that following the
book authored by Dr. R.M. Zala, the assessment of
disability has been worked out. It is submitted that such
disability was 54% as a whole to body. I have no
hesitation to accept that the disability has resulted into
reduction in earning capacity.
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11. The Ld. Advocate Mrs.U.A.Khushalani has referred
the judgment in Rai Kumar Vs. Aiay Kumar, 2011 ACJ l
and submitted that the actual disability may not be
relevant or accurate to workout the actual reduction in
earning capacity. I have followed the ratio and I have
appreciated the facts. The claimant was a driver. Due to
such disability received by him he has left upper limb
fixed at 90 degree flexion from the elbow. He will not be
able to perform the job which he was doing before the
accident. However his remaining limbs are unaffected
and therefore he would not be deprived of doing any
other activity for livelihood and therefore his reduction in
earning capacity is worked-out to 54%."
6. It appears that though learned Tribunal referred to the well
famour judgment of Hon'ble Apex Court in case of Raj Kumar
vs. Ajay Kumar - 2011 (1) SCC 343, but it did not refer to
relevant finding thereof whereby formula has been carved out by
the Hon'ble Apex Court to assess functional disability. The
relevant paras of judgment in case of Raj Kumar (supra) reads
as under :
"10. 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 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. For example, if the
left hand of a claimant is amputated, the permanent
physical or functional disablement may be assessed
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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 `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. It
may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or
even anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear
and as a result, only a token or nominal amount may
have to be awarded under the head of loss of amenities
or loss of expectation of life, as otherwise there may be a
duplication in the award of compensation. Be that as it
may.
11. The Tribunal should not be a silent spectator when
medical evidence is tendered in regard to the injuries
and their effect, in particular the extent of permanent
disability. Sections 168 and 169 of the Act make it
evident that the Tribunal does not function as a neutral
umpire as in a civil suit, but as an active explorer and
seeker of truth who is required to `hold an enquiry into
the claim' for determining the `just compensation'. The
Tribunal should therefore take an active role to ascertain
the true and correct position so that it can assess the
`just compensation'. While dealing with personal injury
cases, the Tribunal should preferably equip itself with a
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Medical Dictionary and a Handbook for evaluation of
permanent physical impairment (for example the Manual
for Evaluation of Permanent Physical Impairment for
Orthopedic Surgeons, prepared by American Academy of
Orthopedic Surgeons or its Indian equivalent or other
authorized texts) for understanding the medical evidence
and assessing the physical and functional disability. The
Tribunal may also keep in view the first schedule to the
Workmen's Compensation Act, 1923 which gives some
indication about the extent of permanent disability in
different types of injuries, in the case of workmen. If a
Doctor giving evidence uses technical medical terms, the
Tribunal should instruct him to state in addition, in
simple non-medical terms, the nature and the effect of
the injury. If a doctor gives evidence about the
percentage of permanent disability, the Tribunal has to
seek clarification as to whether such percentage of
disability is the functional disability with reference to the
whole body or whether it is only with reference to a limb.
If the percentage of permanent disability is stated with
reference to a limb, the Tribunal will have to seek the
doctor's opinion as to whether it is possible to deduce the
corresponding functional permanent disability with
reference to the whole body and if so the percentage.
12. The Tribunal should also act with caution, if it
proposed to accept the expert evidence of doctors who
did not treat the injured but who give `ready to use'
disability certificates, without proper medical
assessment. There are several instances of
unscrupulous doctors who without treating the injured,
readily giving liberal disability certificates to help the
claimants. But where the disability certificates are given
by duly constituted Medical Boards, they may be
accepted subject to evidence regarding the genuineness
of such certificates. The Tribunal may invariably make it
a point to require the evidence of the Doctor who treated
the injured or who assessed the permanent disability.
Mere production of a disability certificate or Discharge
Certificate will not be proof of the extent of disability
stated therein unless the Doctor who treated the
claimant or who medically examined and assessed the
extent of disability of claimant, is tendered for cross-
examination with reference to the certificate. If the
Tribunal is not satisfied with the medical evidence
produced by the claimant, it can constitute a Medical
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Board (from a panel maintained by it in consultation
with reputed local Hospitals/Medical Colleges) and refer
the claimant to such Medical Board for assessment of
the disability."
7. It is admitted position that claimant is suffering from
compound group-III fracture and dislocation of the left elbow
being injury. He was operated. Dr.Suresh A. Doshi certified the
physical disability at 90% even without treating the claimant but
only referring the document. Learned Tribunal on its own
referred book of Dr.Zala and assumed role of medical
practitioner and worked out 54% functional disability. On plain
reading of the para 11 of the impugned judgment, it
demonstrates that for working out the functional disability to
54%, no reasons are assigned by the learned Tribunal. This
Court believes that the approach of the learned Tribunal is
erroneous. One more aspect deserves to be interfered with is that
there is no actual evidence on record which indicates that the
claimant has become completely dysfunctional from riding the
heavy vehicle an yet the learned Tribunal believed so in absence
of any evidence and that claimant is deprived of doing any
activity for livelihood. The finding at first blush appears to be
erroneous and deserves reconsideration. In view of above, the
matter is required to be remanded to the learned Tribunal for
fresh assessment of the physical and functional disability. Since
this Court is remanding the matter to the learned Tribunal, it
does not express further merits and demerits of the matter.
8. For the foregoing reasons, the appeal is allowed. The
impugned judgment and award is quashed and set aside.
M.A.C.P. No.227 of 2008 is restored to the proceedings of the
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Motor Accident Claim Tribunal (Main), Kutch at Bhuj. Both the
contesting parties would be at liberty to lead necessary evidence
if they so desire. Learned Tribunal shall endeavor to decide the
matter afresh on its own merits and on evidence recorded before
it within six months, if possible. Both parties shall remain
present before learned Tribunal on 27.01.2025. Registry is
directed to send back the record and proceedings to the
concerned Tribunal before 27.01.2025. If any amount deposited
by Insurance Company is lying in FDR before learned Tribunal,
same shall be continued to be in FDR till disposal of the
M.A.C.P. Needless to state that if any amount is already
disbursed to the claimant, same shall not be recovered but could
be adjusted at the time of final outcome of the M.A.C.P. All
contentions of the parties are kept open.
(J. C. DOSHI, J)
GAURAV J THAKER
