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FA/373/1990 51/ 51 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 373 of 1990
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
SHAILESH
J MEHTA - Appellant(s)
Versus
KASHIRAM
GANGARAM & 5 - Defendant(s)
=========================================================
Appearance
:
MR
NIRAV C THAKKAR for Appellant(s) : 1,
MR ANAND L SHARMA, AGP for
Defendant(s) : 1 - 2.
MR HASMUKH THAKKER for Defendant(s) : 3,
DS
AFF.NOT FILED (R) for Defendant(s) : 4 - 5.
MR N S TAHILRAMANI for
Defendant(s) :
6,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 28/01/2010
ORAL
JUDGMENT
1. Heard
learned advocate Mr.Nirav C. Thakkar appearing on behalf of appellant
claimant Shailesh J. Mehta, learned AGP Mr. Anand L. Sharma
appearing on behalf of Respondent Nos.1 and 2 State Authorities,
learned advocate Mr. Vicky Mehta for learned advocate Mr. Hasmukh
Thakker appearing on behalf of Respondent No.3 United India
Insurance Company Limited and learned advocate Mr. N.S. Tahilramani
appearing on behalf of Respondent No.6 The Oriental Insurance
Company Limited.
2. The
present appeal is preferred by appellant claimant for enhancement of
compensation worked out by Claims Tribunal, Bharuch. The claimant has
filed Claim Petition No.591 of 1983 (Main) claiming compensation of
Rs.5 lakhs from respondents.
3. The
short facts of present case is that the accident took place on 7th
October, 1983 on National Highway No.8 near Sidhdheshwari Oil
Factory, Ankleshwar, at about 00-30 hours between Jeep Car
No.GTI-7076 and Truck No.GTG-3348. The jeep car, at the material
time, was driven by jeep driver Kashiram Gangaram, who is Respondent
No.1. As a result of which, said accident had taken place. The
claimant was working as Circle Police Inspector at Bharuch was also
received injuries in the said accident. The jeep driver Kashiram,
Police Constable Sureshbhai Bhavanbhai and inmate of jeep were
received injuries. The said jeep car is of the ownership of I.G.P.,
State of Gujarat Respondent No.2. It was insured with United
India Insurance Company Limited Respondent No.3. The Truck
No.GTG-3348 was in stationary condition as it had met with an
accident half an hour prior to present accident with Truck
No.GTG-2221. Respondent No.4 is a driver of Truck No.GTG-3348 and
Respondent No.5 is owner of said truck and said truck was insured
with Respondent No.6 The Oriental Insurance Company Limited.
4. The
claimant Shri Mehta initially filed a petition for compensation of
Rs.9,999/-, which was subsequently enhanced upto Rs.3 lakhs and after
obtaining disability certificate, it was enhanced upto Rs.5 lakhs. It
is alleged that on 6th October 1983, Shri Mehta, Circle
Police Inspector, Bharuch was allotted duty to chase one oil tanker
involved in dacoity of furnace oil and was in the pilot jeep
No.GTI-7076. The said jeep was driven by Respondent No.1 while coming
from Ankleshwar to Bharuch side with an excessive speed, in a rash
and negligent manner and endangering human life, and at 00-30 hours
on 7th October 1983, near Sidhdheshwari Oil Mills, it
dashed on rear side of Truck No.GTG-3348 standing on left side of
road, without back-light or reflector. The said truck was kept by
truck driver carelessly and without any sign either back parking
light or reflectors and as a result of which, Jeep No.GTI-7076 dashed
with back side of truck and claimant – Shri Mehta sustained injuries.
5. The
claimant was initially removed to Civil Hospital, Bharuch but as
there was no facility of Orthopedic Surgeon, he was removed to
hospital of Dr. Sheth where he was treated and discharged on 25th
October 1983. The plaster was removed on 22nd November
1983. In the opinion of Dr. Sheth, claimant had permanent
disablement. There was continuous pain and therefore, in April 1984,
claimant approached Orthopedic Surgeon Dr. Dave in Ankleshwar and
ultimately, Dr. Dave advised him to go to Bombay under treatment of
Dr. K.B. Chaubal. The claimant was operated upon in Bombay by Dr.
Chaubal in the year 1984 and remained in hospital for 15 days and
thereafter, he had to go for follow-up treatment for 6 to 7 times in
taxi. Thereafter, the second operation was performed by Dr. Chaubal
and claimant had to stay as an indoor patient for again 15 days and
he had to go for follow-up treatment thrice. The claimant in all the
hospitals and for all the times required two persons with him as
attendants and he had to bear their expenses. The claimant had also
to spent heavily for operations, medicines and medical treatment. Dr.
Dave gave him certificate about 60% permanent partial disablement and
according to claimant, he is unable to walk without crutches and
unable to seat with cross legs and squatting. Total Earned Leaves
have been spent by claimant which comes to 159 days which is a loss
of leaves. In short, total Rs.5 lakhs amount has been claimed with
12% interest. The present appeal is preferred by claimant claiming
Rs.4,31,840/- for the purpose of court fees and advocate’s fee.
6. The
Claims Tribunal, Bharuch has decided question of negligence on the
basis of evidence i.e. 60% negligence of jeep driver – Kashiram and
40% negligence of Respondent No.4 driver Bhailalbhai Somabhai
Tadvi. Respondent No.3 United India Insurance Company Limited of
jeep where claimant was travelling having a limited liability of
Rs.15,000/- and rest of amount is to be recovered from Respondent
Nos.1 and 2. The total amount of compensation which has been awarded
by claims tribunal comes to Rs.1,13,600/-, the details of which have
been given at Page 36 of award of claims tribunal as under :
The
applicant is therefore, entitled to claim compensation of
Rs.1,13,600/- as detailed below:
Sr.
No.
Particulars
Amount
(Rs.)
1.
Pain
shock and suffering, loss of amenities and enjoyment of life
25,000/-
2.
Expenses
of attendants
2,750/-
3.
Gratituous
services rendered by the attendants
2,000/-
4
Actual
economic loss by way of leave Salary
7250/-
5.
Transport
charges for follow up
4,000/-
6.
Special
diet, at Bharuch and at Bombay
1,500/-
7.
Medical
bills for medicines, Doctor’s fees, operation charges etc.
28,100/-
8.
Future
economic loss
36,000/-
9
Compensation
for future treatment if any, in USA as per Dr. Saraiya Ex.126.
7,000/-
Total
1,13,600/-
7. In
light of these facts, this Court has to consider only that in light
of injuries received by claimant whether amount of compensation which
has been worked out by claims tribunal is just, proper and reasonable
or not ? And whether any scope for enhancement of compensation or not
?
8. While
determining this question, it is necessary to note the evidence of
claimant which has been given before claims tribunal, it has been
discussed and referred by claims tribunal in Para 15
which is quoted as under :
15. Shri
Mehta has stated that due to accident, he sustained injuries, he was
taken to Civil Hospital, Bharuch, but as there was no facilities for
Orthopaedic surgeon, he was taken to Dr. Sheth Hospital wherein he
was indoor patient from 7/10/1983 to 25/10/1983. He was advised not
to do movement for six moths. As he did not feel any improvement, he
consulted Orthopaedic Surgeon Dr. Dave at Ankleshwar and Dr. Dave
advised him to approach Dr. Dholakia at Bombay. Or5thopaedic Surgeon
Dr. Dave informed the applicant that he may not be cured and so, the
applicant approached Dr. Chaubal and first operation was performed in
June, 1984 and Second operation was performed in September, 1985.
The second operation was performed for the purpose of tightening the
ligaments. He had also taken physiotherapy exercise in Shevashram
Hospital, Bharuch and has also purchased for the purpose of exercise
keep fit cycle. At the time of the accident, he had to take 159 days
leave. When the first operation was performed by Dr. Chaubal, he had
taken 54 days leave and for the second operation he had taken 45 days
leave. In 1983 he was drawing Rs.1300/- and in 1984 he was drawing
Rs.1400/- and in 1985 he was drawing Rs.1700/-. According to him, on
the date of the deposition, his salary ins Rs.2700/- plus Rs.450/- =
3150/-. After the first operation, he had gone for follow-up
treatment for six times from Bharuch to Bombay, to Dr. Chaubal and
for each trip, he had spent Rs.1200/- taxi fare. Receipts have been
produced at mark 41/4/1 to 41/4/6 issued by Musa Ahmed Patel and the
taxi Number is GRV 8025. Musa Ahmed Patel, the person who has issued
the receipts has not been examined as witness to substantiate these
documents. After the second operation he had gone thrice for
follow-up treatment; once he had gone in the 1st Class,
from Bharuch to Bombay and for three tickets, he had spent about
Rs.230/- to Rs.240/-. and the tickets are produced at mark 63/2.
There are from Bharuch to Bombay Central, each Rs.76/-. At Bharuch
when he was indoor patient in Dr. Sheth’s Hospital, two attendants
served him, and he had to spend Rs.40/- per day, in the same way,
after first operation at Bombay, two persons stayed with him and he
had to spend Rs.60/- per day ad the second operation in 1985 two
persons stayed with him and he had to spend Rs.75/- per day.
He
had also to take special diet at Bharuch as well as at Bombay and at
Bharuch, per day he spend Rs.25/- and at Bombay Rs.30/- per day. For
the treatment, medicines, Doctor’s fees, he had spent Rs.32,000/-.
He had purchased the ‘Keep fit cycle’ for Rs.1200/-. As per the
advice of Dr. Saraiya the applicant may have to go for future
operation abroad (Ex.126). and for lodging and Boarding in a hotel,
100 Dollars per day. He has also stated that he was shortening of
leg by 3/4 and it gives continuous pain. He is unable to sit with
cross-legged and squatting. He is a direct recruit at P.S. I. in
1982. he has been given cash and certificates, 18 rewards.
According to him, the direct recruit P.S.I. Can become Dy. S. P.
after nine years and as Dy. S. P. he can get Rs.3500/- per month and
he can become D.S.P. after 8 to 9 years and he can get Rs.4500/-.
According to him, the age of superannuation is 50 years, but he can
get the job in private sector as security officer and he can get
Rs.3500/- to Rs.4000/- per month. At the age of 51 years, 55, and
58, for the purpose of extension of service, physical fitness
certificate from the medical Board is to be produced, and if he is
physically unfit, extension is not given. He has also stated that on
20/7/88 seven police inspectors have been promoted as Deputy
Superintendent of Police and they all are junior to him. Shri T. M.
Parmar is junior to him. He is promoted as Dy. S. P. Surat. Shri E.
M. Khan is Junior to him. He is promoted as Dy. S. P. No reasons
are given as to why he is not promoted as Dy. S. P. He is also not
communicated any adverse remarks. In the cross-examination by the L.
A. Shri. Mamlatdarna the applicant has stated that he has received
Rs.22,000/- from his Insurance Co. He has examined Dr. Dave as his
witness. The accident occurred during the course of employment and
he had to take leave at his credit. In the cross-examination by L.
A. Shri. Gandhi, the applicant stated that Dr. Sheth is one of the
leading Orthopaedic Surgeon in Bharuch, and he is senior to Dr. Dave.
He has stated that he has no confidence in the treatment of Dr.
Chaubal. He admitted that when he resumed duty, he has produced the
physical fitness certificate. He was transferred from Bharuch, on
the same post in other city, having more responsibility. He has not
informed about any notes by way of adverse remarks. He admitted that
he has no evidence to show that he is not promoted as Dy. S. P.
because of these injuries. He denied that Shri. T. M. Parmar who is
promoted as Dy. S. P. is of backward class. He admitted that Shri.
M. E. Khan promoted as Dy. S. P. is Muslim, of minority community.
He has not filed any writ petition in the Hon’ble High Court of
Gujarat for promotion as Dy. S. P. He has also admitted that he is
presently continued in the active service on the same Post.
9. The
claimant has also examined Dr. Dipak Dave vide Ex.122 which has been
discussed by claims tribunal in Para 16, which is
quoted as under :
16. The
applicant has also examined in support of his case Dr. Dipak Dave at
Ex.122. In 1984 the applicant approached for his knee injury. He
had completely unstable and deformed right knee joint. The applicant
was advised to approach Dr. Chaubal at Bombay. He is esteemed
will-known Orthopaedic surgeon at par with Dr. Dholakia. Dr. Dave
assisted Dr. Chaubal, on 11/6/1984 in repairing ligament of the
applicant. Middle semi-lunar certiledge of right knee joint was
removed and critiat ligament was repaired. Thereafter, second
operation was performed and laternal co-lateral ligament was repaired
and follow-up treatment was given by Dr. Dave under instructions of
Dr. Chaubal. The letter addressed y Dr. Chaubal is Ex.123. Dr. Dave
has also issued the disability certificate Exh.124 showing the
following:
Lateral
instability, and tenderness right knee.
He
has shortening of ? inch, of right lower extremity.
Muscular
waisting on the right side by 0.7 inches
He
also has developed arthritis on the left side of his body.
He
also has lumber spondylosis.
Dr.
Dave estimated permanent partial disability at 60%. it may be
pointed out that as against this, medical board has assessed
disability of 50%. as per Exh.119 Dr. Dave stated that in future,
there will be future deterioration due to secondary arthritis and
longevity of life also decrease. Dr. Saraiya has sent his opinion
from America on reference of applicant’s case to him and he has
estimated the amount of expenditure. The letter is produced at
Ex.126. In the cross-examination by the learned Advocate Shri
Mamlatdarna, Dr. Dave stated that in the certificate, he has nowhere
mentioned that he assisted Dr. Chaubal, in performing operation on
the applicant. In the certificate dt. 26/3/1986 he has mentioned
that applicant was treated as outdoor patient. In cross-examination
by the L. A. Shri. Gandhi, Doctor admitted that the applicant is a
police officer in Gujarat State and he is in active service, as the
police officer. He has resumed duty under his advice. Dr. denied
that after the applicant resumed duty, he did not complain to him
about the pain, disability and the discomfort. Dr. Dave has also
admitted the clinical findings of Ex.119 arrived at by the Medical
board are the same as per his finding, but there is difference in
percentage of disability. He assessed at 60%. and the medial Board
assessed at 50%. The applicant is able to walk on the even ground
without any support.
10. The
claimant has also examined Shri K.S. Zala at Ex.19 as discussed in
Para 17 which is quoted as under :
17. The
applicant has also examined Shri K. S. Zala at Ex.109, with a view to
show that after retirement as Dy. S. P. they are employed as security
officer. Shri Zala has retired as Dy. S. P. and after retirement on
and from 1/4/1986 he is serving as Security officer in Mihir Textile
at a monthly salary of Rs.3000/- plus bonus. He has produced the
certificate Ex.110 for the month of October, 1987
from Mihil Textile showing that he gets Rs.3,000/- per month. He
could not say as to whether, after retirement, applicant would not
get such a private service. He may get such private service.
11. The
medical certificate issued by Civil Hospital is produced at Ex.90
which shows the following injuries as referred in Para 18
which is quoted as under :
18. The
policy of the Jeep car No.GTI 7076 is produced at Ex.60 and Ex.86 and
Ex.87. The medical certificate issued by the Civil Hospital is
produced at Ex.90 and it shows the following:
Bleeding
from nose wound. C.L.W. ? CM x ? CM x ? CM at Haro-labial
juncture.
CLW
? x ? CM at left side of nose.
Swelling
right knee right let and upper 1/3rd of Rt. Leg.
X-ray
Rt. Knee shows, crack Fracture of right upper 1/3rd
tibia.
Blunt
injury over chest, with tenderness.
The
applicant has also produced the leave salary certificate for the
period from 7/10/1983 to 5/12/1983 (Ex.95), 8/6/1984 to 31/7/1984
(Ex.94), 16/9/1985 to 31/10/1985 (Ex.93) and he resumed duty on and
from 1/11/1985. The salary certificate for January, 1987 is at Ex.96
and the salary under the revised scale 2000-3200, his pay is fixed in
the revised scale at Rs.2120/-. And the date of next increment is dt.
1/9/1986 i.e. Rs.2180/- and on 1/9/1987 Rs.2240/- (Ex.107). He has
produced salary certificate of February, 1988 Ex.106 in the salary is
shown as Rs.2240/- Plus D. A. Rs.291/-. Rest are the allowance only,
showing the gross total Rs.3211/- and after deducting Rs.510/- Net
Rs.2701/-. The witness examined on behalf of the applicant Shri.
Zala after his retirement, serves as Security Officer, he has
produced the emoluments certificate for October, 1987 (Ex.110)
showing the gross earning of Rs.2971=40 ps. and net payment of
Rs.2706/-. Ex.119 is the report of the Medical board, in respect of
the applicant showing the disability of 50% as follows:
Shri.
S. J. Mehta, P. I. had been examined by the standing medical board,
Civil Hospital, Ahmedabad certificate No.SMB/C/IP/1135/88 dt. 8/12/87
is enclosed herewith in duplicate, as under:
At
present, Fracture tibia upper end with terminal 2nd degree
restricted movement, upper ligaments instability and denu farum of 10
& Lypoasthsis in infra patellar region. Wasting of guadrings
1/2 and lib shortening of 3/4 .
Pt.
Cannot sit cross legged and cannot sit in squatting position.
Permanent Disability assessed at 50% (fifty percent.).
The
applicant has also produced discharge card at Ex.120 issued by Dr.
Chaubal and the injury is shown in the diagrams. Dr. Deepak Dave has
also issued the certificate at Ex.124. dt. 26/3/1986 showing the
injuries and the disability. He examined the applicant in April 1984
and found the following.
He
had an absolute unstable knee joint, with depressed fracture of
tibial condyle and all the 4 ligaments were cut i.e. (1) Medical
Collateral-ligament (2) Lateral Collateral ligament (3) Medical
semilunar cartilage tear (4) Both cruciate ligaments were also torn.
At this particular juncture, he was unable to walk without support.
At
present, I have examined him and found that he has lateral
instability and pain, His movements are also restricted which will be
further restricted after surgery. He has shortening by about 3/4
and muscle wasting of ? thigh by 0.7.
Also
due to transfer of weight of his body, on the normal limb, will
result in early arthritis of normal hip and knee and lumber
spondyloses.
His
permanent final disability is put up at 60%.
He
has produced in bunch, the medical bills and Doctor’s receipts. They
are not exhibited as the authors of the documents are not examined.
12. The
finding given by claims tribunal while considering evidence on record
in determining compensation in respect of present claimant has been
discussed in Para 23, which is quoted as under :
23. As
per the evidence adduced in the matter, the applicant was serving as
Police Inspector at Bharuch. There was dacoity of 10,000 liters of
furnace oil in respect of Oil Tanker No.GTB 4917 and the dacoits had
fled away with the tanker towards Surat side and this information was
given to the applicant by P.S.I. Gohil and the applicant had to
follow- the same to chase the Tanker. The applicant had therefore,
proceeded in a Pilot Jeep car GTI 7076 with staff. It was dirven by
Kashinath Gangaram opponent no.1. The Tanker was already chased near
Garib Nawaz Hotel and while returning the Jeep, dashed on the side
of the stationery truck No.GTG 3348. This truck was stationery on
account of the previous accident with another truck no. GTG 2221.
The applicant sustained injuries. The applicant was initially
treated in Dr. Sheth Hospital, where he was indoor patient for 18
days in Dr. Sheth Hospital. He was advised to remain at him for six
months. But, as he did not feel better, he approached Dr. Dave who
directed him to approach Orthopaedic Surgeon at Bombay and ultimately
he approached Dr. Chaubal and he was first operated in 1984 and he
remained in the Hospital for 15 days. Thereafter, he had to go for
follow up treatment 6 to 7 times. He has produced the receipt 41/4/1
to 41/4/6 each showing the payment of Rs.1200/- to Musa Ahmed Patel.
Bombay to Bharuch to and fro. Musa Ahmed Patel is not examined to
prove these receipts. The applicant is bound to prove at least these
documents of taxi fare by examining the author of the documents. He
has not led any evidence to prove the payment of rs.1200/- taxi
charges to Musa Ahmed Patel, Bombay Trips for six times. These are
not the medical bills or vouchers the amount of which can be allowed
without examining the author of the documents. The medial bills and
vouchers are allowed, because of the prolonged treatment, sickness
and the medicines were prescribed, as obtaining of bills and vouchers
of such items, when injured is lying in the hospital in the grave
condition, cannot be expected. As far as these taxi bills are
concerned, the applicant is required to adduce clear and cogent
evidence by proving the actual payment. He has to establish that he
had travelled six times to and fro in the taxi and so, on this count,
reasonable amount of 1st Class train fare can be awarded.
Second operation was performed in 1985 and he was indoor patient for
15 days. Compensation on account of expenses of the relatives, as
attendants, cant be worked as under: For his stay in Dr. Sheth
Hospital at Rs.40/- per day; Rs.720/- and for first operation at
Bombay Rs.60/- per day Rs.900/-; for second operation 15 days,
Rs.75/- per day, Rs.1125/-; Hence Rs.2745/- (Rs.720+900+1125 = 2745)
Say Rs.2750/- is awarded. The applicant had to take leave because of
his prolonged sickness, operations and he was on leave from 7/10/1983
to 5/12/1983 as per Ex.95 for about tow months and as per the Slip
mark 84/1, for the month of August, 1984, his emoluments are
Rs.1593=80 ps. The applicant has deposed in his evidence that in
1983 he was getting Rs.1300/- per month, in 1984 he was getting
Rs.1400/- per month and in 1985 Rs.1700/- per month, and so he is
entitled to be compensated for the leave salary taken by him. For
the year 1983 he is entitled to Rs.2600/-, then 1984 he was on leave
from 8/6/84 to 31/7/1984 and so he is entitled to Rs.2100/- and for
the year he was on leave from 16/91985 to 31/10/1985 and he has
resumed duty on 1/11/1985 as per Ex.93. He is therefore entitled to
Rs.2550/-. Hence, on this count he is entitled to Rs.7250/-.
(Rs.2600+2100+2550=7250/-).
As
regards the Transport Charges, as I have said earlier, he has not
proved the taxi fare paid by him.
He
has produced three tickets of 1st Class showing the
payment of Rs.240/-. Looking to the injuries, sustained by him and
the treatment taken by him, and the treatment taken by him, he must
have gone to Bombay for follow-up treatment on few occasions and so
on the head of transport charges, he may be awarded Rs.4000/-.
On
account of special diet, looking to the fact that he was indoor
patient for about 48 days, and he was also operated twice, and so on
the count of special diet Rs.1500/-.
For
medicines, bills, vouchers, Doctor’s fees, etc. he has produced the
bills. The bills are not admitted. He has also not proved the bills
by calling authors of the bills but as I have said earlier, as per
the decision of the Hon’ble Madhya Pradesh High Court, reported in
1987 A.C.J. p.519 (supra) even though no bills, no evidence for
purchase medicines, blood, Doctor’s fee, fruits, and other items, are
produced, but if the claimant satisfies that he had incurred
expenses, then that amount is to be allowed. He has produced the
bills worth Rs.12,263=15 ps. (mark 3/1 to 3/19) and about Rs.15,860/-
(mark 41/3/1 to 41/3/49 and 41/7) cycle bill. He is therefore
entitled to Rs.28,100/-.
On
account of gratuitous service rendered by the attendants, he is
entitled to Rs.2,000/- as per the decision reported in 1979 A.C.J.
264 (supra). As regards the future economic loss, he had, as per the
opinion of the Medical Board, Ex.119, 50% disability and as per the
certificate of Dr. Dave 60% disability. He has admitted in his own
evidence in cross-examination that he is in the active service on the
same post even after the accident, he is given the charge in the
City, bigger than Bharuch. It is not the case that because of this
disablement, he could not work as C. P. I. He has subsequently
stated that seven persons who are Junior to him, are promoted Dy. S.
P. He has not produced any order showing the promotion, to
substantiate his say nor he has examined any of them. He has also
admitted that he is not communicated any adverse remarks nor he has
been informed that he is not promoted on account of the injuries, and
so in view of the evidence and clear admission by the applicant
himself, the ruling relied upon by the L. A. Shri. Mehta, for the
applicant 1981 A. C. J. p. 53 (Niranjan Ambalal Patel (SUPRA), is not
applicable. The applicant has not adduced any clear, cogent and
unimpeachable evidence showing that the Government has decided or
resolved not to promote him to the Higher cadre because of the
injuries sustained by him and/or because of the disability. On the
contrary, the evidence is otherwise, that he is continued in the same
post. He is not given any other light Job., as per the decision of
22 G. L. T. p.63 (supra) relied upon by L. A. Shri. Gandhi. In the
case, the claimant was the P.S.I. and he had also 50% disability.
Even his chances for promotion were affected and in that case, the
future economic loss was assessed at Rs.2400/- per year and 12
multipliers were given. In the case of the present applicant from
his evidence itself, there is no loss of earning capacity. Eventhen,
taking this case as the basis, if the future economic loss is
assessed at Rs.200/- per month, the annual loss would be Rs.2400/-
and looking to his age, and in view of the decision of the Hon’ble
Supreme Court of India 24 G. L. T. (SC) page.55 Smt. Jyotsna Dey &
Ors. Vs. State of Assam & Ors. 15 multiplier would be applied to
the present case. The future economic loss would be worked out to
Rs.2400 x 15 = Rs.36,000/-.
For
future operation, as per the letter of Dr. Saraiya, Ex.126, the
applicant may have to go for future operation, at abroad, and so on
this count, he has prayed for Rs.10,000/-. This is only imaginary,
but as it is supported by letter of Dr. Saraiya, Ex.126, the said
amount may be awarded on this count and on this count, he is awarded
Rs.7,000/-.
The
applicant had to undergo two operations at Bombay and treatment at
Bharuch. He was indoor patient approximately for Rs.48 days and he
had to take leave approximately for 160 days and as per the Judgment
of Babu Mansa Vs. Ahmedabad Municipality 1978 A.C.J. p. 485,
Rs.15,000/- were given for pain and suffering, and he had fracture of
right leg, insertion of nail, indoor patient for four months,
shortening of leg and permanent disability. In the present case also
the applicant had fractures of tibia upper end and he had also
shortening of let by 3/4 Inch and limping, unable to squat and sit
cross-legged. He cannot run, and the fall in the value of money,
leaves to the continuous re-assessment of the award on this count.
It would be quite reasonable to award him on this count of pain,
shock and suffering Rs.25,000/-.
13. In
light of aforesaid facts as discussed by claims tribunal whether
amount of compensation which has been awarded in respect of each head
is found to be just and proper or not ?
14. Learned
AGP Mr. Sharma appearing on behalf of Respondent Nos.1 and 2
submitted that there is no loss of future earning to claimant,
because, he produced fitness certificate after his treatment was over
and thereafter, he was taken on job and he worked upto retirement and
his promotion is not adversely affected because of injuries received
by claimant and there is no evidence shown by claimant before claims
tribunal that Government has decided or resolved not to promoted him
to higher cadre because of injuries sustained by him or because of
disability. According to him, on the contrary, evidence is otherwise
that he was continued in said post and no light work was given to
him. Therefore, he submitted that there is no loss of earning
capacity because he received injury during the course of employment,
but, remained in service and received salary which has been revised
upto the end of service. Therefore, learned AGP Mr. Sharma submitted
that claims tribunal has rightly examined matter on the basis of
evidence on record and details reasoning is given by claims tribunal
and amount in respect of each head properly assessed by claims
tribunal as well as medical evidence has been considered, but,
documents in respect of medical papers including medical receipts and
medical bills are not exhibited, because, authors of documents are
not examined by claimant, therefore, claims tribunal has properly
considered evidence on record, injuries caused to claimant as well as
opinion of Medical Board as 50% permanent disability to claimant,
therefore, no error is committed by claims tribunal in deciding claim
petition filed by claimant, hence, no interference in required by
this Court. He also submitted that claims tribunal has also rightly
considered income of claimant as in the year 1983 at the time of
accident, claimant was drawing Rs.1300/- per month salary and in the
year of 1984, claimant was drawing Rs.1500/- per month salary and
in the year of 1985, claimant was drawing Rs.1700/- per month salary
and on the date of deposition, claimant was drawing salary Rs.2700/-
+ Rs.450/- = Rs.3150/-. Therefore, on that basis, future loss of
income Rs.200/- has been rightly considered by claims tribunal while
calculating loss of future earning in favour of claimant, even for
that also, no error is committed by claims tribunal and 15 multiplier
has been rightly applied looking to age of claimant. He further
submitted that claims tribunal has also awarded some amount for
future operation and accordingly, Rs.25,000/- also properly assessed
for pain, shock and suffering. Therefore, no interference is required
by this Court for enhancement as claimed by claimant.
15. Learned
advocate Mr. Nirav C. Thakkar appearing on behalf of appellant
claimant Shri S.J. Mehta submitted that in the year of 1985, claimant
was drawing salary of Rs.3150/- per month which has not been taken
into account by claims tribunal while considering 50% disability
found by Medical Board which has been accepted by claims tribunal,
but, compensation is not worked out on that basis. He also submitted
that a long treatment having more than two operations remaining as an
indoor patient as well as one operation at Ankleshwar and another
operation at Bombay and frequently going for follow-up treatment, for
that, amount of compensation for pain, shock and suffering awarding
Rs.25,000/- is on very much lower side. He submitted that claimant
has to remain unable to enjoy complete life as it was enjoyed prior
to accident and due to that inability, may be he was remained
continue in service, but, his physical defect occurred because of
accident also remained with him, so, as a Circle Police Inspector, he
was not able to work hard and effectively, therefore, it is resulted
into denial of promotion to claimant as seven juniors were promoted
even though his case was not considered for promotion, because of
disablement. He submitted that even after retirement also, claimant
can get job as a Security Officer in any private organization even
though future prospect is also lost due to injuries. The medical
bills, receipts from Doctors though produced, but, not exhibited
because, person means authors has not been examined. Therefore, that
amount has not been awarded by claims tribunal to claimant. The
expenses which has been occurred for attending Doctors visited
frequently at Ankleshwar, Bharuch and Bombay as well as expenses of
two attendants who remained with claimant was also not properly
assessed by claims tribunal. The follow up treatment for six times
from Bharuch to Bombay before Dr. Chaubal and for each trip, he was
having expenses of taxi fare and because of he was not able to
produce receipts from taxi driver of those trips, that amount has
been ignored and not granted by claims tribunal. Therefore, he
submitted that compensation which has been worked out by claims
tribunal in conservative manner and not calculated being a
beneficiary law which has been applied in case of claimant and even
claims tribunal has not considered that claimant has shortening of
3/4 inch of right lower extremity because of injuries. The promotion
in the post of Dy.S.P. has not been received by claimant though seven
Police Inspectors have been promoted as Dy.S.P. on 20th
July 1988 those who were juniors to claimant. The claims tribunal has
also committed an error in considering fitness certificate produced
by claimant at the time of joining duty, but, that does not mean that
injury which has been caused being a permanent disability is fully
cured by passage of time. The Doctor had certified 60% permanent
disability and Medical Board had certified 50% permanent disability.
He also submitted that Rs.200/- future permanent loss has been
wrongly calculated which is on lower side and therefore, claims
tribunal has committed gross error in not properly appreciating Dr.
Dave’s evidence as well as medical certificate given by Civil
Hospital and report of Medical Board Ex.119. The injury received by
claimant has been disclosed and described before claims tribunal,
even though, it has not been properly appreciated by claims tribunal,
therefore, according to his submission, claimant is entitled a
substantial amount of enhancement.
16. Therefore,
learned advocate Mr. Nirav C. Thakkar is relied upon one decision of
Division Bench of this Court in case of Mahendrakumar Manilal
Patel & Anr. v. Ramjibhai Dalsibhai Chaudhary & Ors.
reported in 2006(1) GLR 637,
where, identical case has been decided by Division Bench of this
Court as one PSI who received injuries during the course of
employment and his one leg has been amputed upto knee. The Division
Bench of this Court has enhanced compensation which comes to
Rs.4,99,800/- against award passed by claims tribunal. He relied upon
Para 9, 11 and 13
with Head Note B and C,
which are quoted as under :
Head
Note (B) Motor Vehicles Act, 1988 (LIX of 1988)
Sec. 168 Compensation payable in disablement would be higher than
in fatal cases Retionale stated.
Head
Note (C)
Motor Vehicles Act, 1988 (LIX of 1988) Sec. 168
Compensation for disablement Victim a P.S.I., aged 34 years
suffering 70% disablement Officer would lose chance of
accelerated promotions, monetary rewards for exemplary work etc. –
These
aspects to be taken into account Compensation for loss of future
earning enhanced On facts, compensation for pain, shock and
suffering enhanced to Rs.1,25,000/-.
9. The
Supreme Court said in R.D.Hattangadi v. Pest Control (India) Pvt.
Ltd. and others (1995 ACJ 366) that while fixing the amount of
compensation payable to a victim of an accident, damages have to be
assessed separately as pecuniary damages and special damages, in
other words, pecuniary loss and non pecuniary loss. Pecuniary damages
are those which are capable of being calculated in terms of money
whereas non pecuniary damages are incapable of being assessed by
arithmetical calculations. Pecuniary damages include (i) medical
expenses, (ii) loss of earning or other profits, (iii) loss of
earning capacity or incapability in the labour market and (iv)
material loss because of the injuries which leave him with setback
for the rest of his life. Non pecuniary damages include (i) damages
for pain, shock and suffering, already suffered and/or likely to be
suffered in future, (ii) loss of amenities of life which may include
inability to walk, run or sit, (iii) damages for the loss of
expectancy of life on account of injury, as on account
of injury, the normal longevity of the person concerned is shortened,
(iv) damages for inconvenience, discomfort, disappointment,
frustration and mental stress etc. This groups of categories may not
be exhaustive. Facts of the case, statutes, judicial pronouncements,
experience and innovation may point out further heads/ sub heads for
application in case(s) coming before the
Court for adjudication. It is settled principle that in disablement
cases, compensation payable is higher than in fatal cases, since it
is the claimant himself who utilizes compensation
amount and it is he who has to suffer the impact of accident
throughout his remaining life. [See: Bhagwan Das v. State of Himachal
Pradesh & Ors. (1994 ACJ 702)]. The extent of compensation
depends on the extent of disablement, its duration and consequences
on the life of a victim, details of which may vary from case to case.
While assessing the damages, Court may give the same head-wise or by
way of global figure, but sine-qua-non is `just’ compensation
and also not to award compensation which amounts to unjust
enrichment.
11. Adverting
to the case under discussion, keeping in
mind that it is a case of personal injury, for assessment of proper
damages, evidence adduced by the parties has to be clearly analyzed
and understood. Accident took place on 10.8.1983. Claimant, at the
time of accident, was at the threshold of his career. He was 34 year
old working as Police Sub Inspector. The injuries which he suffered
due to the accident rendered him helpless and crippled for the rest
of his life. Requirement of Police force is perfect physical fitness,
always available for movement and acts on which depends his
promotions and post superannuation life. After long treatment, his
left leg below knee is amputed. He had suffered other injuries and
fracture on left hand also. Therefore, apart from amputation of left
leg below knee, he remained under plaster for these injuries, treated
in various hospitals, as indoor patient from 10.8.1983 to 7.10.1983,
thereafter outdoor patient for further treatment, permanent partial
disability to the extent of 70% due to imputation of leg, unable to
move without crutches, thereafter with artificial leg and unable
to work with left hand, super condylar fracture bunerus (left)
fracture, unable to walk fast, climb, drive vehicles and take part in
sports and outside investigations, parades,
therefore, all round handicap. These injuries caused him great pain,
shock, physical discomfiture, loss of pleasure and amenities of life.
Doctor states that artificial limb will have to be replaced after two
years, eight times in fifteen years. It was contended that claimant
could change artificial limb at lower cost from Jaipur, therefore,
claim for higher compensation for future replacements is not
justified. We fail to understand this submission. Fact remains that
artificial limb requires replacement after
two years. In case better and suitable artificial limb is available
at any other place, claimant can use the same. Further, it was
contended that claim for compensation under
the head of pain, shock and suffering is not justified.
Again, this submission cannot be accepted.
At the cost of repetition, it is stated
that claimant suffered extensive wound of size 15 cms. x 10 cms. over
left leg with muscles exposed and crushed with no movement and
sensation, therefore, it was amputed on
10.8.1983 below knee, plaster applied to it, other fracture on left
hand. He must have really suffered mental agony, pain and shock. He
also suffered physical discomfiture and
loss of pleasures and amenities of life. He spent on medicines,
nursing, lodging and boarding, cost of two attendants, for special
diet, conveyance expenses, loss of salary and loss of future
earnings. It is contended that claimant has not suffered these
losses, therefore not entitled for claim, he did not suffer loss of
salary and loss of promotions since he was promoted upto the rank of
Dy.S.P., future loss is not justified, since employment after
superannuation is not available to him.
In
this accident, claimant suffered following injuries, medical
certificate issued by Dr.K.S.Shah, Civil Hospital, Ahmedabad (Ex.50):
(1) Supertie
Slab over left lower limb from indoor extensive wound over left leg
size 15 cm x 10 cm muscles exposed, muscles crushed.
Tenderness
on skin on lower part of wound. There was no movement and no
sensation.
Tibia
fibula below knee amputation was done on 10.8.83 at 11:30 a.m.
(2) Supertie
plaster over left upper limb from indoor supra condlyoar fracture
humerus left.
(3) Abrasion
over left frontal region size 1-1/2 x 1 .
After
considering the submissions advanced by learned counsel for the
parties, Claims Tribunal allowed compensation under different heads,
namely, (i) Rs.75,000/- (pain, shock and suffering),
(ii) Rs.3,000/- (medicines), (iii) Rs.8,000/- (nursing costs), (iv)
Rs.3,000/- (special diet), (v) Rs.13,000 (conveyance expenses), (vi)
Rs.28,000/- (loss of salary), (vii) Rs.12,000/- (expenses for buying
limbs in future) and (viii) Rs.3,62,250/- (loss of future earnings),
totally Rs.5,04,250/-, paid Rs.5,00,000/-, although claimed
Rs.9,86,349/- through written arguments submitted before the Claims
Tribunal. During the course of submissions by learned counsel for the
insured and claimant, main emphasis was directed to heads of (i)
pain, shock and suffering, (ii) expenses for buying limbs in future,
and (iii) loss of future earnings. Payments by the Government are on
specified items, therefore, many other items require personal
spendings. Charges for boarding, lodging, special diet, conveyance,
etc. are not payable nor cost of artificial legs. A man from Police
force can easily engage in other better assignments. He can also
engage in post retirement assignments, security service being one of
them, looking to improved longevity and nature of their service.
During service, he can secure accelerated promotions and obtain
monetary awards for achievements in investigations, parades, and
engagements in social duties like earthquakes, floods, riots, etc.
But an officer suffering from disability, particularly of leg, would
be at loss in post accident service and employment market. Normal
promotions in service may be there but they do not compensate these
losses. In Mahomed Hanif Dallu v. Lunkaran Ganpatram Sharma &
Anr. (1980 GLR 412), this Court said in paragraph-9:
…..
The victim’s eligibility for employment, assuming that in his future
life he would have sought employment, was bound to be reduced because
of the injury suffered by him. It was also held that in any case, any
person not suffering from such
disability would be preferred and, therefore, there was a loss of
chance of favourable employment. Even assuming that the appellant
would not have sought employment but taken to some profession, there
is no manner of doubt that even if there be no total loss of career,
there will be considerable handicap in pursuing the same career
……
Thereafter,
in paragraph 9-A, this Court said:
…..
Sometimes permanent partial disability may
not have immediate effect on the plaintiff’s earnings and it may be
fond that he was still able to earn his pre-accident wages and to
perform his pre-accident work. Nevertheless his disability would
render him unfit for some profession or occupation for which he was
previously fit and qualified and such a man is at a disadvantage
compared with his colleagues in the labour market …..
In
paragraph 7-A of this decision, this Court said:
….
that the fall in the value of money in our country was the main
factor to be kept in view while assessing the damages on the count of
pain and suffering. It was observed that the need for periodical
reassessment of damages at certain key points was a felt need and the
requirement of adjusting awards to changing conditions was realised
…..
13. Giving
consideration to the submissions advanced by learned counsel for the
parties, Apex Court decision in Nagappa v. Gurudayal Singh and others
(supra), which clearly lays down that claimant is entitled to `just’
compensation, Court should grant it irrespective of claim made by the
victim of accident, on the available evidence or allow amendment to
be made and opportunity to lead evidence. Further, claimant can also
be awarded compensation for future medical treatment. We are not in
agreement with the contentions raised by Shri B.N.Keshwani relying on
B.H.Nagarathana and others v. Karnataka State Road Transport
Corporation (1999 ACJ 1472), that claimant is not entitled to more
compensation than claimed by him, he is not aggrieved person since he
has been awarded compensation claimed by him. This is not so. Through
written submissions, claim for Rs.9,86,349/- is made. The Tribunal
assessed compensation of Rs.5,04,250/- but awarded Rs.5,00,000/- on
the ground that compensation to this extent is claimed. This
conclusion is not reflected from written submissions of claimant
taken on record by the Tribunal. Looking to the seriousness of
injuries resulting in amputation of one leg, long treatment, claimant
must have undergone great pain, shock and sufferings and continue to
suffer in future as discussed hereinbefore. Therefore, compensation
under this head deserves to be enhanced to Rs.1,25,000/-. According
to the doctor, artificial leg requires to be replaced every two
years. It is contended that reasonable compensation has been awarded
under this head. Claimant cannot be asked to use artificial limbs
from Jaipur alone because they are cheaper. Question is of
suitability and reliability. In case better artificial limb is
available elsewhere, he can do so. Shri B.S.Patel contended that
claimant has replaced artificial leg number of times costing him much
more than awarded by the Tribunal. To buttress this submission, Bill
No.120 dated 12.2.2002, Rehabs Physical Restorations, A-1, Mangalsai,
Opp.Baroda Hi-School, 84, Alkapuri Society, Vadodara-390007, is
placed on record (Mark-X). Claimant may have replaced artificial leg
after two years as stated by the doctor but expenditure statements/
bills have not been filed. Opposite parties do not state that
claimant undertook replacement of limbs from Jaipur during all
replacements. Therefore, in these circumstances, expenses for buying
limbs is increased to Rs.1,20,000/-. Similarly, there is loss of
future earnings as discussed in preceding part of judgment. Claims
Tribunal has awarded Rs.3,62,250/-. Taking monthly salary Rs.3,500 /
70% (disability) = Rs.2,450 x 12 = Rs.29,400 x 17 = Rs.4,99,800/-,
compensation for loss of future earnings is increased to
Rs.4,99,800/-.
17. Learned
advocate Mr. Thakkar also relied upon decision of Apex Court in case
of Sunil Kumar v. Ram Singh Gaud & Ors.
reported
in 2007(7) Supreme 450.
The relevant are Para 8 and 9,
which are quoted as under :
8. We
find substance in the submission put forth by the counsel for the
appellant. The Tribunal as well as the High Court have not awarded
any compensation towards loss of future income. After the fracture
of tibia, it is doubtful if the appellant can even drive again. Even
if he pursues some other vocation, he would not be able to earn as
much as he is earning now. The disability suffered by the appellant
would surely reduce his earning capacity. Therefore, the appellant is
required to be compensated for the loss of earning due to the
injuries suffered by him in the accident.
9.
Taking into consideration the present income of the appellant as
Rs.4,000/- per month; and the permanent disability of 45% suffered by
him, we are of the view that the capacity of the appellant to earn in
future would be reduced by Rs.1,800/- per month approximately. If
1/3rd is deducted towards miscellaneous
expenses, the loss of income comes to Rs.1,200/- per month which, in
turn, comes to Rs.14,400/- per annum. Appellant was 29 years of age
at the time of accident. Taking the multiplier to be 18 [as per the
Second Schedule to Section 163A of the Act], the total loss of income
comes to Rs.2,59,200/-.
18. Learned
advocate Mr. Thakkar also relied upon decision of Apex Court in case
of Sapna v. United India Insurance Co. Ltd. &
Anr. reported
in AIR 2008 SC 2281.
The relevant are Para 12 and 14, which are quoted as under :
12. In
Abati Bezbaruah v. Dy. Director General, Geological Survey of India &
Anr. [(2003) 3 SCC 148], it was held :
“11.
It is now a well-settled principle of law that the payment of
compensation on the basis of structured formula as provided for under
the Second Schedule should not ordinarily be deviated from. Section
168 of the Motor Vehicles Act lays down the guidelines for
determination of the amount of compensation in terms of Section 166
thereof. Deviation from the structured formula, however, as has been
held by this Court, may be resorted to in exceptional
cases. Furthermore, the amount of compensation should be just and
fair in the facts and circumstances of each case.”
We
may also notice a decision in Nagappa v. Gurudayal Singh & Ors.
[(2003) 2 SCC 274] wherein a Three Judge Bench of this Court opined
that the law does not permit passing of any further award after the
final award was passed, stating :
“Therefore,
in a case where injury to a victim requires periodical medical
expenses, fresh award cannot be passed or previous award cannot be
reviewed when the medical expenses are incurred after finalization of
the compensation proceedings. Hence, the only alternative is that at
the time of passing of final award, the Tribunal/court should
consider such eventuality and fix compensation accordingly. No one
can suggest that it is improper to take into account expenditure
genuinely and reasonably required to be incurred for future medical
expenses. Future medical expenses required to be incurred can be
determined only on the basis of fair guesswork after taking into
account increase in the cost of medical treatment.”
14.
It has not been disputed that future treatment for the appellant
would be necessary. If future treatment is necessary, some
provision should be made therefor. In absence of any clear cut
estimate, we are inclined to award a further sum of Rs.75,000/- under
the said head. She may require another operation. She may require to
be provided with an artificial limb. We, direct accordingly.
19. He
further relied upon decision of Madras High Court in case of
Shanmugham v. Managing Director, Tamil Nadu State
Transport Corporation, Villupuram Division, Villupuram reported
in 2006 (4) MLJ 257.
The relevant are Head Note ‘A’ and ‘B’,
which are quoted as under :
Head
Note A – Motor Vehicles Act (59 of
1988), Section 166 Motor Accident Injuries suffered by victim
Claim for compensation Award passed for Rs.15,000/- as
against the claim for Rs.1,00,000/- – Medical bills rejected on the
ground that the concerned doctors, were not examined Appeal by
the claimant, for enhancement There is no question of granting
any amount towards medical expenses as gratis – Claimant has
produced all the relevant medical records in original
Tribunal ought to have either accepted it or rejected it No
question of the Tribunal making ex gratia payment There is no
reason to doubt the bona fide of the claimant Claimant is
entitled to claim the complete medical expenses Award of
compensation, enhanced.
Head
Note-(B) – Motor Vehicles
Act (59 of 1988), Section 166 Application for compensation
Victim of the accident is entitled to take treatment from different
doctors Method and period of treatment shall depend on the
response of the patient Victim cannot be asked to examine all the
doctors, who treated him If the Tribunal directs the examination
of all such doctors, it will defeat the very object of the Act, which
is a remedy for the cause and effect of an accident Appeal
allowed to the extent indicated.
20. He
further relied upon decision of Division Bench of Madras High Court
in case of Oriental Insurance Company Limited v.
G. Balasubramaniyam
reported in 2007 (6) MLJ 585.
The relevant is Para 19, which is quoted as under :
19. On
the other hand, the learned counsel for the appellant vehemently
argued that there was duplication of award of compensation,
since the Tribunal had awarded a further sum of Rs.4,00,00/- as
compensation for the loss of comforts occasioned due to the permanent
disability suffered by the first respondent/first claimant, over and
above, the sum of Rs.8,00,000/- awarded as compensation for loss of
future earning capacity. In support of his contention, the learned
counsel relied on the judgment of the Full Bench of Madras High Court
in Cholan Roadways Corporation Ltd., v. Ahmed Thambi (2006) 4 MLJ 362
: 2006 (4) CTC 433. In case of injuries resulting in permanent
disability, tow methods of assessment of compensation for permanent
disability are possible. One by awarding a lump sum payment for the
permanent disability which will take into its fold, the loss of
future earning capacity and loss of amenities in life and the other
by awarding separate amounts for loss of future earning capacity and
loss of amenities in life caused by the permanent disability. As per
the Full Bench judgment of the Madras High Court cited above, what is
prohibited is awarding separate amount of compensation for loss of
earning capacity, when lump sum payment is awarded for permanent
disability as such or awarding separate amount as compensation for
permanent disability as such, after separately itemising compensation
for loss of earning capacity. In case loss of earning capacity is
separately assessed without awarding lump sum amount for permanent
disability as such, there is no prohibition for separately assessing
compensation for loss of amenities in life caused by the permanent
disability. Therefore, this Court is not in a position to fully
accept the above said contention of the learned counsel for the
appellant that there is duplication of award of compensation. The
award of separate amounts: (1) for loss of earning capacity and (2)
for loss of amenities in life caused by the permanent disability is
perfectly in accordance with the view expressed by the Full Bench of
the Madras High Court in the judgment cited supra.
21. He
also relied upon decision of Madras High Court in case of Saravanan
@ Saravanakumar v. M. Sankaran and Another reported
in 2008(4) MLJ 1193.
The relevant are Para 10, 17 and 18, which are quoted as under :
10. In
2005 (1) TN MAC 87, the claimant had sustained fracture on the right
thigh, right knee and injuries all over the body. He was unable
to stand, walk freely, climbing stairs and not able to drive and his
right leg shortened than that of the left leg’. The Division Bench
felt that the award should be based on the larger perspective of
justice, equity and good
conscience and technicalities in the decision-making must be eschewed
and held as follows:
…..
There should be realisation on the part of the Tribunals and Courts
that the possession of one’s own body is the first and most valuable
of all human rights, and that all possessions and ownerships are
extensions of this primary right, while awarding compensation for
bodily injuries. Bodily injury is to be treated as a deprivation
which entitles a claimant to damages. The amount of damages varies
according to gravity of injuries. Deprivation sustained as a
consequence of bodily injuries may bring with it three consequence,
namely (I) loss of earnings and earning capacity, (ii) expenses to
pay others for what otherwise he would do for himself and (iii) loss
or diminution in full pleasures and joys of living. Though it is
impossible to equate money with human suffering, agony and personal
deprivation, the Tribunals and Courts should make an honest and
serious attempt to award damages so far as money can compensate the
loss. Loss of curing and earning should adequately be compensated.
Therefore, while considering deprivation, the Tribunal and Courts
should have due regard to the gravity and degree of deprivation as
well as the degree of deprivation as well as the degree of awareness
of the deprivation. In awarding damages in personal injury cases,
the compensation awarded by the Court should be substantial, it
should not be merely token damages.
17. As
regards loss of amenities of life, the Tribunal was not willing to
accept the appellant’s case that he was earning a sum of Rs.1750/-
per month. He had produced Exhibit A-6. The appellant had passed
SSLC and claimed that he was working in Ambika Electronics. Even for
a non earning member, a sum of Rs.1,250/- is fixed as monthly income.
Therefore, there is no reason to reject the appellant’s monthly
income at the rate of Rs.1,750/-, when even for a non earning member,
a notional income of Rs.1,250/- is fixed as monthly income.
Therefore, Rs.1,750/- is accepted as the monthly income. He was out
of employment for a period of three months. So, Rs.4,250/- is
awarded for loss of earning.
18. The
disability, was fixed at 95%. I find that the percentage of
disability for deformity of genital organs was fixed at 60% for
absence of both tests, 5% and for deformity in both hips 20%.
Therefore, it shows that he cannot stand for too long, which will
affect his job prospect. He was very young at the time of the
accident, and if he had 100%
health his job prospect would have bee definitely better. If his
disability namely, shortening of hips will not make him incapable of
working, definitely, his prospects of getting a job commensurate with
his capacity prior to the accident would have reduced. This
reduction and loss of prospects is fixed at 750/- per month. He was
only 26 years old at the time of the accident and adopting multiplier
of 18, the reduction in loss of earning capacity would be
Rs.1,62,000/-.
22. I
have considered submissions made by all learned advocates those who
are appearing on behalf of respective parties. I have also perused
award passed by Claims Tribunal, Bharuch and I have also considered
decision which has been relied upon by learned advocate Mr. Thakkar
appearing on behalf of appellant claimant.
23. The
question is that looking to injury as per medical certificate given
by Civil Hospital Ex.90 and evidence of Dr. Dipak Dave Ex.122 where
claimant was found to be completely unstable and deformed right knee
joint. Dr. Dave advised the claimant to approach Dr. Chaubal at
Bombay and on 11th
June 1984, Dr. Dave assisted Dr. Chaubal in repairing ligament of
claimant. Middle semi-lunar cartiledge of right knee joint was
removed and critiat ligament was repaired. Thereafter, second
operation was performed and
lateral co-lateral ligament was repaired and follow-up treatment was
given by Dr. Dave under instructions of Dr. Chaubal. The letter
addressed by Dr. Chaubal is Ex.123. Dr. Dave has also issued
disability certificate Ex.124 showing following disability of
claimant :
(i) Lateral
instability and tenderness right knee.
(ii)
He has shortening of 3/4 inch of right lower extremity.
(iii)
Muscular waisting on the right side by 0.7 inches
(iv)
He also has developed arthritis on the left side of his body.
(v)
He also has lumber spondylosis.
24. Ultimately,
Dr. Dave estimated permanent partial disability at 60% and Medical
Board has assessed disability at 50% as per Ex.119. According to Dr.
Dave’s evidence, in future, there will be future deterioration due to
secondary arthritis and longevity of life also decrease. Dr. Saraiya
has also sent his opinion from America on reference of claimant’s
case to him and he has estimated the amount of expenditure. The
letter is produced at Ex.126.
25. In
light of aforesaid evidence, claims tribunal has considered 50%
permanent partial disability of claimant as per Report Ex.119 of
Medical Board. Therefore, future loss which has been worked out by
claims tribunal considering Rs.200/- per month ignoring 50% partial
disability as per report of Medical Board Ex.119 is not proper and
legal. The effect of disability being a permanent partial, claimant
is entitled the amount of compensation for future loss due to
disability which has been certified by Medical Board, however, the
claims tribunal must have to work out compensation on the basis of
salary which was received by claimant at the time when accident
occurred. As per evidence of claimant, in the year of 1985, he was
drawing total salary Rs.2700/- + 450/- = Rs.3150/- per month. In the
year of 1983 when accident had occurred, his salary was Rs.1300/- and
in the year of 1984, his salary was Rs.1700/- which was subsequently
revised means on the date of deposition, he was drawing Rs.3150/-
salary per month. In light of aforesaid salary/wages received by
claimant, if it is considered 50% permanent partial disability, then,
Rs.900/- is to be considered being a 50% loss to claimant, then,
yearly it comes to Rs.10,800/- and looking to age of claimant, 15
multiplier is to be taken into account, then, amount comes to
Rs.1,62,000/-. Out of that, claims tribunal has awarded Rs.36,000/-,
if it is to be deducted being a future economic loss to claimant,
then remaining amount comes to Rs.1,26,000/- being an enhanced amount
as per 50% permanent partial disability keeping in mind figure
Rs.1800/- salary which was available to claimant on the period of
treatment because of injury received in accident, therefore,
Rs.1,26,000/- is required to be enhanced for future economic loss to
claimant based on Report of Medical Board being non-pecuniary loss as
well as future loss in earning capacity due to permanent disability.
26. Looking
to injuries; two operations and 159 days Earned Leaves, which suggest
period of treatment, the amount available for pain, shock and
suffering is Rs.25,000/-, but, Division Bench in identical
case as referred above has awarded for pain, shock and suffering
being an enhanced amount which comes to Rs.1,25,000/-, therefore,
after deducting Rs.25,000/- awarded by claims tribunal, Rs.1,00,000/-
is required to be enhanced under the head of pain, shock and
suffering, loss of amenities and enjoyments of life. The medical
expenses for medical treatment and medical bills and receipts given
by Doctors which are not exhibited because Doctors were not examined,
such technical stand or view cannot be taken by claims tribunal, for
that, claimant is entitled Rs.35,000/- being an enhanced amount,
against the amount awarded by claims tribunal Rs.28,100/-. The amount
for gratuitous services rendered by attendants has been awarded
Rs.2,000/- only. Looking to injury and two operations undergone by
claimant; one is at Bombay and another is at Bharuch, which requires
two attendants with claimant, therefore, according to my opinion,
Rs.20,000/- is required to be enhanced under aforesaid head. The
transport charges for follow-up treatment, only Rs.4,000/- has been
awarded which also required to be enhanced upto Rs.25,000/-. In case
of special diet at Bharuch
and at Bombay, only Rs.1500/- has been awarded which also requires to
be enhanced up to Rs.15,000/-. The compensation for future treatment
if any in USA as per Dr. Saravaiya Ex.126, the claimant is entitled
for enhancement of the said amount upto Rs.19,000/-. So, in all,
claimant is entitled for enhance amount under each head which
discussed above comes to Rs.3,40,000/-.
27. The
claims tribunal has awarded meager amount with a conservative
approach and not appreciated the real pain suffered by claimant and
it also adversely affects the enjoyment of life up to mark and also
loss to claimant in respect of future promotion and also loss of
future service after retirement. While considering compensation in
case of injury, if employee was allowed to work and he received
salary that does not mean that there is no future loss caused to
claimant. In case of injury when 50% permanent partial disability is
there, it reduced the strength of body as a whole about 50%, so,
person becomes weak as 50% which weakness remains continue in his
lief time, so, he may not able to perform any kind of work as 100%,
therefore, according to my opinion, claimant is entitled considering
entire facts and circumstances of case as well as evidence which was
considered by claims tribunal on record, the amount of compensation
which has been worked out by claims tribunal is on lower side means
meager amount and therefore, claimant is entitled enhanced amount
which comes to Rs.3,40,000/- under aforesaid heads as discussed by
this Court as above with 12% interest from date of filing claim
petition till date of realisation.
28. In
result, present First Appeal is partly allowed.
29. The
claimant is entitled to recover 60% of enhance amount of
Rs.3,40,000/- from Respondent Nos.1 and 2 and remaining 40% of
enhanced amount is to be recovered from Respondent Nos.4 to 6 those
who are jointly and severally liable with proportionate cost and
interest at the rate of 12% per annum from date of filing of claim
petition till its realisation. Opponent No.6 do satisfy the claim of
40% as if it is a judgment debtor.
30. After
realising the entire amounts from Respondent Nos.1 and 2 as well as
from Respondent Nos.4 to 6 as directed by this Court, Claims Tribunal
concerned is directed to pay entire amount by account payee cheque in
name of Shailesh J. Mehta claimant, after proper verification.
31. R.
& P., if available, be sent to claims tribunal concerned,
forthwith.
Sd/-
[H.K.
RATHOD, J.]
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