IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 1674 of 1984 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT and Hon'ble MR.JUSTICE H.H.MEHTA ======================================================== 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------- RAMANBHAI KALIDAS DARJI.....Appellant. Versus BABUSING S THAKORE & 2 Ors..Respondents. --------------------------------------------------------- Appearance: MR NITIN M AMIN for appellant. Mr. R.R. Marshall for Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT and MR.JUSTICE H.H.MEHTA Date of decision: 11/04/2000 ORAL JUDGEMENT: (Per: H.R. Shelat, J.) This appeal is directed against the judgment and award dated 22nd February 1984 passed by the then learned Chairman of the Motor Accident Claims Tribunal (Main) at Narol in Motor Accident Claim Petition No. 573 of 1982 on his file awarding the compensation of Rs. 73,125/=, in all against the total claim of Rs. 1,90,000/=. 2. Necessary facts may in brief be stated. The appellant with his son was going to Gandhinagar from Chiloda driving his motor-cycle on 14th April 1982. According to him he was driving the motor-cycle at the moderate speed remaining on the left side of the road. When he reached near Chhagniram & Sons, a truck driven by respondent No.1 emerged from the left side, approach road. The same was being driven at the excessive speed. The respondent No.1, while emerging on the main road from the approach road did not take care he was expected of. Respondent No.1 ought to have waited stopping the truck and allowed him to pass first but as he did not do so, the truck hit him on his left side, as a result he and his son were thrown off on the road. He and his son sustained injuries. He sustained more injuries on his left hand, as a result during the treatment his left hand from above the elbow was required to be amputed. For about 25 days, he was hospitalised and had to take outdoor treatment for about 3 months and take rest at home. He was required to spend for the medical charges, special diet, conveyance charges and also for those who attended him in the hospital. In order to make the loss good, he filed Motor Accident Claim Petition No. 573 of 1982 in the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) at Narol and prayed for the compensation of Rs. 1,90,000/=. The then learned Chairman of the Tribunal, considering the evidence on record, awarded Rs. 73,125/= only. Being aggrieved by such award, the appellant has preferred this appeal for the claim disallowed. 3. The learned advocate representing the appellant submits that he would be confining to one head under which the compensation is alarmingly at the lower level, i.e., under the head `Permanent Partial Disability'. The appellant was the tailor. As his left hand is amputed he is not in a position now to do his tailoring work and he is now helpless. The doctor has assessed the disability at 95%. The Tribunal considering the whole body has erroneously reduced to 50%. It is also the contention that the Tribunal assessed the income at Rs. 900/= per month which is also on a lower side because according to his diary produced at Ex.40, he was earning Rs. 1,200/= per month. In this case, therefore, the learned Judge ought to have accepted the said amount as the base and without reducing the disability by 50%, the amount under the head `Permanent Partial Disability' ought to have been assessed. 4. In reply to such contention, Mr. Marshall, the learned advocate representing the respondent No.3 submits that income of Rs. 900/= p.m. assessed is on a higher side. In the village area like Magodi where the appellant was residing and doing his tailoring work, his income in the year 1982 cannot be assessed more than Rs. 500/= p.m. because the population of that village in those days was about 2000 to 4000 and mainly the agriculturists living very simple life were residing in the village. It is also his submission that the disability has to be reduced even in such cases. The Tribunal was perfectly right in reducing the same by 50% considering the whole body. It may also be considered that the appellant may switch over to other work and earn. Such mitigatory factor having a deterrent effect on the Court from fixing datum figure on a higher side taking liberal view cannot be overlooked. It would not therefore be just to assess the compensation on 100% disability found, accepting Rs. 1200/= to be the income p.m. 5. Whenever the victim of the motor accident prays for the compensation because of the injuries he sustains, the Tribunal has to assess just & fair compensation pecuniary and non-pecuniary under different heads, on the basis of the actual expenses he was required to incur or his income, as the case may be and the assessment must neither be too conservative nor too liberal for the loss is to be made good. As in this case the appellant has lost his left hand from above the elbow, the doctor has assessed the disability at 95%. Whether the same should be reduced to 50% considering the whole body is the point posed before us. We are of the view that if the disability is functional, the same under any guise should not be reduced considering the whole body. It is the contention of the learned advocate for the respondent No.3 that the injured person may switch over to another work and earn money, but we cannot put up a seal of approval to that contention because it is difficult to get another work as chances for disabled person to get job are meagre and further switching over to another work depends on several other factors viz., know-how, grasp, ability, skill, qualification, effectiveness, health, stamina, possibility to do the work with rest of the limbs, nature of work, risk involved, eligibility and the like. Hence in case of functional disability to adopt a lesser multiplier than what is found by the doctor and award less amounts of compensation would amount to a curse or adding fuel to the fire and intensifying affliction. In the case of functional disability therefore ordinarily the multiplier and amount of compensation should not be sliced down on the ground that victim may switch over to another work. 6. As stated above, the appellant was a tailor and now he lost his left hand. It should hardly be stated that a tailor cannot work by one hand. Often he has to make the use of another hand substitute of which is not possible. Artificial limb will be of no help. With one hand, he will not be able to do his tailoring work at all. Hence, the disability assessed being functional one cannot be reduced considering the whole body. We may, at this stage, in support of our view, refer the decision of the Supreme Court, rendered in the case of Pratap Narain Singh Deo Vs. Shrinivas Sabata & Anr. AIR 1976 S.C. 222 , wherein, keeping the provisions of Workman's Compensation Act in mind, it is held, that if the carpenter is injured and left hand above the elbow is amputed, the carpenter would not be able to work with one hand and therefore his disablement must be assessed totally and not partially. Although the decision is under Workman Compensation Act, the principle made clear can well be applied to the motor accident cases. In the case on hand the disability must be assessed totally & not partially reducing multiplier. 7. For the purpose of determining quantum of compensation under the head `Permanent Partial Disability', the income of the appellant has to be assessed considering the evidence on record. The appellant has produced the Measurement Book at Ex.40, but the learned Chairman has rightly assigning logical reasons abstained from placing reliance thereon. When documentary evidence is not reliable or does not help the court determine the income or there is no documentary evidence throwig light on the income, and oral evidence is to be appreciated, it would be open to the court to determine the income on reasonable guess work on the basis of pay-scales or wages-rates or the then prevailing market-rates or charges. In the absence of documentary evidence on record, we have to assess the income on reasonable guess work. The appellant, in those days, was sewing the pant, shirt, blouse, etc., in village area. Considering the then prevalent charges even in the villages also a tailor could earn Rs. 700/= to Rs.900/=. The ld. Chairman of the Tribunal was therefore perfectly right in assessing the income at Rs. 900/= p.m. The same has to be accepted as datum figure for assessing the compensation under the head `Permanent Partial Disability'. 8. The doctor has assessed the disability at 95%, and for the reasons stated hereinabove reduction to 50% is not at all just and proper because the disability being the functional disability. Considering the income of Rs. 900/= per month, 95% disability would come to Rs. 855/= p.m. and per year it would come to Rs. 10,260/=. 9. What multiplier should be adopted is the next question that arises for consideration. Mr. Marshall, the learned advocate representing the respondent No.3, contends that the Tribunal has erroneously adopted the multiplier of 15. Considering the age of the victim the proper multiplier which ought to have been adopted would be 12. We, perusing the record, do not see any justifiable reason to reduce the multiplier already adopted by the Tribunal. The appellant, who is the victim of the motor accident, was aged 35 years at the time of accident. He would have worked as tailor at least upto his age of 65 years. He would have therefore continued to work for remaining 35 years of his life. Considering that period, 15 multiplier is quite just and proper. If the yearly amounts are multiplied by 15, the appellant, in this case, is entitled to Rs. 1,53,900/= under the head `Permanent Partial Disability'. 10. Under that head, Rs. 50,000/= are awarded by the Tribunal. The reasons assigned by the Tribunal are not logical and appealing. No doubt, according to the disability and the income assessed as well as the multiplier adopted, the Tribunal rightly reached the conclusion that the reasonable amount under the head would come to Rs. 81,000/=, but the Tribunal without any good cause astonishingly sliced down to Rs. 50,000/= on the ground that the said sums were on higher side because if the amounts were invested the same would earn more amount by way of interest than what the victim was earning from his tailoring work. Such reduction is, in our view, improper & unreasonable. When the Tribunal found that Rs. 81,000/= were awardable, justly there was no good cause on its part to reduce the amount. But the amounts of Rs. 81,000/= are also for the aforesaid reasons are less than reasonable. The appellant is as discussed above is entitled to Rs. 1,53,900/=. He has been awarded Rs. 50,000/=. The said amount will have to be deducted from the total amount found awardable. If the said amount is deducted, the appellant is entitled to Rs. 1,03,900/= more under the head `Permanent Partial Disability'. 11. What rate of interest, on the additional amount should be awarded, is also the point raised before us. Ordinarily, the rate of interest must be commensurating with the economic policy of the Government or the policy adopted by the Reserve Bank of India pursuant to which the interest is being paid by the banks on fixed deposit at a particular rate. At present, the banks are paying the interest at the rate of 10 to 10.5% on fixed deposits. In this case, therefore, it would be just and proper if the interest at the rate of 10% is awarded. 12. The appellant has not challenged the amounts awarded under other heads. It is, therefore, not necessary for us to discuss all those heads and give our finding one way or the other. 13. For the aforesaid reasons, the appeal is required to be partly allowed. The same is allowed accordingly. The respondents do pay Rs. 1,03,900/= to the appellant jointly & severally (over & above the amounts awarded by the Tribunal) together with interest thereon at the rate of 10% p.a. from the date of the petition till realization and costs in proportion. The respondents shall make the payment within 3 months from today. ..... rmr.