IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 285 of 1984 For Approval and Signature: Hon'ble MR.JUSTICE KSHITIJ R.VYAS and Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- IBRAHIM RASULBHAI GHANCHIBHAI Versus MOHMAD GULAMHUSEIN SHAIKH @ BUDHA -------------------------------------------------------------- Appearance: 1. First Appeal No. 285 of 1984 MR JC SHETH for appellant RULE SERVED for Respondent No. 1-2 MR NAGIN N GANDHI for Respondent No. 3 MS PRATIKSHA LAHIRI for MR SB VAKIL, Sr.Counsel for Respondent No. 4 to 6 -------------------------------------------------------------- CORAM : MR.JUSTICE KSHITIJ R.VYAS and MR.JUSTICE H.K.RATHOD Date of decision: 18/09/2002 ORAL JUDGEMENT (Per : MR.JUSTICE KSHITIJ R.VYAS) This appeal is preferred by the original applicant of M.A.C.P. No.71 of 1982 wherein he has challenged the judgment and award dated 10th June 1983 passed by the Motor Accident Claims Tribunal, Valsad, at Navsari. By the impugned award, the Tribunal awarded Rs.77,460/- with running interest at the rate of 6% per annum with proportionate costs from the date of the application till realisation from the opponents Nos.1, 2 and 3 who were jointly and severally held liable to pay the same, against the claim of Rs.1,50,200/- made by the applicant in his claim petition. In the present appeal, the appellant has claimed the balance amount of Rs.72,740/-. 2. The case of the appellant as stated by him in the Claim Petition can briefly be stated as under: The accident took place on 22nd May 1981 at about 6.10 a.m. on the National Highway No.3, in the sim of village Nani-Chovisi of Navsari Taluka. The appellant was travelling in the truck bearing Regn. No. GTS-7601 as a Cleaner. The truck was loaded with iron sheets and was coming from Bombay side, being driven by present respondent No.1, in excessive speed and in a rash and negligent manner. It is stated that the truck collided with another truck bearing Regn.No. GTS-7144 which was parked on the road, without any back light. The truck driven by respondent No.1 dashed against the back part of the parked truck. It is the further say of the appellant that, respondent No.4 who was driver of the other truck was also negligent inasmuch as he had parked his truck on the National Highway in such a way so as to endanger human life. Because of the accident, the truck in which the appellant was travelling, went off the road and fell into a ditch and then dashed against a mango tree. The appellant was sitting in the driver's cabin and because of the accident, he sustained serious injuries. He was first taken to the Civil Hospital, Navsari and then was transferred to the Civil Hospital, Surat for further investigation and treatment. According to the appellant, he used to get Rs.300/- per month by way of salary and Rs.150/- per month as travelling allowance. He was kept in Surat Hospital as an indoor patient for 69 days and was then taken to Godhra where he took treatment as an outdoor patient and thereafter he was again admitted in SSG Hospital, Baroda, where remained as an indoor patient for 17 days. The operations on him were performed at Surat and he was also operated at Baroda. His left leg was kept under plaster; his two fingers of left hand and two fingers of right hand were fractured. He has sustained permanent disability of two fingers of left hand. According to the appellant, it is not possible for him to do any work with the left hand. The injury on his left leg has also resulted in permanent disability. He was also admitted in a private Hospital at Godhra for five days. He has further stated that it is not possible for him to walk like a normal man and he cannot walk without crutches. In the claim petition, he has also stated that his ambition was to become a driver and he was holding a driver's learning licence. He was likely to become a driver within a year and thereby he could have earned more income. However, because of the injuries suffered by him, it is impossible for him to work as a driver. He has, therefore, claimed the following amounts on various heads as under: Rs. 35,000/- Pain, shock and sufering Rs. 5,200/- loss of past earning of 12 months Rs. 96,000/- loss of future prospective earning due to permanent partial disability. Rs. 5,000/- expenses of medical treatment past and future. Rs. 2,5000/- nursing cost Rs. 3,000/- transport charges Rs. 2,000/- special diet expenses. Rs. 1,500/- loss suffered by his father and relatives who attended him at Surat, Baroda etc. -------------- Total: Rs.1,50,200/- ============== Thus, the claimant has claimed a sum of Rs.1,50,200/- from the opponents. 3. Respondent No.1 has not filed any written statement. Respondent No.2, the owner of the truck has filed the written statement at Exh.26, while respondent No.3- United India Fire and General Insurance Company has filed written statement at Exh.25. In the written statementes, the said respondents hae denied the averments with regard to the age, income, the nature of injuries suffered by the appellant, the treatment taken by the appellant at various places, and they have, inter alia, stated in the written statement that there was no back light on the stationary truck bearing No. GTS-7144 and that before the accident took place, the left hand side front wheel of the truck bearing No. GTS-7601 burst which was beyond the control of respondent No.1 and, so, it dashed with the said stationary truck. In substance, while admitting the incidence of accident, they have come out with a case that it was a case of inevitable accident. The accident occurred not on account of any rash and negligent act of driving by driving the truck by opponent No.1. Respondent No.6-New India Insurance Company Ltd., the insurer of the truck, has resisted the claim by filing written statement at Exh.32 and the same has been adopted by original opponents Nos.4 and 5 by filing purshis at Exh.33. In substance, the stand of the respondents Nos.4, 5 and 6 is to the effect that the accident took place on account of rashness and negligence in driving the truck bearing Regn.No.GTS-7601 by respondent No.1. They have denied that the appellant is entitled to different amounts under different heads as stated in the claim petition. 4. The Tribunal framed the issues at Exh.27. After appreciating the oral as well as documentary evidence, the Tribunal has recorded a finding that the appellant sustained injuries as a result of rash and negligent act of driving of truck bearing Regn.No. GTS-7601 by respondent No.1 only. As far as the amount of compensation is concerned, the Tribunal has held that the appellant is entitled to Rs.77,460/- from respondents Nos. 1, 2 and 3 only. In substance, the Tribunal has exonerated respondents Nos.4, 5 and 6 on all counts. As stated above, the appellant has preferred this appeal for the balance amount of Rs.72,740 only. 5. Mr.J.C.Sheth, learned Advocate appearing on behalf of the appellant has taken us through the entire evidence on record. He submitted that the Tribunal has committed a serious error in awarding compensation of Rs.77,460/- only even though it has recorded a finding that the appellant has sustained serious injuries as a result of the rash and negligent act of driving by respondent No.1. In the submission of learned Advocate, looking to the injuries sustained by the appellant, the permanent partial disability to the extent of 80% as assessed by the Medical Officer, the Tribunal ought to have awarded the full compensation as claimed by the appellant. Learned Advocate has also challenged the slicing down of the amounts under various heads by the Tribunal, by contending that there was neither any logic nor any justification in the reasoning given by the Tribunal. Learned Advocate Mr.N.N.Gandhi appearing on behalf of respondent No.3-United India Fire and General Insurance Co.Ltd., has supported the reasoning of the Tribunal in toto. Learned Advocate Ms.Pratiksha Lahiri for Mr.S.B.Vakil, Senior Counsel, appearing for respondents Nos.4,5 and 6 have also supported the reasoning given by the Tribunal exonerating the said respondents regarding their liability to pay the compensation. 6. Since respondents Nos.1, 2 and 3 have not filed any appeal against the award of the Tribunal, it seems that they have virtually accepted the award and it is not necessary for us to decide the question with regard to the appellant's sustaining injuries as a result of the rash and negligent driving of truck bearing Regn. No. GTS-7601 by respondent No.1. The only question which is required to be decided is with regard to the adequacy of the amount of compensation. In other words, the question which is required to be decided is as to whether the Tribunal was justified in passing the award of Rs.77,460/- against the claim of Rs.1,50,200/- made by the claimant. 7. The appellant is examined himself at Exh.71. We have narrated the detailed facts and therefore, it is not necessary for us to re-narrate the same. The occurrence of the accident is not in dispute and it is also not disputed that on or before the date of the occurrence of the accident, the appellant was serving as a Cleaner in the truck bearing Regn.No. GTS-7601 which is of the ownership of respondent No.2. It is also not in dispute that the said truck was being driven by respondent No.1 as a driver during the course of employment of the appellant with respondent No.2 on the date of the accident and that the appellant sustained injuries because of the said accident wherein the truck bearing Regn.No. GTS-7601 was involved. The appellant has examined Dr.Dayanidhi Navalram Desai, vide Exh.72, who is Consulting Orthopaedic Surgeon, having his hospital in the name of Pavan Orthopaedic Hospital, at Surat. The said Doctor, who is attached to the New Civil Hospital, at the relevant time, has examined the appellant on 22nd May 1981 at New Civil Hospital, Surat. He has treated the appellant when he was brought to the New Civil Hospital on 22nd May 1981 as well as on 17.5.1983. He has noticed the following disorders on the body of the appellant: (1) 3-1/2" shortening of left lower limb with various deformities on left knee and left leg and equal deformity on left ankle. (2) He was 45 degree of flexion at left knee with no quadriceps on left leg. (3) The supra condular fracture on left femur and compound fractures on left tibia fibula have united. (4) He has oedema on both feet with markedly restricted subtalor movements on left side. (5) He cannot sit cross-legged and he cannot squat. He walks with support of crutches. (6) He has amputation of distal phalanx of left middle finger. Ther is extension of leg at matacarpo phalangeal joint of left thumb and sublaxation at phalangeal joint of left thumb and markedly wasted thinner eminence. (7) He has reduced weight bearing capacity on left lower limb. On the basis of the above finding, the Doctor has formed an opinion that the appellant has 80% permanent partial disability of left upper and left lower limb. He has produced the certificate of injuries vide Exh.72. According to the Doctor, the appellant will find it difficult to climb up and down and he will not be in a position to drive a motor vehicle in future. He will have to undergo an operation for removal of "L" Plate. The Doctor has further stated that if the appellant gets himself admitted in a private hospital for that operation, he will have to spend Rs.2,000/- in all. The appellant has sustained fractures and one dislocation of bone and that the grip of his left palm in relation to small objects has become poor. In his cross examination, the Doctor has clarified that the appellant has sustained a permanent partial disability at 75% of the left lower limb and 20% on the left upper limb. He has denied that the percentage of partial disability of left upper and left lower limb is less than 80%. He has also denied that even with the present physical handicap, the appellant would be able to drive a vehicle. 8. The appellant has, thus got a postive evidence regarding his injuries. The medical evidence has clearly revealed that the appellant sustained 80% permanent partial disability of left upper and left lower limb. It is also clear that the appellant has sustained fractures and dislocation of bone as a result of which, it would be difficult for him to climb up and down and he will not be in a position to drive a vehicle in future. 9. After having gone through the reasoning of the Tribunal, we are surprised to note that the Tribunal has totally failed to appreciate and to consider the injuries sustained by the appellant in its true perspective. Even though the Tribunal has awarded the compensation under various heads, it has sliced down the same on absolutely unjustifiable reasons. The reasonings and logic applied by the Tribunal, in our opinion, are not convincing and therefore, not acceptable. 10. The Tribunal has awarded Rs.22,500/- against the claim of Rs.35,000/- under the head, pain, shock and suffering. Similarly it has awarded Rs.43,200/- against the claim of Rs.96,000/- for the future loss of income. These two items, being inter-related with each other and involve a substantial amount, we would first take up the same. As observed earlier, the appellant sustained 80% permanent partial disability of left upper and left lower limb which is clear from the certificate at Exh.72. It is clear from the medical evidence that the left lower limb has become short by 3-1/2". Thus, there is a deformity on the left leg. The appellant cannot sit cross-legged and he cannot squat. He has to walk with the support of crutches. The shortening of the leg will remain for the rest of his life. It is also clear that the appellant will not be able to walk like a normal man as he will have to use crutches for the purpose of walking for the rest of his life. Under the circumstances, it will not be possible for him to do the work of a Cleaner as well as driver. In his evidence, the appellant has stated that he is unmarried and because of the injuries, it will not be possible for him to get married in future and that it will not be possible for him either to climb or to run. Both the limbs have become useless to some extent. The appellant will find it difficult as far as his left hand is concerned inasmuch as the grip of his left palm has become poor. From the evidence on record, it is clear that the appellant sustained nine fractures and one dislocation of the bone and had to undergo a prolonged medical treatment. He had to confine to bed for a long time and therefore, his movements were also restricted for a considerable period. Considering the aforesaid facts on record, we are clearly of the opinion that the appellant has in fact made out a case to get the full amount of compensation of Rs.35,000/- as claimed by him under the head of pain, shock and suffering and loss of amenities and enjoyment of life. There is no justification to slice down any amount from that. The Tribunal even though observed everything what we have observed, without any reason, awarded Rs.22,500/- only under the head of pain, shock and suffering and loss of amenities and enjoyment of life. We, therefore, see no justification in the findings recorded by the Tribunal with regard to the said aspect of the matter. As far as the amount awarded under the head of future loss or income of the appellant is concerned, the Tribunal has discussed the same in paragraph 16 of the judgment. The appellant, in his evidence, has stated that even though he was serving as a Cleaner, his ambition was to become a driver in future. The appellant was possessing a learner's driving licence, which is a part of the record. Now, this part of the evidence is required to be appreciated in its proper perspective. It may not be that a Cleaner does remain as such for all the time in his life and there is bound to be some change and rise in his future. The appellant cannot be an exception to the same. The Tribunal has given curious reasons for deciding the future prospects of the appellant. The Tribunal has observed that: "It is not his say that employment as a driver was ready or somebody had promised to employ him as a driver. It is also not his say that there is shortage of drivers and so, he would have immediately got the employment as a driver on obtaining a requisite licence to drive a heavy vehicle. The opponent No.1 has said that the pucca licence is normally given about a month after a kutcha licence." The reasonings recorded by the Tribunal are not acceptable to us. The claim made by the appellant that he would have become a driver from Cleaner is not only reasonable, but a possible one. One can reasonably expect such a rise in future. In the instant case, the appellant was holding a learner's driving licence and therefore, there are all the chances of his becoming a driver in future. Even though the appellant has sustained permanent disability to the extent of 80% of the left limb and upper limb, surprisingly, the Tribunal assessed the disability at 40% by deducting the body as a whole to be taken as 100%, by giving the following reasons: "Now, he has sustained permanent disability at 80% of the left limb and the upper limb. Body as a whole is taken to be as 100%. His two limbs are affected. Therefore, with reference to the body as a whole, he can be said to have sustained permanent disability at 40%. His monthly pay was Rs.300/-. So, 40% of Rs.300/- would come to Rs.120/- of one month. He can be said to have sustained a present loss of earning capacity at Rs.120/- per month. We have to take into consideration the uncertainties of life and certain other imponderables. If the applicant had not met with an accident, he would have died a natural death or would have become invalid for some reasons or decease. Now, it is not that if he had not met with an accident, he would have become a driver within a month or two. As already said by me, employment as a driver was not readily available. So, he would have got employment as a driver some months or years thereafter. There is no presumption that he would have started getting salary amount of Rs.600/- with effect from the date of his employment as a driver. I think a person who is for the first time employed as a driver would not be paid salary at the rate of Rs.600/- per month. He would start with Rs.400/- per month and then the salary amount would be gradually increased and then, he would reach upto Rs.600/- per month after some years. Therefore, he can be said to have sustained a present loss of earning capacity at Rs.120/- per month. He would sustain loss of earning capacity some months or years hereafter at the rate of Rs.160/- per month and then Rs.180/- per month and so on. If he had not met with an accident, he would have been able to get the salary amount of Rs.600/- per month some years hereafter and so, 40% of Rs.600/- can be said to be Rs.240/- of one month. Thus, the loss of earning capacity at present can be said to be Rs.120/- per month and it may reach upto Rs.240/- per month after some years. Therefore, I would put it at Rs.200/- per month. As discussed by me, the body as a whole is to be taken as 100% and so with reference to the body as a whole, the percentage of permanent disability can be said to be 40%. If he had not met with the accident, he would have in future earned Rs.500/- per month and so he can be said to have sustained a loss of future earning capacity at Rs.200/- per month" After carefully examining the aforesaid reasoning, we find it difficult to accept the same. The Tribunal is wrong on more than one count. There is no logic in reducing the permanent disability of the appellant to the extent of 40%. From the evidence on record, it is clear that the left leg of the appellant has become practically useless. We have already narrated the consequences to be faced by the appellant in future because of this disability. If that is so, it will not be possible for the appellant to work as Cleaner or to drive a vehicle. Thus, the appellant will not be in a position to earn any monetary benefit either as a Cleaner or as a driver as his earning capacity has been reduced to nil. If that is so, we fail to understand as to why the body as a whole has been taken and reduced the disability to the extent of 40% from the permanent disability at 80%. While doing so, the Tribunal has in fact ignored the earning capacity of the appellant. Fixing the salary as well as the future rise of income of the appellant by the Tribunal is also nothing but surmises and conjectures and the same can be safely ignored. The Tribunal, in our opinion, has committed an error in fixing the salary of the appellant at Rs.300/- as a Cleaner and has totally lost sight of the fact that over and above the regular salary, the appellant used to get Rs.100/- or Rs.150/- by way of daily allowance. In any case, fixing the salary of the appellant as a driver, at Rs.400/-, by the Tribunal and the reasons given for the same are totally beyond our imagination and the same are not acceptable to us. The Tribunal, on its own, has suggested the means for earning livelihood by further observing that the appellant is bound to get some work and he can do the business of selling vegetables or some other articles by sitting in the shop and he can do some other light work and therefore, it cannot be said that there is a total disability sustained by him and that he will not be able to earn anything in future. Assuming that there are various ways to earn livelihood, but the same cannot be made use against the claimant so as to slice down the amount under the head of future loss of income. Since the appellant has become useless for all practical purpose as he is not able to walk nor climb up or down, nor he is in a position to carry any weight, there will be several questions as to how he would be able to carry on business of selling vegetables or selling some articles by sitting in a shop, as suggested by the Tribunal. In our opinion, the Tribunal has committed a serious error by fixing the future loss of earning capacity at Rs.200/- per month and in applying the multiplier of 18 and in awarding Rs.43,200/-. The reasons given by the Tribunal are not acceptable to us and it is not possible for us to sustain the same. We, therefore, reject the part of