FA/165419/1988 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1654 of 1988 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AMBALAL PARSHOTTAMBHAI KATARIA - Appellant(s) Versus JASHWANTKUMAR CHIMANLAL BHATT & 4 - Defendant(s) ========================================================= Appearance : MR Adil Mirza for Mr. RR MARSHALL for Appellant(s) : 1, None for Defendant(s) : 1 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 08/12/2008 ORAL JUDGMENT 1. Heard learned Advocate Mr. Mirza for Mr. Marshal, learned Advocate for appellant. 2. In this appeal, appellant has challenged award made by claims tribunal, Surat in Claim Petition No. 309/83 dated 18th May, 1984 and has prayed for enhancement of compensation of Rs.46,000.00. FA/165419/1988 2/12 JUDGMENT Total compensation prayed for by claimant was Rs.85000.00 out of which, claims tribunal awarded Rs.39,000.00 with interest thereon at the rate of 6 per cent per annum in favour of claimant. 3. It is necessary to note that from one accident, two claims petitions were filed by respective claimants, one of which was MACP NO. 616 of 1982 and another one is MACP NO. 309 of 1983. This appeal is arising from award made in MACP NO. 309 of 1983. Both claim petitions were decided by common award. Award made in MACP NO. 616 of 1982 was challenged by claimants concerned by filing First Appeal No. 606 of 1982. In First Appeal NO. 606 of 1982 also, appellant claimant was challenging very same common award passed by claims tribunal. In First Appeal No. 606/85, Rs.34,000.00 were awarded by claims tribunal with interest thereon at the rate of 6 per cent per annum. In respect of one accident, two claim petitions were filed by respective claimants claiming compensation from respondents. Insurance Company was exonerated by claims tribunal on the ground that at the time of accident, driver of truck was not possessing valid licence. Claims tribunal has held this negligence of truck driver because truck had dashed with ST Bus from rear side of bus which resulted into injury to certain passengers. 4. Present appellant is driver of ST Bus and employee of ST Corporation who had received serious injury and Rs.85000.00 were claimed which were not allowed but Rs.39000.00 were allowed. Therefore, this enhancement appeal has been filed by claimant. 5. This Court (Coram : Hon'ble Ms.Justice RM Doshit,J.) has decided first appeal no. 606 of 1985 on 15th October, 2007 wherein same contention was raised by claimant that insurance company is liable for payment of compensation as on the date of accident, driver of truck was possessing valid licence. On 3rd September, 1982, driver of ST Corporation was not going as a driver but he was sitting in bus as passenger as he wanted to join duty. His main grievance appears to be this that since he met with an FA/165419/1988 3/12 JUDGMENT unfortunate accident, he is not taken in service and not only that but he has been declared unfit by medical authority and he has also not been absorbed as peon though it has been declared that he is prepared to work as peon in ST Corporation. He has examined Dr. Ajay S. Patel at Exh. 24 who has given his evidence to the effect that now claimant is not able to drive vehicle due to permanent partial disability of right hand. He states that there is no possibility of any improvement of the elbow and the permanent partial disabilityo f that limb is 30 to 35 per cent. When asked by learned Advocate Mr. VV Gandhi to state the percentage of permanent partial disability for the whole body, it was stated by him that permanent partial disability is 15 to 20 per cent and case of present claimant is different than the claimant Kedarnath in another claim petition. It was clearly deposed by him that under the circumstances, his pecuniary loss would be much more than what it looks from the degree of permanent partial disability. It was also his grievance that since the incident, he has not been taken on service and he is not paid salary which come to Rs.14000.00 from the date of accident till the date of his evidence. [His evidence Exh.52 paragraph 2]. Some amount has been reimbursed for medical expenses. 6. In 21, claims tribunal has considered evidence of Dr. Ajaykumar Patel. Therefore, paragraph 21 of award in Claim Petition No. 309 of 1983 is reproduced as under: “21. The other claim is the Claim Petition No. 309 of 1982, preferred by Ambelal Parsottambhai Kataria, the driver of the ST Corporation. At the relevant time and place, he was not acting as driver but he was sitting in the bus as a passenger of it as he wanted to join his duties. He has put a claim of Rs.85000/-. His main grievance appears to be this that since he met with the unfortunate accident, he is not been taken on service and not only that but he has been declared unfit by the FA/165419/1988 4/12 JUDGMENT medical authorities and he has also not been absorbed as a peon though he has declared that he is prepared to work as a peon in the ST Corporation. He has examined Dr.Ajaykumar Sukhdevbhai Patel at Exh. 24, who has given his findings to the effect that now the claimant is not able to drive the vehicle due to the permanent partial disability of his right hand. He states that there is no possibility of any improvement of the elbow and the permanent partial disability for the whole body, he states that the permanent partial disability is 15 to 20 %. The case of this claimant is little different than that of Kedarnath. Kedarnath can do his business and can also employ some person while this claimant Ambelal is not now able to drive the motor vehicle. Under the circumstances, his pecuniary loss would be much more than what it looks from the degree of permanent partial disability. Since the incident, he has not been taken on services and as he says that he is not paid the pay which would come to Rs.14000.00 from the date of incident to the date of his evidence. (His evidence is at Exh.52, paragraph 2). He also states that even the corporation has reimbursed some amount of the medical expenses incurred by him. As per the deposition of Dr. Ajaykumar Patel, following findings were reflected:- Injuries : 1. Fracture of shaft humerus right. 2. Compound comminuted fractures of elbow joint with a stitched wount on post aspect of elbow right and a raw area on post lateral aspect and right elbow with two pins projecting in wounds used for fixing the fragment. 3. Multiple small superficial x deep wounds. FA/165419/1988 5/12 JUDGMENT Treatment : He was treated by regular dressing on row areas, the pins were removed as they became loose, on 17.9.82. The raw area was covered by skin grafting. On 27.9.82 fracture of humerus right was fixed with a plat x bone grafting was done. Grafting were taken from left tibia. He was post operatively treated by regular dressings and plaster slab. He was discharged on 10.11.82. On examination today, he complains of pain in right upper arm and restricted more nerves and elbow right joint. There is healed scar on operation on right upper arm. Healed scar over elbow region. Posteriorly and postero laterally at places covered with skin grafting. Movements of elbow. 40 to 50 of fixed flexion detering and flexion possible 100. Supiration and pronation is free. Inability to make a flist and hand due to restriction of last 20 on flexion at PIP joints and finger. Sensation and pulsation in hands are normal. There is pain and tenderness around huvexeral fraction. X Ray taken on 9.4.84. FA/165419/1988 6/12 JUDGMENT (1) Shan are united fracture of humerous. (2) Disorganized joints C non union of lat condule mal union and capitularn absence on corronoid prosess of ulna. The disability is 30 % to 35% of his right upper limb.” 7. Considering the injuries sufered by claimant as deposed by Orthopaedic Surgeon Dr. Patel, claims triubunal considered that the claimant can work as a peon and he can also do some other work but he would not be able to drive heavy vehicle of ST Corporation and earn Rs.700.00 per month as he was earning and held that he is entitled for Rs.12000.00 for pain, shock and suffering etc. Claims tribunal also awarded Rs.200.00 over and that per month, therefore, annually Rs.2400/- and applying multiplier of 10, awarded Rs.24000.00 by adding Rs.3000.00 towards medical, conveyance and attendance charges as discussed by claims tribunal in para 22 of award which is quoted as under: “22. He has been declared unfit to drive any kind of vehicle by the civil surgeon and Superintendent, Old Civil Hospital, Surat, vide certificate Exh. 62 dated 9.11.83. After the receipt of the said certificate, it appears that the ST Corporation was contemplating to employ him as a peon or a helper and a specific letter was written to the Civil Surgeon, Surat and that letter is dated 11.11.83 and is also on record at mark 23/20. This would show that the Corporation contemplates to engage him as a peon provided that he is medically found fit to work as a peon. Looking to his injuries as deposed to by the orthopaedic surgeon Dr. Patel, I think that the claimant can work as a peon.He can also do some other work.But then, he would not be now able to drive heavy vehicle of ST Corporation and earn Rs.700/- per month as he was earning. Considering the injuries on the person of the claimant, he should be awarded Rs.12000/- for the pain, shock and suffering etc. of the injuries. Over and above this, he should be paid Rs.200/- per month. Calculated at the rate and FA/165419/1988 7/12 JUDGMENT applying 10 years of multiplier, it would come to Rs.24000/-. Over and above this, the claimant would also be entitled to Rs.3,000/- for the medical conveyance and attendance charges. It is true that he has received the reimbursement from the ST Corporation. But as stated by him, he has not been given the full reimbursement. I, therefore, find that this claimant of claim petition no. 309 of 1983 should be awarded Rs.39,000.00 in all. ” 8. Claims Tribunal has not properly appreciated question of quantum. Driver had become totally unfit and was not able to work as a driver and offer was made by corporation to work as a peon but actually he was not taken up for such work of peon by corporation. Claims Tribunal has considered letter dated 11th November, 1983 mark 23/20 but claims tribunal has committed gross error in not considering that permanent disability, not to work as a driver, as certified by Doctor amounts to incapacity to earning capacity which has resulted into loss of salary to appellant claimant. Therefore, according to my opinion, claims tribunal ought to have considered salary of Rs.700.00 being hundred per cent disability, incapacity of earning capacity and accordingly, claims tribunal ought to have worked out figure of compensation. Salary for the post of driver and salary for the post of peon are having difference. One is higher category and the another is having lower category. However, one fact is very much clear that the appellant would now not be able to drive heavy vehicle of ST Corporation and earn Rs.700 per month which he was doing prior to accident, therefore, it is a total loss caused to driver. 9. Recently, this aspect has been examined by apex court in K. JANARTHAN VERSUS UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER reported in (2008) 8 SCC page 518. Relevant discussion made by apex court while examining said aspect is reproduced as under: “4. An appeal was thereafter taken to the High Court by the Insurance Company - respondent. The High Court accepted the plea raised in appeal that as per the FA/165419/1988 8/12 JUDGMENT Schedule to the Workmen's Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this court. 5. The learned counsel for the appellant has raised only one argument during the course of the hearing . He has submitted that the claimant - appellant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1) (e) of the Workmen's Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo vs. Srinivas Sabata & Anr. (1976) 1 SCC 289. The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: “5. The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows: "(1) `total disablement' means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: FA/165419/1988 9/12 JUDGMENT "The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only." This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established.” 6. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.” 10.In aforesaid decision of apex court, appellant was a tanker driver whose one leg was amputated. Therefore, he was disqualified to get licence for heavy vehicle and also not able to work as driver. Apex court has considered as permanent disability instead of 50 per cent but 100 per cent incapacity to earning capacity, therefore, accordingly, in this case also, appellant is entitled for enhancement because of 100 per cent disability. Therefore, instead of Rs.200.00 as has been taken by claims tribunal, considering it at Rs.400.00 p.m., annual figure would be FA/165419/1988 10/12 JUDGMENT Rs.4800.00 and then applying multiplier of 10 as applied by claims tribunal, it would come to Rs. 48000.00. Amount of Rs.12000.00 awarded by claims tribunal on the head of pain, shock and suffering is on lower side and same is also required to be enhanced to Rs.20,000.00 and actual loss caused to appellant in salary from the date of accident till date of receiving appointment for the post of peon comes to Rs.14000.00 plus Rs.3000.00 towards medical conveyance and attendance charges, therefore, in all, figure comes to Rs.85,000.00. Therefore, considering salary of Rs.700.00 per month, Rs.20,000.00 being pain shock and suffering looking to serious injury suffered by appellant and Rs.400.00 being loss caused to appellant for disability, after applying multiplier of 10, total figure for which appellant is entitled comes to Rs.85,000.00 and, therefore, according to my opinion, appellant is entitled for enhancement of Rs.46,000.00 in this award with interest thereon at the rate of 6 per cent from the date of application. 11.Finding given by Coordinate Bench of this Court in respect of liability of insurance company in First Appeal No. 606 of 1985 dated 15th October, 2007 are reproduced as under: “ As to the liability of the insurance company, it is not disputed that at the relevant time, the driver of the offending truck did possess a valid license for heavy goods vehicle. The relevant portion of the insurance policy read as under :- “Any of the following :- [1] The insured; [2] Any other person provided he is in the insured's employ and is driving on the insured's order or with his permission. Provided that the person driving holds a valid driving license at the time of the accident or had held a permanent driving license [other than a learner's license] and is not disqualified from holding or obtaining such a license.” FA/165419/1988 11/12 JUDGMENT It shall be noted that the said term did not specify the type of license i.e, the license to drive “heavy goods vehicle” or “transport vehicle”. The “transport vehicle” is defined in clause 33 of Section 2 of the Act to mean, “a public service vehicle or a goods vehicle.” “Public Service Vehicle” is defined in clause 25 of Section 2 of the Act to mean, “any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage.” “Goods vehicle” is defined in clause 8 of the said Section 2 to mean, “any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers”. “Heavy goods vehicle” has been defined in clause 9 of Section 2 of the Act to mean, “any goods vehicle the registered laden weight of which or a tractor the unladen weight of which, exceeds 11,000 kilo grams.” Considering the aforesaid definitions, I am of the opinion that any “goods vehicle”, “heavy goods vehicle” or “public service vehicle” can be commonly called as “transport vehicle”. In other words, the heavy goods vehicle is not different from a transport vehicle. Any person possessing a driving license for a transport vehicle can be said to hold a valid license to drive either a goods vehicle or a public service vehicle. The offending truck was necessarily a heavy goods vehicle within the meaning of clause 9 of Section 2 of the Act. The driver of the offending truck thus possessed a valid license to drive the offending truck. In my opinion, the Tribunal has erred in distinguishing the “transport vehicle” from a “heavy goods vehicle” without considering the above referred statutory definitions appearing in the Act. The Tribunal has thus erred in absolving the Insurance Company from its liability in respect of the compensation awarded to the claimant.” 12. Therefore, in view of the above, this appeal is allowed with costs. Appellant do recover FA/165419/1988 12/12 JUDGMENT enhanced compensation in the sum of Rs.46000.00 from opponents no.2,3 and 4 jointly and severally. Award in respect of interest is confirmed. Award made by claims tribunal is accordingly modified with no order as to costs. (H.K. Rathod,J.) Vyas