(Per : HONOURABLE MR.JUSTICE C.L. SONI)
1. This appeal is filed by the injured claimant seeking enhancement in compensation awarded by the Motor Accident Claims Tribunal (Aux.) Gondal Camp at Jetpur passed on 12.1.2011 in MACP No. 1054 of 2000.
2. On 11.8.2000, the appellant and his mother were going on scooter. One truck bearing No. GJ.9.T.6609 dashed with the scooter from behind as a result of which the appellant received severe bodily injuries and his mother died. The appellant therefore preferred Claim Petition No.1054 of 2000 claiming compensation of Rs.15,00,000.00 with costs and interest on account of grievous injuries sustained by him. Separate claim petition No. 1080 of 2000 was preferred claiming compensation for the death of the mother of the appellant. The claims tribunal awarded Rs.7,27,700.00 with 9 per cent interest from the date of the claim petition to the claimant. The claims tribunal also awarded Rs.86,600.00 in the claim petition filed for the death of the mother of the appellant. The appellant is not satisfied with the compensation of Rs.7,27,700.00 awarded by the Claims Tribunal and, therefore, this appeal is filed by the appellant on various grounds.
3. When this appeal was taken up for admission, learned Advocate Mr. Mehul Sharad Shah appeared for the respondent No.2 Insurance Company. The appellant has provided paper book and from the paper book, we find that the appeal could be heard and disposed of finally. We therefore, dispensed with the preparing paper book by the registry. With the consent of the parties, we have heard this appeal finally.
4. Mr.
Sheth, the learned advocate for the appellant has vehemently argued that while counting the future monetary loss, the Claims Tribunal has gravely erred in applying the multiplier of only 5. He submitted that the appellant had received serious injuries and looking to the fact that the appellant has suffered permanent disability to the extent of 52 per cent, the Claims Tribunal ought to have applied the multiplier of 15 considering the age of the appellant at 45 years. He submitted that even if the multiplier of 15 is not given, then also,considering the difficulties being faced by the appellant due to the injuries suffered by him, especially in the teaching work performed by the appellant, the appellant was entitled to the multiplier of 11. He pointed out that since the appellant has suffered 52 per cent permanent disability considering the loss of amenities of life as also the loss of expectation of life to the appellant and considering his future prospects, the claims tribunal has committed gross error in applying the multiplier of only 5.
5. Learned Advocate for the appellant has submitted that the claims tribunal has also committed error in awarding actual loss of income at Rs.30,000.00 only. He submitted that looking to the long duration in the hospital, the appellant was entitled to Rs.1,00,000.00.He pointed out that the appellant had produced sufficient evidence to establish that the appellant had remained on leave without pay. Learned Advocate for the appellant also submitted that the claims tribunal has committed gross error in awarding less amount on pain, shock and suffering. He submitted that the appellant had undergone various operations and because of crush injuries on legs, his legs became ugly and iron bars and screw are fitted in his legs and the appellant had to undergo skin grafting and bone grafting and the appellant was treated as indoor patient for about two and half months and the fact that the appellant is stated to have suffered permanent disability to the extent of 52 per cent, the claims tribunal ought to have awarded at least Rs.3 lakhs on the head of pain, shock and suffering. Learned Advocate Mr. Sheth has relied on the decision in case of Rajendra versus Pradeep Patwari and Others, in Civil Appeal No. 5115 of 2009 dated August 4, 2009 and pointed out that even in the case of injury, where ever permanent disability is there, the multiplier is to be applied looking to the age of injured. He stated that in the above said case, Hon'ble the Supreme Court has granted multiplier of 17 to the claimant who was aged 25 year on the date of accident. He pointed out that in that case also, the appellant had suffered serious injuries in his left hand and right leg and the rods had to be inserted in both limbs and permanent disability suffered by the claimant therein was assessed at 35 per cent. Learned Advocate Mr. Sheth also relied on the judgment of the Hon'ble Supreme Court in case of Raj Kumar versus Ajay Kumar & Another, reported in 2011(1) SCC page 343. Learned advocate for the appellant has relied on judgment in case of Mahendrakumar Manilal Patel and another versus Ramjibhai Dalsibhai Chaudhari and others, reported in 2006(1) GLH 666.
6. As against the above submissions made by the learned advocate Mr. Sheth on behalf of the claimant, learned advocate Mr. Mehul Sharad Shah appearing for respondent No.2 Insurance Company has submitted that in fact, the claims tribunal has awarded amount of compensation more than the entitlement of the appellant. He submitted that the Tribunal committed error in considering disability of 52 per cent for the body as a whole. He also submitted that looking to the age of the appellant and also looking to the injuries suffered by the appellant as well as the settled principles of law as regards compensation to be paid to the injured claimant, the claims tribunal in fact ought not to have awarded the compensation for future loss of income at Rs.2,91,688. He also urged that the claims tribunal has also committed error in awarding actual loss of income by pointing out that the appellant has not suffered any actual loss of income. Learned Advocate Mr. Shah also submitted that the appellant has not suffered any monetary loss and he has continued to function as a teacher and there is no any loss going to be suffered by the appellant in his future income. He also submitted that considering the injuries suffered by the appellant, the amount awarded by the claims tribunal on the head of pain, shock and suffering is also on higher side and there is no need to make any enhancement in such amount. Learned Advocate Mr. Shah also pointed out that this very judgment and award passed by the claims tribunal was challenged by the appellant by filing First Appeal NO.1333 of 2011 and said appeal has been decided and dismissed by the Division Bench on 13.6.2011 wherein the Court has considered the income as also the injuries sustained by the appellant herein. Learned Advocate Mr. Shah also relied on the judgment of the Hon'ble Supreme Court in case of Raj Kumar versus Ajay Kumar & Another, reported in 2011(1) SCC page 343 and pointed out that the Claims Tribunal should not mechanically apply the percentage of permanent physical disability as percentage of economic loss or loss of earning capacity but must assess the functional disability. Learned Advocate Mr. Shah also pointed out that the claims tribunal is under duty to ascertain what activities the the claimant would carry inspite of permanent disability and what he could not do as a result of permanent disability. He, therefore, urged that whenever there is a case of permanent disability, award of loss of future income is not automatic but is on the basis of appreciation of various factors by the claims tribunal. He, therefore, urged that looking to the injuries sustained by the appellant and also looking to the fact that the appellant has been continuously functioning as a teacher, there is no future loss of income suffered by the appellant and therefore, there is no any need to make enhancement in the award passed by the claims tribunal.
7. Having heard the learned counsel for the parties and having perused the record of the case, we find that the compensation awarded to the appellant is just and proper. We are of the view that the appellant is not entitled to any enhancement in compensation awarded by the Claims Tribunal. The appellant claimant is serving as a teacher. Because of the accident, he has suffered following injuries:
(Lt.) lower limb had crushed foot, ankle & Tibia.
(Rt.) lower limb had crushed, ankle & foot with degloving of skin.
(Lt.) Forearm had fracture of radius and ulna.
(Rt.) grain - skin avulsion of 12"x8" bone deep."
The appellant remained in the hospital as indoor patient from 11.8.2000 to 25.9.2000. As per the evidence of the Doctor Dhirajlal Shah at Exh. 34, the appellant was given discharge on 25.9.2000 and was then called for dressing till 20.11.2000 and thereafter on 8.1.2001, iron rods were removed and the appellant was permitted to walk with the help of walker on 12.2.2001 and then on 28.1.2001, iron rod fitted in ulna was removed and when the appellant had again gone for checking on 11.5.2001, minor surgery on foot was performed. The Doctor in his cross examination stated that for injury No.1, permanent disability for whole body would come to 24%. For injury No.2, it would come to 15 per cent and for injury No.3, it would be 5%. Thus, it appears that the permanent disability for whole body comes to 44% and not 52% as claimed by the appellant. The Claims Tribunal has, however, calculated future loss of income by taking 52% as disability for whole body. On such calculation, higher amount to the extent of Rs.44875.00 is already made available to the appellants. Even apart from this, from the evidence, it is found that the appellant is not going to suffer any any future actual loss of income. The appellant was discharged from the hospital after short duration of about one month only and it is not the case of the Doctor that the appellant would not be able to perform his functions as a teacher. In fact, the appellant is functioning as a teacher and there is no dispute about the same, and there is no reduction in his salary, therefore, while granting compensation for future loss of income,in the facts of the case and considering the injuries sustained by the appellant and his continued activity as a teacher, we are of the view that the Claims Tribunal has not committed any error in applying the multiplier of 5.
7. What is to be considered is whether the appellant is awarded just and proper compensation on account of injuries sustained by him. As discussed above, the appellant is duly compensated for future loss of income by applying multiplier of 5. The appellant has already been awarded Rs.3,00,000.00 on account of medical expenses incurred by him. As regards other heads, the applicant is duly compensated and we do not find that any enhancement is necessary in respect of any of the heads under which different compensation is provided by the claims tribunal.
8. We have considered the judgments cited by the learned advocates for both parties.
9. In case of Rajendra versus Pradeep Patwari and Others (supra), it appears that there is no ratio laid down. In absence of facts about future functional activities of the injured claimant, it cannot be applied to the case on hand. . As regards the judgment of the Division Bench of this Court, the claimant was police personnel. The Hon'ble Division Bench of this Court has in para 11 discussed that the the injuries which the claimant suffered due to accident rendered him helpless and crippled for the rest of his life and after long treatment, his left leg below knee is amputed. The injured claimant therein had suffered 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.
Considering such special facts and circumstances of the case, the compensation awarded in the said case was enhanced. It is pertinent to note that both the learned advocates relied on the judgment of the Hon'ble Supreme Court in case of Raj Kumar (supra). In the said judgment, the Hon'ble Supreme Court has laid down the principle relating to awarding of compensation in injury cases. Hon'ble the Supreme Court has ruled that in case of permanent disability, the tribunal has to ascertain the activities the claimant should carry out inspite of permanent disability and what he could not do as a result of permanent disability suffered by him.. The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. Hon'ble the Supreme Court has held that it depends upon the job the claimant was performing prior to the accident and the impact of accident on his future functioning. It may be that in some case there cannot be any loss of future earning on account of injury, still, he may be awarded compensation on account of different factors. Summarizing the principles, Hon'ble the Supreme Court ruled that all injuries or permanent disabilities arising from injuries, do not result in loss of earning capacity. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability. The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. Therefore, the Tribunal should assess the loss of earning capacity on the basis of entire evidence on record. Thus,in each case, the Tribunal has to assess the loss of earning capacity on the basis of the evidence adduced before it. Considering the four injuries sustained by the appellant and his treatment and also considering the fact the Tribunal has already calculated 52% disability for body as a whole instead of 44 per cent disability as per the evidence of the Doctor, we are of the view that the Tribunal has awarded just and proper compensation to the appellant and we do not find any error on the part of the Tribunal in applying the multiplier of 5.
Therefore, this appeal is dismissed. Judgment and award of the Tribunal is confirmed.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas Top