Gujarat High Court
Shobhanaben Girishchandra Thakkar vs Ajitsingh Jaiswal Rajput C/O Surendra ... on 9 May, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/2276/1994 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2276 of 1994
With
FIRST APPEAL NO. 2278 of 1994
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SHOBHANABEN GIRISHCHANDRA THAKKAR....Appellant(s)
Versus
AJITSINGH JAISWAL RAJPUT C/O SURENDRA SHANTILAL PATEL &
2....Defendant(s)
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Appearance:
MR SUNIL K SHAH, ADVOCATE for the Appellant(s) No. 1
MR SUNIL B PARIKH, ADVOCATE for the Defendant(s) No. 1 - 3
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 09/05/2014
COMMON ORAL ORDER
1. Both these appeals arise out of the common judgment and award dated 26th April, 1994 passed by the Motor Accident Claims Tribunal No.2 (Auxiliary), Ahmedabad (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.146 of 1990. First Appeal No.2278 of 1994 has been filed by the Shobhnaben Girishchandra Thakkar, original claimant (hereinafter referred to as the claimant), whereas First Appeal No.2276 of 1994 has been filed by the owner, driver and the insurance company of the offending vehicle being Truck No.RRE-3911.
2. The facts giving rise to the present appeals are that, the claimant at the relevant time was serving as a Pre-Primary Page 1 of 31 C/FA/2276/1994 ORDER School Teacher in a pre-primary at Ranipur village school run by the Ahmedabad District Welfare Association and her school timings were from 10:30 in the morning to 4:00 o'clock in the evening. On 11th July, 1990, after school hours, as usual the claimant had set out on foot. When she reached the Narol Cross Roads, she was walking near the railing of the traffic island towards the road going to Naroda for the purpose of catching a bus, at that time the original opponent No.1, who was driving truck-trailer bearing No.RRE-3911 with a great speed and in a rash and negligent manner so as to endanger human life in disregard of the traffic rules and pressed the driver side of the truck trailer on the right near the railing of the circle and dashed against the claimant as a result whereof she fell on the railing of the circle as a result whereof she sustained injuries on both her legs. On account of the accident, the claimant sustained eight fractures and as per the preliminary opinion of the doctors she would be required to remain bed ridden for a period of six months. The claimant had to undergo medical treatment for a considerable period as an indoor patient and was operated upon ten times and was completely confined to bed for about ten months. It was the case of the claimant that at the time of the accident, she was earning a monthly salary of Rs.310/- and also used to earn Rs.300/- per month by doing tuitions. It was further the case of the claimant that she was working as a class teacher in a pre- primary school situated at Vatva from 6.8.1885. Subsequently, vide notification dated 5.11.1985, the area of Vatva came to be merged with the Municipal Corporation and all the schools which were run by private institutions came to be taken over by the Municipal Corporation and the staff of the schools came to be merged with the staff of the Municipal Corporation.
Page 2 of 31 C/FA/2276/1994 ORDERAccording to the claimant, she was eligible to be taken up as a staff member with the Municipal Corporation. However, by an oral order dated 7.12.1985, the claimant's services were terminated. The claimant challenged her termination by instituting a civil suit in the City Civil Court at Ahmedabad seeking a decree to the effect that she was entitled to get back-wages and pay scales on a par with the other staff in the Municipal Corporation and was eligible for being absorbed as a staff member of the Corporation. In the said proceedings there was a settlement between the parties and by a consent decree dated 8.12.1985 it was declared that with effect from 23.2.1986 the eastern areas of Ahmedabad having been merged with the Ahmedabad Municipal Corporation all the pre- primary teachers working with the Ahmedabad District Social Welfare Association should be taken in service with the Ahmedabad Municipal Corporation School Board and the parties would be entitled to the benefit of any decision that may be taken by the High Court in the writ petition No.2262/86 filed by Ranjanben Patel and others for absorbing the pre-primary teachers employed by the Ahmedabad District Welfare Association in the service of the of the Ahmedabad Municipal School Board. Thereafter, the claimant filed Civil Application No.149/90 for being joined as a party in the above writ petition which came to be allowed and accordingly the claimant became a party in Writ Petition No.2262 of 1986. Since the Ahmedabad Municipal Corporation was not a party in the said petition, a civil application came to be filed for joining it as a party, which came to be rejected by an order dated 20.6.1990 with an observation that for the purpose of bringing the Municipal Corporation on record they should file a separate writ petition. She has accordingly instructed her Page 3 of 31 C/FA/2276/1994 ORDER advocate to file a fresh writ petition, however, in the meanwhile she met with the accident and was bedridden and could not immediately file a writ petition. However, Writ Petition No.2262/86 came to be admitted by an order dated 12.10.1990 and is pending hearing and is likely to be heard finally in a short time. If the writ petition is allowed the claimant would be entitled to a salary in the scale of Rs.1200- 2040/- with other benefits like dearness allowance, house rent allowance, city allowance, medical allowance, etc. and as on the date of the accident she would be entitled to a salary of Rs.2700/ per month and by the time the matter is heard finally, her salary would be Rs.3000/- per month. However, as the claimant was unable to attend her job due to the accident, the Ahmedabad District Welfare Association, vide its notice dated 5.4.1991, terminated her services after giving her one month's pay. According to the claimant, she suffered 100% loss of her pay, that is, Rs.3,000/- per month which comes to Rs.36,000/- per annum and her remaining service was for 26 years. Hence, applying a multiplier of 26, she suffered loss of income of Rs.9,36,000/-. That her right to get other service benefits would also be lost. Accordingly, the claimant claimed Rs.10,00,000/- for the loss of future benefit, though the total economic loss came to Rs.10,36,000/-. The claimant also claimed Rs.38,700/- under the head of past economic loss, Rs.1,00,000/- under the head of pain, shock and suffering, Rs.10,000/- for transportation charges, Rs. 15,000/- for special diet, Rs.5,400/- for expenses for two persons who attended to her, Rs.10,000/- for providing tea etc. to close relatives who visited them in the hospital, Rs.46,800/- for future expenses for maid, Rs.2400/- for cooking charges, Rs.40,000/- for expenses towards medical charges, implant, consultation charges etc. Page 4 of 31 C/FA/2276/1994 ORDER According to the claimant, the total claim came to Rs.13,18,900/-. However, she restricted her claim to Rs.12,71,000/-. It appears that originally, the claim was Rs.90,000/. However, subsequently, pursuant to the orders passed by the High Court, the claim came to be amended.
3. The Tribunal, after appreciating the evidence on record, came to the conclusion that the accident had occurred on account of the rash and negligent driving on the part of the driver of the offending vehicle. On the question of quantum, the Tribunal observed that the age of the claimant was 32 years. As per the claimant at the time of the accident, her salary was Rs.310/- per month and she was earning Rs.300/- per month by doing tuitions. The Tribunal took note of the fact that no documentary evidence had been produced to show that the claimant was earning Rs.300/- by giving tuitions. The Tribunal, however, noted that her statement on oath had gone unchallenged and, accordingly assessed her income to be between Rs.300/- to Rs.600/- per month. On the question of the injuries sustained by the claimant, the Tribunal took note of the fact that according to the Dr. Bipinbhai Shah, the disability of the claimant comes to 54.77%, but it should be 54.02% of the body as a whole. The Tribunal, on the basis of the deposition of Dr. Bipinbhai Shah and the documents proved by him, found that the claimant had been operated four times and the total hospitalization came to about 116 days and that for about one and a half years approximately, the claimant was confined to bed and was unable to follow the normal pursuits of life.
4. As regards the claim of Rs.1,00,000/- towards pain, shock Page 5 of 31 C/FA/2276/1994 ORDER and suffering and loss of amenities, the Tribunal referred to the decisions of this court in the case of Bharat Premjibhai v. Municipal Corporation, Ahmedabad and others, 1979 ACJ 264, Amul Ramchandra Gandhi v. Abbasbhai Kasambhai Diwan, 1979 ACJ 460 and A.S. Rajara @ Raja Vashyam v. Jotaram Rawabhai Patel and another, 1982 ACJ (Supp.) 1 as well as the decision of the Supreme Court in the case of General Manager. Kerala State Road Transport Corporation, Trivandrum v. Mrs. Sushama Thomas and others and the decision of this court in the case of Union of India and another v. V. Ashvathanarayan, 1993 (1) GLH 1044, and considering the long period of hospitalization and the operations undergone and ultimate disability incurred by the claimant, awarded Rs.35,000/- under the head of pain, shock and suffering and loss of amenities. Based on the documentary evidence produced by the claimant, the Tribunal awarded Rs.36,100/- under the head medicines, medical charges, crutches, commode etc. Against the claim of the claimant for Rs.31,655/- for loss of salary and payment to maid servant, the Tribunal awarded Rs.16,400/-. Towards expenses incurred for food and tea for attendants as well as visitors, instead of Rs.10,000/- as claimed by the claimant, the Tribunal awarded Rs.2000/-. Under the head of special diet, the Tribunal awarded Rs.5,000/- instead of Rs.15,000/- as claimed by the claimant and Rs.3,000/- towards conveyance charges instead of Rs10,000/- as claimed by the claimant.
5. On the question of actual loss, the Tribunal counted the period from the date of the accident till the date of recording of the evidence, which was two years four months and nine days, and considered the same to be, two years and six Page 6 of 31 C/FA/2276/1994 ORDER months. The Tribunal noted that at the time of the accident, the salary of the claimant was Rs.310/- per month. The Tribunal noted that as per the resolution exhibit-162, from 1.4.1991, the pay scale of trained teachers was fixed at 750 and for untrained teachers at Rs.600/- (lump-sum per month). Since there was nothing on record to show that the claimant was a trained teacher, the Tribunal took the monthly income of the claimant at Rs.600 per month. The Tribunal, accordingly, calculated the actual loss of income at Rs.310/- per month for a period of nine months from 11.7.1990 to 31.3.1991 and, thereafter at the rate of Rs.600/- per month from 1.4.1991 to 19.11.1992, that is, for a period of 21 months and computed total actual loss of income at Rs.15,000/-.
6. On the question of future loss of income, on behalf of the claimant, it was contended that her disability should be considered as 100% qua her earning capacity and, accordingly, her annual loss of income should be taken at Rs.37,000/- and a multiplier of 26 should be applied. The Tribunal, however, was of the view that the disability has to be taken at 50%, 54% or 40% as may be stated by the doctor. The Tribunal considered the income of the claimant at Rs.600/- per month in terms of the resolution and considered the future monthly income at Rs.900/- and, thereafter, assessed it at Rs.1,000/- per month and considering the disability at 50% instead of 54%, computed the monthly loss of income at Rs.500/- and Rs.6000/- per annum. The Tribunal applied a multiplier of 15 and, accordingly, computed the future loss of income at Rs.90,000/-. Considering the fact that even after her retirement, the claimant would have been in a position to get a job for the future years, the Tribunal assessed the future loss Page 7 of 31 C/FA/2276/1994 ORDER of income at Rs.1,00,000/-. The Tribunal, accordingly, awarded the following compensation:
(a) Rs.35,000 For pain, shock suffering and loss of amenities of life
(b) Rs.36,100 For medicines, medical charges, purchase of crutches and commode.
(c ) Rs.16,400 For loss of leave-salaries to the relatives of the appellant and payments to servants.
(d) Rs.15,000 For actual loss of income
(e) Rs.3,000 For conveyance-charges.
(f) Rs.5,000 For special diet.
(g) Rs.2,000 For attendant-charges.
(h) Rs.1,00,000 For future loss and prospective-loss.
Rs.2,52,500/- Total compensation
7. Being aggrieved, both, the claimant as well as the owner, driver and insurance company are in appeal.
8. Ms. Sushma Shah, learned advocate for the appellant- claimant in First Appeal No.2276 of 1994 vehemently assailed the impugned award by submitting that the Tribunal has failed to appreciate the evidence on record in proper perspective and has, accordingly, erred in computing the future loss of income as well as actual loss of income of the claimant. It was submitted that the Tribunal having accepted the pay scale in terms of the Government Resolution, erred in fixing the pay scale of the claimant at Rs.600/- by considering her to be an untrained teacher whereas the claimant was in fact a trained Page 8 of 31 C/FA/2276/1994 ORDER teacher and, therefore, the income should have been considered at the rate of Rs.715/- per month. It was submitted that the Tribunal has failed to consider the fact that the claimant had all chances of becoming an employee of the Ahmedabad School Board and would have been entitled to other allowances and revision of pay scale as per the staff of the Ahmedabad Municipal School Board which is now not available to her on account of termination of her services. Therefore, the Tribunal ought to have considered the monthly income of the claimant at Rs.3000- and her prospective income at Rs.4000/- per month. It was submitted that the Tribunal further erred in applying a multiplier of 15 whereas in terms of the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, 2009 (6) SCC 121, having regard to the fact that the age of the claimant was 32 years at the relevant time, a multiplier of 16 ought to have been applied.
8.1 It was submitted that not only has the Tribunal considered the salary of the claimant at Rs.600/- per month, the Tribunal also did not consider the functional disability of the claimant at 100% and instead reduced the percentage of disability from 54% as certified by the doctor, to 50%, for the purpose of computing the future loss of income. It was submitted that having regard to the nature of the injuries suffered by the claimant, she was not in a position to work as a teacher or to gain any employment in future and, hence, she had suffered from 100% functional disability insofar as her earning capacity is concerned. It was, accordingly, urged that the disability of the claimant should be considered at 100% and not 50% as has been done by the Tribunal. In support of Page 9 of 31 C/FA/2276/1994 ORDER such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Rekha Jain v. National Insurance Company Limited, 2013 (8) SCC 389, wherein the District Medical Board had issued a certificate to the appellant therein certifying that she was suffering from 30% permanent disability. However, the Supreme Court treated the permanent disability at 100% functional disability as the appellant therein who as an actress was no longer able to act in films and in T.V. serials in future.
8.2 It was further submitted that on account of the injuries sustained by her, the claimant was not able to pursue her normal pursuits in life and was not able to lead a normal life as one of her legs was shortened and she had to walk with a limp. Moreover, she cannot sit cross-legged nor can she squat and she cannot walk long distances or stand for a long period. Therefore, the claimant ought to have been awarded a sum of Rs.2,00,000/- towards permanent physical disablement. In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of K. Suresh v. New India Assurance Co. Ltd., 2012 ACJ 2694, wherein the Tribunal had awarded Rs.3,00,000/- towards permanent disablement whereas the appellate court disallowed the compensation for permanent disablement. The Supreme Court held that the grant of compensation towards permanent disability is permissible in law and, accordingly, granted Rs. 2,50,000/- towards permanent disability.
8.3 It was further submitted that the claimant had been hospitalized for 110 days and, therefore, the amount of Rs.35,000/- awarded under the consolidated head of pain, Page 10 of 31 C/FA/2276/1994 ORDER shock and suffering and loss of amenities far too meagre and that in terms of above decisions of the Supreme Court in the case of Rekha Jain as well as K. Suresh (supra), an amount of Rs.2,00,000/- ought to have been awarded under this head. Reliance was placed upon the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar, 2011 (1) SCC 343, wherein certain principles have been laid down with regard to the ascertainment of the effect of permanent disability on the actual earning capacity of a victim. It was submitted that applying a principles enunciated in the above decision, the claimant is totally disabled from earning any kind of livelihood and, therefore, also the compensation should have been computed by treating the loss of future earning capacity at 100%. It was, accordingly, submitted that under the heads of actual loss of income, future loss of income, pain shock and suffering, permanent disability and loss of amenities, the amounts awarded by the Tribunal are not in consonance with the principles laid down by the Supreme Court in the above decisions as well as the evidence on record and, as such, the impugned award is required to be modified and the compensation is required to be enhanced as claimed by the claimant.
8.4 Reliance was placed upon the decision of a Division Bench of this court in the case of Union of India and another v. Ashwathanarayan S. Sharma, 1993 (1) GLH 1044, for the proposition that in case of personal injuries, the assessment of the damages must consider also the restriction of future earning capacity. The loss of chance of better employment or prospects should also be examined and assessed. In order to quantify the damages and to award the Page 11 of 31 C/FA/2276/1994 ORDER just and reasonable amount of compensation, the effect on the bodily integrity assumes greater role. It is incumbent upon the court to consider as to whether any deprivation, impairment or loss is occasioned on account of the injuries arising out of the use of the vehicle and, if yes, whether it is temporary or permanent and further, if permanent, whether it is total or partial. The impairment of the body as a whole must be considered and its resultant impact on the earning capacity so as to award just and reasonable compensation.
8.5 It may be noted that in the memorandum of appeal, the impugned award has been challenged on as many as 98 grounds, however, the learned advocate has limited her submissions to the claims referred to hereinabove.
9. Opposing the appeal, Mr. Sunil Parikh, learned advocate appearing on behalf of the opponents in First Appeal No.2276 of 1994 and on behalf of the appellants in First Appeal No.2278 of 1994 submitted that on the contrary, the Tribunal has awarded a higher amount of compensation than the entitlement of the claimant and, as such, the appeal preferred by the claimant deserves to be dismissed and the appeal preferred by the original opponents deserves to be allowed by reducing the awarded amount. It was submitted that in terms of the decision of the Supreme Court in the case of Sarla Verma (supra), the actual income on the date of the accident is required to be taken into consideration and for the purpose of computing the prospective income, half of the income is required to be added, whereas in the facts of the present case, the Tribunal has considered the income of the claimant at Rs.600/- per month on the basis of a subsequent G.R. of the Page 12 of 31 C/FA/2276/1994 ORDER Government and, thereafter, computed the prospective income at Rs.900-/ and then considered the monthly income at Rs.1000/-. It was submitted that, therefore, evidently, the monthly income of the claimant has been assessed at a higher rate. As regards the claim of the claimant that her income ought to have been considered on the basis of the pay scales of the employees of the Ahmedabad Municipal Board, the learned counsel invited the attention of the court to the observations of the Supreme Court in the case of Sarla Verma (supra), wherein the it has been observed that the submission of the appellants therein that the actual future pay revision should be taken into account for the purpose of calculating the income was not sound. The court was of the view that, as against the contention of the appellants therein, that if the deceased had been alive, he would have earned the benefit of revision pay scale, it was equally possible that if he had not died in the accident, he might have died on account of ill- health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of the accident. The court observed that in that case, the accident occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades was a fortuitous circumstance and that would not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. The court was of the view that if the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-1990, then Page 13 of 31 C/FA/2276/1994 ORDER obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in scales. The court, accordingly, rejected the contention that revision in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation. Mr. Parikh submitted that the income of the claimant at the time of the accident was Rs.300/- per month and, therefore, the Tribunal ought to have applied the said pay scale and not any future pay revision. It was, accordingly, submitted that even the pay scale of 600/- as adopted by the Tribunal is not in consonance with the law laid down by the Supreme Court in the case of Sarla Verma (supra).
9.1 Insofar as the compensation awarded under the head of pain, shock and suffering, Mr. Parikh placed reliance upon the decision of a Division Bench of this court in the case of Popatlal Parshottamdas Shah v. Gujarat State Road Transport Corporation, Ahmedabad, 1982 (1) GLR 765, wherein the court took note of a number of cases that had been decided by this court wherein damages had been awarded to claimants in varying age groups for pain, shock and suffering and loss of amenities and enjoyment of life on account of disability resulting from accident injury on one or two legs. The court was of the view that the said decisions provide a professional guide and indicate the bracket of damages into which the case before it might fall. A brief summary of the awards made in those cases is set out in a tabular form below paragraph-50 thereof. Referring to the table, the learned counsel pointed out that under the head pain, shock and suffering and loss of amenities, the highest Page 14 of 31 C/FA/2276/1994 ORDER amount awarded is Rs.35,000/- in the case of a victim whose legs were amputated above the knee and he was completely crippled. It was submitted that when in case of amputation of both the legs, this court has awarded Rs.35,000/- under the head of pain, shock and suffering and loss of amenities, it can by no stretch of imagination be stated that Rs.35,000/- awarded to the claimant who had suffered only fractures, is meagre. It was pointed out that in the facts of the said case, the claimant had been hospitalized for about six and a half months and was confined to bed for long months which was followed by a prolonged period of walking with crutches and later on with the aid of a stick. The pain persisted for almost the whole of the period till the trial and the medical opinion about his condition at the relevant time showed that he was unable to sit cross-legged or squat. The condition was incapable of any improvement. Taking into consideration all these factors, the court awarded Rs.15,000/- under the head pain, shock and suffering in relation to an accident which had taken place in the year 1973. It was, accordingly, urged that no case has been made out for enhancement of the compensation under the head of pain, shock and suffering or any other head and that on the contrary, the compensation under the heads of actual loss of income and future loss of income deserves to be reduced.
10. In the backdrop of the facts and contentions noted hereinabove, it is apparent that the impugned award has been challenged only on the question of the quantum of compensation awarded by the Tribunal. Insofar as the negligence and liability is concerned, there is no challenge to the same. On behalf of the claimant, it has been contended Page 15 of 31 C/FA/2276/1994 ORDER that the monthly income ought to have been taken at Rs.3000/- per month on the basis of the subsequent salaries of the staff of the Ahmedabad Education Board, whereas it is the case of the opponent that the monthly income as assessed by the Tribunal is on the higher side, inasmuch as, there is no evidence to show that the claimant was earning Rs.600 per month at the relevant time. Besides, having considered the monthly income to be 600/-, there was no reason for awarding prospective income at the rate of Rs.1000/- when even in terms of the decision of the Supreme Court in the case of Sarla Verma (supra) only one half of the income could have been added for the purpose of arriving at the future prospective income.
11. Insofar as the claim of the claimant that her future loss of income ought to have been computed by considering her salary at Rs.3000/-, based upon the pay scales of the staff of the Ahmedabad Education Board is concerned, as rightly submitted by the learned advocate for the original opponents, in the light of the principles enunciated by the Supreme Court in the case of Sarla Verma (supra), the claimant could not rely upon the pay scale which was in force at the relevant time when the accident took place and the revision of pay scale subsequent to the accident before the final hearing could not have taken into consideration for the purpose of determining the income for calculating the compensation. However, as noticed hereinabove, it was the case of the claimant that she was earning Rs.310 per month by way of salary as a pre- primary teacher and Rs.300/- by doing tuitions. The Tribunal has observed that though no documentary evidence had been produced by her in support of her say, her statement on oath Page 16 of 31 C/FA/2276/1994 ORDER had remained unchallenged and, therefore, was required to be accepted and, accordingly, was of the view that her average income was between Rs.300/- to 600/- per month. In view of the fact that the claimant had not joined service after the accident, the Tribunal for the purpose of computing the actual loss of income of the claimant, took into consideration the period from the date of the accident till the time the claimant's deposition came to be recorded by the court, viz. two years, four months and nine days and rounded it off to two years and six months. The Tribunal considered the monthly income of the claimant at Rs.310/- for the period 11.7.1990 to 31.3.1991 and, thereafter, at the rate of Rs.600/- per month from 1.4.1991 to 19.11.1992 based upon the Government Resolution (Exhibit-
162) whereby with effect from 1.4.1991, the pay scales of trained teachers was fixed at Rs.750/- per month and for untrained teachers at Rs.600/- per month, and computed the actual loss of income at Rs.15,000/-. It is the case of the claimant that she was a trained teacher and was, therefore entitled to a salary of Rs.750/- per month. However, the claimant has not adduced any evidence in support of her case that she was a trained teacher. Under the circumstances, no infirmity can be found in the approach adopted by the Tribunal in considering her to be an untrained teacher.
12. It is further the case of the claimant that she had very good chances of being absorbed as a pre-primary school teacher in the set up of the Ahmedabad Municipal School Board and had all chances of getting a monthly salary of Rs.3000/- and maximum salary of Rs.4000/- per month. The claimant has also claimed benefits like gratuity, pension etc. on the basis of such pay scale. In this regard, it may be noted Page 17 of 31 C/FA/2276/1994 ORDER that at the time of the accident, the appellant was serving as a pre-primary school teacher in a pre-primary School at village Ranipur. The claimant, at the relevant time was not an employee of the Ahmedabad Municipal School Board. Subsequently, the claimant's services had been terminated along with others, however, thereafter, in the civil suit instituted by the claimant and similarly situated persons, a compromise was arrived at and a consent decree came to be passed on 8.12.1988 and the claimant was taken back in service. While she was working as a pre-primary teacher and earning a salary of Rs.310 per month that the claimant met with the accident. As noted hereinabove, the claimant and other similarly situated persons had filed a writ petition before this court claiming the benefits available to pre-primary teachers employed by the Ahmedabad Municipal School Board. It was the case of the claimant that in case she succeeds in the writ petition, she would get the benefit of the pay scale of Rs.1200-2040 with effect from 23.2.1986. It is on this basis that she has claimed that her monthly salary should be considered at Rs.3,000/- per month. In the opinion of this court, at the relevant time when the claim petition came to be decided by the Tribunal, the writ petition filed by the claimant was still pending before this court. Therefore, as to whether or not the claimant would be entitled to a salary of Rs.3,000/- per month was merely a contingent event, which may or may not have materialized. The Tribunal while assessing the income of the claimant is required to decide the same on the basis of proved facts and not on conjunctures and surmises or on the basis of some contingent event which may or may not take place at a future date. On behalf of the claimant, the learned counsel has placed reliance upon the decision of the Supreme Page 18 of 31 C/FA/2276/1994 ORDER Court in the case of Hardeo Kaur v. Rajasthan State Transport Corporation, AIR 1992 SC 1261, wherein the court has observed that the Tribunal became oblivious of the fact that there is a time bound consideration for promotion in the Army. Apart from that there have been upward revisions in the pay-scales of Army personnel. However, on a close reading of the said decision, the Supreme Court ultimately does not appear to have considered the pay revision while assessing the income of the deceased. Moreover, in the said case the deceased was an officer in the Army and would have been entitled to the upward revisions in the pay scales. Whereas, the claimant was not employed as a pre-primary teacher by the Ahmedabad Municipal School Board, and hence, her claim for the pay-scale and other benefits available to pre-primary school teachers of the Board was based on a mere contingent event, namely, in case she succeeded in the writ petition filed before the High Court. Such an event was not a certain event and may or may not have materialized in the future. Under the circumstances, no infirmity can be found in the approach adopted by the Tribunal in not assessing the income of the claimant on the basis of what she might have earned had she succeeded in the writ petition.
13. As noticed earlier, the Tribunal has assessed the monthly income of the claimant on the basis of a Government Resolution dated 1.4.1991 of the Government of Gujarat Education Board, whereby the ad-hoc pay scale of Rs.600/- was fixed for untrained teachers and Rs.750/- was fixed for trained teachers. The said resolution is also subsequent to the occurrence of the accident. The Tribunal has assessed the monthly income of the claimant on the basis that she was an Page 19 of 31 C/FA/2276/1994 ORDER untrained teacher and has fixed her monthly salary at Rs.600/-. While it is true that for the purpose of computing the future loss of income, the income of the victim as on the date of accident is required to be taken into consideration. In the facts of the present case though the Tribunal has assessed the income of the claimant at Rs.600/- on the basis of a subsequent Government Resolution of 1991, this court would not find any necessity for interfering therewith in view of the fact that in the impugned award, the Tribunal has noted that it was the case of the claimant that she was earning 310/- per month by way of salary as a pre-primary teacher and that she was earning Rs.300/- by way of tuitions which had not been dislodged by the opponents therein. Therefore, the assessment of the income of the claimant at Rs.600/- per month appears to be just and proper. Insofar as the claim of Rs.750/- per month as a trained teacher is concerned, in the absence of any evidence having been brought on record before the Tribunal to show that the claimant was in fact a trained teacher, the Tribunal was justified in assessing the income on the basis that she was an untrained teacher. It appears that the claimant has filed an application for bringing additional evidence on record in the present application which is by way of a certificate of S.S.C. Examination of the Gujarat Secondary Board as well as a certificate of pre-primary teacher's examination issued by the State Board of Examination, Ahmedabad to the claimant. In the opinion of this court, only on the basis of the aforesaid certificate, it is not possible for this court to render a finding one way or other as to whether or not the claimant is a trained teacher. The said aspect being a question of fact, is required to be established by leading oral as well as documentary evidence in that regard. Under the circumstances, the Page 20 of 31 C/FA/2276/1994 ORDER assessment of the income of the claimant by considering her to be an untrained teacher does not require to be interfered with.
14. The next question that arises for consideration is as regards the extent of permanent disability suffered by the claimant. Dr. Bipin R. Shah, who had treated the claimant and had issued the disability certificate (Exhibit-49), has been examined at Exhibit-48. As per the disability certificate given by the doctor, the permanent disability of the claimant had been assessed at 54.2% of the body as a whole. The Tribunal while computing the future loss of income had reduced the disability to 50%. It is the case of the claimant that the functional disability should be considered at 100% in the light of the fact that it is not possible for the claimant to work as a primary teacher after the occurrence of the accident. In this regard it may be germane to refer to the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar (supra) wherein the court has laid down certain principles for assessment of the permanent disability of a victim in the following terms:
"13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). 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 Page 21 of 31 C/FA/2276/1994 ORDER prevented or restricted from discharging his previous activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes, the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
15. Examining the facts of the present case in the light of the above decision, the evidence on record reveals that the Page 22 of 31 C/FA/2276/1994 ORDER claimant was a pre-primary teacher. On account of the accident, she was required to take leave for a period of about one year as a consequence whereof, her services were terminated in view of the fact that as per the rules of the said school, the maximum leave that could be granted was for three months. The evidence on record further reveals that subsequently, the claimant has not gained any employment as a pre-primary teacher. As held by the Supreme Court in the above decision, the court is required to ascertain as to whether the claimant is totally disabled from earning any kind of livelihood or whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions which she was earlier carrying on or whether she was prevented or restricted from discharging her previous activities and functions but could carry on some other lesser scale of activities and functions so that she continues to earn or can continue to earn her livelihood. In the present case, the claimant being a pre-primary school teacher, it is evident that she would not be in a position to pursue any other avocation. Therefore, on the evidence on record, it is required to be ascertained as to whether the claimant was in a position to discharge her previous activities and functions or whether she was totally disabled from doing so.
16. In this regard, it would be necessary to refer to the deposition of Dr. Bipinbhai Shah, who has deposed that on 26.11.1991 when he examined the claimant, she had complained of (i) walking with a limp; difficulty in walking more than a half kilometre (ii) difficulty in squatting, and cannot sit crossed legged for more than 10 minutes, (iii) pain right foot, heel and calf (iv) swelling of both feet on prolonged standing or Page 23 of 31 C/FA/2276/1994 ORDER walking (v) keloid on left thigh donar STG site and both legs operative scar, (vi) toes of right foot are stiff and attempted movements are painful, (vii) pain in the lower back and difficulty in bending forward.
17. The clinical findings recorded in the certificate issued by the doctor are as under:
(i) Walks with limp, depressed medial arch of right foot.
(ii) Left calf is ½ inch thinner and left thigh is ¼ inch thinner in diameter.
(iii) Left leg is ¼ inch shortened as compared to right leg.
(iv) Left knee has 10" extensor lag with muscle power of left quadriceps 20% less as compared to right side.
(v) Planter flexion at left ankle joint is 9% less as compared to right side.
(vi) Subtalar movement of right foot is 75% reduced as compared to left side.
(vii) Toe flexors and extensors of right side have 20% less power as compared to left side.
(viii) Weight bearing capacity of right leg is 11.53% less as compared to left leg.
18. Dr. Bipin Shah has deposed that in addition to the findings recorded in the certificate, 20% of terminal flexion of the left knee was painful and limited. He has further deposed that the applicant is a teacher by occupation; the fractures of her foot are mal-united in deformed non-acceptable position. She will have difficulty in supple gait. She will have difficulty in standing for a long period. In his cross-examination, he has denied the suggestion that all the injuries heal and fractures unite in the course of time. He has categorically stated that fractures of metatarsal are united, but it had mal-united. Though he agreed that the claimant could walk without support, he did not agree to the suggestion that she could do her normal household work without difficulty. In his cross-
Page 24 of 31 C/FA/2276/1994 ORDERexamination, he has further stated that the claimant will suffer from pain and difficulty in following her normal pursuits of life and that such disability will increase in the course of time. He has disagreed with the suggestion that if medical treatment and physiotherapy is continued for a sufficiently long time, there is a possibility of decrease in the percentage of disability. He has also disagreed with the suggestion that in the present case, the patient would be fully cured and disability will disappear if treatment and physiotherapy are continued for a long time.
19. Reference may also be made to the deposition of the claimant who has been examined at Exhibit-103 wherein she has stated that after the accident and after taking treatment, at present she cannot stand for long period of time and has a continuous backache. That she is not able to do household work and not in a position to take part in ras-garba. She has further deposed that despite doing exercise and taking medicines, there is no change in her condition. She cannot do household work and is required to engage a maid permanently. Initially she had engaged a maid to cook for her, but now she does the cooking herself. However, she has to do the same with intermittent periods of rest. She is required to take rest after a short time.
20. From the depositions of the doctor as well as the claimant, it is apparent that after the accident, on account of the injuries sustained by her, the claimant has incurred permanent disability to the extent of 54.2%. On account of the injuries sustained by her, she is not able to walk long distances and is not in a position to stand for a long time and has a Page 25 of 31 C/FA/2276/1994 ORDER continuous backache. As noticed earlier, the claimant is a pre- primary teacher and is, therefore, required to deal with small children. It cannot be gainsaid that a primary teacher would be required to stand for a long period of time and to squat and to bend. The doctor, in his deposition, has stated that the claimant is not in a position to squat or sit crossed legged. Considering the fact that the claimant is not able to stand for a long time and cannot squat or sit cross legged, it cannot be gainsaid that so far as the work of a pre-primary teacher is concerned, the claimant is totally disabled from discharging such activities. Therefore, the claimant is totally disabled from earning any kind of livelihood and, hence, in the opinion of this court, the loss of earning capacity of the claimant is required to be assessed at 100% in terms of the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar (supra). At the same time, it may be noted that the Supreme Court in the said decision has held that when the compensation is awarded by treating loss of future earning capacity as 100% (even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result only a token or a nominal amount may be awarded under the head of loss of amenities or loss of expectation of life as otherwise there may be a duplication in the award of compensation.
21. In the light of the above discussion, the future loss of income of the claimant is required to be assessed as under:
Monthly income Rs.600/- Functional disability 100% Monthly loss of income Rs.600/- Page 26 of 31 C/FA/2276/1994 ORDER Prospective income Rs.600 + 50% = Rs.900/- Annual loss of income Rs.900 x 12 = Rs.10,800/-
22. Having regard to the fact that the age of the claimant was 32 years at the time of the accident, in terms of the decision of the Supreme Court in the case of Sarla Verma (supra), a multiplier of 16 is required to be applied. Accordingly, the total loss of income would come to Rs.10,800 x 16 = Rs.1,72,800/-
23. The claimant has also challenged the compensation awarded under the head of pain, shock and suffering and loss of amenities on the ground that the same is very meagre. The Tribunal has awarded Rs.35,000/- under the consolidated head of pain, shock and suffering and loss of amenities. Insofar as loss of amenities is concerned, in the light of the fact that the functional disability of the claimant has been considered at 100%, the compensation that can be awarded under the said head would be nominal. Under the circumstances, under the head of loss of amenities, a compensation of Rs.10,000/- is awarded. On the question of pain, shock and suffering, a perusal of the evidence on record reveals that the claimant, in her deposition, has stated that from 11.7.1990 till 9.4.1991, she was bedridden and during that period, she was required to do everything in the bed and was totally dependent on others as she was required to be given a bed pan. Therefore, it is apparent that for at least a period of seven months, the claimant was totally bedridden. From the deposition of the doctor, it appears that even on the date when his evidence was recorded, the claimant could not walk without specially designed shoes. That on 9.4.1991, the external fixator was removed from right leg and full weight bearing with crutches Page 27 of 31 C/FA/2276/1994 ORDER was permitted followed by walking with stick. The claimant could walk after 9.4.1991, till then she was bedridden. Partial activities were possible from 6.3.1991 to 9.4.1991. Metallic implants were removed from her left leg on 11.11.1991 and she was allowed to walk with full weight bearing three days after the removal of nail on 11.11.1991. Even, thereafter, she was walking with a limp and could not walk for more than half a kilometre and had difficulty in squatting and could sit crossed-legged for more than ten minutes. She had pain in her foot, heel and calf, swelling of both feet on prolonged standing or walking as well as pain in the lower back and difficulty in bending forward, etc. Thus, in the opinion of this court, apart from the fact that the claimant had to undergo several operations from time to time, she was also put through considerable pain, shock and suffering on account of the injuries sustained by her. Under the circumstances, the amount of Rs. 35,000/- awarded under the consolidated head of pain, shock and suffering and loss of amenities appears to be quite meagre. Having regard to the fact that the accident in question had taken place in the year 1991, in addition to Rs.10,000/- awarded under the head of loss of amenities, the court deems it fit to award compensation of Rs.50,000/- under the head of pain, shock and suffering. The learned counsel for the claimant has however urged that compensation of at least Rs.1,00,000/- should be awarded under the head of pain, shock and suffering. In support of such submission, the learned advocate for the claimant has placed reliance upon the decision of the Supreme Court in the case of Rekha Jain (supra). It may be noted that in various recent decisions of the Supreme Court involving cases of amputation, compensation of Rs.1,00,000/- has been awarded under the head of pain, shock Page 28 of 31 C/FA/2276/1994 ORDER and suffering. In the present case, having regard to the fact that the accident had occurred in the year 1990 and the claimant has suffered from the fractures consequent problems as noted hereinabove, in the opinion of this court, compensation of Rs.50,000/- under this head appears to be just and proper.
24. It has been emphatically argued that no amount has been awarded under the head of permanent disability. Though, no claim was made under the said head, in the light of the fact that the appellant-claimant has incurred physical disability due to which she permanently cannot part take in certain activities and is not in a position to pursue her normal pursuits like walking long distances, stand for a long time, squatting and sitting cross-legged, which have a bearing on the quality of life that she may enjoy, the court deems it fit to award compensation of Rs.25,000/- under the said head.
25. The claimant has also challenged the compensation awarded under the head of actual loss of income on the ground that the Tribunal has considered the actual income of the claimant to be Rs.310/- and for the period 11.7.1990 to 31.11.1991 and, thereafter, Rs.600/- per month from 11.7.1990 to 19.11.1992 on the basis that the claimant is an untrained teacher. According to the claimant, not only should the actual loss of income have been computed on the basis that she was a trained teacher, but on the basis of the salary which she would have been earned if the writ petition filed by her would have been allowed. For the reasons stated hereinabove while dealing with the submissions of the claimant that her future loss of income is required to be assessed by Page 29 of 31 C/FA/2276/1994 ORDER considering her monthly income at the rate of Rs.3000/- per month, this submission cannot be accepted. It may be pertinent to note that in the present case, the Tribunal has adopted a very novel approach of computation of the actual loss of income by considering the income of the claimant at Rs.310/- per month from the date of the accident till 31.3.1991 and, thereafter, giving the benefit of the above referred Government Resolution to the claimant and considering her income at Rs.600/- per month for the period 1.4.1991 to 19.11.1992. However, having regard to the fact that such assessment of actual income is not without any basis, in absence of any perversity in the approach adopted by the Tribunal, there is no warrant for interference. The actual loss of income as awarded by the Tribunal is accordingly maintained.
26. The Tribunal has also awarded compensation under various other heads. However, the same being just and proper do not warrant interference by this court.
27. In the light of the above discussion, the claimant shall be entitled to the following compensation:
Future loss of income Rs.1,72,800/- Medicines, medical charges, purchase of Crutches and commode etc. Rs. 36,100/- Loss of leave salaries to the relatives of the claimant and payments to servants Rs. 16,400/- Actual loss of income Rs. 15,000/- Conveyance charges Rs. 3,000/- Special diet Rs. 5,000/- Attendant charges Rs. 2,000/- Pain, shock and suffering Rs. 50,000/- Loss of amenities of life Rs. 10,000/- Permanent disability Rs. 25,000/- Total compensation Rs.3,35,300/- Page 30 of 31 C/FA/2276/1994 ORDER
The Tribunal has awarded a total compensation of Rs.2,12,500/-. The appellant-claimant shall, therefore, be entitled to an additional compensation of Rs.1,22,800/-
28. In the light of the above discussion, First Appeal No.2276 of 1994 is partly allowed to the following extent:
The appellant-claimant shall be entitled to additional compensation of Rs.1,22,800/- with interest at the rate of 7.5% from the date of the filing of the claim petition till realization thereof.
29. First Appeal No.2278 of 1994 is hereby dismissed. The appellant insurance company shall deposit the additional amount of compensation within a period of six weeks from the date of receipt of a copy of this judgment.
30. The appellant-insurance company has deposited a sum of Rs.25,000/- with the Registry of this court. In case such amount has not been transmitted to the Tribunal, the same shall forthwith be transmitted to the Tribunal
31) The Registry shall forthwith send back the record and proceedings of the case.
(HARSHA DEVANI, J.) Vahid Page 31 of 31