Gujarat High Court
Rajivkumar Ishwardayal Dubey vs Bhikhabhai Pathubhai Rabari & 2 on 18 April, 2017
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/FA/2615/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2615 of 2011
WITH
FIRST APPEAL NO. 2616 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE
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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 or any order made thereunder ?
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RAJIVKUMAR ISHWARDAYAL DUBEY....Appellant(s)
Versus
BHIKHABHAI PATHUBHAI RABARI & 2....Defendant(s)
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Appearance:
MR.HIREN M MODI, ADVOCATE for the Appellant(s) No. 1
MR MAULIK J SHELAT, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 18/04/2017
COMMON ORAL JUDGMENT
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1. These two appeals emanate from the common judgment and award recorded by the learned Motor Accident Claims Tribunal (Auxi.) Additional District Judge, Vadodara in M.A.C.P. No.1594 of 2009 and M.A.C.P. No.1595 of 2009, as the appellants are not satisfied with the quantum of compensation awarded by the Tribunal.
2. The brief resume of the facts giving rise to the appeals is that on 24.09.2009 at about 4:30 p.m., the appellants were going to home on scooter bearing registration No.GJ6-AE-3144, being driven by the appellant of First Appeal No.2615 of 2011. When they reached at Manisha Chokadi near Bhaili Road, the respondent No.1 came by driving car bearing registration No.GJ-16-817 at a very high and excessive speed and in rash and negligence manner and dashed with the scooter. As a result, both the appellants fell off the scooter and sustained grievous injuries. They, therefore, preferred claim petition before the Claims Tribunal, Vadodara.
3. The Claim Tribunal by the impugned judgment and award recorded a findings that the appellant of First Appeal No.2615 of 2011 was contributorily negligent to the extent of 25% in happening of the accident and accordingly partly allowed the claim petition. The appellants are not happy with the quantum Page 2 of 18 HC-NIC Page 2 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT of the compensation as also the finding as regards the contributory negligence of the appellant of First Appeal No.2615 of 2011.
4. I have heard Mr. Hiren Modi, learned advocate for the appellants and Mr. Maulik Shelat, learned advocate for the respondent No.3 - Insurance Company. There is no representation on behalf of the rest of the respondents.
5. Mr. Modi, learned advocate for the appellants has vehemently submitted that the accident had happened owing to the sole negligence on the part of the respondent No.1 herein who is Driver of the Car as a criminal case was filed against him and he had pleaded guilty. It is his further submission that the accident had happened while offending car all of sudden emerged from the society and therefore, respondent No.1 should be held 100% responsible for the occurrence of the accident. He would also submit that the Tribunal ought to have adopted multiplier of 16 on the basis of the age of the appellant of First Appeal No.2615 of 2011 instead of adopting multiplier of 5. It is his grievance that the Tribunal has awarded very meager amount under the heads of the Pain, Shock and Suffering and Special Diet and Transportation. He, therefore, urges that the appeals may be Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT allowed and the compensation may be enhanced accordingly.
6. It is his submission that the Tribunal has assessed the income of the appellant of First Appeal No.2616 of 2011 on lower side though it was the case of the appellant that she was earning Rs.3000/- per month by doing Mahendi Work. In this appeal also he would submit that the Tribunal has awarded a very meager amount under the heads of Pain, Shock and Suffering and Special Diet and Transportation. He therefore urges that the appeals may be allowed.
7. Mr. Maulik Shelat, learned advocate for the Insurance Company would submit that looking to the nature of evidence, the Tribunal has not committed any error in attributing the contributory negligence on the part of the appellant of First Appeal No.2615 of 2011. He further submits that the appellant himself admitted in his evidence that on account of disability he suffered, he was no reduction in his salary and therefore, the Tribunal has rightly adopted multiplier of five in support of this contention he has relied upon the decision dated 11.04.2012 of the Division Bench of this Court in First Appeal No.705 of 2012 between Rameshbhai Ramnikbhai Vyas Versus Ismail Ibrahim And Suleman Ibrahim and One.
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8. He further submits that there is no evidence on record that the appellants of First Appeal No.2616 of 2011 was earing Rs.3000/- per month by doing Mahendi Work. Therefore, the Tribunal has rightly assessed the monthly income of the appellants that Rs.1500/-. Still however he submits that looking to the various decisions of the Apex Court and this Court may assess monthly income of the appellant between the Rs.2000- 3000/-.
9. Mr. Shelat, further submits that the Tribunal has not committed any error in awarding the compensation for Pain, Shock and Suffering, Special Diet and Transportation, looking to the nature of injuries suffered by the appellants.
10. It is his submission that the appellant of First Appeal No.2615 of 2011 is one of the respondents in First Appeal No.2616 of 2011. He has not preferred any appeal to question the contributory negligence attributed to him. Therefore, in view of the decision in the Case of Swamy Shraddananda@Murali Manohar Mishra Versus State of Karnataka, (2008) 13 SCC 787. He cannot say that the Tribunal has committed an error attributing in contributory negligence to him.
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11. Mr. Modi, learned advocate for the appellant has
vehemently tried to convince this Court that it was respondent No.1 Driver of the offending Car who was solely responsible for the happening of the accident and I am not inclined to accept this submission.
12. It is not in dispute that the accident had happened on 24.09.2009 and the complaint with respect to same came to be filed after 60 days on 30.10.2009. Though Mr. Modi, has tried to project before this Court on the basis of evidence of the appellant of First Appeal No.2615 of 2011 complaint Exh., Complaint, Panchnama of the place of the accident that the respondent No.1 has emerged from Amaiya Society and dashed with the scooter of the appellant. The evidence of respondent No.1 complaint and panchanama of place of accident demonstrate that the accident had taken place in the middle of the road. At this juncture, it is worthwhile to note that the appellant who had shown the place of accident at the time of drawing of panchnama. Therefore, now it cannot lie in his mouth to contend that the accident had happened while the offending car driven by the respondent No.1 had suddenly came on the road from the Amaiya Society.
13. The conduct of the appellant of First Appeal No.2615 of Page 6 of 18 HC-NIC Page 6 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT 2011 cannot be ignored. The evidence of the respondent No.1, which is not controverted by the appellant reveals that after the incident both the appellants were taken to the hospital by respondent No.1. Immediately thereafter in a very short time the manager of the respondent No.2 had come to the hospital and the treatments charges of Rs.2000/- were borne by the employer of respondent No.1. It further appears that the whole accident was given silent burial by the parties and the matter was settled. Thereafter, without assigning any reasons, though normal circumstances, it would not be fatal, the appellant of First appeal No.2615 of 2011 after 16 days lodged the complaint in respect of the accident. It is true that the respondent No.1 upon being participated in respect of the occurrence of the accident pleaded guilty but the same by itself would not be enough in the proceedings of the claim petition to record the conclusion that he was exclusively responsible for the happening of the accident. As per the settled proposition of law, the principles for appreciating the evidence in criminal trial and civil proceedings are different. In criminal proceedings, the prosecution has to prove the case against accused person to the hilt beyond reasonable doubt. While in civil proceedings the cases are decided on the preponderance of the possibility. Therefore, merely because Page 7 of 18 HC-NIC Page 7 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT respondent No.1 pleaded guilty would not mean that he was solely responsible for the occurrence of the accident. In view of the settled proposition of law, the question of negligence has to be decided independently by the tribunal, on the basis of ocular and documentary evidence obtainable on the evidence.
14. As discussed herein above, it emerges from the complaint, panchnama, place of accident and evidence of respondent No.1 that the accident had happened on the middle of the road and it cannot be considered that the accident had happened because of the 100% negligence on the part of the respondent No.1. The Tribunal has after elaborate discussion has recorded finding that the appellant of First Appeal No.2615 of 2011 was contributorily negligent of the 25% for the occurrence of the accident. Which, in my opinion, does not warrant any interference.
15. The assessment of the monthly income of the appellants is not in dispute. The only contention of the appellants is the adoption of appropriate multiplier to determine the future loss of income of the appellants. According to Mr. Modi, the Tribunal ought to have adopted multiplier of 16 in place of 5 considering the age of the appellants.
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16. The Supreme Court in the case of Rajkumar Versus Ajay Kumar and Another, (2011) 1 SCC 343, annunciated the following principle :
"19. We may now summaries the principles discussed above:
(I) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of 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 the percentage of loss of earning capacity is the same as the percentage of permanent disability)
(iii) 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 to 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.
(iv) 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."
17. The Division Bench of this Court relied upon the decision of the Supreme Court in the case of Rajkumar Versus Ajay Page 9 of 18 HC-NIC Page 9 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT Kumar and Another, reported in 2011 (1) SCC 343 and in the case of Rajendra Versus Pradeep Patwari and others has made the following pertinent observation:
"Leave granted.
The appellant is before us aggrieved by and dissatisfied with the judgment and order dated 21st October, 2008 passed by a Division Bench of the High Court of Judicature of Madhya Pradesh, Indore Bench, Indore in Miscellaneous Appeal No.2775/2007, whereby and whereunder the appellant was awarded a lump sum compensation of Rs.1,75,000/- for the injuries sustained by him.
The appellant, who is a professor, was traveling in a Qaulis jeep. The said vehicle collied with a truck. The appellant suffered serious injuries in his left hand and right leg. Roads had to be inserted in both the limbs. He suffered fractures also in those limbs. Permanent disability suffered by him was assessed at 35% by an orthopedic surgeon. A total sum of Rs.1,50,137/- was awarded by the Motor Accident Claims Tribunal towards the injuries sustained by him. Pain and suffering as also the disability. The High Court, however, increased the said sum by way of a lump sum amount to Rs.1,75,000/- but it did not assign any reason therefore.
The Second Schedule appended to the Motor Vehicles Act, 1988 provides that in a case of this nature, the amount of compensation should be calculated in terms thereof. Appellant's income was determined at Rs.3000/- per month. As he was aged 25 years on the date of accident, a multiplier of 17 should be applied.
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Calculating the amount of compensation on that basis, he was entitled to Rs.2,14,000/- towards the loss of income, which we hereby order. He would also be entitled to the medical expenses incurred by him and compensation on other heads would be granted to him as awarded by the Tribunal.
The enhanced amount shall also carry interest at the same rate as was granted by the High Court i.e. at the rate of 6% per annum. The appeal is allowed to the extent above mentioned."
18. Division Bench of this Court has held as under in its decision dated 11th April, 2012 rendered in First Appeal No.705 of 2012 :-
"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 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 Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT not 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 Page 12 of 18 HC-NIC Page 12 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT 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 percent 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."
19. It is vividly clear form the evidence of the appellant of First Appeal No.2615 of 2011 that on account of the injury and the resultant disability, he had not suffered any economic loss. Merely, by saying in his deposition before the Tribunal that he Page 13 of 18 HC-NIC Page 13 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT did not give in writing to his employer that he is not able to do his work because, he would be relieved from the job is not enough to record a conclusion that his earning has dented because of the disability. I am, therefore, of the view that the Tribunal has not committed any error in adopting multiplier to determine the future loss of income to the appellant of First Appeal No.2615 of 2011.
20. As far as appellant of First Appeal No.2616 of 2011 is concerned, according to the appellant apart from doing the home maker she was earning Rs.3,000/- per month by doing Mahendi Work. The Tribunal did not find any satisfactory evidence about the earning of Rs.3000/- per month by Mahendi Work and taking into account the claim petition was filed in a indigent person as Rs.25,000/- per annum as the income of the appellant for the purpose of determining compensation.
21. Domestic work is also a productive work. A woman's role as a mother, wife and a home maker should in itself be considered as productive work. It is a matter of common knowledge that hence his wife performs multifarious work for supporting and maintaining her family such multifarious activities performed by the home maker cannot always be assigned a monetary value to do but it does not make her work Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT unproductive even assuming that the appellant is not self employed as par her case. The fact remains that she is housewife, mother and a home maker therefore, it is indeed very difficult to monetise the domestic work done by her. There is a line of decisions of the Supreme Court and this Court wherein an attempt is made to notionally quantify the value of the house hold work performed by a housewife. It is obviously difficult to encapsulate the value of the work performed by the housewife in monetary bracket. Considering the over all facts and the other factors emanating from the evidence, the Tribunal or the Court has to make an attempt to quantify the value of such work done by the housewife. Under the circumstances, I am of the opinion that the Tribunal has gone off the track and seems to have been influenced and impressed by the facts of the claim petition being filed by the appellant as an indigent person. Considering the overall facts of the case, I am of the view that it would be just and reasonable if monthly income of the appellant is assessed at Rs.2500/- and Rs.30,000/- annually.
22. There is a consensus between the appellant and the learned advocate for the Insurance Company that the appellant has suffered 6% disability as a whole owing to the Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT injury suffered by him. Therefore, it can be said that earning capacity is reduced by Rs.1800/- per annum. If multiplier of 15 is adopted, it would come to Rs.27,000/-
23. It is an undisputed fact that the appellant was riding pillion on scooter driving by her husband - appellant on appeal No.2515 of 2011 who is held contributorily negligent to the extent of 25% in the occurrence of the accident.
24. It appears from the medical evidence available on the record that the appellant of First Appeal No.2615 of 2011 had suffered fracture of lower knee and right tibia. It also emerges form the medical evidence that he is experiencing discomfort in running and standing. This difficulty expressed by the appellant seems to be permanent and the appellant will have to endure the same in their rest of the life. Under the circumstances, I am of the view that Rs.7,000/- awarded by the Tribunal for Pain, Shock and Suffering needs to be enhanced Rs.20,000/-.
25. Compensation awarded under the rest of the head according to me is just and reasonable. Therefore, the appellant of First Appeal No.2615 of 2011 is entitled to Page 16 of 18 HC-NIC Page 16 of 18 Created On Tue Aug 15 07:32:54 IST 2017 C/FA/2615/2011 JUDGMENT enhancement of Rs.13,000/- in the compensation under the head of Pain, Shock and Suffering awarded by the Tribunal.
26. For the foregoing reasons the appeals succeed in part. The impugned judgment and award recorded by the learned Motor Accident Claims Tribunal (Auxi.) Additional District Judge, Vadodara in M.A.C.P. No.1594 of 2009 and M.A.C.P. No.1595 of 2009 is hereby modified and the appellant of First Appeal No.2616 of 2011 is held to be entitled to additional compensation of Rs.4,500/- under the head of future loss of income and the appellant of First Appeal No.2615 of 2011 is held to be entitled to additional compensation of Rs.13,000/- under the head of Pain, Shock and Suffering. The respondent- Insurance Company is directed to deposit the amount of enhanced compensation in the Tribunal within a period of two months from the date of receipt of Certified Copy of this judgment and the same shall be released in favour of the appellants.
27. In the facts of the case, parties are left to bear their own costs.
28. Record and proceedings is ordered to be remitted to the lower authority forthwith.
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