Gujarat High Court
Girishbhai Talshibhai Jadav vs Rajdipsinh Harishchandrasinh Parmar on 22 August, 2022
Author: Gita Gopi
Bench: Gita Gopi
C/FA/1017/2021 JUDGMENT DATED: 22/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1017 of 2021
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 1 of 2021
In R/FIRST APPEAL NO. 1017 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2021
In R/FIRST APPEAL NO. 1017 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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GIRISHBHAI TALSHIBHAI JADAV
Versus
RAJDIPSINH HARISHCHANDRASINH PARMAR
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 3
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/08/2022
ORAL JUDGMENT
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1. The claimant has challenged the judgment and order passed in MACP No.80 of 2016, whereby he has been granted compensation of Rs.4,78,954/- from the opponents jointly and severally along with running interest at the rate of 9% from the date of petition till realization of the amount along with the proportionate cost of the petition.
2. The claimant has prayed for the compensation of Rs.25,00,000/- under the Motor Vehicles Act, 1988. It is a case of the appellant that on 26.1.2015 at about 12:30 p.m., he was traveling as a pillion driver of motorcycle bearing registration no. GJ-13 H-6866 driven by opponent no.4. It is stated that one mini bus bearing registration no.GJ-14 X-333 of opponent no.1 driven by opponent no.2 and insured with opponent no.3 came in full speed in a rash and negligent manner without Page 2 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 following the traffic rules dashed with the motorcycle.
2.1 The claimant as a pillion rider sustained severe injuries and because of the accident, he is suffering from complete paraplegia of both the lower limbs with loss of control of both, bowel and bladder, for which the Doctor has certified the disability to the extent of 95% of the body as a whole. It is stated by the appellant that he is completely bedridden from the date of accident and he was examined by the Court Commissioner and the deposition was recorded at his residence.
3. Advocate Ms. Amrita Ajmera for the appellant submits that the learned Tribunal has totally ignored the evidence of the claimant as well as the Doctor recorded by the Court Commissioner. Ms. Ajmera submits that 95% disability has been concluded by the Doctor Page 3 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 who had examined the claimant, which clearly proves complete functional disability as the claimant is suffering from paraplegia for the lower limbs.
3.1 Ms. Ajmera submits that the claimant was 21 years of age at the time of the accident and was working as weaver. He was expert in Patoda sarees and was earning income of Rs.15,000/- per month. Ms. Ajmera states that the business of weaving runs down in the family for about 3 generations and father and great grandfather were in the same business and the claimant's family had made a name as weavers. Ms. Ajmera further submits that the learned Tribunal in absence of any specific evidence to support the case of the claimant in weaving ought to have relied upon the minimum wages standard applicable in the State of Gujarat and should have granted future prospective rise in income to the Page 4 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 claimant.
3.2 Ms. Ajmera submits that the deposition through the Court Commissioner proves the condition of the claimant and the Doctor's evidence recorded by the Court Commissioner clarifies the physical condition of the claimant being paraplegic. She further submits that the appellant was hospitalized as an indoor patient in various hospitals from the years 2015 to 2019 which approximately shows 212 days. The claimant was completely bedridden and suffered from head injury, hemorrhage and skull fracture apart from paraplegia, and, during the course of hospitalization, he had undergone various operations and suffered mental and physical agony and thus, Mr. Ajmera submits that Rs.20,00,000/- ought to have been granted under the head of pain, shock and suffering. Page 5 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 3.3 Ms. Ajmera submits that as the claimant is suffering from complete paraplegia of lower body, the claimant will not be able to do any kind of work or occupation. The said fact has been supported by the opinion of the orthopedic surgeon and till now he is undergoing treatment but financial constraints have restrained his further treatment and further states that special damages ought to have been granted considering the loss of prospective earning and even under the head of loss of amenities of life and marriage prospects and reasonable amount under the head of special diet and transportation and even attendant charges by considering the future needs, and the learned Tribunal taking into consideration the bedridden situation of the claimant should have considered attendant charges for two Page 6 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 persons who could support the claimant and also help him in his recovery.
3.4 Ms. Ajmera states that the claimant has to spend lot of money to maintain himself as an indoor-outdoor patient by way of physiotherapy and C.T. scan. He is required to be repeatedly hospitalized, which is likely to be repeated in future and the claimant is bed ridden and already has bed sores, due to which he is likely to get infected, catch allergy. So will have to incur cost towards medicines, dressing, operation, plastic surgery etc in future and thus states that under the said head, the learned Tribunal ought to have granted money. 3.5 Ms. Ajmera submits that the learned Tribunal has failed to consider the deposition of Dr. Yogendra Solanki, wherein he had opined considering the gravity of paraplegia that Page 7 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 the claimant will not be able to sit, stand or do his daily chores and there is no control over his bowel movements as there is no control over stomach and bladder. He would be totally dependent on others for rest of his life and would not be in a position to enjoy his future. Further, as per the deposition, the claimant would be in need of power wheel chair which would almost cost about Rs.3,25,000/-.
4. Learned advocate Mr. Dakshesh Mehta for the insurance Company submits that even in paraplegic condition, the compensation to be granted should be just and reasonable and the yardstick to be adopted for the calculation should be on the basis of evidence on record. Mr. Mehta submits that the treating Doctor has not been examined to prove the disability nor the source of income has been proved by cogent evidence to even consider the case of Page 8 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 any functional disability. Advocate Mr. Dakshesh Mehta submits that there can be no guesswork for deciding the income aspect. Advocate Mr. Mehta further submits that average future medical expenses have to be proved by leading evidence and the compensation to be granted should not be for enrichment of a person, but for putting him back in a position so as to enable oneself to deal with life and thus, submitted that the award passed by the Tribunal requires no interference.
5. Paraplegia is a medical condition involving impairment in motor or sensory function of the lower extremities which is classification of paralysis, the universal terms to describe the loss of movement or sensation following damage to a nerve in the body.
Page 9 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 Types of generalized paralysis include:
- Monoplegia affects one part of the body.
- Hemiplegia affects an arm and a leg on the same side of the body.
- Paraplegia affects both legs.
- Quadriplegia or tetraplegia affects both arms and both legs.
- Diplegia affects some body region on both sides of the body.
(both arms, for example, or both sides of the face)
6. In R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. & Ors., reported in (1995) 1 SCC 551, it has been held as under:-
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as Page 10 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant : (i) medical attendance;
(ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal Page 11 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
11. In the case of Ward v. James 1965(1) All E.R.563 it was said:
"Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival ". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worth- while. Money is no good to Page 12 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble.
They are being asked to calculate
the incalculable. The figure is
bound to be for the most part a
conventional sum. The judges have
worked out a pattern, and they keep it in line with the changes in the value of money."
14. In Halsbury's Laws of England, 4th Edition, Vol.12 regarding non- pecuniary loss at page 446 it has been said:-
"Non-pecuniary loss: the Pattern.
Damages awarded for pain and
suffering and loss of amenity
constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a Page 13 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."
7. In Kajal Vs. Jagdish Chand, reported in (2020) 4 SCC 413, it has been held as under:-
"8. In Phillips v. Western Railway Co.1, Field, J., while emphasizing Page 14 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 that damages must be full and adequate, held thus:
"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered." Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure".
9. In the case of Mediana, 1900 AC 113 Lord Halsbury held:
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C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 "Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such thing. What manly mind cares about pain and suffering that is past? But, nevertheless, the law recognizes that as a topic upon which damages may be given."Page 16 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022
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11. Lord Denning while speaking for the Court of Appeal in the case of Ward v. James, 1965 1 All ER 563 laid down the following three basic principles to be followed in such like cases:
"Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for Page 17 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 by this means cases can be settled peaceably and not brought to court, a thing very much to the public good."
12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made.
13. In McGregor's Treatise on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states:
"The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff Page 18 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life."
14. In M/s Concord of India Insurance Co. Ltd. v. Nirmala Devi and others, this Court held:
"2....The determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales."
8. In Raj Kumar v. Ajay Kumar & Ors., (2011) 1 SCC 343, this Court laid down the heads under which compensation is to be awarded for personal injuries.
Page 19 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 "6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
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(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv).
It is only in serious cases of
injury, where there is specific
medical evidence corroborating the
evidence of the claimant, that
compensation will be granted under
any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
9. In K. Suresh v. New India Assurance Company Ltd. and Ors., (2012) 12 SCC 274, the Hon'ble Supreme Court has held as follows:
"2...There cannot be actual compensation for anguish of the Page 21 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity 'the Act') stipulates that there should be grant of "just compensation".
Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
10. The evidence of the claimant was recorded through the Court Commissioner who visited house of the claimant. As observed by the Commissioner, the claimant was lying on a bed and evidence was recorded in presence of advocates of both the sides. The recording by the Commissioner suggest that even after affidavit of examination-in-chief, the Page 22 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 claimant was hospitalized in V.S. hospital for treatment and for that, the additional evidence by way of affidavit was produced and in anticipation of approval of additional evidence, cross-examination was recorded.
11. As per the affidavit of examination-in-chief at Exh.29, the claimant has stated that on 26.1.2015 at 12:30 noon, the accident occurred in Muli Taluka on the road between Somasar Village to Doliya boundary which comes in the territorial jurisdiction of Muli Police Station. The claimant was going on motorcycle bearing registration no. GJ-13 H- 6866 as a pillion rider. The motorcycle was driven by the deceased - Punjabhai Chhaganbhai who according to the claimant was driving the motorcycle in a slow speed on the side of the road and were heading towards Chotila and at the place of accident, the opponent no.2-driver of the mini bus bearing Page 23 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 registration no. GJ-14 X-333 of the ownership of opponent no.1 came in full speed in a rash and negligent manner and in violation of the traffic rules and rammed the motorcycle causing grievous injuries to the appellant, and, the driver of the motorcycle died because of the accident.
12. At the time of the accident, the claimant was 21 years of age and doing weaving work and was earning Rs.15,000/- per month and according to his evidence, his income would have increased to Rs.30,000/- per month. He had a potentiality to earn Rs.30,000/- per month.
13. Because of the accident, he sustained head injury and the fracture in the skull. Further, injury in the brain, skull, injury on the face and the fracture in the bone of nose has disfigured his face. There were Page 24 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 fractures in tibia which got pressed and the lower part has lost the sensation. He sustained tibia fracture on the left leg and sustained permanent disability. There is a continuous complaint of nausea and further the loss of memory. There are injury marks on eye and face. It is also stated that he lost control over his bowel movement and because of the paraplegic condition of the lower part, the prospect of marriage has been lost and further he has lost hope of his life and that he cannot walk as could have done it earlier.
14. Because of the injury, he was hospitalized and he was taken to C.U. Medical College and Hospital, Surendranagar for the primary treatment under unconscious state and thereafter, immediately was admitted in V.S. Hospital and he remained as an indoor patient from 26.1.2015 to 21.2.2015 and thereafter, Page 25 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 had to visit V.S. hospital for follow up treatment. The lower part of his body is paralyzed. He has also faced plastic surgery operation from V.S. hospital and during his hospitalization, he has expended money behind medicines, special diet and also for attendant charges. He also made a prayer for granting him money for airbed, waterbed and computerized wheel chair and in all has made prayer of granting him compensation of Rs.25,00,000/-. By way of further evidence at Exh.29, he has stated that he was admitted from 24.6.2019 to 4.9.2019 as an indoor patient in plastic surgery department and during hospitalization, he has undergone many operations and has added the available bills in the list of evidence. In the cross- examination, he has given evidence regarding the accident and according to him, luxury bus had come from the opposite direction and has Page 26 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 dashed with the motorcycle and driver was rash and negligent and he was going as a pillion rider on the motorcycle. He denied that the accident had occurred because of the negligence of the deceased. The information of the accident was given by his relative and has affirmed that he has no documentary proof to show that he was earning Rs.15,000/- per month as weaver. According to his evidence, prior to the accident since 7 to 8 years, he was doing the weaving work which is in their family since the time of their forefathers and he states that he is expert in Patoda.
15. He has given evidence regarding hospitalization in V.S. hospital and according to him, most of his expenses were born by his relatives. He has denied the suggestion that both his hands are working and in sleeping position, he could work and derive income.
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16. Dr. Yogendrasinh Solanki was also examined at Exh.39 who is practising since last 18 years at Surendranagar as M.S. Ortho and initially for 7 years of his practice, he had joined as Ortho Surgeon in C.J. Trust Hospital at Surendranagar and thereafter, for the last 8 years, he is having his own orthopedic hospital at Akshardeep at Surendranagar and has continued his orthopedic practice.
17. According to the evidence of the Doctor, on 22.9.2016, he had examined Girishbhai Talsibhai Jadav for assessing his permanent disability. He had examined all the records and had given the details of his injury which according to him, there was fracture/collapse in 3rd and 4th vertebrae of the spinal cord and as a result, there is grievous injury. The tissues in the disc of the spinal cord on Page 28 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 the right side was swollen and fracture in the left leg was also seen.
18. He had also given the evidence with regard to head injury and the fracture and as per the treatment record, he had observed that the patient had taken treatment at V.S. hospital. There was D3, D5, vertebrae laminotomy operation and D1, D2, D4, D5 were treated during the operation by screw and rod was inserted in left leg tibia and there was plastic surgery operation for the sore on the back of his body and as per his examination, the patient was totally paraplegia from the lower side and there was no control of the bladder and bowels and at the time of his examination, he had seen about 10 cm. sore on the back of his body and on examination, he found that neurological motor and sensory functions were totally destroyed and he had to continuously keep the support of catheter, Page 29 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 which was to be changed twice a day and there was operation of the back sores and according to him, the patient was paralyzed from both the legs and as a result, he could not walk and there was no sensation below the navel line area and the patient was not in a position to sit and according to him, because of paraplegic condition and incapability of the lower part, he had assessed his permanent physical disability as 95% for the body as a whole.
19. Further, as per the Doctor, because of paraplegic condition, he has no control on his stool and urine and would not be in a position to establish the relations by way of marriage and would not be in a position to do any work because of his physical condition and for his daily routine, he would be in need of one permanent attendant and further the Doctor has stated that he would be Page 30 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 required to sleep on waterbed or airbed and if at all he is in need of moving out of his house, then, he would be in need of wheel chair and further, considering his bedridden situation, he would be in need of protein diet in liquid form and as per the complaint, he would have to take medicines throughout his life and because of sore, he would be required to undergo the surgeries and the Doctor has also stated that since the patient was in bedridden condition, according to him, there are all possibility of contracting pneumonia and other diseases affecting the lungs and because of no movement from the bed, he may sustain sore which may develop cyst and may later on convert into septicemia. The Doctor had given the certificate of permanent disability which was put in evidence.
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20. In Pappu Deo Yadav Vs. Naresh Kumar & Ors., reported in AIR 2020 SC 4424, the Apex Court has referred to a case of Jagdish Vs. Mohan & Ors., reported in AIR 2018 SC 1347, wherein the victim was carpenter and he suffered from permanent disability. His claim for compensation including for loss of future prospect was considered by 3 Judge bench.
21. In Parminder Singh Vs. New India Assurance Company Limited, reported in AIR 2019 SC 3128, the victim had undergone surgery of hemiplegia and according to the treating Doctor, the victim could not work as labourer or perform any work as driver. The income was considered as Rs.10,000/- per month at the time of the accident for the purpose of computing the compensation and 50% future prospective rise was considered. Page 32 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022
22. In the case of Jithendran Vs. New India Assurance Co. Ltd. & Anr., reported in AIR 2021 SC 5382, it has been observed as under:-
"11. The Motor Vehicles Act is in the nature of social welfare legislation and its provisions make it clear that the compensation should be justly determined. Justice A.P. Misra in Helen C. Rebellow & Ors. v. Maharashtra SRTC & Anr., reported in (1999) 1 SCC 90, held the following on the contours of 'just' compensation.
The word "just", as its nomenclature, denotes equitability, fairness and reasonableness having a large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequitable, not just.Page 33 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022
C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 A person therefore is not only to be compensated for the injury suffered due to the accident but also for the loss suffered on account of the injury and his inability to lead the life he led, prior to the life- altering event. Justice D.Y. Chandrachud speaking for a three judges' bench in Jagdish Vs. Mohan & Ors., reported in AIR 2018 SC 1347 makes the following relevant observation on the intrinsic value of human life and dignity that is attempted to be recognised, through such compensatory awards, "...the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In Page 34 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 a discourse of rights, they constitute entitlements under law."
12. The Courts should strive to provide a realistic recompense having regard to the realities of life, both in terms of assessment of the extent of disabilities and its impact including the income generating capacity of the claimant. In cases of similar nature, wherein the claimant is suffering severe cognitive dysfunction and restricted mobility, the Courts should be mindful of the fact that even though the physical disability is assessed at 69%, the functional disability is 100% in so far as claimant's loss of earning capacity is concerned.
14. The test for determining the effect of permanent disability on future earning capacity involves the following 3 steps as was laid down in Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343 and reiterated by Page 35 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 Justice Indu Malhotra in Chanappa Nagappa Muchalaoda Vs. Divisional Manager, New India Insurance Company Limited, (2020) 1 SCC 796.
15. The above yardstick to be adopted in such exigencies was reaffirmed by Justice S. Ravindra Bhat in Pappu Deo Yadav Vs. Naresh Kumar others, (2020) SCC Online 752 : AIR 2020 SC 4424. The following was set out by the three Judges' Bench:
"13. The factual narrative discloses that the appellant, a 20-year-old data entry operator (who had studied up to 12th standard) incurred permanent disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re- assessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the Page 36 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so a functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These Page 37 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity."
"20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some 'proportionate' principle, which was illogical and is unsupportable in Page 38 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling.
Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case."Page 39 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022
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23. In the case of Rushabhdev Dhirajlal Patel Vs. Sardarbhai Galabhai Bariya & Ors., reported in 2016 SCC OnLine Guj 2223, it has been held as under:-
"6. In the case of Kavita (supra) after considering and referring the decision of the Hon'ble Supreme Court in the case of Arvind Kumar Mishra vs. New India Assurance Co. Ltd reported in (2010) 10 SCC 254; in the case of Nizam's Institute of Medical Sciences vs. Prasanth S Dhananka reported in (2009) 6 SCC 1 and in the case of of Ramachandrappa vs. Royal Sundraram Alliance Insurance Co. Ltd reported in (2011) 13 SCC 236 in the similar set of facts and circumstances of the case, the Hon'ble Supreme Court has awarded Rs. 6,00,000/ towards attendant charges ( Rs. 2000/ per month for 25 years); Rs. 9,00,000/ towards future medical expenses (physiotherapy) (Rs. 3000/ per month Page 40 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 for 25 years); Rs. 3,00,000/ under the head of pain, shock and suffering and Rs. 3,00,000/ under head of loss of amenities and loss of expectation of life.
7. That thereafter and after considering and following decisions of the Hon'ble Supreme Court in the case of Kavita (supra), in the case of G.Ravindranath @ R. Chowdary (supra) in the similar facts and circumstances of the case, more particularly, in case where the claimant was suffering from paraplegia due to the injuries sustained by him in a vehicular accident, the Hon'ble Supreme Court has awarded Rs. 6 lacs for future medical expenses including hospitalization, medicine, attendant charges etc.; Rs. 3 lacs for pain, shock and suffering; Rs. 4 lacs for loss of amenities and prospective of marriage and Rs.5 lacs for loss of expectation of life and loss of future earning. In the aforesaid Page 41 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 decision, the Hon'ble Supreme Court has also referred to the decision which is referred and considered by the learned Single Judge in the case of Kavita (supra). The Hon'ble Supreme Court has also considered the para 8 of the decision of the Hon'ble Supreme Court in the case of Ibrahim vs. Raju reported in (2011) 10 SCC 634, which reads as under:
8. "The sufferings of the dependants of those who are killed in motor accidents and the survivors who are disabled are manifold. Sometime these can be measured in terms of money but most of the times it is not possible to do so. If an individual is disabled as a result of road accident, the cost of treatment, care and rehabilitation is likely to be very high. A very large number of people involved in motor accidents are pedestrians, children and women and, on account of sheer ignorance, poverty and other disabilities, majority of them Page 42 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 are unable to engage competent lawyers for putting their cause before the Tribunals and the courts.
The insurance companies, with whom the vehicles involved in the accidents are insured always have the advantage of assistance of legally trained mind (law officers and panel lawyers). They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liability is minimised and in the process, adjudication of the claims filed by the victims and/or their legal representatives is delayed for years together. At times, the delay in disposal of the claim cases and litigation expenses make the award of compensation meaningless for survivors of the accidents and/or families of the victims."
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24. The learned Tribunal after hearing the matter had granted the compensation amount as under:-
Loss of future income Rs.3,24,000/- Pain, shock and suffering Rs.15,000/-
Medical Rs.1,29,954/-
Actual loss of income Rs.3,000/-
Special diet, transportation Rs.7,000/-
and attendance charges
Total Rs.4,78,954/-
25. Persons injured in motor vehicular accident pray to recover pecuniary losses as well as non-pecuniary losses. Pecuniary losses which includes medical attendance, loss of earning upto the date of trial and other material loss, while persons injured would suffer mental and physical pain, shock and suffering. Apart from that, person grievously injured in the accident, on account of injury may not be able to walk, run or sit. The inconvenience, hardship and discomfort leads to frustration and mental stress of life and Page 44 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 may lose hope for life. Because of injury, the longevity of the person is shortened.
Permanent disability leads to loss of future earning capacity. The physical disability would be such which would effect the functional ability of a person to earn and progress in life.
26. The Judges have to work out the impact on the earning capacity because of the permanent disability. In Rajkumar Vs. Ajay Kumar & Anr., reported in (2011) 1 SCC 343, it has been observed as under:-
"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;Page 45 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022
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(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent.
After the Tribunal ascertains the
actual extent of permanent
disability of the claimant based on the medical evidence, it has to determine whether such permanent Page 46 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 disability has affected or will affect his earning capacity.
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 ability (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 prevented or Page 47 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 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.
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."
27. The Tribunal while granting compensation has to bear in mind that it is the only occasion on which compensation can be given and as Page 48 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 Lord Denning in the case of Ward V. James (supra) has very aptly suggested that in cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money.
28. Conventional figures to be awarded are to be decided from experience or on comparable examination of award in various cases. Uniformity in awards is expected based on facts, lest that would create dissatisfaction. The compensation awarded should have accuracy, consistent with the case laws as precedent, for the litigating parties could predict the likely amount to be awarded in a particular case.
29. The accident is of 26.1.2015. The learned Tribunal has considered the income of the deceased as Rs.3,000/- per month. The learned Page 49 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 Tribunal had observed on facts that the claimant was doing weaving work. Considering this observation, the monthly income assessed is on the very lower side. Keeping in mind the weaving work done by the claimant and as per the rate of minimum wages schedule for skilled worker, monthly net pay is required to be assessed at Rs.7,384/-. The claimant's paraplegic condition has 100% affected his income generating capacity. He has lost all his hope for his life. He would not be now in a position to earn as usual. Thus, the amount for loss of expectation of life and loss of future earning is required to be assessed. Further, as per the ratio laid down in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, rise in prospective income could be assessed as 40%. Hence, the compensation under the head of future loss of income with Page 50 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 loss of expectation of life is considered as under:-
Rs.7,384/- Income per month + Rs.2,952/- 40% future rise = Rs.10,336/- Income per month x 12 Yearly = Rs.1,24,032/- Annual income x 18 Multiplier = Rs.22,32,576/- Future loss of income with loss of expectation of life
30. During the course of the trial, the claimant had to undergo plastic surgery and as per the record, on 24.6.2019, he was admitted and the date of discharge is 4.9.2019. The clinical summary suggest that the patient was having sacral pressure sore with multiple other pressure sore over right thigh - 2 months. The diagnosis shows that the patient has history of spine injury with internal fixation - 4 years back, following which he developed bilateral lower limb paralysis with Page 51 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 loss of bowel and bladder control. The said operation was conducted at V.S. Hospital. The actual medical bills produced on record are of Rs.1,29,954/-.
31. As per the evidence, the claimant had to continuously take the support of catheter and the Doctor had deposed that he would be in need of protein food and he would require waterbag or airbag to sleep and the Doctor has also stated that part movement could be done by making him seat on a wheel chair, for that purpose computerized wheel chair is claimed in evidence stating the price of the wheel chair can range from Rs.2 lacs to Rs.20 lacs and one of the quotation of battery operated power wheel of Get Peak Company was produced where it shows the price of the wheel chair as Rs.3,25,500/-. No definite calculation of future expenses on medical treatment has been shown. Since the claimant Page 52 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 is in bedridden condition, the need of wheel chair would be negligible.
32. Under the head of future medical expenses, the need of attending the bed sores, medicines, special bed, special diet and transportation, average estimate of expense of Rs.3,25,000/- is made to be granted under the head.
33. The condition of the claimant shows that he would be in need of an attendant. The family members would be required to take care of the claimant. The claimant cannot be expected to rely upon the gratuitous service of his acquaintance and family members and thus, placing reliance on the judgment in the case of Kajal Vs. Jagdish Chand, reported in (2020) 4 SCC 413 for determining the attendant charges and keeping in mind the condition of the appellant, making a Page 53 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 conservative estimate of one attendant at Rs.5,000/- per month, the annual expenses for the attendant charges would come to Rs.60,000/- and using the multiplier of 18, the amount comes to Rs.10,80,000/- under the head of attendant charges for the claimant's entire life.
34. The learned Tribunal has granted Rs.15,000/- under the head of pain, shock and suffering while considering the treatment undergone the period of hospitalization and the pain suffered during the time of accident and continuous pain of paraplegic condition, Rs.3,00,000/- is required to be granted under the head of pain, shock and suffering.
35. Thus, the claimant would be entitled to compensation as under:-
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C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 Rs.22,32,576/- Future loss of income with loss of expectation of life + Rs.1,29,954/- Actual medical expenses + Rs.10,80,000/- Attendant charges + Rs.3,25,000/- Future medical expenses, special diet and transportation + Rs.3,00,000/- Pain, shock and suffering = Rs.40,67,530/- Total compensation
36. Thus, the claimant would be entitled to total compensation of Rs.40,67,530/-. The Tribunal has granted compensation of Rs.4,78,954/-. Thus, the enhanced amount would be Rs.35,88,576/- (Rs.40,67,530/- - Rs.4,78,954/-), which the claimant would be entitled to recover from the respondents jointly and severally, which shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization along with the costs of the petition. Award be modified accordingly. The appeal is allowed in the above terms. Since the First Appeal is allowed, Civil Page 55 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022 C/FA/1017/2021 JUDGMENT DATED: 22/08/2022 Applications do not survive and are disposed of accordingly.
(GITA GOPI,J) Maulik Page 56 of 56 Downloaded on : Sun Dec 25 00:02:36 IST 2022