Gujarat High Court
United India Insurance Co. Ltd vs Sunil Omprakash Pandya & 4 on 12 March, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/FA/300/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 300 of 2005
With
CROSS OBJECTION NO. 217 of 2009
In
FIRST APPEAL NO. 300 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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UNITED INDIA INSURANCE CO. LTD....Appellant(s)
Versus
SUNIL OMPRAKASH PANDYA & 4....Defendant(s)
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Appearance:
MS AMEE YAJNIK, ADVOCATE for the Appellant
Page 1 of 27
C/FA/300/2005 JUDGMENT
MS VIDHI J BHATT, ADVOCATE for the Respondent No. 1
RULE NOT RECD BACK for the Respondent No. 2
RULE SERVED for the Respondents No. 4 - 5
SERVED BY RPAD - (R) for the Respondent No. 3
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 12/03/2014
ORAL JUDGMENT
1. This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") as well as the Cross Objection filed therein arise out of the judgment and award dated 30th September, 2004 passed by the Motor Accident Claims Tribunal (Auxiliary), Gandhidham - Kachchh in Motor Accident Claim Petition No.19/1999.
2. The facts stated briefly are that the respondent No.1 - original claimant/cross-objector filed a claim petition before the Tribunal stating that on the date of the accident, he had been working as a Captain in a vessel for the last fourteen years and was travelling from Mumbai to Adipur in a Maruti car bearing No.MAP 9541 belonging to his friend - respondent No.2, along with his wife Sonal, son Siddharth and other friends. When they reached near Sankhiyali, vehicles were approaching with full light and a truck bearing No.GRX-4129 was parked on the side of the road without parking light. The driver of the Maruti car was driving the car in full speed and hence, because the vehicles were coming from the opposite side with full lights on, the Maruti car collided with a stationary truck, due to which the claimant and others sustained serious injuries. The claimant Page 2 of 27 C/FA/300/2005 JUDGMENT was immediately shifted to Dr. Naik's Hospital at Gandhidham and thereafter had gone to Mumbai for further treatment. However, he did not recover fully and was required to take rest and had also sustained permanent disability. The claimant accordingly filed a claim petition seeking compensation of Rs.18,30,000/- before the Tribunal. The Tribunal, after appreciating the evidence on record, awarded Rs.4,72,500/- under the head of actual loss and future loss of income, Rs.1,92,310/- towards medical treatment and Rs.55,000/- towards pain, shock and suffering and attendant charges. In all, the Tribunal awarded compensation of Rs.7,19,810./-. Being aggrieved, the insurance company is in appeal and the claimant has filed cross objection.
3. Ms. Amee Yajnik, learned advocate for the appellant - insurance company invited the attention of the court to the impugned judgment and award to point out that the Tribunal has recorded a finding to the effect that the claimant was earning a salary of Rs.43,000/- per month. It was submitted that the said finding of the Tribunal is without any basis, inasmuch as, on the date of the accident, the claimant was not serving anywhere. Apart from the fact that the Tribunal has taken the monthly income on a wrong basis, despite such income being taxable, no amount has been deducted towards income tax. It was submitted that the claimant has not produced the income tax returns of the previous year prior to the accident. Referring to the deposition of the claimant, it was submitted that he has admitted that he was not paying any income-tax as he was a Non-Resident Indian, and that he was exempted from payment of income tax. It was contended that there is no provision under the Income Tax Act which exempts Page 3 of 27 C/FA/300/2005 JUDGMENT a Non-Resident Indian from payment of tax. It was further submitted that the evidence on record shows that the claimant was working with the Great Circle Shipping Agency Limited for a period of nine months from 1 st December, 1988 and hence, as on the date of the accident, the claimant was not in service and hence, his income ought to have been determined by applying the standards laid down in the case of non-earning persons. It was further submitted that for the year ending 31 st March, 1990, the exemption limit for payment of income-tax was Rs.22,000/- whereas, admittedly, the claimant was not paying any income-tax and hence, it can be safely inferred that he did not have any taxable income. His income, therefore, could not be more than Rs.22,000/- per annum, that is, Rs.1,833/- per month. Therefore, at best, the income of the claimant should be taken at Rs.22,000/- per annum.
3.1 Next, it was submitted that even if the say of the claimant were to be accepted and his income were to be considered at Rs.43,000/- per month, that is, Rs.5,16,000/- per annum, the rate of income-tax for the relevant year was 50% if the income was above Rs.1,00,000/- and there was a 12% surcharge. Hence, the net salary of the claimant would come to Rs.2,27,040/- after deducting the tax. It was, accordingly, urged that the quantum of compensation as determined by the Tribunal is not in consonance with the evidence on record and as such, the same is required to be reduced.
4. Opposing the appeal, Ms. Vidhi Bhatt, learned advocate for the respondent/cross-objector submitted that the Tribunal has erred in deducting 25% of the awarded amount from the compensation awarded to the cross-objector. It was submitted Page 4 of 27 C/FA/300/2005 JUDGMENT that this is a case of composite negligence and not contributory negligence. In a case of composite negligence, if the Tribunal decides to apportion the liability between the two vehicles involved in the accident, then also the wrong doers are jointly and severally liable to the injured for the payment of the entire damages and the injured person has the choice of proceeding against all or any of them for recovering the amount. The Tribunal, however, has mixed up the two distinct concepts and deducted 25% of the truck's liability from the amount awarded to the cross-objector under the head of loss or actual loss of income.
4.1 On the question of quantum of compensation, it was submitted that for the last couple of years before the date of accident, the cross-objector had been working as a Captain in the Merchant Navy. On 01.12.1988, he was appointed as Captain by the Great Circle Shipping Agency Limited, on contract basis, for a period of nine months and his pay was $ 2544 (American dollars). At the relevant time, the conversion rate of a dollar was Rs.18 or Rs.18.5. Thus, if the salary of the cross-objector is converted from American dollar to Indian rupees, it would come to Rs.43,492/-. It was pointed out that subsequently, the cross-objector had been appointed as a Captain by San Juliano Shipping Corporation and his appointment was subject to medical examination. By its letter dated 08.12.1989, San Juliano Shipping Corporation had stated that the cross-objector had cleared his medical examination and was required to report to any port in Europe and the estimated time of arrival of the vessel was 17.01.1990. Subsequently, the cross-objector was medically examined and was declared to be fit to report on duty vide its report dated Page 5 of 27 C/FA/300/2005 JUDGMENT 02.01.1990. However, the accident took place on 04.01.1990 and due to the accident, the cross-objector started suffering from double vision in one eye (Diplopia) and his contract came to be rescinded by San Juliano Shipping Corporation by its letter dated 11.10.1990 (Exhibit-104). It was, accordingly, submitted that the cross-objector had established that his earning capacity at the time of the accident was $ 2544 (American dollars) per month, that is, Rs.43,492/-. It was, accordingly, submitted that the Tribunal had rightly assessed the monthly income of the cross-objector at US $ 2544.
4.2 As regards the contention raised on behalf of the appellant that the cross-objector was not an income tax assessee and therefore, it can be inferred that he was not having any taxable income, it was submitted that such a contention was never raised by the Insurance Company before the Tribunal. Even in the written statement dated 04.07.1997 and the written arguments dated 10.11.2000 filed by the Insurance Company, such contention was not taken. It was pointed out that even in the memorandum of first appeal, such contention has not been taken and as such, the Insurance Company cannot be allowed to raise such objection for the first time during the course of hearing of the first appeal. It was argued that if this contention had been raised before the Tribunal, the cross-objector would have got an opportunity to contend otherwise by relying on material evidence. According to the learned counsel, the income tax is charged on the income earned in the previous year and "previous year" for the purpose of Income Tax Act, means the financial year immediately preceding the assessment year. The assessment year in the present case will be from 01.04.1989 to 31.03.1990 Page 6 of 27 C/FA/300/2005 JUDGMENT and the previous year will be 01.04.1988 to 31.03.1989. It was submitted that in terms of section 6 of the Income Tax Act, 1961, an individual is said to be resident in India in any previous year, if he is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more. If an individual is not in India for a period of 182 days, then he is considered to be a Non-Resident Indian and is not required to pay income tax in India in respect of income accruing or arising outside India even if it is remitted to India. It was submitted that the cross-objector was working with Searland Shipping Management Company from 05.09.1987 to 18.07.1988. Therefore, from 05.09.1987 to 18.07.1988, that is, the previous year, the cross-objector was outside India for more than 182 days, which means he falls in the category of Non-Resident Indian and was not supposed to pay income tax in India. Further, in such cases, what is required to be considered is the earning capacity of the injured and not as to whether he has paid income tax or not. It was submitted that undisputedly, the cross-objector was earning $ 2544 (American dollars) per month, that is, Rs.43,492/- per month when he was working with the Great Circle Shipping Agency Limited, and the Insurance Company has not been able to prove otherwise. Therefore, the earning capacity of the cross-objector at the time of the accident was $ 2544 (American dollars) per month. It was pointed out that the Insurance Company alternatively argued that if the monthly income of the cross-objector was considered to be Rs.43,000/-, then his annual income would come to Rs.5,16,000/-, which becomes a taxable income. Therefore, the tax @ 50% and surcharge @ 12% is required to be deducted from his annual income after which, his annual income would come to Rs.2,27,040/-. It was argued that it is Page 7 of 27 C/FA/300/2005 JUDGMENT only in death cases that the amount is calculated under the head of loss of dependency and the annual income when in taxable range, the words "actual salary", are required to be read as actual salary less tax. In injury cases, no tax is deducted from the annual income for the purpose of awarding compensation under various heads. Reference was made to the decision of the Supreme Court in the case of Rekha Jain v. National Insurance Company Limited and others, (2013) 8 SCC 389, to point out that the Supreme Court in the said case had considered the annual income to be Rs.5,00,000/- and no tax was deducted from the annual income for the purpose of awarding compensation under various heads. It was, accordingly, submitted that the Tribunal has rightly held the monthly income of the cross-objector to be Rs.43,492/-.
4.3 It was submitted that the Tribunal while computing the actual loss of income, has considered the monthly income of the cross-objector to be Rs.43,000/-, whereas the monthly income of the cross-objector is Rs.43,492/- and therefore, the Tribunal ought to have considered actual loss of income by considering the monthly income at Rs.43,492/- instead of Rs.43,000/-, as has been done in the present case.
4.4 The learned counsel for the cross-objector emphatically submitted that the cross-objector is suffering from Diplopia in one eye on account of which, he is not in a position to work as a Captain of the ship. It was pointed out that various medical records have been placed on record to show that the cross- objector is suffering from Diplopia in one eye. The cross- objector had examined Dr. Gaur, an eye doctor, who was also cross-examined by the parties. Dr. Gaur, in his deposition, has Page 8 of 27 C/FA/300/2005 JUDGMENT stated that the cross-objector is suffering from permanent disability and he will not be able to pursue his work in future due to the disability, which fact has not been disproved by the Insurance Company. It was submitted that the Supreme Court in various decisions has held that while considering the percentage of physical disablement, the loss of earning capacity cannot be a substitute for percentage of physical disablement. An injured person may not suffer from 100% physical disability, but if he loses the capacity to pursue his vocation as a result of the accident, then he suffers from 100% functional disability. It was submitted that the cross-objector will never be able to work as a Captain in Merchant Navy, nor will he be able to sail on seas again due to his disability and therefore, his functional disability ought to have been assessed at 100%. In support of such submission, the learned counsel placed reliance upon the decisions of the Supreme Court in the case of Rekha Jain v. National Insurance Company Limited and others (supra) and Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, wherein the Court held that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. It was submitted that in the facts of the present case, where the cross-objector is not in a position to work as a Captain in the Merchant Navy, this is a case of 100% functional disability and the Tribunal was, therefore, not justified in assessing the cross- objector's percentage of physical disability to be 10% by relying on Serial No.25A of Schedule I to the Employees' Compensation Act, 1923. It was submitted that alternatively, the Tribunal ought to have considered the percentage of Page 9 of 27 C/FA/300/2005 JUDGMENT disability at 40% by applying Serial No.25 of Part II of the Schedule I to the Employees' Compensation Act, 1923.
4.5 Ms. Bhatt also submitted that having regard to the age of the cross-objector at the time of the accident, the Tribunal ought to have applied a multiplier of 16 instead of 10. In support of such submission, reliance was placed upon the decision of the Supreme Court in the case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121. As regards the amount awarded under the head of medical treatment, it was submitted that the amount awarded by the Tribunal is just, legal and proper and does not warrant interference by this court.
4.6 Next, it was submitted that there was a calculation error in the impugned award, inasmuch as, the Tribunal has considered the monthly income of the cross-objector to be Rs.43,000/- instead of Rs.43,492/-. It was submitted that the Tribunal has further erred in deducting Rs.2,52,000/-, that is, cross-objector's income for the year 1993-1995 while working as a Director in Seeker Fashion Private Limited, from his annual income of Rs.5,21,904/-. It was submitted that while calculating future loss of income, the Tribunal is not required to deduct any amount which the injured would have earned after the date of accident. It was submitted that the method of calculation adopted for the purpose of awarding compensation under the head of future loss of income is inconsistent with and in contravention of the method of calculating compensation under the head of future loss of income as explained in the decision in the case of Raj Kumar v. Ajay Kumar and another (supra). It was, accordingly, urged that Page 10 of 27 C/FA/300/2005 JUDGMENT the cross-objections are required to be allowed by enhancing the compensation, as prayed for.
5. Having regard to the rival submissions advanced by the learned counsel for the respective parties, it is apparent that the appeal as well as the cross-objection relate to the quantum of compensation assessed by the Tribunal. Before the Tribunal, the claimant/cross-objector had adduced evidence by way of Service Terms & Conditions of Contract of Great Circle Shipping Agency Ltd. (Exhibit-102), which reveals that the claimant was assigned as Master of the Vessel for a period of nine months. The said document is dated 01.12.1988. The same further reveals that the total wages payable to the claimant were US $ 2544 per month. The claimant has also produced certain other documents which reveal that he was engaged for periods between 8 to 10 months by different Shipping Companies. The claimant has produced at Exhibit-103, a communication dated 08.12.1989 of San Juliano Shipping Corporation, Monrovia, calling upon the claimant to present himself at the Company approved Medical Representatives Clinic for medical examination on 03.01.1990 for clearance to proceed on vessel M.V. RIALTO. He was further required to report at any port in Europe. Thus, the facts reveal that at the time when the accident took place, the claimant was not employed with any Shipping Company, but was between projects. His engagement with the Great Circle Shipping Company had come to an end and he had got a new assignment with San Juliano Shipping Corporation, subject to his being medically fit. The record also reveals that the claimant had undergone medical fitness test and was declared to be fit. However, immediately thereafter the accident occurred, on account of which, the claimant was Page 11 of 27 C/FA/300/2005 JUDGMENT required to take medical treatment for a longer period of time and due to the deficiency in his vision, ultimately by a communication dated 11.10.1990 (Exhibit-104), San Juliano Shipping Corporation informed him that he would not be able to serve the shipping line fully until further improvement in his vision. Thus, on account of the injury sustained by him as a result of the accident, the claimant was not in a position to work as a Captain in the Merchant Navy. It is in the backdrop of the aforesaid facts, that the submissions advanced by the learned counsel for the respective parties are required to be examined.
6. On behalf of the appellant-insurance company, it has been contended that at the time of the accident, the claimant was not employed and hence, his income should be considered as that of an unemployed person. Another contention is that in case a person earns more than the taxable income, his income is to be assessed on the basis of his income tax assessment. It has been contended that in the present case, since the claimant did not pay any income tax and has not produced any record of any income tax paid by him at the relevant time, his income should be considered to be minimum income, at the relevant time, Rs.22,000/- per annum. On the other hand, on behalf of the claimant, it has been contended that since the claimant was a Non-Resident Indian, he was exempted from payment of income tax and was, therefore, not required to be assessed to income tax. Reliance has been placed upon the terms and conditions of employment with Great Circle Shipping Company in support of the claim of the claimant that his monthly salary is US $ 2544 which is equivalent to Rs.43,492/-.
Page 12 of 27C/FA/300/2005 JUDGMENT
7. The question that therefore arises for consideration is as to what can be said to be the income of the claimant. True it is that at the relevant time, the claimant was between projects and was, therefore, not employed. However, the contention that for such reason, his income should be considered on the basis of a non-earning person at Rs.18,000/- per month, does not merit acceptance. The contention that the claimant was not paying income tax at the relevant time does not appear to have been taken before the Tribunal, nor has it been pleaded in the memorandum of appeal, as has been rightly pointed out by the learned counsel for the claimant. As to whether the claimant was liable to pay income tax or not at the relevant time, is a question of fact. Since no such contention had been raised before the Tribunal, the Tribunal had no opportunity to deal with the same. Under the circumstances, in the absence of any evidence in this regard, it is not possible for this Court to state at this stage, one way or the other, as to whether or not, the claimant was liable to pay income tax. Besides, the claimant has produced evidence on record to establish that prior to the accident he was earning US $ 2544 per month, at the time when he was engaged by Great Circle Shipping Company. However, the claimant has not adduced any evidence, even in the nature of oral evidence as to what was the pay package which was offered to him by San Juliano Shipping Corporation. In the opinion of this court, in the absence of any other evidence, the Tribunal cannot be blamed for considering the income of the claimant on the basis of the evidence adduced by him. However, the record reveals that the assignment with Great Circle Shipping Agency was for a period of nine months. From the previous engagements of the cross-objector, it appears that he was engaged on contract for Page 13 of 27 C/FA/300/2005 JUDGMENT certain periods of eight to ten months, but not for the whole year. Therefore, even if the future loss of income of the claimant/cross-objector is computed on the basis of salary last drawn by him during the course of his engagement with Great Circle Shipping Agency, the annual income has to be computed by multiplying the monthly salary by a figure ranging between eight to ten (nine being the average) because for the remaining period, he not employed. Accordingly, the annual income of the claimant would be worked out at Rs.43,492/- x 9 = Rs.3,91,428/-. A perusal of the impugned award reveals that the Tribunal while considering the annual loss of income, has deducted the income derived by him as a Director of Seeker Fashion for the years 1993-94 and 1994-95 and has, accordingly, come to the conclusion that the claimant incurred net loss of Rs. 2,00,000/-. The calculation made by the Tribunal appears to be on a misconception of facts and law, inasmuch as, for the purpose of computing the annual income of the claimant, the question of deducting the income subsequently earned by him would not arise. Besides, in the facts of the present case, the Tribunal appears to have deducted income of two years from what was considered by the Tribunal to be annual income of the claimant. Therefore, the annual income as computed by the Tribunal does not appear to be correct.
8. The question that next arises for consideration is as to whether any amount is required to be deducted by way of income tax from the annual income of the claimant?
9. On behalf of the cross-objector, it has been stated that since he was a Non Resident Indian, he was not required to pay income tax and that the claimant has not paid any income tax Page 14 of 27 C/FA/300/2005 JUDGMENT anywhere. It is quite surprising that a person would be totally exempted from payment of income tax anywhere, inasmuch as, every person who has an income beyond the taxable limit would be required to pay income tax somewhere. However, in the absence of any proper evidence being brought on record in this regard, it is not possible to render a finding one way or other way in this regard. The contention raised on behalf of the claimant that in injury cases, no tax is deducted from the annual income for the purpose of awarding compensation, does not merit acceptance in the light of the decision of the Supreme Court in the case of Oriental Insurance Company Limited v. Ram Prasad Varma and others, (2009) 2 SCC 712, wherein in an injury case, the Supreme Court had held that the income tax payable by the assessee was required to be deducted for the purpose of computing the future loss of income. Be that as it may, in the absence of any evidence having been brought on record that the claimant was required to pay income tax at the relevant time on the aforesaid amount, the court is of the view that the entire income is required to be taken to be the annual income of the claimant.
10. The next submission advanced by the learned counsel for the cross-objector is that the Tribunal ought to have considered the disability of the claimant at 100% having regard to the functional disability. Such submission is based on the fact that the claimant is no longer in a position to work as a Captain in the Merchant Navy and therefore, in the light of the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar and another (supra), the functional disability of the claimant should be considered at 100% and the compensation should be assessed accordingly.
Page 15 of 27C/FA/300/2005 JUDGMENT
11. In this regard, reference may be made to the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar and another (supra), wherein the Supreme Court has laid down the standards for compensation of future loss of earnings due to permanent disability. The court held thus :-
"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
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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 Page 16 of 27 C/FA/300/2005 JUDGMENT 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.
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."
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12. The facts of this case have to be examined in the light of the principles laid down in the above decision. The Supreme Court in the above decision has held that ascertaining the effect of the permanent disability on the actual earning capacity, involves three steps. The third step, which is relevant for the present purpose 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.
13. From the facts as appearing from the record, it is apparent that the claimant is prevented from discharging his previous activities and functions, namely, to work as a Captain in the Merchant Navy. However, the evidence further reveals that he is in a position to do some other activities and functions so that he can continue to earn his livelihood. The evidence on record further shows that the claimant was working as a Director of Seeker Fashion after the accident and was earning approximately Rs.10,000/- per month. Thus, the case of the claimant falls within the category of persons who are prevented or restricted from discharging their previous activities and functions, but can carry on some other or lesser scale of activities and functions so that they continue to earn or can continue to earn their livelihood. Thus, the functional disability of the claimant cannot be assessed at 100%, as is sought to be contended by the learned counsel for the Page 18 of 27 C/FA/300/2005 JUDGMENT claimant. What then would be the extent of functional disability in the case of the claimant is the next question that would arise for consideration.
14. The Tribunal has assessed the disability of the claimant at 10% by considering the injury as one under item No.26A of Schedule I to the Employees' Compensation Act, 1923, which reads thus: "Loss of partial vision of one eye - 10". It may be noted that on behalf of the claimant, no evidence has been led to establish the extent of disability. The medical case papers produced on record reveal that the claimant has produced on record at Exhibit-94, the medical case papers regarding the treatment given by Dr. Nadir E. Bharucha, Consultant Neurophysician, wherein it has been stated that, "The Diplopia is mainly looking to the right lat down and up. It may improve as it does not interfere with the reading". A bill dated 17.09.1990 of Zale Lipshy University Hospital, Dallas has been produced on record at Exhibit-95, however, the same does not disclose the nature of the treatment given to the claimant. The claimant has produced at Exhibit-98, a certificate issued by David R. Weakley, Jr. M.D., Assistant Professor of Ophthalmology, Southwestern Medical Center, at Dallas, wherein it has been stated that the claimant came to see him for severe double vision following an automobile accident which had occurred in India. This severe double vision was prohibiting him from being able to function, therefore, they elected to perform urgent eye muscle surgery to eliminate the double vision. The said certificate says that "The cost of the medical care received by Mr. Pandya totals $ 4,000.00". Thus, the said certificate only states as to what treatment was given to the claimant, however, it does not mention the status of the Page 19 of 27 C/FA/300/2005 JUDGMENT vision of the claimant. Another medical certificate has been produced at Exhibit-99; however, there is nothing therein to indicate the condition of the claimant qua his vision. The claimant has produced at Exhibit-104 a communication dated 11.10.1990 of San Juliano Shipping Corporation, Monrovia, which reads thus :
"Dear Capt. Pandya, I was really shocked to hear about your car accident from your wife and for some time wondered what had happened as there was no news from you.
I am glad to know that you have had further surgery to improve your eyesight. Unfortunately, upon checking with our medical department, I have been advised to inform you that since the DIPLOPIA has not completely disappeared at the left gaze, we would not be able to accept your medical report for want of a 20/20 vision.
I regret this very much, as I feel you served the company very well. However, in view of your injury, we feel you may not be able to serve the shipping line fully until further improvement.
I wish you a very quick recovery.
Best Regards, Capt. Pizzola"
15. From the said communication, it appears that the claimant had undergone further surgery to improve his eyesight and thereafter, appears to have contacted San Juliano Shipping Corporation, however, the said Corporation was not satisfied that the claimant would be in a position to serve the shipping line as his Diplopia had not completely disappeared at the left gaze and they were not in a position to accept his Page 20 of 27 C/FA/300/2005 JUDGMENT medical report for want of 20/20 vision. It, therefore, appears that the claimant had produced some medical report before San Juliano Shipping Corporation showing his improved condition, which, however, does not appear to form part of the record of the case.
16. The claimant has examined Dr. Arun Bhavanishanker Gaur, at Exhibit-127, who had issued the certificate dated 08.05.1997, at Exhibit-128. From the deposition of Dr. Arun Gaur, it is revealed that he has never treated the claimant. The certificate issued by the said doctor states that "Mr. Sunil Pandya (the claimant) is having Diplopia in distant and near vision. Left Eye Superior oblique muscle movement slightly under action. Left sided Ptosis present. This complaint occur after accident. Diplopia is still present. He is having difficulties in normal function also. Vision in Both Eye 6/6 normal." Dr. Gaur, in his deposition at Exhibit-127, has deposed that the claimant had complained of double vision. He has deposed that due to Diplopia, the claimant has double vision and therefore, he cannot drive or sail. That on account of his condition, he cannot assess exactly where a thing is placed. In his cross- examination by the learned advocate for the Insurance Company, it is revealed that he had examined the claimant seven and half years after the accident and had never treated him. That as per the certificate at Exhibit-128, retina and vision of both eyes is normal. He has, however, denied the suggestion that he had not conducted any tests of Diplopia, but has admitted that such fact is not recorded in the certificate issued by him. In his cross-examination, it is further revealed that he has papers of Diplopia tests carried out by him, he, however, has not brought the same with him. He has Page 21 of 27 C/FA/300/2005 JUDGMENT further stated that the fact regarding the claimant having difficulty in driving is based upon the information given by him. It may also be noted that the certificate, Exhibit-128, does not state the extent of disability suffered by the claimant.
17. It may be noted that though it is the case of the claimant that he had taken treatment abroad at Dallas, the medical case papers relating to the treatment taken by him have not been produced on record, except for the certificates referred to hereinabove, which do not record the condition of the claimant after the operation was carried out. As noticed earlier, it appears that the claimant had produced some report before San Juliano Shipping Corporation, but the same was not accepted by the said Corporation on the ground that the Diplopia had not completely disappeared and that they could not accept his medical report for want of a 20/20 vision. Thus, it appears that the vision of the claimant must have improved, however, no report with regard to the status of his vision except for the certificate, Exhibit-128, has been placed on record. Having regard to the overall evidence which has come on record and in the absence of any certificate assessing the extent of disability incurred by the claimant being placed on record, the approach adopted by the Tribunal in assessing the disability of the claimant appears to be just and proper. Therefore, the disability as assessed by the Tribunal at 10% does not warrant interference. The loss of prospective income is, therefore, required to be assessed by considering the disability at 10%.
18. As noted earlier, the annual income of the claimant comes to Rs.3,91,428/-. Considering the disability at 10%, the Page 22 of 27 C/FA/300/2005 JUDGMENT annual loss of income would come to Rs.39,142/-. For the purpose of considering the total loss of income, the Tribunal has applied a multiplier of 10. The Supreme Court in the case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) has laid down the standards for computation of compensation. In terms of the standards laid down in the above decision, where the age of a person is between 31 to 35 years, a multiplier of 16 is required to be applied. In the present case, the age of the claimant at the time of the accident was 34 years and as such, the proper multiplier would be 16 and not 10. The total future loss of income would, therefore, come to Rs.39,142/- x 16 = Rs.6,26,272/-.
19. The Tribunal, while computing the total loss of income, has deducted two years' income earned by the claimant by working as a Director in Seeker Fashion from the total annual income. The said approach adopted by the Tribunal is incorrect, inasmuch as, the future loss of income is required to be computed on the basis of the income of the claimant as on the date of the accident and the disability incurred by him.
20. The Tribunal has awarded Rs.55,000/- towards pain, shock and suffering and attendants. On behalf of the claimant, the learned advocate has submitted that the amount awarded towards pain, shock and suffering is on the lower side and is required to be enhanced. However, a perusal of the record of the case reveals that the claimant had not led any evidence on record to indicate the nature of the suffering undergone by him, nor has anything been stated in his evidence to indicate the difficulties which he is required to face on account of the Page 23 of 27 C/FA/300/2005 JUDGMENT injuries sustained by him. The only evidence which has come on record is by way of deposition of Dr. Arun Gaur, wherein he has stated that the claimant on account of Diplopia, is not in a position to drive or sail and is not in a position to assess the actual location of anything. Insofar as the claimant not being in a position to drive or sail is concerned, the doctor has further deposed that such fact is based upon the information given by the claimant. However, the claimant in his own deposition has no where referred to any difficulties faced by him. Under the circumstances, the amount of Rs.55,000/- awarded by the Tribunal is just and proper, and does not require to be enhanced. The Tribunal has also awarded Rs.3,000/- per month towards attendant charges for a period of ten months from 04.01.1990 to 10.11.1990.
21. The Tribunal has awarded Rs.1,92,310/- towards medical treatment, the break-up of which is as follows :
Particulars Exhibit Amount
Fees paid to Dr. Nayab, Exh.109 Rs. 3,840/-
Gandhidham
Two bills of Bombay Hospital dated Exh.88 Rs. 15,471/-
15/1/90 Exh.89
Bill of Bombay Hospital dated Exh.92 Rs. 17,999/-
13/6/90 Exh.93
Bill of Zale Lipshy University Exh.95 Rs. 30,000/-
Hospital, Dallas dated 17/9/90
(1660-40 dollars)
Total amount towards treatment at - Rs. 55,000/-
Dallas (Rs.85,000/-)
Expenses towards stay, food etc., at - Rs. 70,000/-
Dallas, in respect of which bills and
receipts have not been produced
Total ::: Rs. 1,92,310/-
Page 24 of 27
C/FA/300/2005 JUDGMENT
22. Insofar as the compensation awarded by the Tribunal towards medical treatment is concerned, the first five items are supported by bills. Insofar as Rs.70,000/- awarded towards the costs of stay, food etc. incurred at Dallas is concerned, no vouchers or receipts have been produced in this regard. However, it is an admitted position that the claimant had, in fact, gone to Dallas for medical treatment. Therefore, he would necessarily have had to incur expenses towards the cost of travelling to Dallas as well as for stay, food etc. and other ancillary expenses at Dallas. Therefore, the amount of Rs.70,000/- awarded by the Tribunal towards such expenses appears to be just and reasonable and cannot in any manner be said to be exorbitant.
23. The Tribunal has also awarded Rs.4,30,000/- towards actual loss of income for the period from 04.01.1990 to 10.11.1990. From the evidence which has come on record, it is evident that on the date when the accident took place, the claimant was not employed, but was about to join San Juliano Shipping Corporation. This court has, for the reasons stated hereinabove, assessed the annual income of the claimant at Rs.3,91,428/-. On the basis of such annual income, the monthly income of the claimant would come to Rs.32,619/-. It has come on record that the claimant normally was engaged for a period of nine months in a year. Therefore, the actual loss of income ought to have been considered not on the basis of ten months, but nine months. Accordingly, the actual loss of income would come to Rs.32,619/- x 9 = Rs.2,93,571/-, which can be rounded off to Rs.3,00,000/-. Thus, the actual loss of income can be worked out at Rs.3,00,000/- and not Page 25 of 27 C/FA/300/2005 JUDGMENT Rs.4,30,000/-, as worked out by the Tribunal.
24. In the light of the above discussion, the claimant - cross- objector would be entitled to the following compensation:
Loss of future income Rs. 6,26,272/-
Actual loss of income Rs. 3,00,000/-
Medical treatment Rs. 1,92,310/-
Pain, shock and suffering & attendants Rs. 55,000/-
Total Compensation Rs. 11,73,582/-
25. It may be noted that the Tribunal has, out of the amount of compensation computed by it, deducted 25% therefrom towards the truck's liability. In this regard, it may be noted that this is a case of composite negligence and not contributory negligence as the claimant/ cross-objector was a passenger in the car. Therefore, no amount could have been deducted on account of the negligence attributed to the driver of the truck. As such, all the tortfeasors would be jointly and severally liable to pay the amount of compensation.
26. In light of the above discussion, both, the appeal as well as the cross-objection, partly succeed, to the extent discussed hereinabove. The claimant/cross-objector shall be entitled to recover total compensation of Rs.11,73,582/- (Rupees eleven lakhs, seventy-three thousand, five hundred and eighty two only) from the appellant herein as well as other respondents jointly and severally. The Tribunal has awarded compensation of Rs.7,19,810/-. The additional amount of compensation, therefore, comes to Rs.4,53,772/- (Rupees four lakhs, fifty three thousand, seven hundred and seventy two only).
Page 26 of 27C/FA/300/2005 JUDGMENT Accordingly, the claimant/cross-objector shall be entitled to recover an additional compensation of Rs.4,53,772/- from the appellant herein as well as other respondents, jointly and severally, together with interest at the rate of 7.5% per annum from the date of the filing of the claim petition till realization thereof.
27. The Registry shall forthwith send back the record and proceedings of the case.
(HARSHA DEVANI, J.) parmar* Page 27 of 27