Gujarat High Court
Kurreshbhai Fidahussin Mansawala vs The Memon Co-Op Bank Ltd on 18 September, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/FA/3296/2007 ORDER DATED: 18/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3296 of 2007
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KURRESHBHAI FIDAHUSSIN MANSAWALA
Versus
THE MEMON CO-OP BANK LTD & 1 other(s)
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Appearance:
MR KIRAN C MEHTA(2718) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 18/09/2023
ORAL ORDER
1. Being dissatisfied with the quantum of compensation awarded by the claim Tribunal, Ahmedabad, the appellant- original claimant Kureshi Fidahussain, has preferred present appeal, seeking enhancement of compensation.
2. The appellant sustained vehicular accidental injury on 28.08.2002. He was admitted at Government Hospital on the same day and discharged on 19.09.2002. He was operated for the open grade-I right fracture shaft femur. He also treated for open grade-III left dislocation knee and left fracture greater trochanter, proximal femur and conservative treatment was given for said two injuries. Right femur operated for IM Nail, whereas for left dislocation knee the treatment debridement suturing, reduction and external fixation was done. According to his case, his treatment was continued for long and had spent Page 1 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined huge amount towards medicines, attendance loss and transportation. At the relevant time, he was doing electrical business in the name and style Paramount Electricals and his monthly earning was Rs.8,000/- and had claimed additional income Rs.2,000/- for repairing electrical equipment. He had also claimed damages for cancellation of work contract. In these background facts, he had claimed that due to sustaining of the aforesaid injuries, he could not sit for long and also find difficulty in standing and also unable to offer his prayer and could not walk without support. He approached Dr.Parag Shah for assessment of disablement. Dr.Parag Shah vide his certificate dated 17.07.2003, after considering the kessler book and on physical examination, opined that there is impact on mobility factor, muscle strength and stability and considering the combined value of both the limbs, had assessed permanent total disability for whole body at 31.92%.
3. Before the Tribunal, the claim was contested by the Insurance Company and had denied the averments made in the petition. The claim Tribunal after considering the oral as well as documentary evidence, awarded Rs.3,42,800/- under the following various heads:
(i) Rs.1,24,800/- Towards future loss of income;
(ii) Rs. 12,000/- Towards actual loss of income;
(iii) Rs. 25,000/- Towards pain, shock and suffering;
(iv) Rs.1,20,000/- Towards medical expenses;
(v) Rs. 06,000/- Towards transportation expenses and attendant charges;
(vi) Rs. 05,000/- Towards special diets;Page 2 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023
NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined
(vii) Rs. 50,000/- Towards the damage caused to shop;
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Rs.3,42,800/- Total
4. In the aforesaid background facts, the injured claimant is before this Court claiming enhancement of compensation.
5. This Court has heard learned counsels Mr.K.C. Mehta and Mr.Vibhuti Nanavati for the respective parties.
6. Mr.Mehta, referring to the oral as well as documentary evidence led before the Tribunal, has submitted that the judgment and award is against the evidence on record and contrary to the settled principles of law on the subject just and equitable compensation. That the appellant claimant has proved his income of Rs.8,000/- and functional disablement at the rate of 31.92% by examining Dr.Parag Shah, Exh.49 who had issued a certificate at Exh.50. Despite of the sufficient evidence on record, the Tribunal without any justifiable reason, taken into account monthly Rs.4,000/- and 20% disablement to determine the income under the head of future economic loss and therefore, findings to this effect are contrary to the evidence on record. That the appellant had sustained three major injuries and had stayed for about a month in the hospital and the same facts have not been considered while awarding the amount under the other various heads.
7. In the aforesaid contentions, learned counsel Mr.Mehta for the appellant submitted that the case is made out for Page 3 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined enhancement of the compensation.
8. On the other hand, Mr.Vibhuti Nanavati appearing for and on behalf of the Insurance Company, has submitted that the income of the appellant was below the limit of income tax and therefore, in absence of any cogent evidence, learned Tribunal has rightly considered monthly income of Rs.4,000/- in determining the future loss. He would further submit that where the claimant suffers a permanent disability as a result of injury, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. In the facts of present case, there is no evidence to establish that the earning capacity of the claimant is reduced on account of such disability.
9. In the aforesaid contentions, learned counsel Mr.Vibhuti Nanavati prays that the awarded amount is just and equitable and does not require any enhancement in the compensation awarded by the Tribunal.
10. Having heard learned counsels for the respective parties and on perusal of the material placed on record, it appears that Dr.Parag Shah after considering three fracture injuries, assessed 31.92% disablement body as a whole. It is the case of the appellant that at the relevant time, he was working as a partner with Paramount Electricals. The appellant was not filing income tax return as his income Page 4 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined was not taxable. No any books of accounts being produced before the Tribunal to show that Rs.8,000/- was being paid towards the remuneration to him. There was no any evidence to suggest that the appellant was earning additionally Rs.2,000/- from repairing of electrical equipment. The witness Abdul Kadar Exh.51 had produced certificate to establish the payment made to the claimant for electrical maintenance work. The certificate Exh.52 was not supported by any books of accounts or other things to substantiate the contents of the certificate. In the profit and loss account produced at Exh.52, no any specific entry made to show the payment made to the claimant.
11. Upon reanalysis and re-appreciation of the oral as well as documentary evidence, this Court is of the considered view that the Tribunal has not committed any error while assessing monthly income of the claimant.
12. It is the submission that the doctor had assessed 32.91% disablement body as a whole and the same requires to be considered while determining the loss of earnings. In case of Raj Kumar (2011 (1) SCC 343), the Apex Court considered in detailed the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it, in Paras-10, 11 and 13 of the judgment, the Apex Court made the following observations:
"10 Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under Page 5 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined 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.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal Page 6 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined will adopt the said percentage for determination of compensation.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was 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. In light of the settled position of law and applying to the facts of present case, in absence of any evidence with respect to reduction of income on account of the said disablement, learned Tribunal has not committed any error while considering 20% impact on the earning of the claimant. It needs to be noted that the learned Tribunal has not considered the prospective income and to that extent, the amount awarded under the future economic Page 7 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined loss is modified. Thus, the prospective income comes to Rs.4,000/- + 40% = Rs.5,600/- and considering 20% disablement the monthly loss would come to Rs.1120/- and yearly it would be Rs.13,440/- and applying 13 multiplier, the total future loss comes to Rs.1,74,420/-. The Tribunal has awarded Rs.1,24,800/-. Thus, therefore, the enhanced amount under the head of future economic loss is payable Rs.49,920/- and accordingly, the appellant is entitled for the said enhanced amount.
14. It is the contention that the reasonable amount under the head of treatment and medical expenses is being not awarded properly. Upon scrutiny of the record, it appears that original bills of treatment amounting to Rs.1,31,000/- were produced before the Court and despite of these facts, amount of Rs.1,20,000/- has been awarded. Thus, therefore, Rs.11,000/- as enhanced amount under the head of medical expenses is payable to the claimant and is awarded.
15. Except the above modification, this Court does not find to modify the amount awarded under other heads as referred in Para-3 of this judgment.
16. In view of the aforestated reasons and discussions made hereinabove, the appeal is allowed in part. The appellant is entitled for enhanced amount of Rs.60,920/- and accordingly, the Insurance Company is directed to pay the same with the running interest at the rate of 6% within Page 8 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023 NEUTRAL CITATION C/FA/3296/2007 ORDER DATED: 18/09/2023 undefined three months from the date of receipt of this order. Decree be drawn accordingly.
(ILESH J. VORA,J) Rakesh Page 9 of 9 Downloaded on : Mon Sep 18 20:48:19 IST 2023