GARVA MAHESHKUMAR GULU v. AHIR NARAN MENDAN — 1992 DIGILAW 337 (GUJ)

J. N. BHATT, J. ( 1 ) THE road accident giving rise to this appeal occurred oh 17. 3. 1981 at about 8. 30 A. M. The appellant herein who is the original claimant in Motor Accident Claim Petition No. 78 of 1981 was going on his cycle on the day of the accident towards Gandhidham. When he reached near Sunderpuri village at that time one motor Truck bearing No. G. T. Y. 5322 came from behind driven by original opponent No. 1 Ahir Naran in a rash and negligent manner. The said truck dashed against the cycle or the claimant from behind. The claimant fell down and his left leg was run over and crushed under the wheels of the truck. ( 2 ) THE claimant was shifted to the hospital where he was advised amputation of left leg and as such the left leg of the claimant was amputed above knee. The claimant was 22 years old at the time of the unfortunate accident. He was doing tailoring work. According to his case he was earning about Rs. 1200 per month by doing tailoring work. On account of permanent partial disablement and amputation of left leg the claimant has contended that he has become totally jobless and he has suffered total loss of earnings. He therefore claimed an amount of Rs. 2 0 0 by way of compensation from the original opponents Nos. 1 2 and 3 driver owner and insurer respectively in respect of the offending truck. ( 3 ) THE opponents appeared and resisted the claim. They denied that the truck in question was driven in a rash and negligent manner. The income of the claimant was also denied. It was also contented that the claimant has not sustained permanent partial disablement. According to the contention of the opponents the accident had not happened due to the rash and negligent driving of the driver of the truck. ( 4 ) ON appreciation of the evidence on record the Tribunal reached to the conclusion that the claimant had sustained injuries and resultant permanent partial disablement on account of rash and negligent driving on the part of the opponent No. 1 the driver of the offending truck No. G. T. Y. 5322. The Tribunal therefore awarded an amount of Rs. The Tribunal therefore awarded an amount of Rs. 52 900 by way of compensation with interest at the rate of 6% per annum from the date of the application till payment from the opponents. ( 5 ) BEING aggrieved by the adequacy of the amount of compensation the original claimant has filed this appeal for the enhancement of the amount of compensation and the claim is restricted to Rs. 40 0 ( 6 ) THE learned counsel for the appellant-original claimant has seriously contended that the claimant is entitled to atleast an amount of Rs. 40 0 Having regard to the facts and circumstances and evidence on record we find much force and substance in this submission. It appears that the Tribunal has not considered various important aspects governing the award of amount of compensation in a case of personal injuries like one on hand. ( 7 ) THE claimant is a living victim of a violent truck accident. He has sustained permanent partial disablement of the body and total disablement on the left leg. It is very clear from the evidence that the claimant had sustained serious injuries on various parts of his body and his left leg was totally crushed under the wheels of the truck. The claimant was shifted to the hospital after the accident in an unconscious condition. ( 8 ) WE would like to high-light the factual scenario relating to the injuries medical examination and resultant permanent partial disablement suffered by the claimant so as to show that the amount of compensation awarded by the Tribunal is grossly inadequate. ( 9 ) INITIALLY the claimant was shifted to Rambaugh Hospital at Gandhidham from where he was taken to Bhuj Hospital. Before the claimant could get consciousness in the hospital his left was amputed. Dr. Ghoda who had attended and examined the claimant is examined. According to the evidence of Dr. Ghoda the claimant was examined by him on 17. 3. 1981 who was brought there with a reference from Rambaugh Hospital. Dr. Ghoda found the general condition of the claimant very serious and as such pulse was not properly working and blood pressure was also not properly recorded. The body of the claimant was found practically cold. Therefore the claimant was transfused blood. It is also very clear from the evidence of Dr. Dr. Ghoda found the general condition of the claimant very serious and as such pulse was not properly working and blood pressure was also not properly recorded. The body of the claimant was found practically cold. Therefore the claimant was transfused blood. It is also very clear from the evidence of Dr. Ghoda that the entire left leg was seriously injured and there were multiple fractures on the loft thigh. Muscles skin and bones were ruptured into pieces. In fact the whole left leg was crushed and it was required to be amputed and as such the amputation was carried out on left leg above knee. The claimant was kept in the hospital till 27. 4. 1981. It is clearly testified by Dr. Ghoda that the claimant would not be able to attend labour work on account of permanent disablement in the left leg. ( 10 ) AFTER appreciating the evidence the Tribunal reached to the conclusion that the claimant was earning Rs. 600 per month. The Tribunal also took the view that even with artificial leg the claimant will suffer economic loss at the rate of 25% of the monthly income. The Tribunal therefore assessed the loss of Rs. 150 per month. Thus annual loss came to Rs. 150 x 12 The Tribunal adopted 15 multipliers. Therefore the Tribunal awarded Rs. 1800 x 15= Rs. 27 0 under the head of future loss of income. ( 11 ) NEEDLESS to mention that the principles of evaluation of impairments of lower limbs differ in several respects from those governing evaluation of the hand-arm components of the upper limbs. These differences are reflected in important variations in the functional significance of the upper and lower limbs. The Tribunal is required to ascertain as to what is the resultant functional loss. The human leg has two major tasks: to support the trunk and upper body and to achieve ambulation. The supporting function depends on the ability of the leg to maintain equilibrium among the components of the musculoskeletal System and enable the body to resist the force of gravity and assume the distinctively human upright position. If the center of gravity has been shifted as a result of shortening or malpositioning of a leg the stress to the total neuromuscular apparatus will cause dysfunction pain and fatigue. If the center of gravity has been shifted as a result of shortening or malpositioning of a leg the stress to the total neuromuscular apparatus will cause dysfunction pain and fatigue. Unfortunately in the present case there is amputation of lower extremity above knee on account of crushing of left leg under the wheels of the truck. Undoubtly this has resulted into permanent partial disability and it will affect the earning capacity of the claimant who was doing tailoring work at the relevant time. Undoubtedly on account of amputation and resultant disablement the earning capacity of the claimant is substantially affected. He may be able to do some labour work while sitting or tailoring work with electric machine. However one cannot forget that the claimant who was doing tailoring work before the accident was 22 years old at the time of the accident and with an artificial leg he will not be able to carry on the same quantity and quality of work which he used to do prior to the accident either as a labourer or as a tailor. Unfortunately the Tribunal has not considered the real impairment of the left lower extremity of the claimant. It is first necessary to ascertain as to what is the extent of disablement and then its effect on the earning capacity of the claimant in a given case. It is not in dispute that the amputation of the left lower extremity is above knee. A prosthesis compensates very well for below-knee amputation and fairly well for those having amputation above the knee. This aspect is also required to be seriously appreciated and examined. It may also be noted that uncorrectable inability to wear prosthesis is a serious functional handicap and therefore in such cases the impairment value will be 100%. In absence of any clear expert evidence of an orthopaedic surgeon it would be necessary to refer to the relevant guidelines given in the book Disability-Determination and Evaluation by Dr. Henry H. Kessler. We would like to refer to the basic guide mentioned by Dr. In absence of any clear expert evidence of an orthopaedic surgeon it would be necessary to refer to the relevant guidelines given in the book Disability-Determination and Evaluation by Dr. Henry H. Kessler. We would like to refer to the basic guide mentioned by Dr. Kessler in his above-mentioned book on page 113 which reads as under:- percentage of impairment any level uncorrectable inability to wear prosthesis 100 at or above proximal third of femur 100 through or above knee 75 at or above proximal third of tibia 50 through or above ankle 25 through or above proximal metatarsal joint 15 through or above proximal phalangeal joint 10 through or above distal phalangeal joint 5 entire great toe 2 entire small toe (each) 0. 8 ( 12 ) HAVING examined the facts of the present case in the background of the aforesaid guide we cannot resist our temption of saying that this is a case of total permanent disablement in the left lower extremity in a case of a person belonging to a labour class. Therefore the impairment caused to the lower extremity would constitute a substantial impediment in discharging the work of a tailor or a labourer and will have severe impact on the earning capacity. In this background it can safely be concluded that the assessment in this behalf made by the Tribunal is totally erroneous. ( 13 ) HAVING regard to the facts and circumstances the Tribunal ought to have assessed even while taking a conservative view in the matter the monthly income of the claimant at Rs. 900 Even again while taking a conservative view in the matter and considering the impairment we find that the claimant on an average will suffer atleast Rs. 300 per month. Thus the annual loss whould work out to Rs. 300 x 12=rs. 3600. We inclined to adopt IS multipliers. The claimant was about 22 years at the relevant time. Therefore the claimant would be entitled to Rs. 3600 x 15 54 0 instead of Rs. 27 0 awarded by the Tribunal. Thus the claimant would be entitled to an additional amount of Rs. 27 0 under this head. ( 14 ) NEXT it brings into the focus the amount of compensation under the head of pain shock and sufferings. The Tribunal has awarded Rs. 20 0 under the head of pain shock and sufferings. 27 0 awarded by the Tribunal. Thus the claimant would be entitled to an additional amount of Rs. 27 0 under this head. ( 14 ) NEXT it brings into the focus the amount of compensation under the head of pain shock and sufferings. The Tribunal has awarded Rs. 20 0 under the head of pain shock and sufferings. In our opinion this is also not only conservative but extremely inadequate under this heads in the light of the facts and circumstances of the present case. Needless to reiterate the fact that the claimant is a living victim of a violent truck accident who has sustained permanent total disablement in the left leg on account of amputation above knee. He was about 22 years old at the time of the accident. He had sustained several other serious injuries and his bodily integrity is substantially affected. He would also find serious handicap in discharge of normal pursuits of life. Considering the handicap nature and number of injuries the period of treatment in the hospital nature and number of fractures the nature and number of operations and amputation of left leg above knee and the age and the avocation of the claimant he should be awarded atleast Rs. 3 () ()00 under this head. With the result the claimant is found entitled to an additional amount of Rs. 10 0 under the head of pain shock and sufferings. The amount of compensation under the head of past economic loss is also required to be upwardly revised and the claimant should be awarded atleast an amount of Rs. 4 800 under the head of past economic loss. The amount of compensation for medical expenses special diet and damage to cycle is not required to be disturbed. ( 15 ) IN view of the facts and circumstances narrated hereinbefore the claimant is found entitled to in aggregate an amount of Rs. 95 350 The Tribunal has awarded an amount of Rs. 52 900 Therefore the claimant would be entitled to an additional amount of Rs. 42 450 However since the claimant has restricted his appeal for the enhance of additional amount of Rs. 40 0 only he is entitled to full amount as prayed for and this court has to raise its hands in helplessness from awarding the remaining amount of compensation. 42 450 However since the claimant has restricted his appeal for the enhance of additional amount of Rs. 40 0 only he is entitled to full amount as prayed for and this court has to raise its hands in helplessness from awarding the remaining amount of compensation. ( 16 ) NOW the question would arise as to what rate of interest the claimant should be awarded on the amount of compensation? The Tribunal has awarded only 6% interest per annum. In our opinion this rate of interest is required to be enhanced from 6 per annum to 15% per annum from the date of the application till realisation in view of the decision of this Division Bench rendered in the case of Mahanbhai Gemabhai vs. Balubhai Savjibhai in First Appeal No. 1316 of 1981 on 28. 9. 1992 relying on the decision of the Supreme Court in the case of Rukmani Devi vs. Om Prakash reported in 1991 (2) C. . L. H. 321. Obviously the amount of interest which is already received or paid at the rate of 6% on the amount awarded by the Tribunal shall be deducted. The amount of interest at the rate of 15% per annum is awarded not only on the enhanced amount but on the entire amount from the date of the application till payment. ( 17 ) BEFORE parting we may mention that the 90% of the additional amount of compensation with additional interest shall be invested in Fixed Deposit Receipt of any Nationalised Bank or in any Government Security of the choice of the claimant for a period not less than 72 months. The remaining 10% with costs shall be paid to the claimant by an Account Payee cheque by the Tribunal. The impugned judgment and award shall stand modified to the aforesaid extent and the appeal is allowed to that extent. Appeal allowed. .