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2023 DIGILAW 587 (GUJ)

SAHIL ELVIN RAJVADI v. SURESHBHAI VENILAL PARMAR

2023-04-11

GITA GOPI

body2023
JUDGMENT : GITA GOPI, J. 1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 31.12.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), District Vadodara in M.A.C.P. No. 165 of 2010 on the ground of enhancement of compensation. 2. The facts in brief could be noted which give rise to the present Appeal are that on 18.10.2009, the appellant was traveling as a pillion rider on a Motorcycle bearing Registration No. GJ-6-CA-2495, which was being driven by the respondent No. 1. When they reached Sama Sanjay Nagar, Near Fatehganj, Vadodara, on account of the rash and negligent driving of the respondent No. 1, the Motorcycle skid, the appellant was flung from the motorcycle, as a result of which he sustained serious injuries on the head, face, forehead, both hand, knee, eyes and other parts of the body. The ambulance was called and the appellant was rushed to SSG Hospital for treatment and was admitted as an indoor patient. Due to serious eye injury, one of the eyes of the appellant was totally damaged and therefore, the enucleation and evisceration of one eye of the appellant had to be carried out. 3. Learned Advocate for the appellant-claimant Mr. Mohsin M. Hakim contended that because of the vehicular accident, the claimant sustained injuries on the face, both the hands and other parts of the body and there was a removal of the right eye. There was no possibility of eye transplantation and as the claimant was a driver, after he lost the eye sight, the Regional Transport Office (RTO) has not renewed the license and thus, has raised a contention that 100% functional disability is suffered by the claimant. It is further submitted that though the learned Tribunal has placed reliance on the decision of the Hon’ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 , it has failed to appreciate the case of the claimant as of 100% functional disability and therefore, stated that the compensation has not been granted in a just and proper manner. 4. The other side has been served but no appearance has been filed. 5. A contention was raised before the learned Tribunal that the appellant himself was driving the motor cycle and was not a pillion rider. 4. The other side has been served but no appearance has been filed. 5. A contention was raised before the learned Tribunal that the appellant himself was driving the motor cycle and was not a pillion rider. However, the learned Tribunal after having referred to the facts of the matter and the evidence on record to the defence raised, came to the conclusion of the fact established that the appellant was not driving the motor cycle but the accident occurred due to the negligence of the opponent No. 1. Hence, the learned Tribunal concluded that the appellant was a pillion rider at the time of accident. 6. First Appeal No. 1933 of 2020 was raised by Reliance General Insurance Company Limited. The same came to be dismissed, as the only ground raised was the rate of interest where this Court had no reason to interfere with interest rate so granted and the Appeal stood dismissed with no order as to costs and hence, the Civil Application (For Stay) also got dismissed in the same order. Thus, no challenge has been given to the negligence aspect and when nothing contrary has been brought on record, this Court does not find any reason to interfere with the conclusion drawn by the learned Tribunal. 7. Having heard learned Advocate for the appellant-claimant, perused the records of the case. The appellant-claimant at the time of accident was aged about 23 years. The learned Tribunal has considered the age of the appellant as 24 years, 2 months and 18 days and hence, the multiplier of 18 becomes applicable. The evidence which was brought on record stated that the appellant was employed as a driver and was drawing a monthly income of Rs.15,000/- the fact was proved by way of evidence of examination-in-chief at Exhibit 31. Further, Chirag Rajkumar Sharma-Director of Connection Union Pvt. Ltd. was examined at Exhibit 43 who was serving as a Director at the relevant time, it appears that the injured-claimant was working as a driver and was drawing a monthly salary of Rs.15,000/-. The said witness with his testimony, affirmed the fact that the claimant was not able to continue to work with their Company because of the eye injury. The said witness with his testimony, affirmed the fact that the claimant was not able to continue to work with their Company because of the eye injury. He had produced various documents, Exhibit 46 is the Certificate issued regarding the income, Exhibit 47 is the Identity Card of the witness and Exhibit 48 is the Identity Card issued from the Company. Exhibit 44 is the Registration Certificate of the Company and Exhibit 45 is the Certificate which reflects the Directors of the Company. Exhibit 82 is the Appointment Letter given to the claimant. 8. The learned Tribunal has believed the monthly income of Rs.15,000/- at the time of accident. The witness-Chirag Rajkumar Sharma-Director of Connection Union Pvt. Ltd. has deposed that because of the eye injury, the claimant could not work further and since he had lost his eye sight, he lost his employment and thus, accordingly because of the injury the employment got discontinued. Dr. Uday Purandhare, Medico Legal Consultant was examined as witness by the claimant who gave his deposition at Exhibit 34 and according to him, when the appellant had showed himself on 15.04.2019 for assessment of his disability, he had informed him on 18.10.2009 that he was traveling as pillion rider and he produced the treatment papers of SSG Hospital and Paramount Diagnostic Center. On perusal of the Reports, it was found that there is a blow out fracture found in the upper, lower and side part of the eye. There is no vision in the right eye due to clotting of blood in the right eye. The operation of removing the eye was performed. The Doctor stated that there was no possibility of eye transplant and assessed the disability as 35% for the body as a whole. 9. The learned Tribunal has referred to the decision of the Hon’ble Apex Court in the case of Rajkumar vs. Ajay Kumar, (2011) 1 SCC 343 but has seriously erred in not taking into consideration the instances cited in the judgment of Rajkumar (supra) to come to the conclusion that the loss of earning capacity in a certain incident of driver or carpenter, the actual loss of earning capacity may virtually be 100%, if he is neither able to drive or do carpentry. Here in this case, the Doctor had stated that the claimant had lost right eye and he was operated. Here in this case, the Doctor had stated that the claimant had lost right eye and he was operated. It was also opined that there was no possibility of eye transplant. Further, corroborating the above aspect, Chirag Rajkumar Sharma-Director of Connection Union Pvt. Ltd. had deposed before the Tribunal that the appellant was working as a Driver in his Company but because of his physical disability of losing his vision, he could not continue with his job. The RTO Officer-Chetankumar Pravinbhai Gothi was examined at Exhibit 66 and he had stated before the Tribunal that no license was issued by the authority as the claimant has lost vision of both the eyes. Thus, through this fact the claimant has proved his functional disability. 10. In the decision of the Hon’ble Apex Court in the case of Jitendran vs. New India Assurance Co. Ltd. AIR 2021 SC 5382 , the assumption of fact of permanent disability and actual earning capacity is recognized by following three stages and it becomes necessary for the Tribunal to assume what activities the claimant would be able to carry on in respect of his physical disability. Another step to be adopted to ascertain the evocation of nature of work before the accident and whether the claimant is totally devoid from earning any kind of livelihood. 11. The Hon’ble Apex Court in the case of Mohan Soni vs. Ram Avtar Tomar, 2012 (1) GLH 399 , while referring to the judgment in the case of Raj Kumar (supra) in Paragraph 10 held as under: “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 of loss of earning capacity. In most of the case, 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 Tribunal 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. Some Tribunal 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.” 12. Here in this case, the appellant was working as a Driver in a Company but because of the functional disability was discontinued from his job. Even the RTO Officer declined to grant him license. The claimant would not be in a position to work as a driver, hence as observed in the case of Raj Kumar (supra), the claimant has lost his earning capacity and has been able to prove this aspect. Thus, the functional disability is to be considered @ 100%. Hence, considering the income of Rs.15,000/- per month and his age at the time of accident as 24 years, the prospective rise in income can be considered @ 50%, i.e. Rs.22,500/- (Rs.15,000/- + Rs.7,500/-). Thus, the annual income would be considered as Rs.2,70,000/- (Rs.22,500 x 12). Considering 100% disability, the multiplier would be 18 and considering the future loss of income the loss of income would be Rs.48,60,000/- (Rs.22,500 x 12 years x 18 multiplier). 13. Medical expenses of Rs.5,000/- had been provided. Under the head of Special Diet and Transportation and attendant charges Rs.10,000/- was granted by the learned Tribunal. The claimant has lost his eye had to undergo enucleation and evisceration of his eye. He suffered operation, was hospitalized and therefore, considering the pain, shock and suffering of losing an eye alongwith other injuries, under the head of pain, shock and suffering, Rs.1,00,000/- is required to be granted. 14. Actual loss of income is required to be assessed for six months as per the evidence of the medical treatment. Hence, under the actual loss of income (Rs.15,000/- x 6 months), Rs.90,000/- is granted. 15. Thus, the computation can be made as under: Details Amount Future Loss Rs. 48,60,000.00 Actual loss of income Rs. 90,000.00 Pain, shock and suffering Rs. 1,00,000.00 Medical Expenses Rs. 5,000.00 Special Diet, Transportation and Attendant Charges Rs. 10,000.00 TOTAL AMOUNT Rs. 50,65,000.00 16. Hence, under the actual loss of income (Rs.15,000/- x 6 months), Rs.90,000/- is granted. 15. Thus, the computation can be made as under: Details Amount Future Loss Rs. 48,60,000.00 Actual loss of income Rs. 90,000.00 Pain, shock and suffering Rs. 1,00,000.00 Medical Expenses Rs. 5,000.00 Special Diet, Transportation and Attendant Charges Rs. 10,000.00 TOTAL AMOUNT Rs. 50,65,000.00 16. The learned Tribunal has awarded an amount of Rs.16,48,000/- with rate of interest @ 9% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.34,17,000/- (Rs.50,65,000/- minus Rs.16,48,000/-). In the result, the present respondent/s are directed to deposit the enhanced amount within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ 7.5% per annum from the date of the application and the disbursement of the amount be made as per the judgment and award of the learned Tribunal. 17. In view of the above, the Appeal is allowed and the judgment and award dated 31.12.2021 passed by the learned Motor Accident Claims Tribunal (Auxi.), District Vadodara in M.A.C.P. No. 165 of 2010 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court/Tribunal forthwith.