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Gujarat High Court
Judgename :M.S.SHAH, K.M.MEHTA
DAHYABHAI SOMCHAND PARMAR - Appellant
Versus
RAMAVTAR B.SHARMA - Respondent
FIRST APPEAL 867 Of 2006
Decided On : 08/14/2006
Whether claimant is entitled to enhancement of compesation amount.
Head Note :
Motor accident claim - Accident - Injuries - Compensation - Quantum of - Admissible - Finding as to - Injured has received injuries indicated in injury certificate Exhibit-19 and his one of the injury is that his right hand has been imputed above the elbow - The Doctor has rightly assessed his disability at 80% - The assessment of disability of injured at 40% by Tribunal is not justified - Injured is serving in State Bank of India as Clerk-Cum-Cashier and was drawing salary of Rs. 4,500/- p.m. - When his disability is considered at 80% then his loss of earning capacity comes to Rs. 3,600/- p.m. and annual loss to Rs. 43,200/- - Taking multiplier of 5 applicable, he is entitled to Rs. 2,16,000/- as compensation under the head - Besides claimant is entitled to Rs. 50,000/- for pain, shock and suffering Rs. 10,000/- for attendant charges, Rs. 13,500/- for loss of income for three months, Rs. 2,500/- for medical treatment and Rs. 2,500/- for diet and transportation in all Rs. 2,94,500/- - Court accordingly enhenced Tribunal award of Rs. 1,54,500/- to Rs. 2,94,500/- with interest @ of 9% p.a.
Held :
In view of the oral evidence of Dr. Mukul Pandit, the medical certificate, injury certificate and the schedule to the Workmens Compensation Act, particularly when the applicant was working with right hand and was working as a cashier, though he may be continued in service in State Bank of India for various reasons, he was not able to carry on his work as Cashier because for the work of cashier admittedly two hands are necessary. In view of the above, we are of the view that 80% disability assessed by the Doctor is reasonable and fair looking to the oral documentary evidence, particularly the schedule to the Workmens compensation Act [Para 12]
In view of the aforesaid facts and circumstances of the case, Court is of the view that if the monthly salary at Rs. 4,500/- is taken and if Court consider the disability at 80% then the earning capacity of the claimant will come to Rs. 3,600/- per month and the annual loss will come to Rs. 3,600 x 12 = Rs. 43,200/- If Court take the multiplier of 5, then the amount would come to Rs. 43,200 x 5 =Rs. 2,16,000/-. [Para 15]
As regards pain, shock and suffering, the Tribunal has awarded Rs. 25,000/- which Court have already increased to Rs. 50,000/- and raised the compensation towards attendant charges to Rs. 10,000/- In all, the applicant will be entitled to the amounts of Rs. 2.94.500/-.
[Para 15.1]
Law Laid Down :
In view of imputation of right arm below shoulder the claimant working as Cashier in the bank would be held to have suffered disability to the extent of 80%.
Case Law Analysis :
Ramanbhai Kalidas Darji vs. Babusing Thakore, 2000 (2) GLH 7 (UJ) [Para 9];; Pratap Narain Singh Deo vs. Shrinivas Sabata & Anr., AIR 1976 SC 222. [Para 9].-Relied on
Conclusion :
Claimant is entitled to Rs. 2,94,500/-s as compensation.
Decided in Favour of :
Petitioner
Appeal Partly Allowed
( 1 ) DAHYABHAI Somchand Parmar, appellant, original claimant, has filed this appeal against the judgment and award dated 14. 10. 2005 passed by the Motor Accident Claims Tribunal (Aux.), Gandhinagar in MAC Petition No. 154 of 1993. The Tribunal by its impugned award partly allowed the original application of the applicant and held that Ramavat B Sharma, owner of the jeep and United India Insurance Company, the Insurance Company of the jeep, shall pay jointly and severally the awarded amount of Rs. 1,54,500/- to the claimant with proportionate costs and interest at the rate of 7. 5% per annum from the date of petition till realization.
( 2 ) THE facts leading to filing of the claim petition are as under :-2. 1 In the claim petition, it is the case of the original applicant that he was travelling on his scooter bearing No. GCC 7116 and he was driving his scooter at Gandhinagar on the correct side of the road towards State Bank of India. At that time, one jeep bearing No. GJ-1-K-9598 came with full speed and opponent No. 1 was driving the said jeep. It is the case of the applicant that the driver of the jeep was negligent while driving and he lost the control over the vehicle and hit the applicant s scooter from opposite side causing grievous injuries to the applicant. 2. 2 In the application, it was stated that because of the accident, he was immediately taken to the Civil Hospital, Ahmedabad where he was treated as an indoor patient at least for one and a half month during the period from 29. 10. 1992 to 10. 12. 1992 as he suffered crush injuries on his right upper limb and closed fractures of Lt. Metacarpals, etc. He has further stated that the jeep was driven so fast and, therefore, the impact was so powerful that the scooter was smashed with damage to the tune of Rs. 10,000/ -. 2. 3 As regards the income, it has been stated that he was serving in State Bank of India as a Clerk cum Cashier in Gandhinagar Branch and he was drawing monthly salary of Rs. 4,500/- and has claimed the compensation of Rs. 5 lakhs with interest at the rate of 12% per annum thereon.
( 3 ) OPPONENT No. 1 filed his reply at Exh. 12 and denied the contents of the petition in toto and Opponent No. 2 ? Insurance Company filed its written statement at Exh. 18 and also denied the contents of the application. The applicant has produced several documentary evidence and also led oral evidence in this behalf. 3. 1 The Tribunal after considering the documentary and oral evidence has come to the conclusion that the applicant proved that he has sustained injuries as a result of rash and negligent driving of jeep driving by opponent No. 1. As regards compensation, the Tribunal has considered the evidence of Dr Mukul D Pandit, an Orthopedic Surgeon who has stated that the applicant has permanent partial disability of 80% of Rt. Upper extremity and 6% disability of Lt. Upper extremity. The disability certificate is also produced at Exh. 45. The injury certificate is also produced at Exh. 19 which reads as under :-CLW 10 x 5 cm on Rt forearm over upper flex on orpect. Normal contour of Rt elbow lost. 2 x 2 cm allusion on Rt. Posterior orpect of elbow. All muscle, nerve and nesotes seem to be cut at level of wound. Radial artery not fct. Delay capillary circulation. Sensation -lst. Movement of finger absent. The lower end of humors and proximal end of Radio ulna exposed and crushed. X Ray 1720/9r : # Upper end of Radius and ulna, Posterior dislocation of Radius # 5th and 4th Metacarpal bone. ?3. 2 The doctor was examined at Exh. 44. In the examination, he has stated that disability should be assessed at 80% according to the guidelines given in the Cassler Book. The applicant was also in the Civil Hospital from 29. 10. 1992 to 10. 12. 1992. The learned Judge has on that evidence held that 40% should be given as a whole as far as the applicant is concerned.
( 4 ) AS regards quantum, the applicant was 32 years and he was working as a Clerk cum Cashier in S
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