ATULKUMAR BHAILALBHAI SONI vs. ABDUL AJIJKHAN KARIMKHANPATHAN(DELTED AS PER COURT'S ORDER)

C/FA/2431/2003 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO.2431 of 2003 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE HARSHA DEVANI ========================================= 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? ============================================= ATULKUMAR BHAILALBHAI SONI....Appellant(s) Versus ABDUL AJIJKHAN KARIMKHAN PATHAN (DELETED AS PER COURT'S ORDER) & 3....Defendant(s) ============================================= Appearance: MR YV BRAHMBHATT, ADVOCATE for the Appellant(s) No.1 DELETED for the Defendant(s) No.1 MR SUNIL B PARIKH, ADVOCATE for the Defendant(s) No.4 NOTICE SERVED for the Defendant(s) No.2 - 3 ============================================= CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI

Date : 11/04/2014

ORAL JUDGMENT 1. By this appeal for enhancement under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”), the appellant/original claimant has called in question the judgment and award dated 16th July, 2002 passed by the Motor Accident Claims Tribunal (A-II), Kheda at Nadiad (hereinafter Page 1 of 13

C/FA/2431/2003 JUDGMENT referred to as “the Tribunal”) in Motor Accident Claim Petition No.557/1995. 2. The facts giving rise to the present appeal are that the appellant who was doing his articleship with a Chartered Accountant and was also engaged in the business of goldsmith, sustained injuries during the course of an accident that occurred on 25th March, 1995 at about 4:00 p.m. while travelling in a bus bearing No.GJ-1-Z-4399 from Nadiad to Uttarsanda. It was the case of the appellant that a truck bearing No.GJ-7-T-8389 came towards the right side window of the S.T. bus and on account of the impact, the appellant sustained injuries on his right hand while sitting near the window due to which his right hand was required to be amputated from below the arm. The appellant filed a claim petition claiming that he was earning Rs.4,000/- per month and in all, claimed compensation of Rs.8,50,000/- under different heads. The Tribunal after appreciating the evidence on record was of the opinion that the accident had occurred on account of negligence on the part of the driver of the truck and exonerated the driver of the S.T. bus. On the question of quantum, the Tribunal observed that the appellant was aged about 25 years. Taking into consideration the documentary evidence produced on record, the Tribunal came to the conclusion that the appellant together with his father was earning Rs.5,000/- per month from the goldsmith business. Since such business was being carried on jointly by the appellant and his father, the Tribunal deducted Rs.2,000/- by way of contribution of his father to the business and assessed the monthly income of the appellant at Rs.3,000/-. The Tribunal considered the disability of the appellant at 40% and Page 2 of 13

C/FA/2431/2003 JUDGMENT accordingly computed his monthly income at Rs.1,200/- and annual income of Rs.14,400/-. Applying a multiplier of 15, the Tribunal computed the future loss of income at Rs.2,16,000/-. The Tribunal further awarded Rs.15,000/- under the head of pain, shock and suffering, Rs.3,000/- towards attendant expenses, Rs.5,000/- towards special diet and Rs.15,150/- towards medical bills. In all, the Tribunal awarded a compensation of Rs.2,60,150/-. Being aggrieved, the claimant is in appeal. 3. Mr. Y.V. Brahmbhatt, learned advocate for the appellant vehemently assailed the impugned order by submitting that the Tribunal had erred in considering the income of the appellant at Rs.3,000/- only without considering the fact that the appellant had a higher qualification and had he not met with the accident, he would have earned more than Rs.5,000/-. It was further submitted that the Tribunal has also not considered the aspect of prospective income and has wrongly deducted Rs.2,000/- as contribution of the father of the appellant despite the fact that he was aged about 72 years. In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Rajesh v. Rajbir Singh, (2013) 9 SCC 54, for the proposition that in case of self-employed persons and persons with fixed wages, the actual income must be enhanced for the purpose of computation of compensation by 50% where the age of the victim is below 40 years. Reliance was also placed upon the decision of the Karnataka High Court in the case of R. Venkatesh v. B. Saravanan, II (2001) ACC 52 (DB). It was submitted that the Tribunal ought not to have considered the disability on the basis of the certificate given by the concerned Page 3 of 13

C/FA/2431/2003 JUDGMENT doctor but by considering the functional disability as actually suffered by the appellant. It was submitted that the appellant, prior to the accident, was working as a goldsmith. On account of the injury sustained by him, due to which his right hand had to be amputated, he is no longer in a position to do the work which he was previously doing. Under the circumstances, the functional disability ought to have been considered at 100% and the loss of income ought to have been assessed accordingly. 3.1 Next, it was submitted that the Tribunal had applied a multiplier of only 15 whereas in terms of the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, having regard to the age of the appellant, a multiplier of 18 ought to have adopted. It was emphatically argued that despite the fact that the appellant’s right had was required to be amputated and he had to suffer a lot of pain and agony, the Tribunal has awarded only Rs.15,000/- towards pain, shock and suffering instead of awarding Rs.1,50,000/- for loss of amenities of life. It was, accordingly, urged that the quantum of compensation awarded by the Tribunal under different heads being contrary to the law laid down by the Supreme Court in this regard, the impugned award is required to be modified and the compensation is required to be enhanced by allowing the claim petition filed by the appellant. 4. Opposing the appeal, Mr. Sunil Parikh, learned advocate for the respondent No.4-insurance company submitted that the Tribunal has rightly placed reliance upon the disability certificate as produced by the appellant for the Page 4 of 13

C/FA/2431/2003 JUDGMENT purpose of assessing percentage of the permanent disability incurred by the appellant. Insofar as the question of prospective income is concerned, the learned advocate placed reliance upon the decision of a Division Bench of this court in the case of Sheelaben v. Vishnubhai Valjibhai Rabari rendered in First Appeal No.1474/2002 on 12th December, 2012 wherein the court placed reliance upon an earlier decision of this court in the case of Gujarat State Road Transport Corporation v. Thacker Narottam Kalyanji, 2001 (1) ACJ 391, for the proposition that the cases in which men are engaged in service or professional skill are far easier to be dealt with because total average earnings can be determined and also the dependency benefits. In the case of business flourishing and going on substantially if not wholly because of the business skill of the deceased do not present any difficulty. In a case like this, whatever is earned by the deceased can be legitimately thought to be outcome of the acumen of the businessman concerned, but where the business was not commenced and it was proposed to be started, it cannot be said in what manner the skill of the deceased was going to play part in successful running of such business. Thus, in support of a business income there has to be reasonable evidence on the record to the nature of business, its dimensions, its potentialities and latent dangers and also the contribution of the personal skill of the businessman in mending and manning the business. Mr. Parikh submitted that in the facts of the present case no evidence has been led regarding the skills of business of the appellant justifying grant of future prospective income. Therefore, following the said decision, no addition is required to be made towards future prospective income in the case of the appellant. Reliance was Page 5 of 13

C/FA/2431/2003 JUDGMENT also placed upon the decision of the Supreme Court in the case of Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210, wherein while referring to its earlier decision in the case of Reshma Kumari and Others v. Madan Mohan and Another, (2009) 13 SCC 422, the court held thus: “14. Answering the above reference a three Judge Bench of this Court in Reshma Kumari and Ors. vs. Madan Mohan and Anr. reiterated the view taken in Sarla Verma (supra) to the effect that in respect of a person who was on a fixed salary without provision for annual increments or who was self-employed the actual income at the time of death should be taken into account for determining the loss of income unless there are extraordinary and exceptional circumstances. Though the expression “exceptional and extraordinary circumstances” is not capable of any precise definition, in Shakti Devi vs. New India Insurance Company Limited and Another there is a practical application of the aforesaid principle. The near certainty of the regular employment of the deceased in a government department following the retirement of his father was held to be a valid ground to compute the loss of income by taking into account the possible future earnings. The said loss of income, accordingly, was quantified at double the amount that the deceased was earning at the time of his death. 15. Undoubtedly, the same principle will apply for determination of loss of income on account of an accident resulting in the total disability of the victim as in the present case. Therefore, taking into account the age of the claimant (25 years) and the fact that he had a steady income, as evidenced by the income-tax returns, we are of the view that an addition of 50% to the income that the claimant was earning at the time of the accident would be justified.” Mr. Parikh submitted that in the facts of the present case, the appellant was a self-employed person and in the absence of any exceptional and extraordinary circumstance being made out, the question of making any addition on account of future prospective income does not arise. Page 6 of 13

C/FA/2431/2003 JUDGMENT 5. This court has considered the rival submissions advanced by the learned counsel for the respective parties and has perused the record and proceedings of the case as well as the decisions cited at the bar. The evidence on record reveals that the appellant herein had claimed that he was earning Rs.4,000/- per month from the business of goldsmith and that he was holding the qualification of Gujarati Stenographer and has worked as an Article Clerk with a Chartered Accountant. In support of his claim, the appellant had produced the bill book in relation to the shop which was running in the name of his father, on the basis of which the Tribunal came to the conclusion that the appellant and his father were jointly earning Rs.5,000/-. Considering the advanced aged of the appellant’s father, the Tribunal was of the opinion that Rs.2,000/- should be deducted towards the earnings of the appellant’s father and assessed the appellant’s income at Rs.3,000/-. At the time when the accident took place, the appellant was about 25 years of age. However, the Tribunal while assessing the future loss of income did not take into consideration the future prospective income of the appellant. On behalf of the appellant, reliance had been placed upon the decision of the Supreme Court in the case of Rajesh v. Rajbir Singh (supra) whereas on behalf of the insurance company reliance has been placed upon the decision of a Division Bench of this court in the case of Sheelaben v. Vishnubhai Valjibhai Rabari (supra). In Rajesh v. Rajbir Singh (supra), the Supreme Court followed its earlier decision in the case of Santosh Devi v. National Insurance Co. Ltd., 2012 ACJ 1428, wherein it was held that the principle applied in the case of a salaried person as laid down in Sarla Verma’s case, 2009 Page 7 of 13

C/FA/2431/2003 JUDGMENT ACJ 1298, has to be made applicable also to self-employed or persons of fixed wages. The court, accordingly, held that in case of self-employed persons or persons with fixed wages, there must be an addition of 50% to the actual income while computing the future prospects where the age of the victim is below 40 years. In Sheelaben v. Vishnubhai Rabari (supra), a Division Bench of this court held that in support of a business income, there has to be reasonable evidence on record to show the nature of the business, its dimensions, its potentialities and latent dangers and also the contribution of the personal skill of the businessman in mending and manning the business in absence of which the claim for future prospective income cannot be allowed. It may be noted that the said decision came to be rendered on 12th December, 2012, whereas the decision of the Supreme Court in the case of Rajesh v. Rajbir Singh (supra) came to be rendered on 12th April, 2013. Besides, in the said case, the deceased was not a self-employed person but was a businessman. In the present case, the appellant was a self-employed person namely, a goldsmith. Under the circumstances, the decision of the Supreme Court in the case of Rajesh v. Rajbir Singh would be squarely applicable to the facts of the present case. The Tribunal was, therefore, not justified in not adding 50% of the income of the appellant to the income assessed by it for the purpose of computing the future prospective income. The Tribunal has considered the income of the appellant at Rs.3,000/-. Adding 50% to the said income, the monthly income of the appellant would come to Rs.4,500/-. 6. The next question that arises for consideration is as to whether the disability as assessed by the Tribunal is just and Page 8 of 13

C/FA/2431/2003 JUDGMENT proper. A perusal of the impugned award reveals that the Tribunal has assessed the disability of the appellant at 40% on the basis of the disability certificate issued by Dr. Yogesh Thakorlal (Exh.57) wherein he has stated that the disability of the appellant is 40% considering the body as a whole. In this regard it may be apposite to refer to the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar, (2011) 1 SCC 349, wherein it has been held thus: 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capa- city 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 meth- od used to determine loss of dependency). We may how- ever note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percent- age of loss of earning capacity as a result of the perman- ent disability, is approximately the same as the percent- age of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evid- ence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is perman- ent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with refer- ence to any specific limb, then the effect of such disable- ment of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent dis- ability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal Page 9 of 13

C/FA/2431/2003 JUDGMENT ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determ- ine whether such permanent disability has affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent dis- ability 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 disabil- ity 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 effect- ively 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. 14. For example, if the left hand of a claimant is am- putated, the permanent physical or functional disable- ment 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 func- tions; 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 compensa- tion 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. Some- times 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 Page 10 of 13

C/FA/2431/2003 JUDGMENT to some other suitable but lesser post with lesser emolu- ments, in which case there should be a limited award un- der the head of loss of future earning capacity, taking note of the reduced earning capacity. In the light of the principles laid down in the above decision, it is the functional disability which has to be taken into consideration while computing the future loss of income and not merely the permanent disability as assessed by the doctor. In the present case, the appellant’s right upper limb has been amputated at M/3 arm level. In other words, the appellant’s right hand has been amputated from above the elbow. Having regard to the fact that the appellant was a goldsmith, the disability as assessed by the Tribunal at 40% cannot be said to be a proper assessment of the functional disability. It need not be gainsaid that it would not be possible for the appellant to work as a goldsmith any more as for this purpose he would require both his hands to be functional. The question that therefore would arise is as to what can be said to be the functional disability incurred by the appellant. In the absence of any proper material to make such assessment, this court has taken support of Schedule I to the Employees Compensation Act, 1923 which provides for the percentage of loss of earning capacity in cases of permanent partial disability. As per the said Schedule, in case where there is amputation below shoulder with stump less than 20.32 cms from tip of acromion, the percentage of loss of earning is 80%. In the present case, the amputation being from above the elbow, the court is of the view that functional disability of the appellant ought to be assessed at 80% and not 40% as has been done by the Tribunal. Page 11 of 13

C/FA/2431/2003 JUDGMENT 7. The Tribunal has while computing future loss of income applied a multiplier of 15. As held by the Supreme Court in the case of Sarla Verma (supra), in case where the age of the victim is between 20-25 years, a multiplier of 18 is required to be applied. Having regard to the fact that the age of the appellant was 25 years at the time of the accident, the Tribunal ought to have applied a multiplier of 18. 8. In the light of the above discussion, the future loss of income of the appellant is required to be computed as under: Monthly income = Rs.3,000/- Future prospective income = Rs.3,000/- + Rs.1,500/- (50%) = Rs.4,500/- Annual income = Rs.4,500/- x 12 = Rs.54,000/- Future loss of income = Rs.54,000/- x 80% = Rs.43,200/- Total loss of income = Rs.43,200 x 18 (multiplier) = Rs.7,77,600/- 9. The Tribunal has awarded Rs.15,000/- under the head of pain, shock and suffering, however, no amount has been granted towards loss of amenities. Having regard to the fact that the appellant’s right hand has been amputated above the elbow, the court is of the view that the Tribunal was not justified in not granting any amount under the said head. In the opinion of this court, the ends of justice would be met if an amount of Rs.1,00,000/- is awarded under the combined head of pain, shock and suffering and loss of amenities. Accordingly, the total compensation can be worked out as under: Future loss of income = Rs.7,77,600/- Page 12 of 13

C/FA/2431/2003 JUDGMENT Pain, shock and suffering and loss of amenities = Rs.1,00,000/- Attendant expenses = Rs. 3,000/- Nutritious food (as awarded by the Tribunal) = Rs. 5,000/- Medical bills (as awarded by the Tribunal) = Rs. 15,150/- ------------------ Rs.9,00,750/- ======== The Tribunal has awarded compensation of Rs.2,60,150/-. The appellant shall, therefore, be entitled to an additional compensation of Rs.6,40,600/-. 10. For the foregoing reasons, the appeal succeeds and is accordingly allowed. The appellant shall be entitled to recover an additional compensation of Rs.6,40,600/- from the respondents jointly and severally with simple interest at the rate of 7.5% per annum from the date of the filing of the claim petition till realization thereof. 11. The appellant shall pay the additional court fees on the compensation awarded in excess of the claim made in the appeal. 12. The Registry shall forthwith send back the record and proceedings of the case. ( Harsha Devani, J. )

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