MAHOMED HANIF DALLU Vs. LUNKARAN GANPATRAM SHARMA
HIGH COURT OF GUJARAT
MAHOMED HANIF DALLU
LUNKARAN GANPATRAM SHARMA
Click here to view full judgement.
(1.) Mr. R. N. Oza the learned Advocate appearing for the appellantclaimant has addressed us in support of his appeal for enhanced compensation. Mr. Oza submitted that on the count of proper damages the appellant was entitled to compensation on four sub-heads:
1. Prospective loss of future income;
2. Compensation for pain shock and suffering undergone by the claimant;
3. Compensation for loss of marriage prospects; and
4. Adequate compensation which would take care of increased cost of living with which the appellant will have to undergo for the rest of his life.
Mr. Oza submitted that the Claims Tribunal has really not applied the correct test for computing the proper compensation. In view of the serious injuries sustained by the appellant both of his legs had been amputated and he is rendered a cripple for the rest of his life Mr. Oza submitted that the proper compensation should be awarded to the claimant on all the aforesaid heads. Mr. S. B. Vakil the learned Advocate appearing for the respondent No. 2 Insurance Company on the contrary supported the Award of the Claims Tribunal and submitted that it was within the permissible brakets.
(2.) Now in order to appreciate the controversy raised between the parties it would be necessary to keep in view the type of controversy which has arisen before us. The claimant himself is an injured person. He claims compensation on account of the bodily injury received by him which has resulted in amputation of both of his legs. In such cases the proper principles for awarding compensation have now been well settled by this Court. We may refer to the relevant decision on the point in the light of which the present controversy between the parties will have to be resolved by us. In the case of RANJITSINGH GOPALSING & ORS. V. MEENAXIBEN RAJMAL MEHTA REPORTED IN 13 G.L.R. 662. Division Bench of Court observed that it is a settled principle that in disablement cases the compensation awards are always higher than even in cases of death because the compensation has to be given to a living victim both for his personal loss and for the economic loss The principles laid down in such cases can be summarised in three propositions as under:-
(1) Bodily injury is to be treated as a deprivation which entitles a plaintiff to damages and that the amount of damages varies according to the gravity of the injury; (2) deprivation may bring with it three consequences loss of earnings or earning capacity expenses of having to pay others for what otherwise he would do for himself and loss of enjoyment of life or a dimmunition in full pleasures of living; (3) in considering the deprivation the court should have regard to the gravity and degree of the deprivation that is to say whether one or more limbs has been lest the duration of the deprivation and the degree of awareness of the deprivation. It has been further observed in the aforesaid case that both in England and in this country the settled pattern of awards in personal injury cases is not to award merely token damages but to grant substantial amounts on both the head of personal loss as well as economic loss. Of course in order to avoid any overlapping a global estimate had to be made of the all-told loss. Therefore even though theoratically there can be no real compensation for loss of the right arm the court would have to arrive at a fair social evaluation on the basis of these recognized standards by determining the loss of the injured appellant both on the ground of the economic loss and that her bodily integrity had been affected by this deformity with which she has to go in the society and which she has to endure for the whole life time. It may be stated that the case with which the Division Bench was dealing was the case of a personal injury to a girl who had suffered serious bodily injury on account of the accident. In the light of those facts the Division Bench further observed in the aforesaid decision that besides the loss of limb and the consequent pain and suffering and mental shock she had been seriously handicapped not only in the marriage market but in her personal and social life. An injury which handicaps her in the marriage market represents a real pecuniary loss. Therefore besides economic loss as such in case of such female and especially where she has lost right arm it is such a handicapping injury as to be specially evaluated for this real material loss. As regards the economic loss this child had to give up her education now. She could not write in her examination and had to appear for the oral examination. Even as a simple housewife her prospects were almost ruined by this tragic accident as she had lost her right arm. It was observed by this Court that the compensation award should attempt to make some kind of restitution to her. The court must evaluate first the economic loss which had resulted to her after the loss of her right arm by loosing the career and on that basis the net loss of Rs. 85 per month was evaluated so far as the claimant in that case was concerned and on the basis of the annual figure of Rs. 963/this figure was capitalised by applying the multiple of 15 years which was a commonly accepted multiple in these days for such healthy persons and an amount of Rs. 17 500 was given by way of personal loss on account of pain and suffering.
7-A. There are three other decisions of this Court pertaining to personal injury cases and which are more recent in point of time. The first judgment is in the case of BABU MANSA V. AHMEDABAD MUNICIPAL CORPORATION & ORS. REPORTED IN 19 G.L.R. 492 were a Division Bench consisting of Justices P. D. Desai and M. K. Shah JJ. had an occasion to consider the question regarding the award of proper compensation in personal injury cases. In the aforesaid judgment the claimant was a young boy of 15 years at the time of the accident and his disability was assessed at 25% and he was left with permanent scars on his legs. The Court laiddown the principles in the aforesaid case for awarding compensation for future economic loss to such disabled claimants. It was observed that the entire evidence discussed in the aforesaid judgment in the case of Babu Mansa (supra) made it clear that the appellants injuries were of a serious nature and that particularly the injury on his right leg had left a permanent scar as a result of which he was severally handicapped in his day to day pursuit of life. A person in his position of life who has to undertake manual work to earn livelihood would suffer a severe handicap on account of such a deformity. If he cannot walk with ease and without support if he cannot sit cross legged if he can squat with support only and if he is unable to bend his leg it is difficult to appreciate as to how he would be able to efficiently carry on his work of excavation of sand which was his avocation of life at the time when he met with the accident in that case. The Court further observed in the aforesaid decision that on evidence it was found that the claimant in that case has 25% disability on that basis the appellant in that case was found to have suffered a loss of Rs. 60/per month and accordingly a figure of Rs. 724/was arrived at. The Tribunal in that case had adopted the same method which was found to be just and proper for computing the economic loss to the disabled claimant in the aforesaid decision. So far as the compensation on the head of pain and suffering was concerned the Court referred to the earlier Judgment in Ranjitsingh Gopalsingh & Ors. (supra) and staled that the fall in the value of money in our country was the main factor to be kept in view while assessing the damages on the count of Fain and suffering. It was observed that the need for periodical reassessment of damages at certain key points was a felt need and the requirement of adjusting awards to changing conditions was realised. Consequently it was found that the award of Rs. 3 0 by way of pain and suffering given by the Tribunal in that case was quite inadequate. It was observed that the court in the aforesaid case was concerned with a young boy of 15 years who had met with an accident which had restricted his activity leading to dimmunition in the enjoyment of his life. Besides this having regard to the injury on his right leg the claimant in that case leading a life of social disconfiture and he would be a burden to his family. It was further found that due to fall in the money value as has been held in the case of RANJITSINGH GOPALSINGH V. MEENAXIBEN 13 G.L.R. 662 (SUPRA) an upward revision of the amount of compensation on the head of pain and suffering was necessary and an amount of Rs. 15 0 was found in Babu Mansas case (supra) by this Court to he a just and proper amount of compensation which could be awarded for the loss of amenities and enjoyment of life.
7-B. Thereafter there is another decision of this Court in the case of BHARAT PREMJIBHAI V. MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD AND ANR. REPORTED IN THE SAME VOLUME I.E. 19 G.L.R. 585. It was delivered by the same Bench which delivered the judgment in BABU MANSA V. AHMEDABAD MUNICIPAL CORPORATIONS CASE. In BHARAT PREMJIBHAI V. MUNICIPAL CORPORATIONS case the injured was a boy of 15 years who had suffered multiple lacerated wounds and it was found that inspite of intensive and proper treatment received by him the after effects of the accidents had persisted. The claimant in that case had received two contused lacerated wounds over the head and a contused lacerated wound on the sole of the right foot. The internal injury on the right foot consisted of a crack fracture. Because of the injured foot the prospects of future economic progress of the claimant were retarded. While considering the principles to be applied for broadly evaluating the compensation amounts payable in cases of such disability reliance was placed by this Court in the aforesaid decision on the observations in Munkman on Damages for Personal Injuries and Death 5 Edition at page 48 to the effect that one of the heads of pecuniary loss is the deprivation of earnings or other items which would have been received but for the accident and have now been taken away and the other is the new positive burden of expenses incurred as a result of the accident. In principle the measure of damages for pecuniary loss is the exact amount of money which has been lost or spent in consequence of the injury. It was further held that it was easy enough to apply this rule in the case of earnings which have actually been lost or expenses which have actually been incurred upto the date of the trial. The exact or approximate amount can be proved and if proved would be awarded as special damages. It was further observed that in Mc Gregor on Damages Thirteenth Edition at page 739 in para 1098 the plaintiff was held entitled to damages for the loss of his earning capacity resulting from the injury and that this generally forms the principal head of damage in a personal injury action wherein both earnings already lost by the time of the trial and prospective loss of earnings are included. While the rules of procedure require that the past loss be pleaded as special damages and the prospective loss as general damage there would appear to be no substantive difference between the two the dividing line depending purely on the accident of the time when the case came up for hearing. On the aspect of future economic loss it was observed in the aforesaid case that the disability was found to be 25% and on that basis monthly loss was held at the rate of Rs. 45/and thus the annual toss worked out at Rs. 540/and applying 15 years multiplier the Tribunal in that case worked out the figure of Rs. 8100.00. This Court disagreeing with the method of computation of future loss as arrived at b) the Tribunal observed that the datum figure had not been properly and justly computed in that case and the Tribunal had misdirected itself in being guided by the table under the Workmens Compensation Act 1923 in assessing damages for the prospective loss of earning. It was observed that the Workmens Compensation tables are often referred to for judging the actual extent of the loss but they were not strictly relevant. In personal injury cases instituted under the Motor Vehicles Act 1939 the Tribunal had to assess damages in the light of the evidence and guided by its own expertise and experience and awards in similar cases but uninhibited by any statutory formula.
(3.) In the aforesaid decision it has been further observed that in estimating the future loss of income the primary consideration must be the nature and extent of the disablement of the limb permanent or temporary total or partial and its likely resultant effect on the earning capacity in the chosen avocation profession or employment of the injured person. It is therefore not right to treat this problem as an abstract mathematical exercise and to make the future loss of income co-extensive with the percentage of permanent disability regardless of the other relevant consideration. While computing the economic loss the Court in the aforesaid judgment adopted 15 years multiplier for capitalising the net annual income of the injured victim. So far as the damage on the aspect of pain and suffering were concerned the court observed that Rs. 15 0 would serve the purpose and would be a just compensation for the pain and suffering and loss of amenities and enjoyment of life which the victim suffered on account of the injury received by him.;
Copyright © Regent Computronics Pvt.Ltd.