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Gurdipsingh Vs. Chauhan Bhupendra Kumar Udesingh and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 619 of 1974
Judge
Reported inAIR1980Guj44; (1980)1GLR221
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantGurdipsingh
RespondentChauhan Bhupendra Kumar Udesingh and anr.
Appellant Advocate R.N. Oza, Adv.
Respondent Advocate G.N. Desai, Adv.
Excerpt:
- - his duty at that time involved considerable physical strain including a good deal of walking......for removal of the plate, which had been placed, on 30-6-1973. he would not be able to tend the knee joint fully and after 5 to 10 years, he might need another operation and the pain in future would become unbearable and the knee joint will have to be stiffened and in that case, though pain could be removed, yet, he will not be able to bend the knee at all. at the time when the doctor examined him, the patient could walk without a limp and the only discomfort, which he was experiencing, was that while squatting and climbing, he would feel pain. as per his opinion, the chances of getting pain in future in the knee joint are more than 50%. the patients who have sustained such types of injuries, almost in variably develop pain in the knee joint in future. up to 25th march, 1974, the.....
Judgment:

M.K. Shah, J.

1. This appeal is by the original claimant in an M.A.C. application No.131 of 1973 wherein, as against the claim of Rs.1,00,000/- preferred by him, the Motor Accident Claims Tribunal at Baroda by its award dated 28th June 1974, awarded an amount of Rs.26,660/- only.

2. (His Lordship after narrating the facts, said:) Mr. R.N. Oza, the learned Advocate appearing for the appellant submitted that, in the instant case, the learned District Judge constituting the Tribunal erred in taking the impact of the permanent disability as slight discomfort and in not awarding any compensation on the head of loss of earning capacity.

3. As per the evidence of Dr. Nagpal, examined at Ex.25, the claimant had (1) fractures of lateral condyle of the right tibia and upper and of the right fibula; (2) fractures of the shafts of the right tibia and fibula and (3) fracture of the nasal bone. He was operated on 30-6-1973. In all two surgical interventions had to be carried out. The doctor examined the patient lastly on 1-4-1974 when he found that knee flexion was possible up to 105 degrees only instead of normal flexion of 170 degrees. In the opinion of the doctor, these are permanent disabilities and they are irreversible. The patient was required to go for another operation for removal of the plate, which had been placed, on 30-6-1973. He would not be able to tend the knee joint fully and after 5 to 10 years, he might need another operation and the pain in future would become unbearable and the knee joint will have to be stiffened and in that case, though pain could be removed, yet, he will not be able to bend the knee at all. At the time when the doctor examined him, the patient could walk without a limp and the only discomfort, which he was experiencing, was that while squatting and climbing, he would feel pain. As per his opinion, the chances of getting pain in future in the knee joint are more than 50%. The patients who have sustained such types of injuries, almost in variably develop pain in the knee joint in future. Up to 25th March, 1974, the patient was not complaining of pain but thereafter, he started complaining about pain in the knee joint and because of that, physiotherapy had to be stopped. No further improvement was registered. So far as sitting on chair is concerned, the patient would not feel any discomfort as while sitting on a chair the knee join is to be bent only upto 90 degrees. The doctor did not expect any further improvement in this case and ultimately; the patient will have to undergo future operation.

4. As the evidence show, the salary which the claimant was getting at the time of the accident was Rs.810/- per month as a senior technical assistant in O.N.G.C. He was doing field work, which involved a lot of walking. After the accident, he was not able to attend to field work and he was posted in the office. He was getting filed allowance of Rs.100/- per month and though it was not stopped from 28th June, 1974. Looking to the nature of injuries, treatment undergone, operations carried out and chances of operation in future and chances of losing capacity for flexion of the knee joint totally, it passes one's imagination as to how one could record a finding that his is a 'slight discomfort' which will not have any effect or impact on the earning capacity of the injured person. In principle, the loss of bodily integrity gives a right to damages even if there is no damage at all to the earning capacity or even to enjoyment of life. But damages in such cases are awarded commensurate with the extent, gravity and duration of the injury. The test in such case is to ask as to whether physical integrity of the injured person is broken and if so, whether the same is of a temporary or a permanent nature and thirdly, what impact, that is, to what extent this physical incapability or temporary or permanent disability will be reflected in the earning capacity of the injured.

5. In the instant case, as we find, there is loss of flexion to the extent of 38% of the knee joint. The claimant is not able to bend his knee beyond 105 degrees. He, therefore, will experience difficulty in squatting, sitting and walking at a stretch. There is impairment of his physical capacity, which may also affect his mental capacity. This impairment is, therefore, bound to reflect on his efficiency in his work, irrespective of the field his is operating in and much more in the field in which he was employed at the time of the accident viz. technical assistant in the O.N.G.C. His duty at that time involved considerable physical strain including a good deal of walking. As his immediate superior Anand Prakash Gopinath Shrivastav, Ex.43 says, the claimant after the accident was not fully fit to work as technical assistant. After looking into the medical certificates, he was entrusted light duty. He was not in a position to do his work satisfactorily and he was not fully fit for any type of field work and, for some type of field work, he was totally unfit and the witness was thinking of getting the claimant transferred from production section to the office section. As a matter of fact, he was transferred to the office section on and from 28th June 1974 and the field allowance of Rs.100/- per month, which he was getting till the, was stopped in his case. This incapacity is also, in all probability, bound to affect his chances of promotion and his chances in the labour market are bound to be affected.

Thus, it cannot be gainsaid that the permanent disability with which the claimant is saddled on account of the accident will be permanently reflected in his earning capacity according to the extent and gravity of his physical handicap. The Tribunal was, therefore, patently in error in not granting any compensation on this head.

6. That will take us to the question with regard to the quantum of compensation on this head. The claimant is 29 years old. He was drawing a salary of Rs.810/- at the relevant time. He has chances of promotion and with the revised pay scale, in the years to come; he was bound to get more than expected the time when the accident had happened. In our opinion, on a conservative estimate, if his income is taken at Rupees 1,000/- per month and loss of earning capacity of 25% which, in our opinion, is the reasonable estimate of the probable reflection of the permanent disability on his earning capacity, and a multiplier of 15 is applied, then, the compensation will work out as follows:--

250 x 12 = 3000 x 15 = 45,000/-

The claimant will, therefore, get and additional compensation of Rs.45,000/- over and above the compensation already awarded by the Tribunal and the appeal to that extent will, therefore, succeed.

7. Appeal partly allowed.

8. Appeal partly allowed.


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