Vilas Ganpati Jadhav vs Kiran Patil & Ors.

This appeal is presented by the appellant/claimant assailing the judgment and award rendered by the District Judge-4 / Ex-officio Member, Motor Accident Claims Tribunal, Latur, in M.A.C.P. No.65 of 2016, dated 30.11.2017, partly allowing the claim petition as against the amount claimed and awarding compensation of Rs.99,000/- to the appellant with interest at the rate of 6% per annum from the date of the petition till its realization.

On 19.09.2015, at about 5.30 p.m., the appellant was proceeding from Nivali towards Latur on motorcycle bearing registration No.MH-24-X-4934. When the appellant reached near Murud-Akola on Latur-Barshi road, offending vehicle bearing registration No.MH-06-G-3598 came from the opposite direction in a rash and negligent manner and from the wrong side of the road, resulting in a dash to the motorcycle of the appellant. The appellant fell down and sustained severe fractures to right leg tibia and fibula along with head injuries. The appellant was admitted in the Government Medical College and Hospital, Latur from 19.09.2015 to 06.10.2015 and underwent surgery.

Crime No.40 of 2015 came to be registered against the driver of the offending vehicle and, after investigation, the charge-sheet was filed.

The appellant presented claim petition claiming compensation of Rs.38,60,000/-, but owing to financial distress, restricted the claim before the Tribunal to Rs. 1,00,000/-, reserving liberty to pay deficit court fees upon enhancement in appeal. The appellant adduced the evidence of expert Dr. Rajkumar Datal, Orthopedic Surgeon, who issued a disability certificate certifying 23% permanent physical disability of the right lower limb due to mal-union of fractures, testifying that the appellant can no longer lift heavy weights, run, climb staircases, or perform strenuous manual labor.

Taking into account the evidence of Doctor, the Tribunal recorded a finding that the claimant suffered 23% permanent disability to right lower limb due to mal-united fractures of the tibia and fibula. However, observing that the claimant could walk without support of crutches and supervise agricultural land, the Tribunal held that the disability was limb-wise rather than entire bodily functional disability, assessed the loss of earning capacity at 50% of the limb disability i.e., 11.5%.

The insurance company resisted the claim, contending that there was a breach of policy conditions on the ground that the driver was not holding a valid license, however, admittedly no evidence was led in support of same. In the absence of documentary proof of income, the Tribunal assessed the claimant's notional income as a daily laborer at Rs.4,500/- per month. The Tribunal awarded Rs.2,000/- towards medical expenses and Rs.10,000/- towards pain and agony, without awarding any addition for future prospects, and awarded a total compensation of Rs.99,000/- (inclusive of No-Fault Liability) with interest @ 6% per annum from the date of the petition till realization.

The learned counsel for the appellant submitted that the Tribunal erred in assessing the monthly notional income of Rs.4,500/- per month. It is submitted that the appellant was a skilled mason (gawandi) by trade earning Rs.500/- per day, alongside being an agriculturist cultivating 94R of land. In the absence of salary records, the Tribunal ought to have assessed a realistic notional income indicating the appellant's skilled occupation and agricultural background. It is further submitted that the Tribunal failed to award future prospects, in spite the appellant suffering permanent physical disablement, which severely hampers future earning capacity.

It was also contended that the Tribunal acted mechanically while considering the lower limb disability to 11.5%. Considering that the appellant is a mason required full lower limb strength to stand for long hours, lift heavy materials, functional loss of earning capacity ought to have been assessed at a higher percentage, as the physical impairment directly disables from performing work. As such, the learned counsel prayed to allow the appeal and enhance the compensation accordingly.

In support, the learned counsel for the appellant relied upon the following judgments:

Per contra, learned counsel for respondents No.1 to 3 has opposed the appeal and contended that the claimant in collusion with police authority filed false chargesheet. Therefore, respondent No.4 is liable to pay compensation.

The learned counsel for respondent No.4-Insurance Company supported the award under challenged and vehemently submitted that in absence of salary slips or tax returns, the Tribunal properly assessed notional income at Rs.4,500/- per month.

Relying upon the judgment of this Court in the case of Vinod Chhagan Shejwal v. Khaitan Logistic Private Limited, First Appeal No. 243 of 2021, 18.07.2024, the learned counsel for respondent No.4 submitted that in personal injury claims, additions for future prospects are restricted solely to cases involving 100% functional loss or amputation. It is further submitted that as the 23% disability was considered to the right lower limb and the appellant could walk without crutches, taking 11.5% body disability was justified. As such, prayed to dismiss the appeal.

Upon hearing the submissions of the respective learned counsel for the litigating parties and perusing the evidence on record, it is evident that the Tribunal’s assessment regarding notional income at Rs.4,500/- per month is contrary to the notifications issued by the Ministry of Labour and Employment, Government of India (Office of the Chief Labour Commissioner, New Delhi) vide Order No. 1/2(1)/2014-LS-II dated 04.03.2014 and Order No.1/2(1)/2016-LS-II dated 03.09.2016 established the statutory minimum wage for unskilled agricultural laborers in rural non-metro regions (Area C) between Rs. 204/- and Rs.237/- per day.

Applying the standard calculation formula of 26 working days per month, it comes to Rs. 5,304/- to Rs.6,162/- per month. Further, in the case of Sayyed Sadiq & Anr. (supra), the Hon'ble Apex Court held that in the unorganized sector, daily wagers and agricultural laborers cannot be expected to produce formal documentary proof of income and the Courts must adopt a realistic judicial notional income baseline. Considering that the appellant was an agriculturist cultivating 94R of land and an unorganized manual worker injured in September 2015, his notional income is assessed at Rs. 6,000/- per month.

Regarding future prospects, the objection raised by respondent No. 2 relying on the case of Vinod Chhagan Shejwal (supra) is not tenable in light of the binding three-Judge Bench ruling of the Apex Court in the case of Pappu Deo Yadav v. Naresh Kumar and others, [(2022) 13 SCC 190].

The Hon’ble Apex Court has held that excluding future prospects in personal injury cases resulting in permanent disability while granting them in fatal accident cases is entirely illogical and legally unsupportable, as living victims facing rising inflation, escalation in the cost of living, and lifelong physical restrictions are equally entitled to the prospect of advancing in life. The Hon’ble Apex Court underscored that judicial awards of compensation are not law's doles or mere pittance, but constitute enforceable legal entitlements rooted in human dignity under Article 21 of the Constitution of India, aimed at restoring the victim as nearly as possible to his pre-accident position (restitution in interregnum).

The Constitution Bench principles in the case of Pranay Sethi (supra) and Jagdish v. Mohan [(2018) 4 SCC 571], the three-Judge Bench mandated that self-employed individuals and daily wagers suffering permanent disablement are fully entitled to an addition towards future prospects. As the appellant was aged 42 years at the time of the accident. An addition of 25% towards future prospects must be granted as per the judgment in the case of National Insurance Co. Ltd. v. Pranay Sethi (supra), bringing the monthly income to Rs.7,500/- (Rs.7,500 X 12 = Rs. 72,000/- per annum).

So far as the functional disability is concerned, the medical evidence of Dr. Rajkumar Datal confirms that the appellant suffered fractures of the tibia and fibula resulting in mal-union and 23% permanent lower limb impairment. In the case of Raj Kumar (supra) and Jithendran (supra), physical disability must be evaluated in relation to the specific trade of the victim.

The appellant engaged as a mason and as an agriculturist actively working on 94R land. Both works require complete lower limb stability, prolonged standing and lifting heavy loads. While his notional income is considered as Rs.6,000/- per month applicable to manual agricultural labor, actual physical impairment due to mal-united fractures of the tibia and fibula disables the claimant from performing heavy physical exertion in masonry and agricultural field operations.

Consequently, functional loss of earning capacity at 30% is proportionate. Applying the multiplier of 14 for age 42 under Sarla Verma v. Delhi Transport Corporation, [(2009) 6 SCC 121] the loss of future earning capacity is calculated as 30% of Rs.90,000/- (annual income with 25% future prospects), being Rs.27,000/- per annum, multiplied by 14, yielding Rs.3,78,000/-.

Regarding the pecuniary and non-pecuniary heads, the Tribunal's awards require enhancement to confirm with settled legal principles. In the case of Raj Kumar (supra), it is observed that taking into account the severe compound tibia-fibula fractures, emergency open reduction with interlocking nailing, 18 days of indoor hospitalization (19.09.2015 to 06.10.2015) at G.M.C. Civil Hospital Latur, and acute physical trauma during recovery, an enhanced amount of Rs.25,000/- is awarded towards Pain and Suffering.

In the case of Jithendran (supra), it is held that considering that the mal-united fractures result in permanent physical restrictions affecting walking long distances, squatting, carrying heavy weights, and overall enjoyment of life, an amount of Rs. 25,000/- deserves to be awarded towards Loss of Amenities and Enjoyment of Life.

Towards Loss of Income During Treatment Period, recognizing that 18 days of active indoor hospital stay followed by mandatory non-weight-bearing home immobilization incapacitated the appellant from manual labor for a total of 3 months, compensation is evaluated at Rs. 18,000/- (3 months @ Rs.6,000/- per month). In addition, a consolidated sum of Rs. 5,000/- is awarded towards Special Diet, Conveyance, and Attendant Charges required during his 3-month recovery phase.

Finally, under Medical Expenses, the award of Rs. 2,000/-grounded on actual medical store purchase receipts produced on record at Exhibit 41 is maintained as awarded by the Tribunal, it comes at Rs.4,53,000/-.

In view of the above, total compensation payable to the appellant stands enhanced from Rs.99,000/- to Rs. 4,53,000/-, yielding a net enhancement of Rs. 3,54,000/- along with interest at the rate of 6 % per annum from the date of filing of the claim petition till actual realization.

The Tribunal's award with the enhanced compensation awarded by this Court is summarized below:

Hence, the following order;