RAMANBHAI KALIDAS DARJI Vs. BABUSING THAKORE

JUDGEMENT

(1.) xxx xxx xxx.

(2.) Whenever the victim of the motor accident prays for the compensation because of the injuries he sustains the Tribunal has to assess just and fair compensation pecuniary and non-pecuniary under different heads, on the basis of the actual expenses he was required to incur or his income, as the case may be, and the assessment must neither be too conservative nor too liberal for the loss is to be made good. As in this case the appellant has lost his left hand from above the elbow, the doctor has assessed the disability at 95%. Whether the same should be reduced to 50% considering the whole body is the point posed before us. We are of the view that if the disability is functional, the same under any guise should not be reduced considering the whole body. It is the contention of the learned Advocate for the respondent No. 3 that the injured person may switch over to another work and earn money, but we cannot put up a seal of approval to that contention because it is difficult to get another work as chances for disabled person to get job are meagre, and further switching over to another work depends on several other factors, viz. know-how, grasp, ability, skill, qualification, effectiveness, health, stamina, possibility to do the work with zest of the limbs, nature of work, risk involved, eligibility and the like. Hence in case of functional disability to adopt a lesser multiplier than what is found by the doctor and award less amounts of compensation would amount to a curse or adding fuel to the fire and intensifying affliction. In the case of functional disability therefore ordinarily the multiplier and amount of compensation should not be sliced down on the ground that victim may switch over to another work.

(3.) As stated above, the appellant was tailor and now he lost his left hand. It should hardly be stated that a tailor cannot work by one hand. Often he has to make the use of another hand, substitute of which is not possible. Artificial limb will be of no help. With one hand, he will not be able to do his tailoring work at all. Hence, the disability assessed being functional one cannot be reduced considering the whole body. We may, at this stage, in support of our view, refer the decision of the Supreme Court, rendered in the case of Pratap Narain Singh Deo v. Shrinivas Sabata & Anr. AIR 1976 S.C. 222. Wherein, keeping the provisions of Workman's Compensation Act in mind, it is held, that if the carpenter is injured and left hand above the elbow is amputed, the carpenter would not be able to work with one hand and therefore his disablement must be assessed totally and not partially. Although the decision is under Workman Compensation Act, the principle made clear can well be applied to the motor accident cases. In the case on hand the disability must be assessed totally, and not partially reducing multiplier.