Amputation Of Both Arms Should Be Construed As 100% Disability For Granting Compensation: Gujarat High Court

The Gujarat High Court recently enhanced the compensation granted by the civil court to a claimant on the ground that losing of both arms ‘below elbow upto lower one third of forearm’ shall be construed to be 100% disability as per the guidelines for Evaluation of Permanent Physical Impairment in Amputees (the guidelines). The appellant was employed by the contractor i.e. respondent no.3, to work for respondent nos.1 and 2. On 24.07.2007, the appellant sustained electrocution and as a result whereof, both the arms of the appellant were amputated. The civil court judge stated that the claimant is entitled to receive compensation for an amount of Rs.5,76,635/- from the defendants at the rate of 6% interest construing the disability of 65% of the claimant. This order was challenged in appeal, seeking compensation to the tune of Rs.10,00,000/-. While allowing the appeal, Justice Sangeeta K. Vishen held that the civil Judge was not right in assessing the disability of the appellant at 65% as the material on records show that appellant has sustained disability of 100%. The court held: “it is required to be noted that guidelines provide that in case of multiple amputees, if the total sum of percentage of permanent physical impairment is 100%, it should be taken as 100%. Paragraph no.3 provides that in case of amputation in more than one limb, percentage of each limb is counted and another 10% shall be added. In the present case, it is not that the appellant has sustained amputation only of one arm but, his both the arms below elbow upto lower one third of forearm, have been amputated and if disability of 65% each, is to be counted then, it would definitely be more than 100%.” The court relied upon Pappu Deo Yadav v. Naresh Kumar AIR 2020 SC 4424 cited by the counsel for the appellant in which the Supreme Court observed: “the Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads.” The court observed that three steps have been set out for determining the effect of permanent disability on the actual earning capacity: to ascertain as to what activities, the claimant could carry out in spite of the permanent disability; what he could not do as a result of the permanent disability; ascertaining his avocation, profession and nature of work before the accident, as also his age; and to find out as to whether, the claimant is totally disabled from earning any kind of livelihood, or whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or 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. The court also observed that without the arms, it is difficult, rather impossible for any human being to undertake any vocation or profession. Therefore, the High Court considering the facts and the principles held that the civil court judge committed an error in accepting the disability of the appellant as 65%, which would be arbitrary and perverse. Accordingly, the court ordered that the appellant would be entitled for compensation of Rs.10 lacs and directed the respondents to pay remaining compensation of Rs.4,23,365/- to the appellant within a period of two months, with interest at the rate of 9% from the date of filing of the captioned appeal i.e. 17.10.2013. Case Title: Sanjay Kalubhai Makwana v. Paschim Gujarat Vij Company Ltd. & 2 Ors.Case Citation: 2023 Livelaw (Guj) 25 Coram: Justice Sangeeta K. Vishen Click Here to Read/Download Judgment

Amputation Of Both Arms Should Be Construed As 100% Disability For Granting Compensation: Gujarat High Court

Udit Singh

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