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2006 DIGILAW 997 (BOM)

Shaikh Parvej Qamar s/o. Kamruzama Azmi v. Bajaj Auto Ltd.

2006-07-03

A.H.JOSHI

body2006
JUDGMENT : - The claimant had filed the claim petition claiming compensation on account of the loss suffered by him due to the injury, caused by the bus owned by the Respondent No.1, which vehicle was insured by the Respondent No.2. Claimant's leg was injured and he suffered fracture to the tibia, and it was required to be treated by placing steel rod and other treatment. He needed long term hospitalization and multiple surgeries. He was away from work for about 9 months, and suffered great pains, agony and discomfort. 2. The monetary compensation was claimed under various heads, as under: (a) Pain and suffering : Rs. 12,500/ - (b) Loss of amenities of life : Rs. 6,700/ - (c) Loss of expectation of life: Rs. 13,300/ - (d) Discomfort and inconvenience: Rs. 7,300/ - (e) Part pecuniary losses i.e. loss of atleast one year salary: Rs. 51,240/ - (f) Loss of future earning: Rs.2,70,547/ - (g) Medical expenses including medicine charges, hospital admission and staying charges, 2 times operation and the transport charges from Aurangabad to Bombay : Rs. 35,300/ - (h) Nursing services at home : Rs. 15,000/ - (i) Damage to motor bike : Rs. 2,500/ - Total : Rs.4,14,387/ - 3. The Tribunal held that the negligence on the part of the driver of the bus was proved. 4. The Tribunal proceeded to consider the case on the point of compensation under various heads. Learned Tribunal awarded compensation on account of various heads as follows : - (a) expenses during treatment to the tune of : Rs.22,000/ - (b) loss of salary on account of failure to attend the duty to the tune of : Rs.20,000/ - (c) compensation on account of pain and sufferings to the tune of : Rs.10,000/ - (d) lump sum compensation on account of permanent disability to the tune of : Rs.60,000/ - The total award came to the tune of Rs.1,12,000/ - with interest at the rate of 12% p.a. from the date of Claim Petition. 5. 5. The claimant, who is aggrieved by this award, has urged that the award was liable to be modified on account of non payment of compensation and lesser amount of compensation awarded by the Tribunal under various heads, namely : (i) Expenses towards and during treatment; (ii) Loss of salary on account of accident; (iii) amount on account of pain and sufferings; and (iv) Lump sum compensation on account of permanent disability. 6. According to the learned advocate for the appellant, there was no reason to reduce the claim amount under the heads pains and sufferings, loss of amenities of life, expenses and compensation towards nursing services at home. According to the appellant, the Tribunal also erred in awarding less compensation than the amount actually spent towards medical expenses and towards the pecuniary loss actually suffered and proved, and future loss of earning for the period of expectancy of about 16 years. 7. The claimant has examined himself and examined as witness no.2 one Mr. Atul Desai, Manager of the Employer Company, who has proved the pecuniary loss suffered by the claimant on account of his being away from work for the period between 11th May, 1994 till February, 1995. The certificate, in this regard, proved by this witness, is at Exhibit - 25 which shows that loss suffered by the claimant is to the tune of Rs.48,767/ - . 8. Dr. Suhas Kate was examined on commission, whose evidence is at Exhibit - 33B. This doctor has proved the disability, which is brought on record through Exhibit - 38, which is 40%. 9. On perusal of the evidence of witness no.2 Atul Desai, it is also seen that the opportunities of advancement of career in the shape of promotion, etc. of the claimant were adversely affected. 10. In the aforesaid background, this Court has to examine as to what is the amount of compensation to which the claimant was entitled to. 11. In the background of aforesaid proved facts, it is necessary to examine whether the Tribunal has rightly appreciated the evidence on record and reached correct figures as to the amount of compensation and related matters are discussed as below : (a) This Court finds that the amount claimed towards pain and sufferings is only Rs.12.500/ - . 11. In the background of aforesaid proved facts, it is necessary to examine whether the Tribunal has rightly appreciated the evidence on record and reached correct figures as to the amount of compensation and related matters are discussed as below : (a) This Court finds that the amount claimed towards pain and sufferings is only Rs.12.500/ - . which itself is extremely modest and on lower side and there is no harm in awarding the said amount, while the Tribunal has awarded only Rs.10,000/ - without recording the reasons as to why it is reduced. (b) The claim towards loss of amenities of life also deserves to be allowed to the extent it was claimed i.e. Rs.6700/ - , which is totally declined by the Tribunal. (c) The compensation amount on account of loss of expectation of life, however, cannot be considered, as there is no evidence to suggest that the accident, in any way, has resulted in reducing the life span or expectancy of life span, and claim under this head is rightly rejected by the Tribunal. (d) The compensation on account of discomfort and inconvenience, which is claimed only to the extent of Rs.7.300/ - is also a reasonable claim and ought to have been considered. (e) Pecuniary loss on account of salary, which is claimed to the tune of Rs.51 ,2401ought to have been granted to the tune of amount proved in the certificate Exhibit - 25, which is Rs.48.767/ - . Reduction and award of claim under this head is without any foundation whatsoever. (f) The Tribunal ought to have considered the aspect of loss of future earning on a very modest sum considering it to be at least Rs.1,000/ - per month for expectancy of twelve years and this amount would, if calculated, come to Rs.1,44,000/ - (1000 x 12 x 12 years). (g) It is also seen from the record that various bills as regards medical expenses are on record. (g) It is also seen from the record that various bills as regards medical expenses are on record. Speaking to the strict terms of proof and disproof of documents, these bills have not been proved by oral evidence of every shop keeper, however, the totality of circumstances, namely injury suffered by the claimant, medical treatment undergone by him and disability incurred, it sufficiently demonstrates that the documents relating to medical expenses are genuine and raise the preponderance of probability that these bills need to be relied upon in the light of oral testimony of P.W.1 and P.W.3 together, and strict proof of this fact is not, therefore, required. The compensation on account of medical expenses, including medicines, hospitalisation, admission, stay charges and travelling to Mumbai, etc., which is claimed to the tune of Rs.35.300/ - , which, therefore, ought to have been granted fully. (h) The charges towards nursing at home to the tune of Rs.15.000/ - is also a reasonable figure and was liable to be so granted and refusal to award this claim is also seen without recording any reasons. 11. In view of what this Court has found in the foregoing para, this Court is of the opinion that the claimant has proved the claims and are accordingly liable to be granted as follows : (a) Pain & Sufferings : Rs: 12,500/ - (b) Loss of amenities : Rs. 6,700/ - (c) Discomfort & inconvenience : Rs. 7,300/ - (d) Pecuniary loss on account of loss of salary : Rs. 48,767/ - (e) Loss of future earning : Rs.1,44,000/ - (f) Medical expenses including medicine charges, hospital admission and staying charges, 2 times operation and the transport charges from Aurangabad to Bombay : Rs. 35,300/ - (g) Nursing services at home : Rs. 15,000/ - Total Rs.2,69,567/ - 12. In view of the finding reached by this Court, the appeal is liable to be partly allowed and it is held that the appellant is entitled to a sum of Rs.2,69,567/ - as found out herein above with full costs. The entire amount of award shall carry interest @ 12% p.a. from the date of award. The award of M.A.C.T. under challenge is modified accordingly. Appeal partly allowed.