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2010 DIGILAW 574 (MP)

SURESH RAWAT v. DILIP KUMAR GHOSH

2010-05-18

J.K.MAHESHWARI

body2010
JUDGMENT : J.K. Maheshwari, J. This appeal has been filed by the appellant u/s 173 of the Motor Vehicles Act against the award dated 11.9.2006 passed by learned Fifteenth M.A.C.T., Indore in Claim Case No. 217 of 2005. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 6,12,464 with interest at the rate of 7.5 per cent per annum for the injuries sustained, arising out of the accident which occurred on 12.9.2004. The appellant had preferred a claim petition u/s 166 of the Motor Vehicles Act, seeking compensation to the tune of Rs. 21,00,000 for the grievous injuries sustained in the said accident. The certificate of permanent disablement (Exh. P905) is available on record. The Tribunal has awarded a total sum of Rs. 6,12,464 out of which Rs. 4,12,464 has been awarded under the head of medical expenses, Rs. 75,000 towards pain and suffering, Rs. 25,000 under the head of special diet and Rs. 1,00,000 in lump sum under the head of permanent disablement. 2. Mr. G.K. Neema, learned counsel for the appellant, submits that it is a case in which there was a fracture of right pelvic bone and head injury to the injured. He got admitted in Criticare Superspecialty Hospital, Thane from 12.9.2004 to 14.9.2004, thereafter, in Jairam Hospital, Nasik from 15.9.2004 to 11.10.2004 and again from 11.11.2004 to 29.11.2004. Thereafter, he was treated by Dr. Arun Mulla in Bombay Hospital, Mumbai and remained there from 27.3.2006 to 5.4.2006. At that time the hip replacement as advised was done. He had received disability to the extent of 35 per cent as opined by the Medical Board Certificate (Exh. P905). In view of the aforesaid it is urged that the compensation of Rs. 1,00,000 as allowed for future loss of earnings due to disablement is inadequate which is liable to be enhanced reasonably. It is also contended that Rs. 50,000 approximately under medical expenses which relates to the fee of Dr. Mulla is not permitted to be granted on presumption that such amount may be included in the complete bill of hospital, but this is not included therein. It is also contended that for attendant charges and conventional head nothing has been awarded to the injured. 50,000 approximately under medical expenses which relates to the fee of Dr. Mulla is not permitted to be granted on presumption that such amount may be included in the complete bill of hospital, but this is not included therein. It is also contended that for attendant charges and conventional head nothing has been awarded to the injured. On the point of disablement for grant of future loss of earnings it is urged that during such period he engaged three persons to carry on his two businesses, namely, Rawat Kerosene Service Centre and Rawat Travels. However, he spent Rs. 12,500 per month in total by paying them salary, therefore, it was a loss caused to him due to disablement. Such amount may be allowed applying multiplier theory. It is also contended that looking to the income tax return and commensurate to the percentage of disablement compensation may be awarded to the injured applying multiplier theory. In view of the aforesaid it is urged that the appeal may be allowed and the compensation may be enhanced adequately. 3. On the other hand, Mr. V.P. Khare, learned counsel for the respondent No. 3, submits that the Tribunal has adequately granted the compensation under all heads. It is contended by him that in view of the income tax return, earnings of the injured have not come down in the year in which the accident has taken place. Therefore, the Tribunal has awarded Rs. 1,00,000 in lump sum to the injured under the head of permanent disablement. However, in such circumstances, the compensation as assessed by the Tribunal is just and proper, which does not warrant any interference and the appeal is liable to be dismissed. 4. Mr. Jain, learned counsel appearing for the respondent No. 6 insurance company, has also contended in support of the findings of the Claims Tribunal and argued that the compensation as awarded by the impugned award is just and proper, which does not warrant any interference by this court. 5. After having heard learned counsel for the parties and on perusal of the record, it is apparent that the medical bills of Rs. 50,000 deserves to be allowed to the petitioner because it relates to the fee of Dr. Mulla and the said amount is not included in the bill of Bombay Hospital, Mumbai. 5. After having heard learned counsel for the parties and on perusal of the record, it is apparent that the medical bills of Rs. 50,000 deserves to be allowed to the petitioner because it relates to the fee of Dr. Mulla and the said amount is not included in the bill of Bombay Hospital, Mumbai. Now the question that arises for consideration is that how the assumption of the future loss of earnings due to permanent disablement may be made in the facts and circumstances of the present case. In the present case three income tax returns, i.e., Exh. P738 of year 2002-2003 showing the income of Rs. 5,19,939, Exh. P739 of year 2003-2004 showing income of Rs. 3,96,150 and Exh. P740 of year 2004-2005 showing income of Rs. 4,36,633 are available on record. On perusal thereof it is apparent that the income tax return of year 2004-2005 is relevant having much relevancy from the date of incident, i.e., 12.9.2004 because it relates to same financial year. If we peruse the return of the last year then the income of the injured is less, i.e., Rs. 3,96,150 while in the year 2002-2003 it is on higher side. Thus, it is apparent that there is no fluctuation in income. However, in the opinion of this court, in the said fact, the multiplier theory cannot be awarded commensurate to the percentage of the disablement. In that view of the matter, in my opinion some amount in lump sum may be granted looking to the fact that there was hip replacement of the injured. In the opinion of this court, Rs. 2,50,000 would be sufficient in this regard. Under other heads compensation has adequately been granted by the Tribunal. Therefore, total enhancement of Rs. 3,00,000 is being directed in addition to the compensation already granted by the Tribunal. Accordingly, this appeal is allowed in part. The compensation allowed by the Claims Tribunal is enhanced to the sum of Rs. 3,00,000 in addition to the compensation already awarded by the Tribunal. The enhanced amount shall carry interest at the rate of 7.5 per cent per annum from the date of claim petition till its realization. In the facts and circumstances of the case parties are directed to bear their own costs.