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2013 DIGILAW 96 (GAU)

Dhirendra Chandra Das v. Anil Sarkar

2013-02-08

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. By this appeal, filed under Section 173 of Motor Vehicles Act, 1988, the appellant, named above, has challenged the judgment and award dated 28.01.2005, passed by the learned Member, Motor Accident Claims Tribunal (Court No. 4), West Tripura, Agartala in case No. TS (MAC) 518 of 2001. Brief facts: 1.1 On 21.03.2001, the appellant was travelling with bus vehicle No. TR01-1335 from Tufanialunga Bus stand to Tulshibati Bus stand (Agartala) and on the way at a place named Subhas Colony, near Salbagan Forest, Range Office, the vehicle met an accident for rash and negligent driving and as a result, the petitioner sustained severe injury on his right knee, right leg, right hand and other parts of the body. Some other passengers also received injury and two of them died. After the accident, Airport P.S. Case No. 05 of 2001 under Sections 279/338 and 427 of IPC was registered on the date of accident and investigation was taken up. The petitioner was taken to G.B. Hospital where he undergone treatment as an indoor patient till 17.04.2001 and thereafter also continued his treatment. His right knee joint was operated and as a result of the injury he lost strength of his right leg and gradually became disabled. He was aged 45 years and was self employed. He used to work as a Mason and Bamboo Craftsman and would earn Rs. 3000/- per month. He was the sole bread earner of his family. Since after accident he lost his profession and cannot pursue his normal work as before. He spent Rs. 15000/- for treatment and he claimed another Rs. 25,000/- for future treatment. He also claimed Rs. 4,62,000/-towards loss of income and Rs. 50,000/- for mental shock and agony, totaling he claimed a compensation of Rs. 5,52,000/-. 2. Respondent No. 1, the owner of the alleged offending bus vehicle No. TR01-1335, submitted written statement admitting the accident. The respondent also admitted that the petitioner suffered severe injury due to the accident. Respondent further stated that the vehicle was insured with National Insurance Company Ltd. covering the risk on the date of accident and the driver Chandan Deb was having with a valid driving licence. He, however, denied rash and negligent driving of the vehicle. 3. The respondent also admitted that the petitioner suffered severe injury due to the accident. Respondent further stated that the vehicle was insured with National Insurance Company Ltd. covering the risk on the date of accident and the driver Chandan Deb was having with a valid driving licence. He, however, denied rash and negligent driving of the vehicle. 3. Respondent No. 2 also contested the case by filing written statement denying the averments made in the claim petition but did not specifically deny the factum of insurance of the vehicle covering the risk on the date of accident. The respondent further stated that the owner of the vehicle should produce all documents of the vehicle including valid driving licence of the driver and the certificate of insurance and otherwise, insurance company should not be saddled with the responsibility of making payment of any compensation. 4. Considering the pleadings of the parties, the tribunal framed following issues:-- 1. Whether the claimant petitioner sustained grievous injury on 21.3.01 at about 7-30/7-40 a.m. at near the Salbagan Forest Range at Subhas Colony in front of Manindra Ch. Das house because of vehicular accident and if so, whether the said incident of accident had occurred for the rash and negligent driving of the vehicle bearing No. TR01-1335(Bus)by its driver? 2. Who will pay the compensation? 3. Whether the petitioner is entitled to any relief and if so up to what extent? 5. In course of enquiry/trial, the claimant petitioner has examined himself as P.W.1 and he also proved copy of FIR, discharge certificate of G.B. Hospital, a disablement certificate issued by the Medical Board and those were marked as Exbt. I series. 6. Respondents adduced no oral or documentary evidence. 7. The tribunal by impugned judgment dated 28.01.2005 held that the accident occurred for rash and negligent driving of the vehicle and that the petitioner suffered severe injury in his right leg and his right knee joint was operated and as a result of the accident, the petitioner has become disabled to the extent of 20%. The tribunal awarded compensation on following heads:-- I. cost of transportation from the place of accident to G.B. Hospital. Rs. 200/- II. Compensation for pain and sufferings. Rs. 5,000/- III. Loss of income for the disability Rs. 79,200/- IV. Cost of attendant during treatment Rs. 2,700/- V. Cost of treatment Rs. 3,000/- VI. The tribunal awarded compensation on following heads:-- I. cost of transportation from the place of accident to G.B. Hospital. Rs. 200/- II. Compensation for pain and sufferings. Rs. 5,000/- III. Loss of income for the disability Rs. 79,200/- IV. Cost of attendant during treatment Rs. 2,700/- V. Cost of treatment Rs. 3,000/- VI. Loss of income during the period Rs. 6,000/- of treatment (3 months) Total = Rs. 96,100/- 8. Feeling aggrieved with the quantum of compensation, the appellant-petitioner challenged the award, filing the present appeal. 9. Heard learned Sr. counsel, Mr. Sankar Deb, assisted by learned counsel, Mr. M.K. Roy for the petitioner and learned counsel, Mr. D.K. Biswas for the respondent No. 2, National Insurance Company Ltd. 10. Respondent No. 1 has chosen to remain absent. 11. Learned Sr. counsel, Mr. Deb has submitted that the age of the appellant petitioner at the time of accident was 45 years but the tribunal drawing attention to some over writings in the disability certificate, in respect of age of the petitioner has held the age of the petitioner as 55 years and thereby committed wrong in determining multiplier for the assessment of compensation. He has further submitted that the appellant petitioner was in hospital for 27 days but the tribunal awarded only a meager amount of Rs. 2700/- towards cost of treatment. According to learned counsel for an illiterate person, like petitioner, one cannot expect that all cash memos and vouchers in the course of treatment would be retained for the purpose of claiming compensation in future and under such circumstances, some hypothetical consideration ought to be made for determining a reasonable amount of compensation. Learned counsel, Mr. Deb further argued that the tribunal awarded a poor amount of only Rs. 5000/- towards pain and sufferings though it is on record that the petitioner lost his comfort of life and he has to carry the sufferings of accident for the rest of life because of disability in using his right leg. Referring to the decision of the Apex Court in the case of Sanjay Batham Vs. Munnalal Parihar & Ors. reported in (2011) 10 SCC 665 and in the case of Govind Yadav Vs. New India Assurance Company Ltd. reported in (2011) 10 SCC 683 and in the case of Kavita Vs. Deepak & Ors. Referring to the decision of the Apex Court in the case of Sanjay Batham Vs. Munnalal Parihar & Ors. reported in (2011) 10 SCC 665 and in the case of Govind Yadav Vs. New India Assurance Company Ltd. reported in (2011) 10 SCC 683 and in the case of Kavita Vs. Deepak & Ors. reported in (2012) 8 SCC 604 , learned counsel has submitted that for pain and sufferings already suffered and likely to suffer in future, the petitioner should be awarded a reasonable and just compensation It is further contended by learned Sr. counsel, Mr. Deb that a daily labour also has a future prospect of increased earning and the tribunal would take into consideration such future prospect and while computing compensation in the cases of permanent disability, a future prospect should be added for arriving at a just decision in respect of quantum of compensation. He has also contended that the tribunal did not consider the extent of physical disablement vis--vis earning capacity and in the case of appellant petitioner; it should be treated as of 100% disability in respect of his earning capacity. The compensation should be computed accordingly, considering the appellant petitioner as fully disabled in respect of his profession. 12. Learned counsel, Mr. Biswas on the other hand, has submitted that the appellant petitioner from the very inception of filing the claim petition was not in clean hand. Regarding his profession and his age at the time of accident he took contradictory stand. It may be presumed that the claim petition was filed by the petitioner stating his correct particulars but subsequently by way of amendment his age and profession was amended which suggests that either the petitioner at the inception made wrong statement in the claim petition or subsequently to earn exorbitant compensation made manipulated statement. He has also contended that in respect of the age of the petitioner, the disability certificate was tampered which has been noticed in the judgment passed by the tribunal and the documents including that of the discharge certificate makes it clear that he was aged about 55 years at the time of accident. He has also submitted that according to the petitioner he suffered injury in the right leg and the right knee joint became stiff. The disability certificate was valid for 5 years since he may recover from stiffness after physical exercise etc. He has also submitted that according to the petitioner he suffered injury in the right leg and the right knee joint became stiff. The disability certificate was valid for 5 years since he may recover from stiffness after physical exercise etc. and there is nothing in the evidence on record to show the extent of physical disability vis--vis the earning capacity. Under such circumstances, calculation of compensation made by the tribunal, cannot be said to have unreasonable in the facts and circumstances and evidence on record and, therefore, the award does not deserve interference. 13. Indisputably, the petitioner suffered injury in his right leg due to the accident and patella of right leg was fractured. Discharge certificate of G.B. Hospital dated 17.04.2001 shows that patellectomy was done on 03,04.3001. Disability certificate issued on 15.03.2002, has been marked as one of the items of Exbt. 1 series, shows that the petitioner was suffering from Manus vulgar(right) knee stiffness and it was to the extent of 20% permanent disability. 14. Let us first see, what was the age of the petitioner at the time of alleged accident. No age proof certificate is produced by the petitioner. Record shows that the petitioner is illiterate. However, to prove his age he could produce family ration card, voter list, family registration certificate or any other Govt. document showing his age but no such document placed. Discharge certificate of G.B. Hospital which is proved as one of the items of exbt. 1 series, recorded his age as 55 years at the time of accident In the disability certificate which is proved as another item of exbt. 1 series, the age both in figure and in word found to be tampered using fluid which is reflected in the judgment of the tribunal at page 9. On perusal of the L.C. record, it is found that the original disability certificate has been withdrawn and a photocopy placed on record but the photocopy also makes it abundantly clear that the figure "4" and word 'forty' were tampered and written subsequently. Learned counsel, of the appellant submitted that the original disability certificate has been withdrawn to obtain a fresh disability certificate since the disability has increased in the meantime. It makes clear that the petitioner manipulated the age in the disability certificate and he is not in clean hand. Learned counsel, of the appellant submitted that the original disability certificate has been withdrawn to obtain a fresh disability certificate since the disability has increased in the meantime. It makes clear that the petitioner manipulated the age in the disability certificate and he is not in clean hand. In his claim petition, he initially stated his age as 55 years, but subsequently by way of amendment made it 45 years. The petitioner further filed a CM application under Order XLI, Rule 27 of CPC, praying for taking into evidence a disability certificate obtained on 22.08.2012 and that certificate shows his age as 60 years. The tribunal in my considered opinion very rightly taken into consideration the age found in the discharge certificate of G.B. Hospital in the absence of any other cogent documentary evidence. The tribunal did not consider the age of the petitioner mentioned in the disability certificate. I find no merit in the argument of learned counsel in respect of age of the petitioner. 15. Regarding the occupation of the claimant petitioner, as I find, at the time of filing the claim petition, the petitioner mentioned that he was a day labour and a Bamboo Craftsman. Subsequently by way of amendment in place of day labour, he mentioned his occupation as a Mason. It is quite surprising that the petitioner was not in a position to say his correct profession at the time of filing the claim petition. In his deposition he simply stated that he was a Mason by profession and nowhere stated that he was a Bamboo Craftsman. The petitioner thereby created confusion even regarding his occupation. Except the oral evidence of the petitioner, there is no other supporting evidence regarding occupation of the claimant Under such circumstances, the tribunal has applied guess work and held that the petitioner at least would earn Rs. 100/- per day at the time of accident and therefore, the tribunal arrived at a finding in respect of monthly income of the petitioner as Rs. 3000/-. I find total justification in the finding of the tribunal in respect of his income. In the cases claiming compensation, if definite evidence is not available but the circumstances makes it clear that compensation is required to be awarded, the tribunal has to apply some guess work and some sorts of assumption and presumption based on the materials placed before the tribunal. In the cases claiming compensation, if definite evidence is not available but the circumstances makes it clear that compensation is required to be awarded, the tribunal has to apply some guess work and some sorts of assumption and presumption based on the materials placed before the tribunal. In the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. & Ors., reported in AIR 1995 SC 755 , the Apex Court has held that-- in the very nature wherefrom a tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But ail the aforesaid elements have to be viewed with objective standard. 16. Since the petitioner was aged 55 years at the relevant point of time, there is no reason to consider any addition towards future prospect in the income of the petitioner. Addition to actual income for the purpose of calculating just and reasonable compensation was considered by the Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 and the Court has observed thus:-- In view of the imponderables and uncertainties, it is favoured to adopt as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased Was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the Courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the Courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. The Supreme Court in Sarla Verma's case (supra) considered the addition to actual income in respect of the people of definite income group. Subsequently, in the case of Santosh Devi Vs. National Insurance Company Ltd. & Ors., reported in (2012) 6 SCC 421 the Supreme Court also taken into consideration the addition of income in respect of others working in unorganized sector. The Apex Court held thus:-- 14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not mink that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 percent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation. In the case at hand, the petitioner, since already aged 55 years at the time of accident, there is no question of having any addition to actual income of the petitioner for the purpose of determining compensation. The tribunal taking into account the monthly income of the appellant petitioner at Rs. 3000/-, multiplied it with a reasonable multiplier applicable to the age group of the petitioner and arrived at a finding of total loss of income had he been 100% disabled. Since the disability to the extent of 20%, the tribunal awarded 20% of the amount as loss of income. 17. So far the law is settled, the tribunal is required to award a reasonable and just compensation in motor accident claim cases. In the case of Sayed Basheer Ahmed & Ors. Vs. Mohd. Zameel reported in 2009 AIR SCW 493 the Apex Court has held thus:-- The expression "which appears to be just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependants of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards. In the case, of Reshma Kumari Vs. Madan Mohan reported in (2009) 13 SCC 422 the Apex Court held thus: The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. In the case, of Reshma Kumari Vs. Madan Mohan reported in (2009) 13 SCC 422 the Apex Court held thus: The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example, death of the only son to a mother, she can never be compensated in monetary terms. In the case of Kavita Vs. Deepak & Ors., reported in (2012) 8 SCC 604 , the Apex Court observed thus:-- It is sufficient to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity is distinct and does not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses. 18. Let us now have a glimpse to the evidence on record, whether the petitioner may be termed as 100% disabled based on the disability certificate proved in the case. According to the petitioner, he was a Mason and/or a day labour. He has been suffering from Manus vulgar(right) knee stiffness. There is no medical evidence on record to show the loss of earning capacity vis--vis the disability suffered by the petitioner. In his deposition the petitioner simply stated that because of the injury he has lost his income and cannot work as before. Definitely he cannot work as before with the disability which he has earned because of the accident. In the absence of any definite evidence to show the effect of earning capacity of the petitioner for the injury sustained by him, it is very difficult to arrive at a conclusion that the petitioner suffered 100% disability due to the accident. In the case of Govind Yadav Vs. In the absence of any definite evidence to show the effect of earning capacity of the petitioner for the injury sustained by him, it is very difficult to arrive at a conclusion that the petitioner suffered 100% disability due to the accident. In the case of Govind Yadav Vs. New India Assurance Company Ltd. reported in 2012 ACJ 28(SC) the Apex Court directed all tribunals and High Courts to follow the principles laid down in the cases of Arvind Kr. Mishra Vs. New India Assurance Company Ltd. reported in 2010 ACJ 2867 (SC) and Raj Kumar Vs. Ajay Kumar reported in 2011 ACJ 1 (SC), while determining the quantum of compensation payable to the victims of accident who are disabled either permanently or temporarily. In the case of Arvind Kumar Mishra (supra), the Apex Court held thus: We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the Court must take care to give him full and fair compensation for that he had suffered. 19. In the case of Rajkumar (supra), the apex Court held thus:-- The provision of the Motor Vehicles Act, 1988 ('the act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy. Though same conjecture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. The Court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy. Though same conjecture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.... The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation nourishing food, and miscellaneous expenditure. (ii) Loss of earnings(and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities(and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii),(v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 20. In the case of Sanjay Batham (supra), the law laid down by the Apex Court in the case of Rajkumar (supra) has been followed in respect of determination of compensation where the claimant suffers a permanent disability as a result of injuries. Para 8 of the judgment of Rajkumar (supra) has been reflected in Para 12 of Sanjay Batham (supra) which reads thus:-- 8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may, however, note that in some cases, on appreciation of evidence and assessment, the Tribunal may find, that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, Tribunal will adopt the said percentage for determination of compensation. 21. In the case at hand, the disability certificate which has been proved, shows that the petitioner suffered disability to the extent of 20% at that point of time and a reasonable compensation quantified by the tribunal has been awarded. By filing a separate petition under Order XLI, Rule, 27, the petitioner prayed for taking into account a disability certificate issued on 22.08.2012. By filing a separate petition under Order XLI, Rule, 27, the petitioner prayed for taking into account a disability certificate issued on 22.08.2012. Order XLI, Rule 27 prescribes production of additional evidence only on three occasions namely; a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 2[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. None of the above occasions as prescribed by law, is applicable in the case of the petitioner. Since the appeal is pending the petitioner has the opportunity to make the application for additional evidence. Had the appeal disposed of earlier, the petitioner would have no such scope of filing such a petition for additional evidence. The appeal has to be decided on the basis of the materials already on record. Additional evidence is admissible only on particular circumstances as prescribed by law, reproduced above. Therefore, the disability certificate which the petitioner intends to bring on record in the form of additional evidence cannot be considered and therefore, stands rejected. 22. Indisputably, the petitioner suffered permanent disability to a certain extent in his right knee joint because of patellectomy and the disability certificate which has been proved shows, it was to the extent of 20%. There is no evidence to show as to what extent it has affected his earning capacity. The oral evidence that he has lost his total earning capacity in the absence of any expert evidence cannot be accepted. Under such circumstances what is assessed by the tribunal, regarding the loss of future income, I find no justification to interfere. 23. In the case of R.D. Hattangadi Vs. The oral evidence that he has lost his total earning capacity in the absence of any expert evidence cannot be accepted. Under such circumstances what is assessed by the tribunal, regarding the loss of future income, I find no justification to interfere. 23. In the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. & Ors., reported in AIR 1995 SC 755 , the Apex Court has held that the compensation should be awarded both for pecuniary or special damages and both for pecuniary and non pecuniary damages thus:-- Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 24. In the case of Rajkumar (supra) also the Apex Court has re-iterated the same principle. The tribunal as I find awarded compensation towards pain and sufferings but did not award any compensation for the inconvenience, hardship, discomfort, disappointment and frustration as well as mental stress in life for the disability suffered by the petitioner. For the pain and sufferings, the tribunal awarded only Rs. 5000/- which seems to be grossly inadequate. The petitioner was hospitalized for 27 days. His right knee patel was removed. It has become stiff. The petitioner suffered tremendous pain and sufferings, mental and physical shock for which, I think adequate compensation may be Rs. 50,000/-. For the pain and sufferings, the tribunal awarded only Rs. 5000/- which seems to be grossly inadequate. The petitioner was hospitalized for 27 days. His right knee patel was removed. It has become stiff. The petitioner suffered tremendous pain and sufferings, mental and physical shock for which, I think adequate compensation may be Rs. 50,000/-. Further, for the loss of amenities in life and for the inconvenience and hardship as well as discomfort and mental stress, etc., I think a lump sum compensation of Rs. 50,000/- may be adequate compensation. Accordingly, on these two counts I award a lump sum compensation of Rs. 1,00,000/-(one lakh). 25. Regarding the cost of treatment, the tribunal awarded total Rs. 5700/- which also seems to be grossly inadequate in the facts and circumstances of the case. While a person was hospitalized for 27 days, he might have incurred Rs. 500/- per day towards cost of treatment i.e. towards purchase of medicines, cost of attendant, nourishment and other incidental costs. On that count, I award a compensation of Rs. 15,000/-. So, the petitioner is entitled to the following compensation:-- For transportation - Rs. 200/- (as determined by tribunal) Cost of treatment - Rs. 15,000/- Loss of income for disability - Rs. 79,200/- For pain and sufferings - Rs. 50,000/- For inconvenience hardship discomfort, disappointment and mental stress in life - Rs. 50,000/- Total - Rs. 1,94,400/- In total the petitioner is entitled to get compensation of Rs. 1,94,400/-. The respondent No. 2, the National Insurance Company has already been held responsible for making payment of the compensation. The compensation determined hereinabove, totaling Rs. 1,94,400/- (Rupees one lakh ninety four thousand four hundred) shall be paid by the insurance company, excluding the amount if tiny, already paid and the payment should be made within 60 (sixty) days from today. The additional amount of compensation shall carry 9% interest from the date of presentation of petition. Send back the L.C. records along with a copy of this Judgment. The appeal accordingly stands disposed of. Disposed off