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2018 DIGILAW 142 (BOM)

Bhimrao Shamrao Shinde v. Ramesh Sitaram Devkar

2018-01-16

MANISH PITALE

body2018
JUDGMENT : 1. This appeal is filed by the appellant being dissatisfied by the judgment and order dated 28.03.2005 passed by the Motor Accident Claims Tribunal, Yavatmal in Motor Accident Claim No. 56 of 1997. He has approached this Court seeking enhancement of compensation over and above the amount granted by the Tribunal. 2. The appellant was travelling in a tempo trax vehicle while returning after attending a marriage on 19.05.1996, when at about 06:45 a.m., the said vehicle met with an accident. Due to rash and negligent driving of the vehicle by the driver, it dashed against a road side tree resulting in death of two persons on the spot and injuries to other passengers in the said vehicle. The appellant sustained severe injuries including fracture to his right femur, due to which he was admitted for sustained period in hospitals at Yavatmal and Nagpur. Thereafter, he was shifted for further treatment to a hospital in Pune wherein he remained under treatment till August, 1996. 3. The appellant was 37 years old when the accident took place and he was working as an Agricultural Overseer in Vasant Sahakari Sakhar Karkhana, Pusad drawing a monthly salary of Rs.4,460/- only. Due to the injuries suffered by the appellant in the said accident, he was not able to sit on the ground or walk long distance. He was unable to drive any vehicle or ride a bicycle. He suffered total loss of hip movements and suffered permanent disability of 60 per cent. 4. The appellant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, before the Tribunal seeking compensation of rupees six lakhs for the permanent disability suffered as a consequence of injuries due to the accident. 5. The fact of occurrence of the said accident was not disputed and it was only the quantum of compensation which was subject matter of dispute before the Tribunal. The appellant supported his claim by appearing as witness No.1 and his treating doctor appeared as witness No.2 in support of his claim. The appellant claimed before the Tribunal that due to the permanent disability suffered by him, he had suffered loss of salary of 47 days during the period of treatment and that he had lost chances of promotion, as being an Agricultural Overseer, his field work had suffered and his junior was promoted ahead of him. The appellant claimed before the Tribunal that due to the permanent disability suffered by him, he had suffered loss of salary of 47 days during the period of treatment and that he had lost chances of promotion, as being an Agricultural Overseer, his field work had suffered and his junior was promoted ahead of him. The appellant also placed on record bills pertaining to medical expenses incurred by him and thereby claimed the aforesaid amount of rupees six lakhs towards compensation. 6. By the impugned judgment and order dated 28.03.2005, the Tribunal held that the appellant was entitled to a sum of Rs.6,925/- towards loss of salary of 47 days. It was further held that the appellant was entitled to Rs.1,03,670/- towards claim of medical expenses and a sum of Rs.5,000/- towards mental and physical pains suffered by him. The Tribunal further granted a sum of Rs.1,25,000/- towards loss of amenities of life, loss of expectation of life, inconvenience, hardship, discomfort, mental stress etc. On this basis, the Tribunal granted a compensation of Rs.2,40,595/to the appellant together with interest at the rate of nine percent per annum from the date of application till realisation of the amount. 7. Shri Chhangani, learned Counsel appearing on behalf of the appellant submitted that the Tribunal committed an error in failing to award compensation to the appellant for loss of future earnings on account of permanent disability and further submitted that the amount of compensation granted towards loss of amenities and under other heads as also the amount of compensation granted towards mental and physical pains and sufferings, was meager. Reliance was placed on judgments of the Hon'ble Supreme Court in the cases of Sarla Verma (Smt) and others .v. Delhi Transport Corporation and another (reported in 2009(6) SCC, 121) and Rajkumar .v. Ajaykumar and another (reported in 2011(1) SCC, 343). 8. On the other hand, Shri Pardhy, learned Counsel appearing on behalf of respondent No.2/Insurance Company, submitted that the quantum of compensation granted by the Tribunal in the impugned order was adequate and that the claim of enhancement made by the appellant was not justified. It was contended that while granting the amount of Rs.1,25,000/-, the Tribunal had taken into consideration all relevant heads of compensation, including loss of future earnings. 9. It was contended that while granting the amount of Rs.1,25,000/-, the Tribunal had taken into consideration all relevant heads of compensation, including loss of future earnings. 9. Having considered the contentions raised on behalf of the respective parties and upon perusal of the appeal and the documents on record, I find that the Tribunal ought to have taken into consideration the loss of future earnings due to permanent disability, in terms of the law laid down by the Hon'ble Supreme Court. 10. In the case of Rajkumar .v. Ajaykumar and others (cited supra), the Hon'ble Supreme Court has identified heads under which compensation is to be awarded in cases of personal injury and the specific head of concerning loss of future earnings on account of permanent disability, has been identified. The various heads have been stated in the said judgment in paragraph 6, which reads as follows: “6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, 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.” 11. Upon identifying the various heads of compensation, the Hon'ble Supreme Court in the said judgment has also laid down the manner in which the extent of permanent disability is to be factored into arriving at a figure for compensation towards loss of future earnings on account of permanent disability. Upon identifying the various heads of compensation, the Hon'ble Supreme Court in the said judgment has also laid down the manner in which the extent of permanent disability is to be factored into arriving at a figure for compensation towards loss of future earnings on account of permanent disability. It has been laid down that the extent or percentage of permanent disability has to be proved by cogent evidence by the claimant by bringing on record evidence of the doctor who can support the certificate of percentage of permanent disability issued to the claimant. It is further held that when such extent of permanent disability is established, it is for the Court to arrive at a conclusion regarding functional disability leading to adverse effect on future earning capacity of the claimant. 12. Thereafter, the annual income of the claimant is to be ascertained and on that basis the loss of future earning capacity is to be calculated by taking into account the percentage of functional disability suffered by the claimant. The figure so arrived at is to be multiplied by the relevant multiplier, as given in column 4 of paragraph 40 of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) .v. Delhi Transport Corporation and another (cited supra) to arrive at the amount of compensation to be paid to the claimant under the head of loss of future earnings on account of permanent disability. 13. In the instant case, the appellant has no grievance in respect of the amount of Rs.6,925/- calculated towards loss of salary of 47 days. He also has no grievance towards the amount of Rs.1,03,670/- granted by the Tribunal towards medical expenses. But, the appellant is aggrieved by the amount of compensation of Rs.1,25,000/- granted by the Tribunal towards loss of amenities and other heads. He is also aggrieved by the compensation of Rs.5,000/- towards mental and physical pains and sufferings. 14. Perusal of the judgment and order of the Tribunal shows that a composite amount of compensation has been granted towards various heads of compensation including loss of amenities, loss of expectation of life, inconvenience, hardship, discomfort and mental stress. This amount has been calculated as Rs.1,25,000/- without any discussion or basis by the Tribunal. Similarly, the amount of Rs.5,000/- granted towards mental and physical pains and sufferings is also not based on any detailed discussion. 15. This amount has been calculated as Rs.1,25,000/- without any discussion or basis by the Tribunal. Similarly, the amount of Rs.5,000/- granted towards mental and physical pains and sufferings is also not based on any detailed discussion. 15. The law laid down by the Hon'ble Supreme Court in the case of Rajkumar .v. Ajaykumar and others (cited supra), in paragraph 6 quoted above, shows that in cases where compensation is to be granted for personal injury in an accident, specific heads of pecuniary damages (special damages) and non pecuniary damages (general damages) have to be identified and compensation is to be granted under such heads of compensation. It is evident that in the instant case, the Tribunal has not taken into consideration the head of compensation of loss of future earnings on account of permanent disability. Applying the formula laid down by the Hon'ble Supreme Court in the aforesaid case of Rajkumar .v. Ajaykumar and others (cited supra) to the facts of the present case, it would be clear that the compensation under the head of loss of future earnings on account of permanent disability would be as follows: Annual income of the claimant Rs.4,460/- X 12 = Rs. 53,520/-. Functional disability suffered by claimant 50 per cent. Multiplier to be applied 15 Hence, amount of compensation equal to 50 per cent of Rs.53,520/i. e. Rs. 26,760/x 15 (multiplier as per judgment of Hon'ble Supreme Court in the case of Sarla Verma .v. Delhi Transport Corporation (cited supra) Rs.4,01,400/- 16. In arriving at the percentage of functional disability and hence percentage of loss of future earnings at 50 per cent, I have placed reliance on the certificate of permanent disability of 60 per cent given by the doctor. The doctor has appeared as a witness in support of the claim of the appellant and he has stated the fact that the appellant has suffered total loss of hip movement due to which he is unable to drive or ride bicycle and that he cannot walk for a long distance or sit on the ground. The appellant has also stated in his evidence that his junior has been promoted ahead of him to the post of Chief Agricultural Officer, only because the appellant suffered the disability, due to which his field duties were affected, thereby adversely affecting his chances of promotion. The appellant has also stated in his evidence that his junior has been promoted ahead of him to the post of Chief Agricultural Officer, only because the appellant suffered the disability, due to which his field duties were affected, thereby adversely affecting his chances of promotion. Although the disability certificate of 60 per cent is issued by the doctor, I find that functional disability and percentage of loss of future earnings capacity would be 50 per cent, as the appellant's chances of promotion have been adversely affected. On this basis, the above figure of compensation for Rs. 4,01,400/- has been arrived at, under the head of loss of future earnings. 17. The amount of compensation of Rs.5,000/- towards mental and physical pains and sufferings granted by the Tribunal also appears to be on the lower side because the appellant was required to be treated in the hospital for long durations of time from the date of the accident till August, 1996. Hence, I find that the said amount also deserves to be increased to Rs.10,000/-. 18. In addition, the appellant also needs to be compensated for loss of amenities as the evidence on record clearly shows that due to the disability suffered by him, directly attributable to the accident, he is unable to drive vehicle or ride bicycle and he is unable to walk long distance or sit on the ground. I hold that the appellant deserves compensation of Rs.10,000/- under this head. 19. Applying the law laid down in paragraph 6 of the judgment of the Hon'ble Supreme Court in the case of Rajkumar .v. Ajaykumar and others (cited supra), identifying the various heads of compensation to be granted in personal injury cases, it would be evident that the appellant is not aggrieved by the amount determined by the Tribunal under the heads (i) and (ii)(a). As regards compensation under the head (ii)(b) i.e. loss of future earnings, the compensation shall stand enhanced as aforesaid. The appellant has not claimed and would not be entitled to any compensation under the heads (iii) i.e. future medical expenses and (vi) i.e. loss of expectation of life. The compensation for loss of prospects of marriage is also not applicable in the case of appellant. The compensation under the heads of loss of amenities and for mental and physical pains and sufferings shall be enhanced as aforesaid. 20. The compensation for loss of prospects of marriage is also not applicable in the case of appellant. The compensation under the heads of loss of amenities and for mental and physical pains and sufferings shall be enhanced as aforesaid. 20. Accordingly, the appellant is held entitled to enhanced compensation in the following manner: Compensation for loss of salary of 47 days Rs.6,925/- Compensation towards medical expenses Rs.1,03,670/- Compensation towards loss of future earning due to permanent disability. Rs.4,01,400/- Compensation towards mental and physical pains and sufferings. Rs.10,000/- Compensation for loss of amenities Rs.10,000/- Total Rs.5,31,995/- 21. Since the Tribunal had granted compensation of Rs.2,40,595/-, it is held that the appellant would be entitled to additional compensation of Rs.2,91,400/- (Rs.5,26,995 – Rs.2,40,595/-). 22. Therefore, the respondents are directed to pay the aforesaid increased amount to the appellant and it is held that all other directions given by the Tribunal in the impugned order shall apply to the aforesaid increased amount also. Accordingly, the appeal is allowed with no order as to costs.