JUDGMENT CAN 11532 of 2017 1. Sufficient grounds have been made out for explaining delay in filing of the instant FMAT1273 of 2017. Hence, the delay is hereby condoned. Accordingly, CAN 11532of 2017 is allowed and disposed of. The appeal is admitted. CAN 1615 of 2019 2. Sufficient grounds have been made out for explaining delay in filing of FMAT 578 of 2019. Hence, the delay is hereby condoned and the appeal is admitted. Accordingly, CAN 1615 of 2019 is allowed and disposed of. The appeal is admitted. 3. By consent of the parties, the two appeals being FMAT 1273 of 2017 and FMAT 578 of 2018 are treated as on days list and taken up for hearing. 4. The two appeals are directed against the judgment and award dated 09.08.2017 passed by the Motor Accident Claims Tribunal, 5t h Court, Fast Track Court at Alipore, South 24 Parganas in MACC No. 09/10. 5. The brief facts of the case are that on 22.08.2009, at about 7.30 hours in the evening, the Claimant Anindita Kushari was traveling by private bus. The bus was passing along Hemchandra Naskar Road, Kolkata from East to West. When it reached Rabindra Cabin Bus Stop, the Claimant was getting off from the said bus, when the driver in a rash and negligent manner moved the vehicle, as a consequence whereof, the 6. Claimant slipped underneath the bus and her lower limbs were crushed. She was admitted to Apollo Gleneagles Hospital for treatment. 7. Criminal proceedings were launched against the said bus driver. The medical documents that came on record certified that the Claimant had sustained 85% disability. As a consequence of the accident, nearly the entire left leg of the Claimant was amputated. She also lost three toes on her right leg. 8. It is submitted that the Claimant-claimant was the only earning member of her family and the only child of her parents. Her father died in December, 2009. The cost of the Claimants treatment was borne by her relatives. 9. The claim was defended by the insurance company. The Claimants income was held to be Rs. 4000/- although there is an assertion that she earned another Rs. 2000/- working as a Part-time Data Entry Operator. 10. Her father died in December, 2009. The cost of the Claimants treatment was borne by her relatives. 9. The claim was defended by the insurance company. The Claimants income was held to be Rs. 4000/- although there is an assertion that she earned another Rs. 2000/- working as a Part-time Data Entry Operator. 10. The learned court below found that there was no proof that the petitioner could have worked at two places at the same time since the oral and documentary evidence of the her income did not state that she earned Rs. 2000/- , part time . 11. This finding of the learned Tribunal below is supported by Mr. K. K. Das, learned counsel appearing for the insurance company. 12. This court is however of the view that it is for the Claimant to prove exactly how she earned the extra Rs. 2000/- from a different place while she was earning Rs. 4000/- from one place. The only evidence in support of the claimants statement made in the claim petition that she was working as a Part-time Data Entry Operator in the evening towards Rs. 2000/-.The other witnesses in support of the claimant only stated that she earned Rs.2000 as a data-entry operator. 13. Combining this fact with the other evidence that has come on record that the Claimant was the only earning member in her family and the only child and applying the principle of preponderance of probabilities, this Court comes to a finding that the income of the Claimant should be treated as Rs. 5000/- p.m. and not Rs. 4000/-. 14. The next argument advanced by the Claimant is that the disability of the Claimant which is admittedly 85% should be treated as 100%. 15. In this regard, the learned counsel appearing on behalf of the petitioner would rely upon the decision of a Division Bench of this court in the case of National Insurance Co. Ltd. vs. Subhasish Manna reported in (2019) 4 TAC 95 as also the decision of the Supreme Court in Jagdish vs. Mohan reported in (2018) 4 SCC 571 . 16. This court notices that in the Jagdish case (supra), the Claimant had lost both the arms. 95% disability in this case was treated as 100% disability. In the case of Subhasish Manna (supra), 70% disability was certified. 16. This court notices that in the Jagdish case (supra), the Claimant had lost both the arms. 95% disability in this case was treated as 100% disability. In the case of Subhasish Manna (supra), 70% disability was certified. The injury sustained was delayed union fracture shaft femur right with delayed union and loss of fixation and reduction fracture basic right femur. It is based on this injury that the certified disability of 70% was treated as actually being 100%. It was also found that the Claimant who was a Cheese Vendor could not move without the assistance and help of an escort. 17. In the instant case, the Claimant was a Clerk cum Data Entry Operator. While it is true that she cannot move without an escort, the Claimants hands are functional. Hence 85% disability accepted by the learned 18. Tribunal below is not interfered with by this court. 19. In so far as the multiplier is concerned, this court accepts the contention of the Claimant that the multiplier has been wrongly applied by the learned court below as 17 whereas it ought to be 18 in terms of the decision of the Hon'ble Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 1 21 . 20. Learned counsel for the Claimant next argued that the medical expenses awarded at Rs. 4 lacs is contrary to the evidence on record. Admittedly, the bills of the two hospitals, the medication, the extra help, prosthetic leg have been proved and paid by the Claimant. The fees of the Orthopedician, Dr. Sudhin Chowdhury i.e Rs. 94,500/- and the nursing charges have each being proved beyond reasonable doubt. The said bills are as follows. Fees of Dr. Sudhin Chowdhury Rs. 94,500.00 Cost of the prosthetic leg Rs. 1,74,000.00 Attendant charges paid to Essential Service Centre Rs. 1,86,960.00 Paid to Apollo Gleneagles Hospital Rs. 2,13,198.00 Paid to Charring Cross Nursing Home Rs. 1,36,480.00 21. Since there is clear proof of the said medical bills and payment thereof, this court is of the view that the petitioner is entitled to re-imbursement to the entire sum of Rs. 8,05,138/- and the learned tribunal erred in awarding only Rs. 4 lacs in this regard. 22. 2,13,198.00 Paid to Charring Cross Nursing Home Rs. 1,36,480.00 21. Since there is clear proof of the said medical bills and payment thereof, this court is of the view that the petitioner is entitled to re-imbursement to the entire sum of Rs. 8,05,138/- and the learned tribunal erred in awarding only Rs. 4 lacs in this regard. 22. This court also notices that future prospects that have not been taken into consideration by the learned Tribunal below and the same ought to be 40% in terms of the decision of Supreme Court in the case of Sarla Verma Vs DTC (2009) 6 SCC Pg 121. The decisions of Rajan Vs Soli Seastian reported (2015) 10 SCC Pg 506Pr 18, Parminder Singh Vs New India Assurance reported in (2019) 7 SCC 217 Pr 6, V Mekala Vs Malathi reported in (2014) 11 SCC 178 Pr 24 are also very relevant in the facts of the case. Paragraph 24 of the Mekala Case (Supra) is set out herein below Question (i)Addition to income for future prospects *** 24. In Susamma Thomas [ Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335 ] this Court increased the income by nearly 100%, in Sarla Dixit [ Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179 ] the income was increased only by 50% and in Abati Bezbaruah [ Abati Bezbaruah v. Geological Survey of India, (2003) 3 SCC 148 : 2003 SCC (Cri) 746 ] the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting 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 standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. 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 standardise 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. 23. In Govind Yadav vs. The New India Assurance Co. Ltd. reported in (2011) 10 SCC 683 , at paragraph 24 it was held as follows :- '24. After the aforesaid judgment, the cost of living as also the cost of artificial limbs and expenses likely to be incurred for periodical replacement of such limb has substantially increased. Therefore, it will be just and proper to award a sum of Rs 2,00,000 to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of artificial limb, fees of the doctor and other ancillary expenses." 24. After this matter was heard on March 11, 2020, and although judgment was dictated, this Court was desirous of rehearing the parties on the question of the expenses for the future replacement of the prospective limb and future medical expenses. 25. Mr. Mondal, learned Counsel appearing for the victim, would rely upon the evidence on record being a patient Discharge Summary dated April 21, 2010 issued by the Prosthetic limb Manufacturing Company, namely, Endolite India Limited. The cost of future replacement of each limb was quoted as Rs. 9,77,450/-. 26. It was further stipulated that the limb would have to be replaced every five years. It is argued by Mr. Mondal that on reasonable estimate the victim is likely to live for 70 years. Hence, cost of five replacements must be considered for reimbursement, i.e., about 50 lakhs. 27. This Court has carefully considered the other evidence on record. The cost of the artificial limb already paid by the claimant is admittedly as Rs. 1,74,000/- . The bill for same is dated December 18, 2014. The bill has been issued by the same limb manufacturing company who has issued the Patient Discharge Summary. 27. This Court has carefully considered the other evidence on record. The cost of the artificial limb already paid by the claimant is admittedly as Rs. 1,74,000/- . The bill for same is dated December 18, 2014. The bill has been issued by the same limb manufacturing company who has issued the Patient Discharge Summary. Firstly, the summary appears to be issued in April 2010. The bill for actual fitting of the limb is dated March 31, 2010. 28. It is surprising to note as to why there is huge difference between the cost actual artificial limb fitted to the victim after the surgery and the cost indicated for future replacement of the same. The difference appears to this Court to be inflated an artificial. 29. Mr. Mondal appearing for the claimant would rely upon a decision of the Honble Supreme Court in the case of Nizams Institute of Medical Sciences vs. Prasanth S. Dhananka reported in (2009) 6 SCC 1 , particularly paragraphs 84 and 85. This Court finds that the said decision arose out of a case of medical negligence against the hospital and a surgeon. The facts are completely different. There an I.T. Engineering Graduate, highly placed in a huge company constantly on travel was treated negligently by doctors of the hospital. He was reduced to a para- phelic and could not move without a wheelchair and a driver-cum-attendant. It is in that context that the driver-cum-attendant charges were taken at Rs. 4,000/- per month for 300 months. 30. The next decision relied upon by the learned Counsel for the claimant is the case reported in (2015) 5 SCC 388. This is once again a case of medical negligence where a prematurely born baby due to medical negligence was rendered completely blind. The facts of the said case are also quite different from the instant case. 31. Having regard to the entire evidence on record and also having considered the other heads of damages awarded to the victim, this Court is of the view that interest of justice should be served if the cost towards replacement of one artificial limb at Rs. 1,75,000/- is awarded along with future medical expenses assessed at Rs. 3,25,000/-. 32. 31. Having regard to the entire evidence on record and also having considered the other heads of damages awarded to the victim, this Court is of the view that interest of justice should be served if the cost towards replacement of one artificial limb at Rs. 1,75,000/- is awarded along with future medical expenses assessed at Rs. 3,25,000/-. 32. In view of the aforesaid the compensation amount to the claimant appellant is liable to be reassessed as follows: Compensation amount for Anindita Kushari: Monthly Income : 5,000.00 Add Future Prospects (40%) : 2,000.00 7,000.00 Yearly Income (7000x12) : 84,000.00 Multiplier (18) : 15,12,000.00 Disability 85%: 12,85,200.00 Reimbursement of medical expenses. 8,05,138.00 Future Medical Expenses and one future replacement of Artificial limb : 5,00,000.00 Pain & Suffering : 1,50,000.00 Loss of amenities : 1,50,000.00 Attendant charges : 5,00,000.00 Transportation : 50,000.00 Food & Nourishment : 50,000.00 Total claim amount : 34,90,338 The aforesaid amount of Rs.34,90,338/- shall carry interest at the rate of 8% p.a. from the date of filing of the claim petition till date. 33. The Registrar General of this Court shall make over the sum of Rs.17,92,360/- together with accrued interest to the Claimant Anindita Kushuri into her bank account by NEFT/RTGS within one month of the receipt of her bank particulars from her Counsel. 34. The insurance company shall make over the balance of payment by way of NEFT or RTGS within a period of one month from the date of receipt particulars of payments from the Registrar General and the particulars of the bank account of the claimant. 35. With the above observations, the instant two appeals being FMAT 1273 of 2017 and FMAT 578 of 2018 are disposed of. In view of the above, the application being CAN 11537 of 2017 and CAN 1615 of 2019 are also disposed of. 36. There will be no order as to costs. Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.