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2022 DIGILAW 143 (BOM)

A. Ravikumar v. Moreshwar

2022-01-14

ANUJA PRABHUDESSAI

body2022
JUDGMENT Anuja Prabhudessai, J. - This Appeal is filed by the original Claimant challenging the impugned judgment and Award dated 27/10/2010 in Claim Petition No. 26/2007 passed by the Claims Tribunal, Yavatmal. By the impugned judgment and Award, the Claims Tribunal has awarded to the Claimants compensation of Rs. 1,96,000/- with interest @ 7.5% per annum from the date of the petition till final realization. 2. The brief facts necessary to decide this Appeal are as under:- The Claimant had sustained multiple injuries in a motor vehicular accident on 29/04/2006 involving truck bearing registration No. MTB-2881. The said truck was driven by the respondent No. 1, owned by the respondent No. 2 and insured with the respondent No. 3 (hereinafter referred to as 'the Insurance Company'). The Claimant had alleged that the accident was caused solely due to rash and negligent driving by the driver of the truck. 3. The Claimant was working in BSNL as Accounts Officer. He was admitted in the hospital for 21 days as an indoor patient. The Claimant claimed that he had sustained multiple injuries resulting in 30% permanent disablement. The Claimant therefore claimed total compensation of Rs. 18,84,100/-. 4. The respondent No. 1 denied that the accident was caused due to rash and negligent driving by the driver of the truck bearing No. MTB-2881. The Insurance Company also raised the plea of breach of terms and conditions of the policy. 5. The Tribunal framed the issues and upon considering the evidence adduced by the parties, held that the accident was caused due to rash and negligent driving by the respondent No. 1-Driver of the offending vehicle. The Tribunal further held that the Insurance Company has failed to prove breach of terms and conditions of the policy and hence cannot be absolved from its liability to indemnify the insured. On the quantum of compensation, the Tribunal held that the Claimant had sustained multiple fractures on the face and he was operated and plates were fixed. He had also suffered dislocation of hip joint and was operated. The Tribunal has further held that the Claimant has proved that he had suffered 30% permanent disablement as a result of which he is unable to squat, his movements are restricted and he has numbness of right foot. 6. The Tribunal held that though the Claimant had claimed Rs. He had also suffered dislocation of hip joint and was operated. The Tribunal has further held that the Claimant has proved that he had suffered 30% permanent disablement as a result of which he is unable to squat, his movements are restricted and he has numbness of right foot. 6. The Tribunal held that though the Claimant had claimed Rs. 2,00,000/- towards medical expenses, he had produced the bills only for an amount of Rs. 20,636/-. Hence, the Tribunal awarded Rs. 21,000/- towards medical expenses. The Tribunal also awarded Rs. 50,000/- towards physical pain and sufferings, Rs. 50,000/- towards special and nutritious diet, lodging, boarding, traveling etc., Rs. 50,000/- towards disfiguration of face and Rs. 25,000/- towards inconvenience caused due to the hip injuries. The Tribunal has not awarded any compensation towards loss of earning for 21 days during hospitalization at Orange City Hospital, Nagpur. The Tribunal thus awarded total compensation of Rs. 1,96,000/- with interest @ 7.5% per annum. Being aggrieved by the quantum of compensation awarded by the Tribunal, the Claimant has filed this Appeal under Section 173 of the Motor Vehicles Act, 1988. 7. During the pendency of the Appeal, the Claimant had undergone hip replacement surgery. The Claimant had placed on record case summary and discharge records and certificate of hospitalization at Exhibit-X-2 collectively and the certificate issued by BSNL at Exhibit-X-4 certifying that the Claimant was on medical leave for 85 days from 03/09/2011 to 26/11/2011. The medical reimbursement claim and the certificate issued by BSNL are at Exhibit-X-3 collectively certifying that from the total amount of medical expenses of Rs. 2,54,480/-, an amount of Rs. 2,28,480/- has been reimbursed to the Claimant. 8. Learned advocate for the Claimant submits that the Tribunal has erred in not awarding any compensation towards loss of earning for 21 days during the period the Claimant was admitted at Orange City Hospital, Nagpur as an indoor patient. He further submits that the Claimant was entitled for compensation of balance amount of Rs. 26,000/- towards medical expenses and compensation towards loss of earning for 85 days i.e. the period during which he was compelled to take medical leave for hip replacement. He further submits that the Claimant was entitled for compensation of balance amount of Rs. 26,000/- towards medical expenses and compensation towards loss of earning for 85 days i.e. the period during which he was compelled to take medical leave for hip replacement. He further states that considering the nature of the injuries sustained by the Claimant and the extent of permanent disablement, the compensation awarded by the Tribunal towards pain and suffering is very low and cannot be construed as just and reasonable compensation. 9. Learned advocate for the Insurance Company submits that the Claimant is not entitled for compensation towards loss of earning for the period of hospitalization. He submits that the said claim has been rightly rejected by the Tribunal. He further submits that the Tribunal has awarded adequate compensation towards disfigurement of face and inconvenience caused to the Claimant due to fracture of hip and that the Claimant is not entitled for any additional compensation. 10. I have perused the records and considered the submissions advanced by the learned advocates for the respective parties. 11. It is not in dispute that the Claimant had sustained multiple facial fractures and fractures to the hip bone in an accident involving the vehicle bearing No. MTB-2881 which was insured with the respondent No. 2-Insurance Company. The evidence on record indicates that the Claimant was initially admitted in Orange City Hospital, Nagpur. He was an indoor patient for 21 days. He had suffered multiple fractures on the face and dislocation of right hip joint. He had also suffered head injuries and injury to his left foot. The Claimant was operated and plates were fixed on his face. The injury on the head was sutured and he was operated for dislocation of hip bone. 12. AW 2-Dr. Ade has certified that the Claimant had developed painful and restricted movement of right hip and knee joint and tingling and numbness of right foot. The doctor has assessed the permanent disablement to the extent of 30%. The evidence of the doctor indicates that he had examined the Claimant again on 16/08/2010. He had opined that the Claimant would need further surgery as the movement of right hip and knee joint were painful and restricted. 13. The doctor has assessed the permanent disablement to the extent of 30%. The evidence of the doctor indicates that he had examined the Claimant again on 16/08/2010. He had opined that the Claimant would need further surgery as the movement of right hip and knee joint were painful and restricted. 13. The documents produced before this Court under Order XLI Rule 27 of the Civil Procedure Code, genuineness of which is not disputed, indicate that the Claimant was once again admitted in Little Flower Hospital and Research Center, Angamaly on 03/09/2011. The case summary and discharge record at Exhibit-X-2 collectively reveals that there was a vascular necrosis of right femoral head and that he was diagnosed with post traumatic AVM right femoral head and the treatment given was total hip replacement of right side. The Claimant was discharged from the hospital on 17/09/2011. The certificate at Exhibit-X-4 reveals that the Claimant had undergone hip replacement and had availed medical leave of 85 days from 03/09/2011 to 26/11/2011. 14. The evidence on record thus clearly indicates that the Claimant had sustained multiple fractures and he was initially admitted in Orange City Hospital, Nagpur for 21 days and later he was compelled to go on medical leave for 85 days for hip replacement from 03/09/2011 to 26/11/2011. The Claimant was thus compelled to take leave for total period of 106 days for undergoing medical treatment. He is entitled for compensation for the loss of leave period, which he could have otherwise availed for other purpose. 15. The Claimant had placed on record the salary slip, a perusal of which indicates that in the month of September, 2006, the gross salary of the Claimant was Rs. 22,740/-. After deducting the amount payable towards the income tax, professional tax and conveyance, the Claimant was getting salary of Rs. 21,610/-. Considering the monthly income of the Claimant i.e. Rs. 21,610/- per month, the Claimant was entitled for compensation of Rs. 15,127/- towards loss of income for 21 days. 16. The medical reimbursement claim at Exhibit-X-3 indicates that in the year 2011, the salary of the Claimant was Rs. 55,568/- which includes Basic Pay + DA. The Claimant has not produced the salary slip to show the amount deducted at source towards income tax and professional tax. Hence, upon deducting 30% towards income tax and considering the net salary of the Claimant as Rs. 55,568/- which includes Basic Pay + DA. The Claimant has not produced the salary slip to show the amount deducted at source towards income tax and professional tax. Hence, upon deducting 30% towards income tax and considering the net salary of the Claimant as Rs. 38,898/- per month, the Claimant would be entitled for compensation of Rs. 1,10,211/- towards loss of earning for 85 days. 17. The Claimant has also placed on record documents, which indicate that he had incurred medical expenses of Rs. 2,54,480/- and he was reimbursed an amount of Rs. 2,28,480/-. The Claimant is therefore entitled to receive the balance amount of Rs. 26,000/- towards medical expenses. 18. The evidence on record indicates that the Claimant had not only suffered facial disfigurement but had also suffered hip dislocation resulting in permanent disablement. Despite undergoing prolonged treatment, he was unable to lead a full life. His movements were restricted and could not enjoy the normal amenities which he would have enjoyed, but for these injuries. There is no fixed standard for determining non-pecuniary loss, but considering the nature of the injuries sustained by the Claimant and the extent of the permanent disablement, in my considered view, the Claimant would be entitled for additional compensation of Rs. 1,50,000/- towards loss of amenities and enjoyment of life, permanent disablement etc. The Claimant is therefore entitled for total compensation of Rs. 4,97,338/- which is rounded up to Rs. 5,00,000/- . 19. Under the circumstances and in view of the discussions supra, the following order is passed:- (a) The Appeal is allowed. (b) The Claimant is held to be entitled for total compensation of Rs. 5,00,000/- with interest @ 8.5% from the date of the application till its final realization. (c) Award stands modified accordingly. (d) The Insurance Company to deposit the balance amount with interest within eight weeks. (e) Since the Claimant has expired during the pendency of this Appeal, 50% of the amount deposited by the Insurance Company along with proportionate interest accrued thereon be paid to the Claimant No. 1(i) widow of the original Claimant and the balance amount of 50% be equally apportioned in favour of the Claimant Nos. 1(ii) and (iii), the sons of the original Claimant, with proportionate interest accrued thereon. The Appeal stands disposed of in the above terms. Pending application(s), if any, stand(s), disposed of.