1 FA 306.01 - R.33, O.41 powers for correction ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 306 OF 2001 M/s. New India Assurance Company Limited. ... Appellant Versus 1. Ramao Cajetan Borges. 2. M/s. Kadamba Transport Corporation Limited. ... Respondents ----- Mr. D.R.Mahadik i/b Mr. S.R.Singh for the Appellant. Mr. C.M.Lokesh for Respondent No.1. ----- CORAM : A.S.OKA, J. DATE : 07 th July, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant and the learned counsel appearing for Respondent No.1. 2 The Respondent No.1 is the claimant in a claim application filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). The case made out by the Respondent No.1 in the claim petition is that on 7 th May, 1997, he was traveling by a 2 FA 306.01 - R.33, O.41 powers for correction luxury bus owned by the Respondent No.2 from Belgaum to Mapusa (Goa). The said bus was insured by the Appellant. According to the Respondent No.1, the bus was being driven in a rash and negligent manner and as a result, the driver lost control over the vehicle. As a result of the accident, the Respondent No.1 suffered grievous injuries. According to the case of Respondent No.1, after the retirement, he was earning by taking tuitions. Even his wife was taking tuitions. After the accident, the Respondent No.1 is unable to take tuitions and even his wife is unable to do so as she is required to look after the Respondent No.1. The claim was contested by the Appellant. The compensation of Rs.2,16,792/- with interest at the rate of 12% per annum was granted by the Tribunal. 3 The learned counsel appearing for the Appellant submitted that there was no evidence adduced to show that after the accident, the Respondent No.1 was unable to do the job of teaching the students. He submitted that in absence of any evidence, the Tribunal could not have granted a sum of Rs.82,000/- on account of loss of 3 FA 306.01 - R.33, O.41 powers for correction income for a period of 41 months. He submitted that no amount could have been granted on this ground. The learned counsel submitted that the Tribunal has committed an error by granting a sum of Rs. 15,000/- for loss of amenities and a sum of Rs.50,000/- on account of mental pain and suffering. He submitted that the said amounts are excessive and under both the headings, the compensation could not have been granted. 4 The learned counsel appearing for Respondent No.1 invited attention of the Court to the evidence on record. He pointed out that the evidence on record shows that from the date of the accident, the Respondent No.1 is unable to earn as he is unable to take tuitions. He submitted that even the evidence of the parents of students examined by the Respondent No.1 shows that he was earing by tuitions. He submitted that there is nothing wrong with the loss of income granted for a period of 41 months. He submitted that no amount has been granted on account of loss of income in future though the Respondent No.1 suffered a permanent disability. He 4 FA 306.01 - R.33, O.41 powers for correction submitted that in fact the compensation granted is on the lower side. 5 I have carefully considered the submissions. I have perused the record. I have also perused the evidence of Dr. Shantaram Ramani. It must be noted here that Dr.Ramani had not deposed specifically about any percentage of the disability suffered by the Respondent No.1. In the medical certificate issued by Dr.Ramani, he has assessed permanent partial disability at 20%. Perusal of the cross-examination of Dr.Ramani shows that there is no specific challenge to the percentage of disability mentioned in the certificate. As far as the nature of injuries sustained by the Respondent No.1 is concerned, Dr.Ramani in his deposition stated thus: “2. The patient had sustained injury to neck and upper cervical spine and back of the head which was causing injury to labrinth. I recollect that he had sustained dislocation of cervical C-1 vertibra over C-2 posterially and he had sustained fracture of odontoid bone of C-2 vertebra. The head is resting on c-1 vertebra being the first vertebra of the spine C-2 is below C-1. This sought of injury can cause paralysis. Such type of injury causes paralysis of limbs in general. After the accident he was taken to Belgaon KEL Hospital and after four days he was shifted to Bombay Hospital. He was treated clinically at Bombay Hospital. Thereafter he 5 FA 306.01 - R.33, O.41 powers for correction was required to be operated and he was operated in Bombay Hospital. The investigation was done to locate the nature of injury which included x-ray and C.T. Scan of head and the cervical spine. The patient was take under traction to reduce the dislocation. Once the dislocation is reduced the dislocation is fixed by operation. The dislocation is fixed by putting round metallic ring. After the discharge he is given cervical collar and medicines and is advised to follow up. 3. The rotation of the head depends on the function of C-1 and C-2. Since C-1 and C-2 were fixed by metallic ring the rotation of the head normally was lost and the person is required to take a turn to see sideways from the pelvis and other movements of the neck are restricted, particularly while looking upwards. Labrinthin is situated inside the ear and when the back side of the head is injured labrinth is damaged and it caused vertigo i.e. things move around him.” In paragraph No.4, Dr.Ramani proceeded to state thus: “4. The patient Borges had sustained damaged to the spinal cord of the time of accident as a result of fractured dislocation which has caused stiffness in all the four limbs manifested by hyper reflexia which is called increased tone in the body and thereby his movements are slowed down. I am now shown exhibit x-3 certificate dated 21-7-1999. Marked Exhibit-26. It is signed by me. The contents are correct.” 6 The evidence on record shows that initially the Respondent No.1 was admitted in KLE Hospital at Belgaum from the 6 FA 306.01 - R.33, O.41 powers for correction date of accident till 12 th May, 1997. From 13 th May, 1997 till 10 th June, 1997, the Respondent No.1 was admitted in Bombay hospital at Mumbai. The discharge summary of the Bombay hospital records that though there were no neurological deficits, the neck movement of the Respondent No.1 was restricted. In the discharge summary, it is recorded that the all the movements were normal. However, the Respondent No.1 complained of pain in left shoulder. The Respondent No.1 was advised to visit the hospital for follow up treatment after six weeks. In the deposition of the Respondent No.1, he has stated that after his discharge from the hospital on 10 th June, 1997, he was required to visit Bombay hospital for follow up treatment after six months. He submitted that he visited the Bombay Hospital on three occasions and lastly he visited in August 1999. It will be necessary to make a reference to the evidence adduced by the Respondent No.1 as regards the tuitions. He has stated thus: “.... On my retirement I was teaching students upto 5 th or 6 th Stds and I was taking such tuitions off and on for a period of about four years. In April 1997 I had given tuitions to two students. I was earing Rs.3000/- per month. 7 FA 306.01 - R.33, O.41 powers for correction One of my students was Masand and the other two were brothers namely Indrajeet Singh and Iqbaljeet Singh. I am producing two certificates issued by the guardians of the students (Marked X coolly). Now I unable to give any tuitions after the accident.” He has made a very vague statement that he is unable to take tuitions after the accident. Neither evidence of Respondent No.1 nor the certificate issued by Dr.Ramani indicates that due to any handicap, the Respondent No.1 was prevented from taking tuitions. 7 In support of his claim, the Respondent No.1 examined one Satnamsingh, father of Indrajeetsingh and Ekbalsingh. He deposed that his sons were taking tuitions from the Respondent No.1 and he was paying total amount of Rs.2,000/- per month to the Respondent No.1. After the accident, the Respondent No.1 discontinued the tuitions. The other students named in the deposition of the Respondent No.1 or their parents were not examined. The other witness examined is the parent of the student, who was taking tuitions from the Respondent No.1’s wife. Thus, the Tribunal was right to the 8 FA 306.01 - R.33, O.41 powers for correction extent that the Respondent No.1 established that his income from the tuitions was Rs.2,000/- per month. The Tribunal has granted loss of income for a period of 41 months. Except a vague statement that after the accident, the Respondent No.1 was unable to take tuitions, there is no evidence that for a period of 41 moths he was prevented from taking tuitions. The accident occurred in May 1997. Looking to the injuries sustained by the Respondent No.1, it is reasonable to hold that atleast for a period of six months, he was unable to take tuitions. Even assuming that from November or December 1997, he could have take tuitions, perhaps it could not have been possible for him to start in the midst of the academic year, but certainly, he could have started from the next academic year. Therefore, on account of loss of income, a sum of Rs.24,000/- being income for one year instead of a sum of Rs. 82,000/- deserved to be granted. 8 On account of general damages, a total amount of Rs. 65,000/- has been rightly granted considering the nature of the injuries sustained and the age of the Respondent No.1. The learned counsel 9 FA 306.01 - R.33, O.41 powers for correction appearing for the Respondent No.1 is right to the extent that considering the disability of 20% certified by Dr.Ramani, some amount ought to have been granted on account of loss of earning capacity. The Respondent No.1 has deposed in his deposition that he was unable to sit for a long time. Thus, by taking disability of 20%, a sum of Rs.400/- per month if the loss which was granted to be capitalized by applying multiplier of 5. Thus, the compensation of Rs.24,000/- ought to have been granted on this count. The said error will have to be corrected by exercising powers under Rule 33 of Order XLI of the Code of Civil Procedure, 1908. Thus, a sum of Rs.82,000/- granted on account of loss of income will have to be reduced to Rs.24,000/-. Thus, there will have to be a deduction of Rs.58,000/-. However, on account of loss of earning capacity, a sum of Rs.24,000/- deserves to be granted. Hence, the amount will have to be reduced by Rs. 34,000/-. Thus, the amount of compensation will come to Rs. 1,82,792/-. A round figure of Rs.1,83,000/- will be the just compensation. To that extent, the Appeal will have to be allowed. 10 FA 306.01 - R.33, O.41 powers for correction 9 Hence, I pass the following order: i. The impugned award is modified by holding that the Respondent No.1 shall be entitled to the compensation of Rs.1,83,000/- instead of Rs. 2,16,792/- ; ii. Rest of the award regarding interest and costs is maintained ; iii. The appeal is partly allowed on above terms ; iv. A sum of Rs.25,000/- deposited by the Appellant in this Court shall be transferred to the Tribunal alongwith interest accrued thereon ; v. Time of three months is granted to the Appellant to deposit the balance compensation amount, if any, with the Tribunal ; and vi. If during the pendency of the appeal, any bank guarantee or security has been furnished by the Respondent No.1, the same stands cancelled. The guarantee, if any, be returned to the 11 FA 306.01 - R.33, O.41 powers for correction Respondent No.1 after cancelling the same. [ A.S.OKA, J ]