* 1 * F.A. 1092,1093,1094.1996 10.3.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1092 OF 1996 Mr. Kissan D. Khare .......Appellant V/S. 1. The Secretary, M.S.R.T.C. Bombay 2. Shri. Rajendra P. Borkar (owner of Truck No.MMK-2605) 3. The New India Assurance Co.Ltd ..........Respondents ALONGWITH FIRST APPEAL NO. 1093 OF 1996 Smt. Sadhana Ashok Borade .......Appellant V/S. 1. The Secretary, M.S.R.T.C. Bombay 2. Shri. Rajendra P. Borkar (owner of Truck No.MMK-2605) 3. The New India Assurance Co.Ltd ..........Respondents ALONGWITH FIRST APPEAL NO. 1094 OF 1996 Smt. Indira Kisan @ Keshav Kare .......Appellant V/S. 1. The Secretary, M.S.R.T.C. Bombay 2. Shri. Rajendra P. Borkar (owner of Truck No.MMK-2605) 3. The New India Assurance Co.Ltd ..........Respondents * 2 * F.A. 1092,1093,1094.1996 10.3.2011 * * * * * * Ms. Bharati Garud a/w. Mr. Ashish Giri i/by. Ajay Misar & Co., Advocate for the appellants Mr. C.M. Lokesh with Mr. G.S. Hegde, Advocate for respondent no.1. None for respondent no.2. Mr. S.R. Singh, Advocate for respondent no.3. Coram : Smt. R.P. SondurBaldota, J. 10 March, 2011. P.C. : 1. This is a common order on the above three appeals that arise out of three applications for compensation in connection with the same motor vehicle accident. The appellant in First Appeal No. 1092 of 1996-Kisan is the claimant in M.A.C.P. No. 313 of 1986, appellant in First Appeal No. 1093 of 1996-Sadhana is the claimant in M.A.C.P No. 357 of 1986 and the appellant in First Appeal No. 1094 of 1996- Indira is the claimant in M.A.C.P. No. 312 of 1986. Indira is the wife of Kisan and Sadhana is his sister. * 3 * F.A. 1092,1093,1094.1996 10.3.2011 2. All three were travelling by a State Transport bus from Malegaon to Nashik. When the bus came near village-Tehere at Agra road, a truck owned by respondent no.2 came from the opposite direction and collided against the bus. In the accident, Kisan sustained injury of dislocation of right hip and fracture of acetablum, crack fracture of left redius ulna. Sadhana sustained injury of fracture of right acetabulum with dislocation of hip joint, fracture of ischio public rami of right side, and pain and tenderness on other parts of the body. Indira sustained the injury of fracture of tibia and fibula of both legs, fracture of right accetabulum with dislocation of right hip joint and loss of 8 teeth. The table of amounts of compensation claimed by the three claimants under different heads and that awarded by the Tribunal reads as follows :- Kisan- Permanent Disability : 40% Sr.No. Heads Compensation claimed Compensation awarded 1. Pain & Suffering in past and in future Rs.35,000/- Rs.10,000/- * 4 * F.A. 1092,1093,1094.1996 10.3.2011 2. Loss of Amenities to life/permanent disability Rs.25,000/- Rs.10,000/- 3. Leave Salary Rs.17,295/- Rs.17,295/- 4. Medicines & Doctors Rs.5,235/- 5. Attendant s Charges ’ Rs.17,404/- Rs.2,700/- 6. Special Diet NIL 7. Conveyance Rs.2,000/- 8. Loss of Earning Capacity Rs.80,800/- NIL Loss of Earning Capacity in Future Rs.1,92,270/- NIL TOTAL : Rs.3,67,769/- Rs.47,230/- Sadhana- Permanent Disability : 40% Sr.No. Heads Compensation claimed Compensation awarded 1. Pain & Suffering in past and in future Rs.35,000/- Rs.15,000/- 2. Loss of Amenities to life/Permanent Disability Rs.10,000/- 3. Medical Expenses Rs.3,012/- 4. Attendant s Charges ’ Rs.16,850/- Rs.480/- 5. Special Diet NIL 6. Leave Period Rs.5,717/- 7. Permanent Disability Rs.25,000/- NIL 8. Loss of Earning Capacity Rs.1,08,500/- NIL * 5 * F.A. 1092,1093,1094.1996 10.3.2011 9. Loss of Earning Capacity after retirement Rs.35,000/- NIL 10. Loss of Ornaments Rs.10,000/- NIL TOTAL : Rs.2,30,350/- Rs.34,209/- Indira- Permanent Disability : 50% Sr.No. Heads Compensation claimed Compensation awarded 1. Pain & Suffering for past, present and future Rs.15,000/- 2. Loss of Amenities to life/Permanent Disability Rs.10,000/- 3. Medical Expenses Rs.10,286/- 4. Transport Charges Rs.5,000/- 5. Future Transport Charges Rs.24,000/- NIL 6. Attendant s Charges ’ Rs.17,580/- 7. Future Domestic Servant Charges Rs.96,000/- NIL 8. Future Operation Expenses Rs.50,000/- TOTAL : Rs.1,20,000/- Rs.1,07,866/- The learned counsel appearing for the appellants, submits that, the compensation awarded by the Tribunal to all the appellants under each head is on the lower side. He submits that the Tribunal also * 6 * F.A. 1092,1093,1094.1996 10.3.2011 ought to have awarded compensation for loss of earning capacity in future to Kisan and Sadhana as claimed by them. 3. Correction of one part of the impugned judgment requires no arguments from one side. Perusal of the records would show that the injuries sustained by Indira and the treatment taken therefor by her, is far more extensive than the other two appellants. Consequently, the pain and suffering undergone by her is bound to be higher than that by the other appellants. The Tribunal, however, has awarded equal compensation to all the three by way of damages for pain and suffering and the loss of amenities to life on account of the disability suffered due to the injuries in the accident. This is not appropriate. The amount of compensation awarded to Indira under this head ought to have been higher. In my opinion, the just amount of damages under these two heads for Indira would be Rs.30,000/- and Rs.20,000/- respectively instead of Rs. 15,000/- and Rs.10,000/-. Similarly, though the Tribunal has awarded future operation expenses of Rs.50,000/- to Indira it does not award future transport charges and future domestic servant charges to her. The just damages under these two Heads for Indira would be Rs. * 7 * F.A. 1092,1093,1094.1996 10.3.2011 5,000/- and Rs.10,000/- respectively. This would mean that the compensation payable to Indira would be enhanced by Rs.65,000/-. 4. This brings me to the contentions raised by the appellants for refusal of compensation for loss of earning capacity in future to Kisan and Sadhana. The latest decision of law by the Apex Court on the question of grant of compensation to the victims of the motor accidents, the victims sustaining personal injuries in particular has been the decision in the case of Raj Kumar V/s. Ajay Kumar & anr. Reported in 2011 ACJ page 1. The decision sets out in detail as to how compensation to victims of accident be awarded under various heads including the head of Loss of Future Earnings on “ ” account of permanent disability. The Apex Court has held that where a claimant suffers permanent disability as a result of injury, the assessment of compensation under the head of Loss of future “ Earnings would depend upon on the effect and impact on his ” earning capacity. The Tribunal cannot mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. The Tribunal has to assess the effect of permanent disability on the earning capacity of the * 8 * F.A. 1092,1093,1094.1996 10.3.2011 individual and after assessing the percentage of the effect, the same is to be quantified in terms of money to arrive at a future loss of earnings. By way of example, the Apex Court has observed that loss of left limb by a carpenter cannot be equated with the loss of left limb by a clerk in a government service. For a carpenter, loss of left limb would be virtually loss of service as a carpenter, whereas, loss of left limb for a government servant would not result in loss of service for him. The clerk may still continue as a clerk as he can perform his clerical functions. Therefore, for the same injuries the loss of earning capacity for different persons would be different depending upon their vocation. Kisan has worked as a Labour Officer, whereas, Sadhana is working as a Teacher in the School. Admittedly, there is no evidence whatsoever brought before the Court by both these claimants, to show that the injuries sustained by them and the disability resulting from these injuries would cause any loss of future earning to them. In the absence of such evidence, it was impossible for the Tribunal to assess the general damages to be awarded to them. Therefore, refusal of compensation under the head to the two appellants must be held * 9 * F.A. 1092,1093,1094.1996 10.3.2011 to be a correct decision. 5. The next complaint is about the claim for Special Diet “ ” which has been denied to the appellants. The evidence of Sadhana and Indira on the advise for special diet during the period of treatment by the Doctors, was limited to making a bald statement in respect thereof. Kisan stated in his evidence that he was required to take bananas, eggs and milk by way of special diet while he was in Malegaon hospital. The appellants have examined two Doctors who had treated them. P.W.2-Dr. Kambale did not speak about advise for special diet. P.W. 3-Dr. Jethmalani, however, initially stated in his cross-examination that he had not advised any special diet to the appellants, only to contradict himself in the next sentence to state that he had given instructions regarding special diet orally. In any case, there is no evidence whatsoever before the Court as to what was the special diet and what were the specific expenses incurred therefor. The trial Court has held that milk and fruits cannot be said to be special diet as they are generally consumed by persons. For it to be treated as a special diet, evidence was required from the claimants that it was required to be * 10 * F.A. 1092,1093,1094.1996 10.3.2011 consumed in a specific quantity and it was actually consumed in that quantity. In the absence of evidence on that aspect, the Tribunal has rightly rejected the claim. In the circumstances, I pass the following order. O R D E R (i) First Appeal No. 1092 of 1996 filed by appellant-Kisan and First Appeal No. 1093 of 1996 filed by appellant- Sadhana are dismissed. (ii). First Appeal No. 1094 of 1996 filed by appellant-Indira is partly allowed. The Award in M.A.C.P. No. 312 of 1986 is modified to enhance the compensation by Rs.40,000/- (Rs. Forty Thousand only) alongwith interest thereon at the rate of 12% p.a. from the date of this order. [SMT. R.P. SONDURBALDOTA, J]