* 1 * F.A. 532.2000 8.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 532 OF 2000 IN MOTOR ACCIDENT CLAIM PETITION NO. 102 OF 1993 1. Tulsidas Pandurang Krantikar .... Appellant/ Orig.Petitioner V/S. 1. Shri. Girish Zunjarrao Bhatkande & Ors. .... Respondents/ (Orig.Opponents) * * * * Mr. T.S. Ingale, adv.for the appellant. Mr. S.R. Singh, adv.for the respondents. CORAM :- Smt. R.P. SondurBaldota, J. 8th April, 2011. P.C. :- 1. This appeal preferred by the original claimant is for enhancement of compensation awarded to him by the Motor Accidents Claim Tribunal, for the injuries sustained by him in a motor vehicle accident. Respondent no.1 is the owner of the jeep involved in the accident. Respondent no.4 is the insurer of the jeep. Respondent no.3 was the driver of the jeep at the relevant time. Respondent no.2-the Insurance * 2 * F.A. 532.2000 8.4.2011 Company had been wrongly joined as a party to the application thinking that the jeep had been insured with it. Later, on realisation of the correct position, respondent no.2 came to be deleted from the proceedings and respondent no.4 impleaded. 2. The brief facts of the case required to be stated in the decision of the appeal are that, the appellant who is a Medical Officer, then attached to Primary Health Centre, Sangeli, met with an accident on 30th December, 1992. On the date and time of the accident, he was driving a Scooter towards Sangeli. When he came near Village- Dhanakwadi at about 12.30 noon, the jeep belonging to respondent no.1 came at a high speed from the opposite direction and dashed against the scooter. As a result, the appellant and the pillion rider were thrown off the scooter and sustained multiple injuries. The appellant sustained injury of compound fracture of tibia of right leg and fracture injury of left shaft femur. He was initially admitted to Civil Hospital, Sawantwadi for treatment, from where he was shifted to Goa Government College Hospital for better medical facilities. From Goa he was brought to Bombay and admitted to J.J. Hospital for undergoing operation. However, before he could undergo operation, there was the incident of communal riots in Bombay and he had to be * 3 * F.A. 532.2000 8.4.2011 shifted to Miraj for further treatment. It is the case of the appellant that he was under treatment of different Doctors from the date of the accident till 3rd May, 1997 and had undergone as many as 8 operations for treatment of the injuries sustained by him in the accident. His hospitalisation was of 113 days and he had to undertake total leave of 318 days. At the relevant time, the appellant had also applied for post-graduation and had infact been admitted to the course of M.D. Gyanechology at B.J. Medical College, Pune. He was, however, unable to continue his studies of M.D. Gyanechology because of the pain and sufferings sustained in the accident. According to the appellant, the injuries have resulted into permanent disability to the extent of 30%. 3. In his application, the appellant claimed total compensation of Rs.5,47,000/- under different heads. In support of the claim, he examined only himself and produced documents of medical bills, salary certificate, his admission to the post-graduation and his discharge from the post-graduation course amongst other documents. The Tribunal considered the evidence produced and granted compensation of Rs.95,000/- inclusive of the amount of no-fault liability alongwith interest at the rate of 12% per annum. 4. The compensation claimed by the appellant in his claim * 4 * F.A. 532.2000 8.4.2011 application under different heads and that awarded to him is tabulated below : : COMPENSATION CLAIMED : Rs.2,50,000/- Future loss of income caused due to permanent disability and shortening of life. Rs.70,000/- Loss of pay for one year. Rs.70,000/- Present medical expenses. Rs.40,000/- Future medical expenses. Rs.40,000/- Loss of amenities of life. Rs.20,000/- Physical pains and sufferings. Rs.20,000/- Conveyance. Rs.18,000/- Special diet. Rs.12,000/- Cost of attendance. Rs.7,000/- Repair charges of Scooter. TOTAL Rs.5,47,000/- : COMPENSATION AWARDED : 1) Towards pains and sufferings Rs.20,000/- 2) Towards repairing charges of Scooter Rs.5,000/- 3) Towards special diet Rs.10,000/- 4) Towards conveyance charges Rs.20,000/- 5) Towards loss of future income Rs.30,000/- 6) Towards loss of amenities Rs.10,000/- TOTAL : Rs.95,000/- The appellant has been refused compensation towards medical expenses on the ground that he has already claimed the same from * 5 * F.A. 532.2000 8.4.2011 the Government. The Government of Maharashtra has admittedly paid him Rs.49,000/- by way of reimbursement. He has been denied compensation towards loss of earned leave on the ground that he being a government servant was entitled for earned leave as he was not in a position to attend his duties. 5. Mr. Ingale, the learned counsel for the appellant, contends that, the Tribunal ought not to have refused the expenditure incurred by the appellant towards the medical expenses solely on the ground that it has already been reimbursed to him by the Government. He further submits that there is an additional amount of Rs.5,100/- as per the evidence of the appellant which could not be reimbursed by the Government. As regards the leave consumed by the appellant for treatment of the accident injuries, Mr. Ingale submits that the appellant could have encashed the leave and earned atleast a sum of Rs.68,000/-. He further submits that the quantum of compensation awarded by the Tribunal under different heads is also not just and reasonable and that the appellant was entitled to receiver much higher compensation under the different heads. 6. It would be convenient to take note, at this stage, of the current legal position as regards grant of compensation to the victims of the * 6 * F.A. 532.2000 8.4.2011 road accidents. The Apex Court in its decision in Raj Kumar V/s. Ajay Kumar & anr. reported in (2011) ACJ page 1, has extensively considered the question of award of damages in injury cases. It draws two broad categories of damages i.e. pecuniary damages and non- pecuniary damages and enumerates different heads thereunder as follows : “Pecuniary damages (Special Damages) : (i)Expenses relating to treatment, hospitalization, 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). The decision broadly refers to the nature of evidence expected to be produced for award of compensation under different heads which read thus : In routine personal injury cases, compensation will be “ awarded only under heads (i), (ii)(a) and (iv). It is only * 7 * F.A. 532.2000 8.4.2011 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. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) depends – upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non- pecuniary damages - items (iv), (v) and (vi) --involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. ” In other words for seeking pecuniary damages under Items (i) and (ii) (a) a claimant must lead specific evidence of the actual expenses incurred. For claiming future medical expenses under Item (iii) there must be specific medical evidence regarding need for further treatment and expenses thereof. For the assessment of non-pecuniary damages i.e. items (iv), (v) and (vi) there must be evidence with reference to circumstances such as age, nature of injury sustained, the disability suffered on account of the injury and the effect of the disability on the future life of the claimant. * 8 * F.A. 532.2000 8.4.2011 7. As regards the assessment of future loss of earnings due to permanent disability the Apex Court while observing in the judgment that the extent of permanent disability of a part of the body does not necessarily reflect the disability of the entire body has prescribed the procedure to assess the future loss of earnings. The tribunal has to first consider and decide with reference to evidence, the existence and the nature of disability i.e. whether permanent or temporary and if permanent whether permanent/ total or permanent/partial. For that purpose the evidence of the doctor who treated the injured or who assessed the permanent disability is essential. Mere production of the disability certificate is not sufficient if the doctor is not tendered for cross examination. Next if the disablement percentage is expressed with reference to any specific limb then tribunal must assess the effect of such disablement on functioning of the entire body. Thereafter, has to consider whether such permanent disability has affected or will affect his actual earning capacity. This ascertainment involves three steps. The first step is to ascertain activities the claimant could carry despite the permanent disablement and the activities that he could not do. The second step is to ascertain his avocation or profession prior to the accident and his age. The third step is to find out three * 9 * F.A. 532.2000 8.4.2011 things. They are : (i) Whether the claimant has total disability from earning any kind of livelihood or (ii) Whether inspite of the permanent disability he could still factually carry out the activities and functions which he was earlier carrying on or (iii) Whether he is prevented from discharging his previous activities and functions but can carry on some other or lessor skilled activities and functions so as to earn his livelihood. 8. Having noted the legal position on the question of computation of compensation, I will first consider the grievance of the appellant about the justness and reasonableness of the compensation that has been awarded to him and then proceed to consider the grievance about denial of compensation under some of the heads. As regards the compensation awarded towards the damage to the vehicle i.e. the scooter of Rs.5,000/-, there is not much difficulty in accepting the same as just and reasonable. This amount has been awarded by the Tribunal though there was no evidence of the extent of damage to the scooter and the expenditure involved in repairing the same. Similarly, the compensation of Rs.10,000/- awarded towards the special diet * 10 * F.A. 532.2000 8.4.2011 cannot be disturbed for want of evidence. The claim of the appellant for travelling expenses of Rs.20,000/- has been fully awarded. However, Mr. Ingale submits that the Tribunal ought not to have restricted itself to the claim in the petition and ought to have considered the evidence produced for the larger amount. He points out that the appellant has produced documents at Exhibits-51, 68, 69, 73 and 75 for hiring autorickshaw while travelling within the city of Miraj, hiring of a car from Sangole to Miraj and for air-fare of four persons from Goa to Mumbai totalling to Rs.36,126/-. This documentary evidence, however, can be of no avail to the appellant since the same is not supported by his deposition. He has not uttered a word about details of the expenses incurred for conveyance. His evidence was limited to a bald statement that he incurred the expenses of Rs.6,490/- for the flight from Goa to Mumbai for four persons. Since the appellant had produced documents claiming expenditure of the amount much higher than the claim made in the application, it was necessary for him to explain the same in his deposition. Mere production of the documents was not sufficient. In the absence of the explanation in the deposition, the Tribunal could not have awarded any amount higher than that claimed in the petition. Therefore, no fault can be found * 11 * F.A. 532.2000 8.4.2011 with the award of compensation under this head. 9. The next complaint of the appellant is about the compensation for loss of future earnings. Mr. Ingale, submits that, the compensation of Rs.30,000/- granted by the Tribunal towards the loss of future earning and Rs.10,000/- towards the loss of amenities of life is meagre and not commensurate with the injuries sustained by the appellant and the resultant permanent disability. The grant of compensation under these two heads can be conveniently considered together since the foundation for the claim under both the heads is of permanent disability and the effect of permanent disability. As already seen above, the injuries suffered by the appellant were of fracture injuries to both the legs, non union Rt. Tibia Fibula, shaft Femur. The appellant claims to have taken treatment at Sawantwadi Civil Hospital, Goa Medical College Hospital, JJ Hospital and the Hospital of Mr. V.S. Kulkarni at Miraj. All the operations performed on the appellant towards the treatment of the injuries were at Miraj. The certificate at Exhibit-45 sets out the different operation performed on him as (i) Open K. Nailing with none grafting for fracture Shaft Femur Lt. (ii) Iliazarov Fixators with bone grafting for fracture Tibia and Fibula Rt. (iii) Skin Grafting for Rt.Leg (iv) Skin Grafting for Rt. Leg (v) * 12 * F.A. 532.2000 8.4.2011 Corticotomy Rt. Leg Distal 1/3rd. (vi) Wiring for Rt. Tibia and Fibula (vii) Open Tibia Nailing with bone grafting for non-union Tibia 1/3rd Rt. (viii) Ilizarov fixators for Non-union Rt. Tibia with Fibulectomy. The appellant has not examined any of the doctors treating him for the injuries sustained. He has merely produced the certificate at Exhibit-46. The appellant has not examined any of the doctors treating him for the injuries sustained. He has merely produced the certificate at Exhibit-46 stating that on account of injuries he has sustained permanent physical disability to the extent of 30%. The certificate describes the nature of disability as wasting, deformity, “ limp, shiftness of knee and ankle specifying the limb in respect of ” which disability has occurred. To that extent, the certificate is incomplete and defective. The Apex Court has in the decision cited above held that in such cases the evidence of the doctor who treated the injured or who certified the permanent disability is required. Mere production of the disability certificate will not be the proof of the extent of disability stated therein unless the doctor who treated the claimant or medically examined and assessed the extent of disability of claimant is tendered for cross-examination with reference to the certificate. Therefore, it must be held that the appellant has not * 13 * F.A. 532.2000 8.4.2011 established the existence and nature of disability. Since the very first step of enquiry for the compensation under the head is not cleared, there is no question of the enquiry proceeding further. Automatically, there is no evidence and establishment of the effect of such disablement on functioning of the entire body and the consequent effect upon the actual earning capacity. Strangely, though the appellant himself is a doctor by profession, his own evidence lacks all the relevant material. He has also not deposed as to how the above described disability has prevented him from carrying on his medical profession. In the circumstances, there is no alternative but to hold that the compensation of Rs.30,000/- awarded by the Tribunal for loss of future earnings is reasonable and appropriate. 10. The Tribunal while computing the compensation payable to the appellant has rejected his claim for reimbursement of medical expenses and compensation towards loss of earned leave. The reason for the rejection of reimbursement of medical expenses is that the appellant is entitled to receive reimbursement from the Government of Maharashtra, he being a government employee, working as medical officer in Primary Health Centre. He had already applied for reimbursement and infact received reimbursement to the extent of Rs. * 14 * F.A. 532.2000 8.4.2011 49,000/-. His claim for the balance of reimbursement was at the relevant time pending with the Government. As regards the earned leave, the Tribunal is of the opinion that the claimant being a government servant was entitled for leave when he was not in a position to attend his duties. Hence, there was no reason why any amount towards loss of earned leave be paid to him. Mr. Ingale, submits that the Tribunal ought not to have deducted the amount of reimbursement of medical expenses receivable by the appellant from the government from the compensation awarded to the appellant. In any case, he submits that the bills of Rs.5,000/- which cannot be reimbursed from the government ought to have been considered by the Tribunal. Mr. Ingale, argues that the compensation payable under the Motor Vehicles Act is on account of pecuniary loss to the claimant by accidental injury or death. Therefore, any pecuniary advantage coming from whatsoever other source cannot be available for deduction from the compensation. He relies upon the decision of the Apex Court in the case of Helen C. Rebello (Mrs.) and Others V/s. Maharashtra State Road Transport Corporation and another reported in (1999) 1 SCC page 90. In the decision cited, the question for consideration of the Apex Court was whether the life insurance * 15 * F.A. 532.2000 8.4.2011 money of the deceased is to be deducted from the claimants compensation receivable under the Motor Vehicles Act. While deciding this question, the Apex Court also considered other pecuniary advantages receivable by the family of the victim of a fatal accident in the form of provident fund, family pension, cash balance, shares, fixed- deposits etc. The Apex Court held that the Motor Vehicles Act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other death. Thus the pecuniary advantage accrued under this Act has to be deciphered corelating with the accidental death. If there is any natural death or death by suicide, serious illness including death by accident through train or flight not involving a motor vehicle, it would not be covered under the Motor Vehicles Act. In other words, there must be a correlation between the pecuniary advantage received by the family of the deceased and the accidental death. At paragraphs-33 and 34 the Apex Court observes thus :- 33......Any amount received or receivable not only on account of the “ accidental death but that which would have come to the claimant even otherwise could not be construed to be the pecuniary advantage , “ ” liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incident may be an amount liable for deduction.” * 16 * F.A. 532.2000 8.4.2011 34. This is based on the principle that the claimant for the happening of the said incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., the same accident. It is significant to record here in both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases, he receives the amount without his contribution.........” 11. Applying the above test, the Apex Court found that none of the pecuniary advantages referred to above have any corelation with the accident. The provident fund is a deferred payment out of the contribution made by the employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. The family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in the terms of service conditions receivable by the heirs after his death. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer for which the insured contributes in the form of premium. Any cash, bank balance, shares, fixed deposits etc. receivable by the heirs on account of serious death also have no corelation with the amount receivable under the Motor Vehicles Act * 17 * F.A. 532.2000 8.4.2011 occasioned only on account of accidental death. All the above pecuniary benefits are to be received by the employee or his heir irrespective of the accidental death. Therefore, these pecuniary advantages are not deducted from the compensation payable to the accident victim or the family of the accident victim under the Motor Vehicles Act. One fails to understand as to how the decision relied upon by Mr. Ingale augments the argument advanced by him. It is not even his argument that the reimbursement of the medical expenses for treatment of the injuries suffered by the appellant in the accident, by the government has no corelation to the accident. Undisputedly, but for the accident, the appellant would not have made any application to the government, his employer for reimbursement. Therefore, this amount is liable to be deducted from the compensation to be awarded under the Motor Vehicles Act. Otherwise, it would amount to granting double benefit to the appellant. It is already seen that the Apex Court at paragraph-34 of it s judgment quoted above has accepted and ’ upheld the principal that the claimant for the happening of the same incident may not gain twice from two sources. If the appellant is allowed reimbursement of his medical expenses by way of inclusion of the same in the compensation payable under the Motor Vehicles Act, * 18 * F.A. 532.2000 8.4.2011 he would stand to gain twice from two sources. Therefore, the Tribunal has rightly rejected his claim for reimbursement of the medical expenses. 12. As regards the claim for compensation for loss of earned leave, Mr. Ingale, submits that, the appellant was compelled to take leave of 318 days for the treatment. If he were to encash leave of 318 days, he would have received Rs.68,000/-. Therefore, the Tribunal ought to have awarded compensation of Rs.68,000/- to the appellant. The appellant is serving with the State of Maharashtra. He has not placed on records rules framed by the State of Maharashtra for the encashment of earned leave by it s employees. Ordinarily, there is a ceiling on the ’ number of days of earned leave that can be encashed. Also the encashment takes place towards the end of the service. It is not the specific case of the appellant that he could encash any number of days of earned leave, at any point of time of his service. In the absence of this specific material on record, the Tribunal could not have even considered grant of compensation towards encashment of the earned leave. Therefore, I find no substance in the claim made. 13. The appeal is dismissed. [SMT. R.P. SONDURBALDOTA, J] * 19 * F.A. 532.2000 8.4.2011