IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1665 OF 1996. FIRST APPEAL NO.1665 OF 1996. FIRST APPEAL NO.1665 OF 1996. Jitendra Krishnarao Pant ...Appellant Versus 1. Armed Forces Ex-Officers Multi Service Co-operative Society Ltd, Pune 16. 2. Tanaji Maruti Chavan 3. The New India Assurance Co Ltd, Pune 01. ...Respondents --- Shri Prafulla Shah for the Appellant. Shri S.S.Vidyarathi i/by Shri S.M. Vidyarathi for the Respondent No.3. --- CORAM: ABHAY S.OKA, J. CORAM: ABHAY S.OKA, J. CORAM: ABHAY S.OKA, J. DATE : 23rd & 24th January, 2008. DATE : 23rd & 24th January, 2008. DATE : 23rd & 24th January, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel appearing for the parties were heard yesterday. The appellant who is the original claimant in a Claim Petition under section 110-A of the Motor Vehicles Act, 1939 has taken an exception to the judgment and award dated 19th March, 1996 passed by the learned Member of the Motor Accident Claims Tribunal, Pune. In the Claim Petition, the claim made by the appellant was of Rs.10,00,000/-. The Tribunal has awarded compensation of Rs.2,25,000/- with the interest thereon at the rate of 12% per annum. The ... 2 ... impugned award has been made against the owner of the vehicle and the insurer of the vehicle involved in the accident. There is no challenge to impugned award by any of the respondents in the form of an appeal or cross-objection. 2. With a view to appreciate the submissions made by the learned advocate for the appellant, it will be necessary to refer to the facts of the case in brief. On 10th July, 1988 the petitioner was proceeding by his motorcycle from Natraj theatre to his residence at Pune. When he came near Sambhaji bridge, a bus driven by the second respondent came from behind and gave him a dash. According to the case of the appellant the bus was being driven in a rash and negligent manner and in a very high speed. It is alleged that the driver of the bus was trying to overtake from his left side without giving any signal and in the process gave a dash to the appellant. The impact was so enormous that the appellant and his motorcycle were dragged up to distance of 40 to 50 feet towards extreme right side of the road. 3. According to the case of the appellant he sustained injuries and suffered disability. The claim was contested by the first and second respondents by contending that the bus was being driven at a moderate ... 3 ... speed. The appellant came from Karve road and hurriedly turned his motorcycle towards right towards Sambhaji bridge. While taking a sharp turn the appellant lost his balance and motorcycle skidded on the road as a result he fell down in front of right wheel of the bus. The second respondent steered the bus towards the right and saved the appellant from coming directly under the front wheels. In short the contention is that there was no negligence on the part of the second respondent. The Tribunal found the driver of the bus responsible for the accident and held that the driver was rash and negligent. The Tribunal fixed the compensation amount at Rs.2,25,000/-, the break-up of which is as under: "1) Rs.40,000/- Medical expenses. 2) Rs.25,000/- Disability. 3) Rs.30,000/- Pains and sufferings. 4) Rs.50,000/- Loss of amenities in life. 5) Rs.25,000/- Loss of future income. 6) Rs.01,000/- Attendant charges. ... 4 ... 7) Rs.50,000/- No chance of issue in future due to accident. 8) Rs.02,000/- Cook charges. 9) Rs.02,000/- Conveyance charges. -------------- Rs.02,25,000/- Total. -------------- 4. The learned advocate for the appellant has taken me through the notes of evidence as well as documents placed on record. His submission is that even after recording of a finding that but for the disability suffered from the accident there was a possibility of the appellant getting promotion to the higher post, on account of monitory loss only a sum of Rs.25,000/- has been awarded. A submission is made that the amounts awarded on account of disability and pain and suffering are on the lower side. The further submission of the learned advocate for the appellant is that the learned Member of the Tribunal has not even considered the fact that it was a case of 52% disability. He has placed reliance on various decisions of the Apex Court. He invited my attention to the decision of the Apex Court in the case of New India Assurance Company Ltd Vs. ... 5 ... Charlie and another (2005 ACJ Page 1131). He also relied upon a decision of the Apex Court in the case of Grifan Vs. Sarbjeet Singh and others [(2000) 9 Supreme Court Cases Page 338]. Lastly, he relied upon decision of the Apex Court in the case of Nandkumar Vishnu Narkar Vs. Maharashtra State Road Transport Corporation (1999 ACJ Page 1388). 5. The learned counsel for the third respondent-insurer supported the impugned judgment and award and submitted that a very reasonable amount of compensation has been granted by the Tribunal which needs no interference. He has placed reliance on a decision of Division Bench of this Court in the case of Ebrahim Fakir Ansari Vs. Sitaram Kamalaksha Kamat and another and submitted that every disability cannot affect the earning capacity of the person and it is for the injured to prove by the cogent evidence that it would affect his earning capacity. He also placed reliance on decision of the Division Bench of this Court in the case of Rauji Muraroa Rane Vs. Sushila V. Hirve (1996 ACJ Page 842). He submitted that the compensation under heading of inconvenience and discomfort is included in the subhead of pain, suffering and shock in view of the said decision of the Division Bench. He therefore submitted that no interference was called for. ... 6 ... 6. I have carefully considered the submissions. I have also perused the notes of evidence and documents admitted in evidence. As pointed out earlier there is neither any appeal nor any cross-objection filed by any of the respondents and therefore only one question regarding the quantum of compensation needs to be dealt with. The break-up of the compensation granted by the trial Court is already referred to in the earlier part of this judgment. At Exhibit 40 the appellant has produced a certificate dated 14th December, 1993 issued by the Superintendent of Sasoon General Hospitals, Pune. The said certificate has been considered by the Tribunal. There is another certificate at Exhibit 42 dated 14th September, 1993 issued by Shri S.K.Lohokare. The injuries referred from the said certificates read thus: "Exhibit 40: Fracture pelvis c CLW ingunial and penianal (Lt.) side c abrasion both thighs c fracture spine T11 + T12 level 52% permanent disability". Exhibit 42: 1) Fracture pelvis with both superior and inferior remi. ... 7 ... 2) Contusion of abdoman. 3) C.L.W inguinal and scrotal area 8 X 1 cm. in both inguinal region with posure of testis (L). 4) C.L.W 3 X 1 cm. periuium. 5) C.L.W 4 X 3 cm. Left thigh externally. 6) Abrasion of thigh. 7) Fracture Thoracic spine 11 & 12".’ Exhibit 42 records 52% partial permanent disability. 7. There is another injury certificate at Exhibit 39 issued by the concerned Medical Officer of the Sasoon General Hospitals. The perusal of the record shows that the documents at Exhibits 39 to 58 which are various injury certificates, disability certificate, income certificate etc have been admitted in evidence by consent of the advocate for the third respondent as evidenced by the list at Exhibit 35. In so far as injuries are concerned, the appellant has examined Dr. Lohokare who has issued the at Exhibit 42. As pointed ... 8 ... out earlier the said certificate has been admitted in evidence by consent of the parties. In his evidence, Dr. Lohokare has narrated the injuries sustained by the appellant. After referring to the details of the injuries, Dr. Lohokare has stated thus: "I have assessed the disability of the patient Pant at 52%. As there is fracture to pelvic bones with superior and inferior ramie, the person is not in a position to sit or stand easily. Due to injury No.3 i.e C.L.W inguinal and scrotal in both inguinal region with poseur of testis (L) there is difficulty in sexual intercourse. Due to injury to perineum the patient suffered pains and difficulty in passing stools. Due to pasture of thoracic pipe patient Pant is not in a position to stand easily. The person can run even though there is injury to thoracic pipe but it is very difficult. There were number of stitches on the abdominal part and thighs of Pant. I have produced the x-ray plates showing the fracture to pelvic bone and thingies. I have taken those x-ray on 27.06.1995." Thus, Dr.Lohokare has stated that as the appellant suffered fracture of pelvic bones he was not in a ... 9 ... position to sit or stand easily. He has stated that due to fracture of thoracic pipe the appellant is not in a position to stand easily. There is hardly any cross-examination of Dr.Lohokare on this aspect. 8. In the deposition of the appellant recorded on 10th January, 1996 he has disclosed his age as 40 years so at the time of accident his age must be 32 or 33 years. The appellant stated that he was holding a diploma in mechanical engineering. He stated that earlier he was serving with Army in EME Branch and thereafter, he was employed with Cummins Diesel Sales and Services (India) Limited (hereinafter referred to as the said Company). The appellant has produced various certificates from Exhibit 46 to Exhibit 53 which were issued by a concerned Commandant of Indian Army. Exhibit 51 and Exhibit 52 are the certificates of technical proficiency issued by Presiding Officer of Trade Testing Group, ENE Centre, Army. It must be stated here that at Exhibit 53 is a certificate issued by the concerned commanding officer recorded that the appellant is very intelligent, extremely reliable and that he possesses high order of keenness and energy. As a special qualification it is recorded that he is very good Vehicle Mechanic. ... 10 ... 9. Going back to the oral evidence of the appellant, he stated that after leaving the employment of Army he was employed as service engineer with the said company in Grade M-10. In paragraph No.6 of the deposition the appellant had stated that as his uncle was a Director of the Kirolskar Group of Companies, he was retained in the employment and was given light work in the form of table work. He has stated that if he would not have met with the accident, he might have been appointed as an engineer in Grade M-8 or as an Executive in Engineering section. In paragraph No.7 he has stated that he was not in position to sit constantly as he suffers from pain. He has stated that he was not in position to sit or stand easily or walk in speed. He has stated that he was required to use a stick while walking. He has stated that he had to spend sum of Rs.47,000/- on his medical treatment. In response to a question in cross-examination he stated that his Grade in employment continues to be the same in which he was placed prior to the accident. He admitted that the promotions mostly depend on personal skill and competency. However, there is no challenge in the cross-examination to the statement made by the appellant in paragraph Nos.6 and 7 that he was given table work as a consequence of the accident. There is no challenge to the assertion in paragraph No.7 that he was not in ... 11 ... position to sit constantly or to stand easily. There is no challenge to the fact that he was required to use a stick while walking. 10. The appellant examined one Sanjay Dixit, an Executive in the Personal Administration Department of the said company. He deposed that after the accident the appellant was transferred as a Manager in the Stores Department though he had joined the employment as an engineer. He has stated that the position held by the appellant after the accident is in the same grade as the position in which he was appointed. He has stated that some persons working with appellant were promoted in due course of time. He stated that there was difference of monthly salary between Rs.800/- to Rs.1000/- in the grade of M-8 and M-10 employees. In the cross-examination he stated that the promotions in the company are given only on merits of the employees. 11. The fact that the appellant was holding a diploma in mechanical engineering is not disputed. The documents at Exhibits 46 to 52 show that the appellant passed various tests conducted by the Army and received more than one certificates of technical proficiency. Regarding excellent performance of the appellant, a reference has been already made to the certificate ... 12 ... issued by the commanding officer at Exhibit 53. No suggestion has been given to the executive of the said company examined by the appellant that the performance of the appellant was not satisfactory and therefore he was not entitled to promotion. On the contrary, the said executive deposed that persons working with the appellant had been promoted in due course. The certificate at Exhibit 57 issued by the said company shows that the appellant was working with the said Company since 01st June, 1983 i.e. for five years and more prior to the date of accident. The certificate records that the appellant is required to compile record of delivery notes, preparation and distribution of pulling list for pulling the spare parts and maintaining prescribed registers. The said certificate supports the case of the appellant that he was given table work after the accident. Considering these aspects, there is a finding recorded by the learned Member of the Tribunal in paragraph No.22 of the judgment that possibility of the appellant getting promotion cannot be ruled out if the appellant had not suffered accident. Considering the documents placed on record relating to his employment with the Army and the evidence of the Executive of the said Company, a conclusion has to be recorded that there was a reasonable possibility of the appellant getting promotion. Considering the undisputed ... 13 ... evidence regarding handicap suffered by the appellant, it is obvious that he is deprived of his right of promotion considering the fact that he will not be able to perform his duties as an engineer. The learned Member of the Tribunal has granted a lumpsum amount of Rs.25,000/- on account of future loss of income on the ground that he was deprived of the promotion. As pointed out earlier, the age of the appellant at the time of accident was around 32 or 33 years. As pointed out earlier, considering the certificate at Exhibit 53 issued by the Commanding Officer recording high appreciation for the various qualities possessed by the appellant, the Tribunal ought to have considered the case of the appellant for compensation on account of the loss of future income due to deprivation of chances of promotion. 12. The third witness examined by the appellant Shri Sanjay Dixit has stated that there is a difference of monthly salary to the extent of Rs.800/- to Rs.1000/- between the salary payable to Grade M-10 employees and Grade M-8 employees. However, there is no specific evidence on record that on a particular date the appellant could have been promoted. Nevertheless, the said witness Sanjay has deposed that some persons working with the appellant have been promoted to grade ... 14 ... M-8 in due course of time. Thus, it can be reasonably inferred that by 1996 the appellant could have been promoted to Grade M-8. In 1996 when the deposition of Shri Dixit was recorded, the age of the appellant was 40 years. Therefore, considering the age of the appellant it can be reasonably stated that for a period of about 10 years he would have enjoyed income of Grade M-8 employees. Considering the fact that I am taking span of only ten years, the monthly loss can be taken at Rs.1000/- per month and Rs.12,000/- per year. Therefore, applying multiplier of 10, the said amount will have to be quantified at Rs.01,20,000/-. Only a lumpsum amount of Rs.25,000/- has been fixed by the Tribunal. Therefore, enhancement by Rs.95,000/- will have to be granted on account of loss of income. Thus, in terms of the decision of this Court in the case of Ebrahim (supra) this is a case where loss of earning capacity on account of disability has been established in sense that the appellant has proved that he has lost his future prospects of promotion. 13. Turning to the compensation granted under other heads, it is not possible to say that a sum of Rs.40,000/- granted on account of medical expenses is on the lower side. However, I find that the Tribunal has granted a sum of Rs.50,000/- on account of loss of ... 15 ... amenities and Rs.30,000/- on account of pain and suffering. In view of opinion of Dr. Lohokare he has been granted Rs.50,000/- on the ground that the appellant will have no issue in future due to the injury sustained in accident. The cook charges of Rs.2,000/- and attendant charges of Rs.10,000/- have been awarded by the Tribunal. I find no fault in awarding the said amounts. 14. Thus, the sum of Rs.95,000/- will have to be granted on account of loss of future income. It is true that accident is of the year 1988 and the Claim Petition was decided in the year 1996. The grant of compensation on account of the loss of future income amounts to granting accelerated benefit to the claimant to some extent. On the component of Rs.25,000/- awarded, the Tribunal has granted interest at the rate of 12% per annum. The appellant would have been entitled to additional amount of Rs.95,000/- on the date of Award of the Tribunal. Therefore, I propose to grant interest at the rate of 9% per annum on the said additional amount from the date of the Award till the date of payment. 15. Hence, the appeal must succeed in part and I pass the following order: ... 16 ... (i) In addition to the compensation awarded to the appellant by the Tribunal, the appellant will be entitled to a further amount of Rs.95,000/- together with interest thereon at the rate of 9% per annum from 19th March, 1996 till the date of payment or realisation. The appellant will be entitled to proportionate costs of the Claim Petition on sum of Rs.95,000/-. (ii) The appellant will be also entitled to proportionate costs of this appeal from the third respondent. (iii) The third respondent is granted time of four months to comply with this amended award. The additional amount shall be deposited with the Tribunal. As and when the amount is deposited, the Tribunal will pay the said amount to the appellant by an account payee cheque. (iv) The appeal is partly allowed in above terms. JUDGE JUDGE JUDGE