-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.1257 OF 1996 APPEAL NO.1257 OF 1996 APPEAL NO.1257 OF 1996 Raghunath Tukaram Jadhav ...Appellant vs. 1.Balkrishana Dhondu Sangare 2.The Branch Manager Oriental Insurance Co.Ltd. Rajapur, Dist.Ratnagiri ...Respondents Mr.S.A.Mudbidri for the Appellant Mr.S.S.Vidyarthi for the Respondents. None for the Respondent No.2. CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 5, 2008 : FEBRUARY 5, 2008 : FEBRUARY 5, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned Advocates for the parties were heard on the last date. This is an Appeal preferred by the original claimant in a claim petition under section 166 of the Motor Vehicles Act,1988. The Appeal is preferred for enhancement in compensation granted by the tribunal. 2. The accident occurred on 18th November 1991. The Appellant had purchased a new truck just before the accident. The Appellant was travelling along with his employee by his motor cycle around 8.30 p.m. Both of them had taken a brief halt for answering the nature’s call. At that time, a tempo came from the opposite side and gave a dash to the motor cycle. As a result of impact, the Appellant and his employee were thrown into a ditch by the side of the road. The -2- Appellant suffered various injuries. After a contest, the learned Member of the tribunal held that the Appellant has established that the accident occurred due to rash and negligent driving on the part of the driver of the first Respondent who is the owner of the tempo involved in the accident. Against the claim of Rs.5,00,000/- the tribunal granted compensation of Rs.60,000/- with interest thereon at the rate of Rs.9% p.a. 3. The submission of the learned Advocate for the Appellant is that by completely ignoring the documentary evidence on record regarding expenses incurred by the Appellant, a lumpsum amount of Rs.60,000/- has been awarded by the tribunal which is extremely on the lower side. The submission is that the compensation has not been granted under the head of pain and suffering and the loss of income as well as expenditure incurred on the medical treatment. He submitted that the learned Member of the tribunal has completely ignored the documents on record and therefore the Appellant is entitled to enhanced compensation. The learned Advocate for the second Respondent (insurer of the vehicle) supported the impugned Judgment and award by pointing out that the material on record and submitted that no interference is called for as the compensation awarded is reasonable. 4. I have given careful consideration to the submissions of -3- the Advocates for the parties. It will not be necessary to deal with the issue regarding negligence as no Appeal or cross Appeal is filed by any of the respondents. It will be, therefore, necessary to refer to the evidence adduced by the Appellant regarding the nature of injuries sustained by him. Apart from the various other documents on record, the Appellant has produced at Exh.36 a certificate dated 10th December 1992 issued by Dr.G.S.Bharati of Indian Orthopaedic and Fracture Hospital. The said certificate at Exh.36 was produced along with the list at Exh.7 by the Appellant. The said list shows that the Advocate for the Respondent gave no objection for exhibiting the documents produced along with the said list. Apart from the said document, along with the list at Exh.7 the Appellant produced several bills and receipts (total 13) which were collectively exhibited as Exh.52. 5. It will be necessary to refer to the injuries mentioned in the certificate at Exh.36. The certificate at Exh.36 reads thus : "Remarks : He sustained following injuries : 1. Comp. Fracture lower end of femur and loss of bone right 2. Compound fracture femored & tibial condyless right -4- 3. Compound fracture upper & lower 1/4th of the tibial shaft right . Till he is under treatment, femorral fracture site is not yet united. His right knee has become stiff. His right leg is short by more than one inch. Considering above factors he is having permanent disability by 40% approximately." The said certificate has been issued by Dr.G.S.Bharati. He has quantified permanent disability suffered by the Appellant at 40%. It must be noted here that the said certificate was produced by the Appellant along with the list at Exh.7 which has been exhibited with the consent of both the parties. Therefore, this court will have to accept that permanent disability to the extent of 40% has been established by the Appellant. 6. The Appellant in his examination in chief has given details of his hospitalisation. He stated as under : . I was in the Hospital at Miraj from From 19.11.1991 to 22.2.1992, 30.3.1992 to 25.4.1992, 22.6.1992 to 6.7.1992, 14.9.1992 to 25.9.1992, 27.11.1992 to 10.12.1992, 11.1.1193 to 4.2.1993, 10.4.1993 to 20.4.1993, 5.7.1993 to 12.7.1993 and 10.8.1993 to 15.8.1993. -5- 7. The Appellant has claimed that he has spent nearly Rs.3,00,000/- on medical treatment, special diet, attendant charges, travelling charges, ambulance charges etc. He has stated that his treatment is not still completed. It will be necessary to refer to the documentary evidence produced on record by the Appellant. At Exh.41 the Appellant has produced the case papers maintained by the Indian Orthopaedic and Fracture Hospital. The said case papers show that the Appellant was an indoor patient between 19th November 1991 to 22nd February 1992. Several bills have been produced along the list at Exhibit 5. By consent of the parties, the said bills have been exhibited as Exh.45 to Exh.51.Along with the list of documents at Exh.7, the Appellant has produced 11 bills which are marked as Exh.37 collectively by consent of the parties. Along with the list at Exh.32, the Appellant has produced 13 bills which have been exhibited by consent as Exh.52 collectively. 8. Along with the list at Exh.60, 7 receipts have been produced by the Appellant. The said receipts have been allegedly issued by the Indian Orthopaedic and Fracture Hospital, Miraj. However, the receipts are not admitted by the Respondents and therefore, the same cannot be exhibited in absence of proof. The perusal of the examination-in-chief shows that the said receipts produced along with the list at -6- Exh.60 have not been proved by the Appellant. Therefore, the bills and receipts at Exh.37, Exh.45 to 51 and Exh.52 will have to be considered. The said bills are approximately in the sum of Rs.45,000/-. As pointed out earlier, the Appellant was hospitalised for a long time of four months and even thereafter, he continued to be under treatment. One cannot expect that the Appellant who was seriously injured in the accident to maintain each and every bill and receipt of the amount spent on treatment. Therefore a sum of Rs.50,000/- can be taken as the amount spent on the medical treatment. The Appellant has stated that he was required to spend amounts towards travelling charges, ambulance charges etc. the Appellant must have also spent for a special diet. A sum of Rs.5,000/- by way of expenses incurred on the special diet, travelling, ambulance charges etc. will have to be granted. 9. Nature of injuries sustained by the Appellant have been set out in the earlier part of the Judgment. Considering the nature of the injuries, the compensation of Rs.35,000/- deserves to be granted on account of pain and suffering. Having regard to the percentage of disability and the nature of disability, a sum of Rs.40,000/- will have to be awarded on account of disability suffered by the Appellant. 10. The Appellant has made a claim towards for compensation on account of loss of income. According to the Appellant, he -7- was having a transport business and he was earning Rs.3,000/- p.m. from the transport business. He had purchased a new truck just before the accident after obtaining a loan of Rs.2,98,000/- from a bank. He has stated that he was unable to work for 3 1/2 years due to injuries and he was required to pay Rs.2,000/- to the driver. According to him, he cannot now drive a vehicle and he cannot sit properly. At the beginning of the examination in chief, the Appellant has stated that he is earning Rs.3000/- p.m. from his transport business. In the later part of the deposition, he stated that he used to save a sum of Rs.6,000/- p.m. This case made out cannot be accepted. As stated earlier, from 19th November 1991 to 15th August 1993 the Appellant was hospitalised from time to time and he was under treatment till 1994. It cannot be said that his transport business was closed only because the Appellant was unable to work for 3 and 1/2 years. The appellant has himself stated that he had employed a driver and was carrying on his business. Therefore, the loss of income will have to be taken at a notional amount of Rs.500/- p.m. The Appellant was unable to work for 3 and 1/2 years. Therefore, loss of income for the period of 42 months comes to Rs.21,000/-. Thus the total compensation due and payable to the Appellant is as under: (a) Expenses on medical treatment Rs.50,000.00 (b) Expenses on special diet, -8- conveyance etc. Rs. 5,000.00 (c) On account of pain and suffering Rs.35,000.00 (d) On account of loss of income Rs.21,000.00 (e) On account of disability Rs.40,000.00 -------------------------- Total Rs.1,51,000.00 ========================== Without adverting to the evidence on record and without considering the claim of the Appellant under different headings, a lumpsum amount of Rs.60,000/- has been arbitrarily awarded by the tribunal. Thus, the Appellant is entitled to enhancement in the compensation in the sum of Rs.91,000/-. By the impugned Award passed in the year 1995 in a claim petition of the year 1993, interest has been awarded at the rate of 9% p.a. Considering the then prevailing rates of interest, the same ought to have been fixed at the rate of 12% p.a. However, during the pendency of the Appeal, interest rates have been substantially reduced. Therefore, I am not inclined to increase the rate of interest. 11. Hence, I pass the following order : i) Impugned Judgment and Award is modified and it is directed that in addition to the compensation of Rs.60,000/- with interest already awarded by the -9- tribunal, further amount of Rs.91,000/- shall be paid to the Appellant by the Respondents together with interest at the rate of 9% p.a. from the date of filing of the claim petition till the date of realisation. ii) The Appellant will be entitled to proportionate costs of the claim petition as well as this Appeal from the Respondents. iii) The second Respondent is granted time of four months to comply with the modified Award. iv) The second Respondent will deposit the balance amount with the tribunal. If the said amount is deposited, the same shall be paid to the Appellant without ordering any investment. v) Appeal is partly allowed in above terms. vi) Certified copy is expedited. JUDGE JUDGE JUDGE