1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FIRST APPEAL NO.182 of 1997 Shri Shankar Baburao Awari ... Petitioner versus Shri Baban Katke & ors. ... Respondents ... Mr. Ashok Tajane i/b R.B.Jagtap for the petitioner. Mr. Ranjan B. Tripathi i/b S.S. Vidyarthi for respondent no.3. CORAM : D.G. KARNIK, J. DATED : 9th July 2010 ORAL JUDGMENT:- 1. This appeal is directed against the judgment and order dated 22 December 1995 passed by the Motor Accident Claims Tribunal (for short “the Tribunal”) partly rejecting the appellant's claim made in Claim Application No.310 of 1985. 2. The original appellant (hereinafter referred to as “the appellant”) died during the pendency of the appeal and his heirs have been brought 2 on record who have pursued the present appeal. 3. On 7 November 1984, at about 7.30 p.m the appellant was travelling as a pillion rider on a motorcycle bearing registration no.MH- A-7872 driven by Mr.S.B.Awari from Chandan Nagar towards Pune. Near the Ramwadi bridge, a truck bearing registration no. MHV-9549 driven by respondent no.1 and belonging to respondent no.2 came from the opposite direction and gave a dash to the motorcycle. Mr.Awari, the driver of the motorcycle as well as the appellant fell down and suffered multiple injuries. They were removed to the Sassoon hospital for medical treatment. The appellant was thereafter taken to the Sassoon Hospital and then to the KEM hospital, Pune, where he was operated on the legs for treating the injuries. According to the appellant, his left leg was shortened by about a inch. After recovery, he made a claim before it, the Tribunal claiming compensation of Rs.1,50,000/-. The claim was enhanced by an amendment to Rs.3,10,000/-. After considering the evidence adduced before the Tribunal held that the respondent no.1 was driving the truck in a rash and negligent manner and accordingly directed respondent no.2 – the owner and the respondent no.3 – Insurance company to pay to the appellant jointly and severally compensation of Rs.1,30,000/- together with interest at 3 12% p.a. from the date of application till realisation and proportionate costs. The appellant is in appeal for enhancement of the compensation. 4. The factum of accident is not disputed. The fact that the appellant suffered injury in the accident is also not disputed. The Tribunal has held that the accident was caused on account of the negligent driving by the driver of the truck. No cross objections have been filed by the respondents and the finding of negligence is not challenged before me. In the circumstance, the only question for my consideration is whether the compensation awarded by the Tribunal is proper or is required to be enhanced. 5. According to the appellant, he was initially admitted to the Sassoon Hospital and then to KEP Hospital. Principal part of his treatment was in the KEM Hospital. According to him, he was in the hospital for a total duration of about six months and was also operated on his left leg at the KEM Hospital. He examined himself and Doctor Amodh Hari (PW no.3) and Dr.Mukund Dighekar (PW 4) who had treated him after the accident. Dr.Amodh deposed that right leg of the appellant was shortened by one inch and there was a stiffness in his right knee. Dr.Mukund deposed that there was a total fusion of the 4 right knee joint and shortening of the right lower limb. He further deposed that in his opinion, the appellant had suffered 55% permanent partial disability. In the light of medical evidence, I am of the view that the appellant has proved that he suffered a permanent partial disability due to the accident. 6. The Tribunal awarded total compensation of Rs.1,30,000/- under the following heads:- Rs. 1. 40,000/- Medical expenses 2. 25,000/- Disability 3. 35,000/- Pains and suffering 4. 20,000/- Loss of future earning. 5. 5,000/- Future medical expenses. 6. 5,000/- Incidental charges. 7. Learned counsel for the appellant submitted that the Tribunal erred in awarding only Rs.20,000/- for loss of future earnings and therefore, compensation should be enhanced. The appellant was working in B.G.Shirke and Co. He examined Mr.Shivram Kharade, Assistant Controller Officer of the employer as a witness. Mr.Kharade proved the certificate issued to the appellant to the effect that appellant was in service of B.G.Shirke and Co. as a manager. He stated that 5 salary of a Works Manager in the company was Rs.8,500/- to Rs.9,500/- and General Manager was Rs.10,000/-. He stated that as per company policy promotions were given to an employee on the basis of his capacity of work. At the time of the accident, the appellant was working as a manager and was drawing a salary of Rs.3,500/-. He was promoted after the accident and before hearing of the claim application by the Tribunal. The salary of the appellant was increased from Rs. 3,500/- to Rs.7,500/- on promotion. Therefore, it cannot be said that appellant suffered any loss of job prospect or a loss of opportunity of promotion. No other evidence was produced by the appellant to show what was the exact loss of future earnings. It may also be noted that Tribunal has awarded compensation of Rs.25,000/- towards disability apart from compensation of Rs.20,000/- towards loss of future earnings. Therefore, the total compensation for the loss suffered by the appellant on account of the disability and loss of future earnings is Rs.45,000/-, which taking into consideration all the facts and circumstances of the case cannot be said to be too low. The fact that permanent disability has not resulted in any denial of promotion and the fact that the appellant has actually been promoted and on promotion he was getting salary more than twice the amount of salary prior to the promotion shows that the accident had not affected the chance of promotion or 6 had not resulted in appreciable loss in the future earnings. Therefore, the contention of the appellant that the award of compensation of Rs. 20,000/- towards loss of future earnings was inadequate has to be rejected. 8. No other point was urged. 9. There is no merit in the appeal which is hereby dismissed but, in the circumstances, without any order as to costs. (D.G. KARNIK,J.)