1 FA 797.01 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 797 OF 2001 Kirit Vrajlal Popat. ... Appellant Versus 1. Vilas S. Jagtap. 2. New India Insurance Company Limited. ... Respondents ----- Mr. T.J.Mendon for the Appellant. None for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 08 th July, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant. None appears for the Respondent No.2. 2 The Appellant is the claimant in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). Claim for compensation was filed on account of injuries sustained by the Appellant in a motor accident on 19 th July, 1989. The Respondent No.1 is the owner of the offending vehicle and the 2 FA 797.01 Respondent No.2 is the Insurer of the vehicle. The case made out in the claim petition is that the Appellant was proceeding by a car by Bombay – Ahmedabad highway towards Bombay. At that time, a truck owned by the Respondent No.1 came from the opposite side and gave a dash to the car. As a result, the Appellant sustained several injuries. The compensation of Rs.2,50,000/- has been claimed. 3 After a contest, the Tribunal has recorded a finding that the accident occurred due to rash and negligent driving of the driver of the truck. The Tribunal proceeded to grant compensation of Rs.89,000/- to the Appellant inclusive of no fault liability with interest at the rate of 12% per annum. A sum of Rs.33,340/- was granted on account of medical expenditure. For disability, the Appellant was granted a sum of Rs. 10,000/- and a sum of Rs.10,000/- was granted on account of pain and suffering. The learned Member of the Tribunal granted compensation of Rs.31,000/- on account of fracture and other injuries. The learned Member of the Tribunal granted a sum of Rs.2,000/- on account of loss of income and a sum of Rs.2,500/- for special diet. 3 FA 797.01 4 The learned counsel appearing for the Appellant submitted that the Appellant had taken treatment in three hospitals, namely, Nanavati Hospital, Prakash Doshi Hospital and Harkissondas Hospital. He stated that the bills issued by the said hospitals and the receipts/vouchers (total 43) were produced on record. He invited attention of the Court to the examination-in-chief of the Appellant. He stated that there is a reference to the said bills in the examination-in-chief and there is absolutely no challenge on that aspect of the deposition in the cross-examination. He submitted that total amount under the said bills comes to Rs.54,841.85. He submitted that the Tribunal committed an error by granting only a sum of Rs.33,340/- on account of expenditure on treatment. He pointed out that the disability certificate showing 10% permanent physical disability was admitted in evidence and marked as Exhibit – 19. However, no amount has been granted on account of disability. He submitted that the Appellant stated that for a period of four years from the date of accident, he was unable to do any work and there is no challenge to the said version in the cross-examination. He stated 4 FA 797.01 that the Tribunal has granted loss of income only for a period of one month. He submitted that on account of conveyance charges, no amount has been granted by the Tribunal. None appears for the Respondents. 5 I have carefully considered the submissions. I have perused the record. It will be necessary to make a reference to the relevant part of the examination-in-chief of the Appellant. As regards the medical treatment, he has stated thus: “I was taken to Nanavati Hos. I was in the said hos. for about 25 days as an indoor patient. I have produced on record the admission discharge card issued by Nanawati hos. It is the same now shown to me. It is at Exh.16. I was operated in the said hos. & I was discharged on 12.8.89. Dr.Doshi operated me. I spent near about 30,000/- for the treatment. I have produced the bill alongwith the list Exh. 16. So also I have produced on record the report. I have spent ambulance charges. After discharged I was asked to take the treatment of physilotheory, I was taking the said treatment for about 1½ year @ 150/-. I have also taken the treatment from another physiotherpy from Dr.Dastur. Again I was admitted in the hos. of Prakash Doshi. for 3 days. I have produced the bill of said hos. on record. I was also admitted in the hos. of Harkisandas. I have produced the necessary doc. about the same. I have produced its bill. I was again admitted in the hos. of Harkisandas, for 5 days. I produced on record its bill. I was again admitted in 1997, for the injury of my leg, for 4-5 days. I have produced its bill. I have claimed in all Rs.2,50,000/-. I have produced on record the bill about the purchase of medicine Rs.3,344/-. I have produced on the record the report submitted by 5 FA 797.01 Dr.Dastur. It is the same now shown to me dtd.18.1.90. I have produced on record the disability certificated issued by Dr.Ansari dt.1.8.97” 6 Perusal of the cross-examination shows that the bills/vouchers (total 43) issued by Nanavati Hospital, Prakash Doshi Hospital and Harkissondas Hospital are on record. The same are in the sum of Rs.54,841.85. There is no reason to deny the reimbursement of the amount claimed in its entirety. However, the Tribunal granted only a sum of Rs.33,340/-. Therefore, in that behalf, enhancement will have to be granted by a sum of Rs.21,501.85. 7 The learned counsel appearing for the Appellant has relied upon the disability certificate issued by Dr. R.R.Bhansali, an Orthopedic Surgeon, attached to Harkissondas Hospital. In the said certificate at Exhibit – 19, it is stated that the Appellant suffered fracture of right humerus, right radius, left tibia. However, the fracture of humerus and tibia failed to heal and therefore, he has to undergo a surgery. It is stated that on 4 th January, 1991, the implants were removed and the nails were removed on 5 th April, 1991. The doctor has recorded an opinion that the 6 FA 797.01 Appellant has suffered a permanent physical disability of 10%. Perusal of the record shows that the said certificate was neither proved nor there is consent by the Respondent No.2 for exhibiting the said certificate. Therefore, though the certificate was exhibited, the concerned doctor was not examined as a witness. For want of proof of Exhibit – 19, the same will have to be kept out of consideration. In any case, the Tribunal has granted a sum of Rs.10,000/- on account of general disability. 8 From the date of the accident till April 1997, when the nails were removed, the Appellant was required to attend the hospitals from time to time. Expenditure towards the conveyance has not been granted by the Tribunal. Considering the length of the hospitalization and the nature of the treatment, the said amount will have to be fixed at the rate of Rs.4,000/-. 9 Perusal of the evidence of the Appellant shows that he was dealing in brokerage business. He stated that for a period of four years after the accident, he was unable to do any work. Looking to the nature of the injuries, it is impossible to accept that for a period of four years, the 7 FA 797.01 Appellant could not work as a broker. The Appellant himself has stated that from the date of the accident, he was hospitalized in the Nanavati Hospital and was discharged on 12 th August, 1989. Thereafter, he was admitted in the Prakash Doshi Hospital only for three days and lastly, he was admitted in the Harkissondas Hospital for two days. Looking to the nature of the injuries and surgeries undergone by the Appellant, instead of granting the loss of income only for one month at the rate of Rs.2,000/- per month, the same will have to be granted for a period of six months quantified at Rs.12,000/-. A sum of Rs.2,000/- has been already granted under the said heading. Thus, the enhanced compensation comes to Rs. 35,501.85. Apart from this, a sum of Rs.4,000/- will have to be granted on account of special diet. The total amount of enhancement will be Rs. 39,501.85, which can be rounded off to Rs.40,000/-. 10 Hence, the appeal must succeed to that extent and I pass the following order : i. In addition to the compensation granted under the impugned judgment and award, the Appellant shall be entitled to additional compensation of Rs. 8 FA 797.01 40,000/- ; ii. The Appellant shall be entitled to interest on the said additional amount of Rs.40,000/- at the rate of 8% per annum from the date of filing of the claim petition till realisation and/or deposit of the amount ; and iii. The Respondent No.2 is granted time of three months to deposit the enhanced amount. [ A.S.OKA, J ]