ash 1 fa-1096.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1096 OF 1998 ALONG WITH CROSS OBJECTION ST. NO.5985 OF 2005 Sou. Hemlata Shashikant Salvi. .. Appellant Vs 1. Shri Salim Tajuddin Mulani, and 2. The Maharashtra State Road Transport through the Divisional Controller, M.S.R.T.C, Ratnagiri. .. Respondents ­­ Mrs. J.D. Awhad h/f Shri G.M. Khambete for the Appellant. Shri Dilip Bodake for Respondent No.1. Shri G.S. Hegde for Respondent No.2. ­­ CORAM : A.S. OKA, J DATED : 21ST SEPTEMBER, 2011 ORAL JUDGMENT : . The Appellant­Claimant has taken an exception to the Judgment and Award dated 28th June, 1995 passed by the learned Member of the Motor Accident Claims Tribunal, Ratnagiri, in a Claim Petition filed by the Appellant claiming compensation on account of injuries sustained in a motor accident. ash 2 fa-1096.98 2. The case made out by the Appellant in the Claim Petition is that on 12th November, 1993 she along with her daughter Shilpa had been to the village – Khedashi in order to meet their relative by name Ashalata. After meeting Ashalata, all of them came to Ratnagiri by State Transport Bus and were waiting at the bus stop of Maharashtra State Road Transport Corporation. At that time, a bus owned by the MSRTC (second Respondent) came in a high speed and gave a dash to them. As a result of the accident, the daughter of the Appellant died and the Appellant and the said Ashalata sustained injuries. The Appellant suffered fractures on the right hand and left leg. The Appellant was therefore taken to the Civil Hospital, Ratnagiri where she received medical treatment for about 12 days as an indoor patient. 3. The first Respondent Driver of the bus and the second Respondent Corporation contested the claim by filing a written statement. It is contended that there was a stationary truck in front of the bus. The Appellant along with the deceased daughter and Ashalata suddenly came on the road from front side of the stationary truck. It is contended that the Appellant herself was negligent and in any case there was no negligence on the part of the first Respondent. 4. The Tribunal recorded a finding that the first Respondent was negligent. The Tribunal granted a sum of Rs.10,312/­ on account ash 3 fa-1096.98 of medical expenses. A sum of Rs.10,000/­ was granted on account of travelling expenses. A sum of Rs.5,000/­ was granted on account of special diet. A sum of Rs.30,000/­ was granted on account medical treatment and on account of deformity in the Appellant’s right hand and left leg, a sum of Rs.15,000/­ has been granted. The amount of total compensation of Rs.70,312/­ with interest thereon at the rate of 12% per annum was granted inclusive of no fault liability. 5. The Appeal is preferred by the Appellant for seeking enhancement in the compensation. A cross objection by the first Respondent (the Driver of the offending bus) has been filed for challenging the finding on the issue of negligence. Learned counsel appearing for the first Respondent stated that on the basis of the finding of the Tribunal, a disciplinary proceeding has been initiated against the first Respondent and the finding in the impugned judgment will come in the way of the first Respondent in the disciplinary proceedings. He submitted that in law, the finding of the Tribunal will not bind the disciplinary proceedings, and therefore, the first Respondent may be permitted to withdraw the cross objection by making necessary clarification. 6. Learned counsel appearing for the Appellant has taken the Court through the notes of evidence and documents on record. Relying ash 4 fa-1096.98 upon the certificate Exhibit­22, the learned counsel for the Appellant submitted that the Appellant suffered a permanent partial disability to the extent of 40% as per the medical certificate issued by the Civil Surgeon. She submitted that no amount has been granted on account of loss of earning capacity of the Appellant. She submitted that the amounts granted for special died and travelling expenses are on the lower side. She urged that there is no separate compensation granted on account of permanent partial disability. 7. Learned counsel appearing for the first and second Respondents on the issue of quantum submitted that a reasonable compensation has been granted under all the heads and infact the compensation of Rs.50,000/­ granted for the disability is on the higher side and hence, no interference is called for. 8. I have given careful consideration to the submissions. As far as the cross objection is concerned, it is obvious that disciplinary proceedings initiated against the first Respondent will have to be decided on its own merits. The Tribunal constituted under the said Act is not bound by the strict Rules of evidence. Therefore, the finding recorded by the Tribunal on issue of negligence while deciding a Claim Petition under Section 166 of the said Act will not be binding on the disciplinary authority. ash 5 fa-1096.98 9. The certificate of disability at Exhibit–22 shows that the Appellant suffered two fractures. As per the said certificate, the Civil Surgeon has assessed the permanent disability to the extent of 40%. The Appellant in her examination­in­chief stated that she is unable to walk properly. She is unable to lift heavy articles. She is unable to perform her ordinary pursuits. However, in the entire examination­in­ chief, it is not stated that the Appellant was earning any specific income prior to the accident. The Appellant stated that she suffered two fractures, one on right hand and one on left leg. In absence of any evidence regarding the income earned by the Appellant, no compensation has been granted on account of loss of earning capacity. The Tribunal is right to that extent. 10. The Appellant stated in her evidence that she was an indoor patient in a Civil Hospital, Ratnagiri for 12 days. She stated that she was a resident of village Phansop and to and fro bus fare from the village Phansop to Ratnagiri is Rs.10/­. She stated that her relatives were required to come from Phansop to Ratnagiri. She stated that she had to incur expenditure of Rs.30/­ to Rs.35/­ per day on special diet. She stated that she was required to take treatment in KEM Hospital at Mumbai as per the advise of the Medical Officer, Ratnagiri. She stated that she was taken to the KEM hospital at Bombay in the ash 6 fa-1096.98 ambulance provided by the S.T. Corporation and she was treated in KEM Hospital for 1 and ½ months. She stated that she remained in the hospital for 1 and ½ months and thereafter she continued to stay in the house of her relatives for at Goregaon in Mumbai 1 and ½ months. She stated that once in a week she had to visit KEM Hospital by spending Rs.150/­ on taxi. She stated that she was required to spend about Rs.30/­ to Rs.35/­ per day when she was hospitalised in KEM Hospital. Her case is that she spent a sum of Rs.35,000/­ towards medical expenses. In the examination­in­chief, she has stated that she had produced some of the bills. The said bills were exhibited and collectively marked as Exhibit–23. The total amount of the medical bills is Rs.10,311.63 ps. 11. As far as the aforesaid deposition of the Appellant is concerned, there is hardly any challenge in the cross­examination. There is no challenge to the assertion that the Appellant was admitted in a hospital at Ratnagiri and thereafter in the KEM Hospital at Mumbai. There is no cross­examination on the claim made by the Appellant as regards the travelling expenses, special diet, etc. The Appellant stated that she had spent a sum of Rs.35,000/­ on medical expenditure and only some of the bills are produced. Only a vague suggestion was given in the cross­examination that the claim was excessive and exorbitant. The correctness of the suggestion was denied ash 7 fa-1096.98 by the Appellant. Considering the unchallenged version of the Appellant on the aspect of the medical expenditure, some more amount will have to be granted on the medical expenses as the Claimant is not expected to preserve bills or vouchers of the every item of the expenditure incurred. This is a case where the Appellant had to undergo a long treatment in Ratnagiri as well as KEM Hospital at Mumbai. Considering the unchallenged version of the Appellant, the claim granted on account of special diet, medical and travelling expenses is on the lower side and additional amount of Rs.10,000/­ will have to be granted. Taking a round figure, the total compensation payable on account of medical expenditure will be Rs.20,000/­. Thus, the enhanced amount will be Rs.9,688/­ ( Rs.20,000 – Rs.10,312 already granted ). The Claim Petition is of the year 1994. The rates of nationalized banks on fixed deposits have been considerably reduced during the last few years. Therefore, on the enhanced amount, interest will be at the rate of 8% per annum. Hence, I pass the following order. ORDER : (i) The Cross Objection is dismissed as not pressed. It is made clear that the finding recorded by the Tribunal on the issue of negligence shall not bind the disciplinary authority; ash 8 fa-1096.98 (ii) In addition to the compensation granted by the Tribunal, the Appellant will be entitled to an amount Rs.9,688/­ with interest thereon at the rate of 8% per annum from the date of filing of the Claim Petition till realisation of the deposit of the amount; (iii) Rest of the impugned judgment and award is confirmed; (iv) The Appellant will be entitled to proportionate the costs of the Appeal of the Respondent; (v) The Appeal is partly allowed. (vi) There will be no orders as to costs in the cross objection. ( A.S. OKA, J )