1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1264 OF 1996 Shri Paidal Kunhi Raman Nair, ) age about 35 years, Occ: at present nil. ) R/at House No.414, Nehru Nagar, ) Naya Basti, Bhiwandi-Kalyan Road, ) Bhiwandi, Dist. Thane. ).. Appellant Versus 1. Shri Haridas Rathi, ) Adult, Occupation – Business, ) R/at C/o. Delhi Rajasthan Transport Co., ) behind Olympic Cinema, Jodhpur, ) Rajasthan. ) 2. The National Insurance Co. Ltd., ) Jai Motor Compound, Thane. ).. Respondents -- Shri T.J. Mendon for the Appellant. Ms Bhakti Barve i/by Ms Arti B. Barve for the Respondent. -- CORAM : A.S.OKA,J. DATE : 19TH JANUARY, 2010 ORAL JUDGMENT : . The Appellant is the original claimant in a Claim Petition under Section 166 of the Motor Vehicles Act, 1988. The Appellant sustained injuries as a result of motor accident. The vehicle involved in the accident is a truck owned by the first Respondent. The Appellant at the relevant time was employed with the second Respondent. The Appellant sustained fracture of spine and right ankle. The Motor Accident Claims Tribunal, Thane, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of motor vehicle involved in the accident. The Tribunal awarded 2 total compensation of Rs.50,000/- with interest at the rate of 12% per annum from the date of filing of the application. 2. The learned counsel appearing for the Appellant submitted that the evidence on record shows that the Appellant suffered from two fractures and out of the two, one is a fracture of spine. He submitted that considering the fact that the Appellant suffered two fractures and partial permanent disability at 35%, the compensation awarded at Rs.10,000/- under the head of ‘Pain and Suffering’ is on the lower side. He submitted that loss of income for a period of six months quantified at Rs.5,000/- is also on the lower side considering the fact that the income of the Appellant was Rs.2,500/- per month. He submitted that the Tribunal has committed an error by not granting any amount on account of loss of income in future considering the fact that the Appellant had suffered 35% disability. He submitted that a lumpsum amount awarded at Rs.50,000/- is totally insufficient considering the nature of injuries. The learned counsel appearing for the second Respondent-insurer submitted that there was no evidence adduced by the Appellant to prove his income. She submitted that in the absence of any evidence regarding income of the Appellant, the compensation awarded is reasonable. She submitted that considering the fact that the claim is of the year 1993 arising out of the accident of 1992, a sum of Rs.10,000/- awarded under the head of “Pain and Suffering” is more than adequate and no interference is called for with the impugned award. 3. I have given careful consideration to the submissions. The 3 Appellant examined Dr.Vashwas Murlidhar Sapatnekar as a witness. He examined the Appellant on 3rd November, 1993 and issued a certificate of disability. It appears from the cross-examination that the Appellant was examined by the said Doctor for the purposes of ascertaining disability. In his examination-in-chief, he has stated thus:- “.....He had fracture of spine and fracture of right ankle. He was an out-patient in my hospital. I examined him on 3.11.1993. My findings are as follows:- There was deformity in the spine and weakness of both legs with little sensory loss. He had constant back-ache. Straightening of back was difficult. 2/ Right ankle – suffered fracture of talus and fracture of malleolus. Consequently he had avascular necrosis of talus. He cannot bear weight without pain. Walking is extremely difficult. Weight bearing being at ankle level and back level is difficult, and so is weight lifting. Considering these factors, hand work is not possible.” 4. Perusal of the cross-examination shows that the same is on the point as to whether the Appellant was treated by him as a patient. The other part of the cross-examination is as regards permanent partial disability. After going through his evidence, I find that the learned Member of the Tribunal has rightly accepted that the Appellant suffered from fracture of spine and right ankle. Dr. Sapatnekar has stated that as a result of the said fracture, there is deformity in the spine and strengthening of back has become difficult and the Appellant has a constant back ache. He stated that there is a little sensory loss. He stated that hard work is not possible for the Appellant as he cannot bear the weight without pain. Thus, the Appellant suffered from two 4 fractures out of which, a fracture of spine led to a deformity in the spine which resulted in constant back ache and sensory loss of both the legs to some extent. Apart from the two fractures, the Appellant suffered further inconvenience such as constant back ache and inability to bear weight without pain. Moreover, Dr. Sapatnekar has stated that strengthening of the back was difficult. Considering these aspects, on account of pain and suffering, the total compensation of Rs.30,000/- ought to have been awarded. 5. As far as the actual loss of income and loss of income in future is concerned, the Appellant came out with a case that he was operating a power loom at Bhiwandi, District Thane, and was getting an amount of Rs.2,500/- after working for 26 days in a month. He has stated that because of his absence, the Contractor has left and therefore he was unable to produce certificate. The Appellant examined one Easter Cinnaswami Tevar who stated that till March, 1993, he was also working as a Loom Operator along with the Appellant and was getting Rs.2,500/- for 26 days in a month. The witness has not produced any document to show that he was earning Rs.2,500/- per month. Notwithstanding such evidence, the Tribunal has granted Rs.30,000/- by way of future loss which includes loss of income in future. The said amount is just and reasonable. 6. As far as the loss of income during the period of treatment is concerned, the Appellant stated that he was hospitalized for 15 days and was taking treatment at his residence for more than six months. Though the cross-examination is made of the said witness on the point of quantum of 5 income, there is no challenge to the fact that the Appellant was forced to stay at his residence for more than six months for taking treatment. Therefore, a sum of Rs.5,000/- awarded on the said count is on the lower side and a lumpsum amount of Rs.10,000/- deserves to be awarded on the said count. Considering the evidence on record a sum of Rs.5,000/- has been rightly granted on account of medical expenses, conveyance charges and diet expenses. 7. Thus, the Appellant is entitled to enhancement in compensation by Rs.25,000/-. During the last few years, rates of interest of the Nationalized Banks have been considerably reduced. Therefore, on the enhanced amount, interest at the rate of 7.5% deserves to be awarded. 8. Hence, I pass the following order. (a) In addition to the compensation awarded under the impugned judgment and award, the Appellant shall be entitled to compensation of Rs.25,000/- with interest thereon at the rate of 7.5% per annum from 19th April, 1993 till the date of deposit with the Tribunal. (b) Time of four months is granted to the second Respondent to deposit the enhanced amount. 6 (c) The Appellant shall be entitled to proportionate costs of the Appeal from the Respondents. (d) Rest of the judgment and award passed by the Tribunal is not disturbed. (e) The Appeal is partly allowed in above terms. JUDGE