1 FA.925.99.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 925 OF 1999 Sanjay Nagindas Mehta. ... Appellant Versus 1. Pallani Malai Karpannakavandar, 2. Maharashtra State Road Transport Corporation Bombay, 3. United India Insurance Company Limited. ... Respondents -------- Mr. A.M.Gokhale i/b Mr. M.B.Kotak for the Appellant Mr. G.S.Hegde a/w Mr. C.M.Lokesh for the Respondent No.2 Mr. S.R.Singh for the Respondent No.3 -------- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 14 th July, 2011. DATE ON WHICH JUDGMENT IS PRONOUNCED : 8 th August, 2011. JUDGMENT: 1 By this Appeal, the Appellant (original Claimant in a claim petition under Section 110-A of the Motor Vehicles Act, 1939) 2 FA.925.99.doc is seeking enhancement in compensation. On 18 th December 1987, the Appellant was travelling by a bus owned by the second Respondent. The bus collided with a truck owned by the first Respondent which was validly insured with the third Respondent. As a result of the accident, the Appellant sustained compound fracture of right leg. He sustained fracture of femur as well as tibia and fibula. It resulted into the amputation of his right leg below the knee. Initially he was admitted to the Civil Hospital at Thane. Thereafter, for a period of 2 days, he was admitted in Harkisondass hospital, Mumbai. Subsequently, he was admitted to K.E.M Hospital in Mumbai as an indoor patient for a period of 2 months. Lastly, he was shifted to Military Hospital at Pune. 2 According to the case of the Appellant, he suffered 70% permanent disability. He stated that an artificial limb was fixed by the doctors. He stated that the artificial limb is required to be changed after every 3 years. His case is that though after the accident he got 3 FA.925.99.doc married, he had to marry to a girl who suffered from polio. According to the case of the Appellant, his wife is handicapped. 3 The Appellant claimed compensation of a sum of Rs. 4,00,000/-. By the impugned judgment and award, the Motor Accidents Claims Tribunal granted compensation of Rs. 2,47,000/-. The Tribunal held that the drivers of both the bus and the truck were negligent and therefore, the compensation was apportioned equally between the 2nd respondent on one hand and the 1st respondent and his insurer on the other hand. The Tribunal granted interest at the rate of 12% per annum from the date of filing of the claim petition till realisation. The Tribunal granted a sum of Rs. 1,92,000/- on account of loss of income by applying multiplier of 16 and by taking the loss of earnings at the rate of Rs.1000/- per month. The Tribunal granted a sum of Rs.50,000/- on account of pain and suffering. On account of the loss of income for the period of four and half months on account of hospitalisation, the Tribunal granted a sum of Rs. 4 FA.925.99.doc 5000/-. The Tribunal granted an amount of Rs.50,000/- on account of cost of medicines, cost of artificial limb and medical expenses. 4 The learned counsel appearing for the Appellant has taken the Court through the notes of evidence and documentary evidence on record. His submission is that it was a case of hundred percent loss of earning capacity. He stated that the Appellant's total monthly income was Rs. 2300/– which included salary as well as commission. He submitted that the Tribunal committed an error by taking the loss of income at the rate of only Rs.1000/- per month. He submitted that the compensation granted under the heading of pain and suffering is on the lower side. He submitted that the compensation granted on account of medical expenditure is also on the lower side. His submission is that in fact the appellant was entitled to compensation exceeding the claim of Rs.4,00,000/- made in the claim petition. The learned counsel appearing for the 2 nd as well as 3 rd respondents opposed the appeal by contending 5 FA.925.99.doc that there is no loss of earning capacity proved by the appellant. The submission is that the compensation granted under all the headings is more than reasonable considering the fact that the accident is of the year 1987. 5 I have given careful consideration to the submissions. I have perused the record of the case. There is no cross appeal or cross objections filed by any of the Respondents. Hence, the finding of the Tribunal on negligence and liability will have to be taken as correct. As far as the injuries are concerned, the Tribunal has accepted the case made out by the Appellant. The Tribunal held that the right leg of the Appellant has been amputated and an artificial limb has been fixed. The Tribunal also accepted the case that the partial permanent disability suffered by the Appellant was 70%. The Tribunal accepted the case of the Appellant that he was working as a supervisor on the activity of offloading and loading of the goods in a hardware store at Mumbai. The Tribunal accepted the case that 6 FA.925.99.doc his monthly salary was Rs. 1100/–. However, the Tribunal did not accept the case that the Appellant was earning a separate income by way of commission from agency business. The age of the Appellant at the time of accident was around 23 to 24 years. Therefore, for calculating the compensation on account of loss of earnings, after taking into account prospects of future increase in the earnings of the Appellant, the Tribunal has taken the loss of earning capacity at Rs.1000/ – per month. However, as the age of the Appellant on the date of the accident was less than 25, a multiplier of 18 ought to have been adopted. But, the Tribunal has adopted a multiplier of only 16. By adopting multiplier of 18, the compensation on the said count shall be Rs.2,16,000/-. 6 The Tribunal has accepted that the total hospitalization of the Appellant was for a period of 4 and half months. The Appellant in his deposition stated that during the period of his hospitalization, he had to engage this one attendant at the cost of 7 FA.925.99.doc Rs.200/- per day. He stated that when he was hospitalized at Pune, his family members were required to stay in a guest house. He stated that he had to spent a sum of Rs.40,000/– on medicines and he was required to spend a sum of Rs.15,000/- on account of tonics, special diet and remuneration of the attendant. He stated that he had to pay a sum of Rs.30,000/– by way of donation for acquiring and fixing artificial limb. He stated that for the said amount no receipt was issued. He stated that some of the bills and vouchers of the expenses incurred have been produced. He stated that some of the bills and vouchers have been lost. It has come on record that the amputation of the leg was made four months after the accident. Perusal of the cross-examination made by the 1st and 3rd respondents as well as the 2nd respondent shows that there was no challenge to the amounts set out by him in the examination in Chief. A suggestion was given that he has acquired the artificial limb free of charge. However, the Appellant denied the correctness of the said suggestion. It can be safely said that the treatment of the 8 FA.925.99.doc Appellant extended for a long time and certainly for a period not less than 6 months. Considering the serious nature of the injuries sustained and especially the amputation of the right leg, the Appellant and his family members must have suffered from trauma. It is quite possible that all the bills and vouchers were not meticulously maintained. A sum of Rs.30,000/- ought to have been reasonably granted on account of cost of medicines and cost of treatment in the hospitals. A sum of Rs.15,000/- ought to have been granted on account of special diet, remuneration of the attendant and travelling charges of the appellant and his relatives. There was no reason to dispute the claim of the Appellant that when he was hospitalized in Pune, his relatives had to stay in Pune. On that count, a sum of Rs.3000/- ought to have been granted. There was no reason to deny the reasonable claim of the Appellant that he had to spend an amount of Rs. 30,000/- in cash for procuring and fixing an artificial limb. Thus on account of expenses, a sum of Rs. 78,000/- ought to have been granted. 9 FA.925.99.doc 7 A sum of Rs.50,000/-has been granted on account of pain and suffering. This was a case of amputation of right leg below the knee. The Appellant stated in his evidence that he finds it difficult to walk and he is unable to board in a train or bus. At the time of accident, the age of the Appellant was only 23 or 24. Therefore, the compensation on account of pain and suffering should have been higher than the sum of Rs.50,000/–. The amount can be reasonably fixed at Rs.75,000/–. In paragraph 6 of his deposition, the Appellant has stated that he married after the accident. He stated that due to amputation of his leg, he could not get fair and healthy wife. He stated that his wife is a patient of polio and she is handicapped. Perusal of the cross-examination made by both advocates shows that there is no challenge to the said version. Thus, the amputation of his leg had adverse impact on prospects of his marriage. A sum of Rs.25,000/– deserves to be granted on this count. Thus total amount payable to the Appellant will be Rs. 10 FA.925.99.doc 2,16,000/-, Rs.78,000/-, Rs.75,000/- and Rs.25,000/- (total Rs. 3,94,000/-) under the aforesaid headings . The claim petition was decided in the year 1998. During the said period, the appellant must have changed his artificial limb at least on 2 occasions. The present appeal remained pending for 12 years. Therefore, some amount deserves to be added as cost of replacement of the artificial limb. By taking overall view, the reasonable compensation shall be Rs. 4,00,000/-. Considering the fact that a very small part of the amount (Rs.6,000/-) includes expenses incurred during the pendency of proceedings, the additional amount granted in this appeal shall carry interest at the rate of 7.5% per annum instead of 8.00% from the date of filing of the claim application till realisation or deposit of the amount. 8 Hence, I pass the following order: i. The Appellant shall be entitled to total compensation of Rs.4,00,000/- inclusive of the amount payable by way of no fault liability. On 11 FA.925.99.doc the additional compensation of Rs.1,53,000/-, the Appellant shall be entitled to interest at the rate of 7.5% per annum from the date of filing of the claim petition till the deposit of the amount with the Tribunal ; ii. The additional amount shall be payable by the concerned Respondents in the proportion laid down in the impugned judgment and award ; iii. Out of the amount of enhanced compensation with interest and costs payable to the Appellant, 50% amount shall be paid over to the Appellant by an account payee cheque ; iv. Remaining 50% amount shall be invested by the Tribunal in fixed deposit for a period of five years ; v. The fixed deposit shall be made with any nationalized bank in such a manner that it will attract maximum rate of interest ; 12 FA.925.99.doc vi. The Appellant will be entitled to withdraw quarterly interest payable on the said fixed deposit amount ; vii. The Appellant will be entitled to proportionate costs of the Claim Petition and Appeal ; and viii. The Appeal is allowed on above terms. [ A.S.OKA, J ]