1 fa882-2000j rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 882 OF 2000 Satish Sakharam Deshmukh .. Appellant V/s. Maharashtra State Road Transport Corporation, Division Office-Pen. .. Respondent .... Mr. Sagar Joshi i/b. Mr. S. M. Oak for the appellant. Mr. G. S. Hegade for respondent. .... CORAM : A.S.OKA, J. DATE : JULY 6, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. The challenge in this Appeal is to the Judgment and Award dated 22nd October, 1999 passed by the learned Member of the Motor Accident Claims Tribunal. The appellant is the claimant in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to “the said Act”). The accident occurred on 16th May, 1995 when he was knocked down by a bus owned by the respondent- Maharashtra State Road Transport Corporation. His left leg was crushed under the bus. Claim of Rs.2,50,000/- was made by the appellant. The Tribunal has granted claim of Rs.1,36,275/- with 2 fa882-2000j interest at the rate of Rs.12 % per annum from the date of filing of the claim application. 2. The Tribunal has granted a sum of Rs.20,275/- for loss of earnings for the period of five months for which the appellant was prevented from attending the duty. A sum of Rs.20,000/- has been granted towards pain and suffering and a sum of Rs.25,000/- is granted towards loss of expectancy and inconvenience. A sum of Rs.40,000/- has been granted on account of medical expenses. A sum of Rs.5,000/- has been granted on account of special diet and a sum of Rs.5,000/- has been granted towards the cost of the attendant and a sum of Rs.6,000/- on account of conveyance charges. Another sum of Rs.5,000/- has been granted on account of purchase of special shoes and lastly a sum of Rs.10,000/- has been granted as the appellant would not get a suitable match. 3. The learned counsel appearing for the appellant invited attention of the Court to the injury certificate which shows disability of 30%. He submitted that the evidence of the appellant shows that at the time of accident, he was employed in Cipla Company as a Production Officer. He submitted that evidence on record shows that after the accident the appellant was given a clerical job. He stated that as a Production Officer he would have drawn salary of Rs.12,000/- per month but he was drawing a sum Rs.9,200/- per 3 fa882-2000j month. He submitted that there was loss of income at least to the extent of Rs.2,000/- per month for which no compensation have been granted. 4. The learned counsel appearing for the respondent pointed out that the compensation granted on account of medical expenses, loss of expectancy of life and inconvenience is excessive. He submitted that a separate compensation of Rs.10,000/- could not have been granted on the ground that the appellant could not get a suitable match. There is no evidence adduced by the appellant to show that he has lost chances of promotion. He submitted that even the officer of the employer of the company examined by him could not substantiate that the appellant has lost prospects of promotion. His submission is that no interference is called for and in fact the compensation granted is excessive. 5. I have given careful consideration of the submissions. The appellant examined Dr. Nitin Pandurang Mhatre, as a witness. He proved the disability certificate at Exhibit-48 which records that the appellant suffered from crush injury of the right foot. It records that the appellant has lost his right fourth toe tip. Apart from that there is a loss of planter skin over heel. The disability has been quantified at 30%. Only one question has been put to Dr. Nitin Mhatre in the cross-examination. He has stated that he had deposed 4 fa882-2000j on the basis of the documents which are in his custody. The said witness has produced the discharge certificate at Exhibit-44 and other documents from his custody. There is no challenge to the disability certificate in the cross-examination. 6. The appellant stepped into the witness box. In paragraph No. 1, he deposed about his income. He stated thus: “I was serving in a company and was drawing Rs.4055/- as a producting officer. Now I am given clerical job. Had I been producting officer, I would have earned Rs. 12,000/-. Now I am getting Rs.9,200/-. I did not attend my duty for 5 months. ST bus driver was responsible in causing the accident.” 7. The appellant has been cross-examined by the advocate for the respondent. Surprisingly on this aspect, there is no cross- examination. The salary slip of the appellant showing the salary of April 1995 is at Exhibit-35. It shows that the gross income of Rs.4055/- and net income of Rs.3533/-. In the certificate at Exhibit-36 issued by Cipla Limited, it is stated that from May 1995 to September 1995, the salary of the appellant was Rs.5080/- per month. 8. One Dinanath Shankar Gurav an employee of Cipla Group has been examined as a witness. He proved the documents at Exhibits-35 and 36. He stated that he was unable to say whether the appellant has lost opportunity of promotion. In the cross- 5 fa882-2000j examination he admitted that the appellant has been given clerical job. He stated that earlier, the appellant was working as an officer in production department. 9. Thus, prior to the accident, the appellant was employed as an Officer in production department and after the accident, he was given a clerical job. The statement of the appellant is that he would have earned monthly salary of Rs.12,000/- per month if he had not met with the accident. The fact that there is a loss of income due to the accident is duly proved. However, the witness Dinanath Gurav, an employee of the employer of the appellant did not support the appellant by not stating that the appellant would have earned a sum of Rs.12,000/- per month if he had not met with an accident. Therefore, loss of income can be notionally taken at Rs.1,000/- per month and multiplier of 17 will have to be applied considering the age of the appellant. Hence, the amount payable in that behalf will be Rs.2,04,000/-. 10. As pointed earlier, a sum of Rs.20,000/- has been granted towards pain and suffering and a sum of Rs.25,000/- has been separately granted on account of loss of expectancy and inconvenience. A sum of Rs.10,000/- has been granted on the ground that the appellant would not get a suitable match. So, the total amount of Rs.50,000/- has been granted on the said count 6 fa882-2000j which is on the higher side. As separate compensation has been granted on account of loss of income, the compensation cannot be granted on the count of loss of expectancy of life and inconvenience. The compensation of Rs.20,000/- granted on account of pain and suffering is on the higher side. Total compensation granted under this head and the head of loss due to failure to get suitable match can be Rs.24,000/-. Hence, the appellant will be entitled to total compensation of Rs.2,28,000/-. To that if the amount of expenditure incurred on treatment is added, the compensation will exceed Rs.2,50,000/- which is the claim made. 11. Thus, the appellant ought to have been granted compensation of Rs.2,50,000/- i.e enhancement of Rs.1,13,725/-. 12. Additional amount will carry interest at the rate of Rs.8% per annum. 13. Hence, I pass the following order: :: O R D E R :: i. In addition to the compensation granted by the Tribunal, the appellant will be entitled to additional compensation of Rs.1,13,725/- with interest thereon at the rate of 8% per annum from the date of claim petition till the realisation or deposit of the amount. 7 fa882-2000j ii. The appellant is entitled to proportionate costs of the Appeal. iii. Appeal is accordingly allowed. iv. Time of months week is granted to the respondents to deposit this excess amount to the Tribunal. (A.S.OKA, J.)