1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.211 OF 1995 Rameshwar Kisanlal Biyani, Age: 62 years, Occ: Journalist, R/o.Nanded, Tq. & Dist. Nanded, (Died L.Rs) 1. Goverdhan s/o Rameshwarji Biyani, Aged: 30 years, Occ:Business, R/o. Old Mondha, Nanded. 2. Suresh s/o Rameshwarji Biyani, Age: 27 years, Occ: Business, R/o. As above. 3. Tarabai w/o Rameshwarji Biyani, Age: 55 years, Occ: Household, R/o. As above. 4. Sou. Shakuntala s/o Radheshyamji Bajaj, Age: 39 years, Occ: Business, R/o. Digras, Dist. Yewatmal. 5. Sow. Shobha w/o Rameshchandra Rathi, Age: 36 years, Occ: Household work, R/o. Manora, Tq. Manora,Dist.Akola. 6. Sow. Karuna w/o Govindji Chandak, Age: 33 years, Occ: Household work, R/o. Sahayog Complex, Shrinagar, Nanded. 7. Sow. Jyoti w/o Badrinarayan Soni, Age: 28 years, Occ: Household, R/o. Parbhani. ... Appellants 2 versus 1. Nivruti Pundlikrao Shirsat, Age: Major, Occ: Driver, S.T. Depot, Gangakhed, District Parbhani. 2. The Maharashtra State Road Transport Corporation, Divisional Controller, Parbhani. ... Respondents Mr. M.N. Nawandar, Advocate holding for Mr. K.G. Nawandar, Advocate for appellant. Mr. S.V. Warad, Advocate for respondent No. 1. Mr. A.D. Wange, Advocate for respondent No.2. CORAM : K.K. TATED, J. DATE : 22/06/2009 ORAL JUDGMENT : 1. Heard learned Counsel for the parties. 2. Present first appeal is preferred by the original claimant against the judgment and award dated 04-10-1994 passed by the District Judge as an Ex-officio Member of M.A.C.T. Nanded in M.A.C.P. No. 60/1987. The appellant is original claimant and respondent Nos. 1 and 2 are original respondents respectively. The appellant filed M.A.C.P. No. 3 60/1987 for compensation for the disablement caused due to the injuries sustained in motor accident on 01-05-1987. It is the case of the appellant that on 01-05-1987 at about 9-30 a. m. he was going to his new house on Scooter bearing No. MA-77. At that time, bus owned by respondent No. 2 M.S.R.T.C. gave dash to his Scooter in which the appellant injured. In this accident, the appellant sustained following injuries. (1) Compound fracture right tibia fibula middle 1/3. The bones were protruding out of the wounds. (2) Compound fracture of ankle joint left side with dislocation of ankle joint. (3) CLW (R) on palmer region 4"x 1/2" x 1/4". (4) CLW face head 4" x 1/2" x 1/4" 3. On the basis of said cause of action, the appellant filed claim petition claiming a sum of Rs.70,000/- towards expenses incurred for hospital charges, Doctor's fees, travelling expenses, servants charges, medicines, X-rays films, blood testing and transfusion, special diet and attendant's expenses etc. He also claimed a sum of Rs. 50,000/- towards mental shock and pain for the period of six 4 months. The appellant also claimed a sum of Rs. 27,000/- for loss of his earning for a period of nine months. He claimed a sum of Rs.80,000/- towards earning capacity in future life because of the disablement of his left leg. The appellant also claimed a sum of Rs.8910/- for repairs of his Scooter. In all, the appellant claimed a sum of Rs. 2,35,910/- as compensation. In support of his case, the appellant examined Dr. Janardhan Ganpatrao Wadekar at Exhibit-42 and Dr. Kailash Uttamchand Patni, Medical Practitioner at Exhibit-47. The appellant submitted several documents on record in support of his claim like certificates of Doctor, bills of expenses incurred by him towards medicine, travelling etc. 4. On the other hand, respondent Nos. 1 and 2 filed their Written Statement and opposed the appellant's claim. It is the case of respondent No.2 that the accident took place because of negligence on the part of the appellant himself. Respondent No. 2 in his W.S. at Exhibit-26 in Para. 4 stated thus " the above accident was occurred due to sheer negligence, carelessness and rashless driving of Scooter by Suresh, son of applicant and was not having licence at the 5 time of alleged accident of driving and the accident was occurred due to negligent act of Suresh only. Therefore, this respondent is not liable for the injuries sustained to the applicant and he is not liable to pay any compensation to the applicant." Considering the evidence led and submissions made by both the parties, learned Tribunal by judgment and award dated 04-10-1994 held that the applicant was entitled to a sum of Rs. 1,32,000/- with interest @ 12% per annum from the date of petition till its realisation. Learned Tribunal held that the applicant was entitled to a sum of Rs.30,000/- towards medicine, Rs. 12,000/- towards transport charges, Rs. 80,000/- towards compensation for disablement and Rs. 10,000/- towards pain and sufferings. 5. The applicant - claimant preferred this appeal on the ground that the Tribunal erred in coming to the conclusion that the appellant was entitled to the sum of Rs. 1,32,000/- only though documentary proof on record shows that the appellant was entitled to more compensation. Learned Counsel appearing on behalf of the appellant submitted that the Tribunal failed to exercise jurisdiction vested in him in not granting claim for enhanced compensation amount of Rs. 6 52,000/- which can be granted in view of the case reported in 1991 ACC 604 (DB) Bombay. He further submitted that the Tribunal wrongly disallowed the claim of the appellant for a sum of Rs. 1,45,910/- which includes the disallowed claim of Rs. 1,03,910/- made in the claim petition and Rs. 54,300/- by way of enhanced compensation by not considering and appreciating documentary and oral evidence. He further submitted that the Tribunal should have granted total claim of Rs. 70,000/- for hospital charges, Doctors fees, travelling expenses, servant charges, medicine etc. and Rs. 25,000/- spent by the appellant after discharge from the hospital. 6. It is the case of the appellant that the Tribunal without considering the documentary evidence, bills, etc., properly allowed the claim for Rs.30,000/- and erroneously without any reason disallowed the claim of Rs. 65,000/- under the head of hospital charges, Doctors fees, travelling expenses, servant charges, medicine etc., It is the case of the appellant that at Exhibit-31 the appellant produced vouchers and bills to show expenses incurred by him towards medicines, and travelling expenses. Total of these voucher 7 amounts to Rs.45,550/- and in spite of this, the Tribunal awarded only a sum of Rs. 30,000/- under the head of medicines. Learned Counsel for the appellant further submitted that the Tribunal should have awarded compensation to the tune of Rs. 27,000/- towards loss of income due to hospitalisation. He submitted that the appellant was in the hospital from 01-05-1987 to 18-05-1987 and in another hospital from 18-05-1987 to 01-08-1987. During that period, he could not attend his partnership business. Therefore, the Tribunal should have awarded a sum of Rs. 27,000/- under this head. He further submitted that the Tribunal erred in coming to the conclusion that the appellant was entitled only a sum of Rs. 80,000/- towards loss of income due to disablement. He submitted that the appellant suffered compound fracture of tibia fibula and two injuries, one at palmer region and another at forehead. Considering certificates issued by Doctors on record, the Tribunal should have awarded enhanced compensation under these heads. 7. The learned Counsel appearing for the respondents pointed out that the Tribunal awarded excess compensation to the appellant and therefore, present appeal is liable to be 8 dismissed with costs. Learned Counsel appearing on behalf of the respondents submitted that the appellant did not produce documentary evidence to show that he incurred expenses towards medicines, travelling, repairs of Scooter etc. He pointed out that the appellant was getting salary of Rs. 3000/- per month and considering the salary of Rs. 3000/- per month, the Tribunal rightly awarded compensation of Rs. 12,000/- under the head of loss of income due to hospitalisation. He further submitted that there was an iota of evidence on record to show that due to the accident, the appellant lost his income on account of hospitalisation. On the basis of these submissions, learned Counsel appearing on behalf of the respondents submitted that there was no merit in the present first appeal and hence it was liable to be dismissed with costs. 8. This appeal by the claimant is for enhancement of the compensation awarded to him. There is no cross appeal or objection from the respondents challenging the findings of Tribunal on the point of accident which occurred due to negligence on the part of the respondents. Therefore, in the present appeal I have to consider whether the appellant is 9 entitled to additional compensation over and above awarded by the Tribunal. 9. For justifying enhancement of compensation, learned Counsel appearing on behalf of the appellant relied on Exhibit-31 which is compilation of bills issued by Medical Stores, bills issued by Doctors and expenses incurred by the appellant for repairs of Scooter. On Exhibit-31, the Tribunal observed that with the help of junior Advocate appearing on behalf of the appellant in trial Court, he had gone through each and every bill and calculation showed that the appellant spent about Rs. 28,000/- for purchase of medicines, travelling charges and fees charged by the Doctors. 10. With the assistance of learned Counsel for the parties, I have gone through the Record and Proceedings. Learned Counsel appearing on behalf of the appellant specifically pointed out following pages at Exhibit-31 to justify his claim that the appellant was entitled to additional compensation/reimbursement of charges of medicines, Doctors fees paid by the appellant. I have gone through the 10 following pages at Exhibit-31. 13, 16, 31, 32, 38, 42, 145, 146, 147, 150, 151, 153, 155, 166, 168, 170, 175, 176, 186, 211, 277, 280, 296, 297, 301, 302, 310 and 316. Total of bills and vouchers referred to here-in-above works out to Rs. 45,550/-. Learned Counsel appearing on behalf of the respondents also went through these vouchers. There is no dispute about that the total of these bills amounts to Rs. 45,550/-. Therefore, it is clear on the basis of the record that the Tribunal erred in coming to the conclusion that total of these bills and vouchers which are marked at Exhibit-31, was Rs. 28,000/- only. Therefore, the appellant is entitled to a sum of Rs.45,500/- under the head of medicines and other expenses, in stead of sum of Rs. 30,000/- awarded by the Tribunal. In respect of loss of income due to hospitalisation, the Tribunal awarded a sum of Rs. 12,000/- @ Rs. 2000/- per month. I do not find any substance in the submissions made by the learned Counsel appearing on behalf of the appellant that the appellant was entitled to additional compensation under the head of loss of income due 11 to hospitalisation, because nowhere it is stated by the appellant in his evidence at Exhibit-33 that because of hospitalisation, he lost his income during that period. 11. It is the case of the appellant that he is doing business in partnership with other partners. As partner, he is drawing a sum of Rs. 3000/- per month from partnership business. Nowhere, it is stated on record and / or in his evidence that other partners refused to allow him to withdraw salary for that period and therefore, the appellant is not entitled to additional compensation under the head of loss of income due to hospitalisation. 12. Learned Counsel appearing on behalf of the appellant submitted that the Tribunal erred in coming to the conclusion that the claimant is entitled to sum of Rs. 80,000/- only due to loss of income due to disablement. He submitted that the appellant after returning from Hyderabad where he has taken treatment, Doctor examined and found that disablement of left ankle is 50%, right joint knee 15% and right shoulder is 15%. In support of this submission, learned Counsel appearing on behalf of the appellant relied on discharge card issued by 12 Dr. Vedprakash Pathak which is at Exhibit-43. The Tribunal after going through certificate at Exhibit-43 held that Dr. Vedpathak had not given any percentage of disablement. Even after going through certificate at Exhibit-43, it is clear that nowhere it is mentioned about percentage of disablement. Considering the evidence on record, the Tribunal rightly awarded sum of Rs. 80,000/- towards loss of income due to disablement and therefore, it is not necessary to interfere with that finding. 13. Learned Counsel appearing on behalf of the appellant submitted that under the head of pain and sufferings, the Tribunal has awarded only Rs. 10,000/- whereas the appellant claimed a sum of Rs. 50,000/-. Considering that the appellant was in the hospital from 01-05-1987 to 01-08-1987, in my opinion, additional sum of Rs. 15,000/- is sufficient under this head. It is clear that there cannot certainly be any hard and fast rule as to how much amount of compensation should be awarded for loss on account of sufferings, pain and discomfort etc. One has to take overall view of the matter. For instance, age of person injured is one of the relevant factor and also the work which he was doing when the accident 13 took place. In the present case, the appellant was doing business in partnership firm and he was getting salary of Rs. 3000/- per month. Not only that, there is not an iota of evidence on record to show that any amount was deducted and / or not paid to the appellant by the partners in partnership firm because of the accident. Considering these facts, I find that additional sum of Rs. 15,000/- towards pain, and sufferings is sufficient to meet the ends of justice. 14. For the reasons stated above, the appeal is partly allowed as stated hereunder:- (1) The appellant is entitled to additional sum of Rs. 15,500/- towards medicines, Doctors fees, travelling expenses etc., and additional sum of Rs. 15,000/- for pain and sufferings. (2) The appellant is entitled to receive interest @ 7% per annum on additional compensation from the date of application i. e. 30-10-1987 till realisation. (3) Thus the appeal succeeds only to the extent mentioned 14 above and the award passed by the trial Court is modified to this extent only. The costs of appeal shall be borne by the parties as incurred. ( K.K. TATED, J.) sut/JUN09/fa211.95