1 fa812,813.90.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY APPELLTE CIVIL JURISDICTION FIRST APPEAL NO. 812 OF 1990 WITH CROSS OBJECTION NO. 25720 OF 1993 1. M/s. Malhotra Steel Products Having their office at Steelyard House (1st Floor) Tukaram Road Carnac Bunder, Bombay 400 009 (Owner of Car No. MMF-8717) 2. The Oriental Insurance Co. Ltd. Insurers of Motor Car No.MMF8717 7, Jamshedji Tata Road Bombay-400 020 ....Appellants. Vs. 1. Shri Rajnish Lal Vohra Residing at 101, Jupitor Apartments Hiranandani Complex, Lokhandwala Off. Four Bungalow Andheri Bombay 400 058. 2. Shri Mahendra Narayan Pathak residing at Appa Padha (Room No.1) Ram Nagar, Kurar Village Goregaon (West) Bombay-400064 Owner of taxi MMQ-3837. 3. The New India Assurance Co. Ltd. New India Bhavan, Justice Vaidya Marg, Bombay - 400 023 (Insurers of Taxi No MMQ-3837) ..Respondents WITH 2 fa812,813.90.sxw FIRST APPEAL NO. 813 OF 1990 WITH CROSS OBJECTION NO. 25721 OF 1993 1. M/s. Malhotra Steel Products Having their office at Steelyard House (1st Floor) Tukaram Road Carnac Bunder, Bombay 400 009 (Owner of Car No. MMF-8717) 2. The Oriental Insurance Co. Ltd. Insurers of Motor Car No.MMF8717 7, Jamshedji Tata Road Bombay-400 020 ....Appellants. Vs. 1. Shri Sabhapati Saran residing at House no.3717 Sector No.32-D, Chandigarh 2. Shri Mahendra Narayan Pathak residing at Appa Padha (Room No.1.) Ram Nagar Kurar Village Goregaon (West) Bombay -400 064 (owner of Taxi No.MMQ 3837). 3. The New India Assurance Co. Ltd. New India Bhavan, Justice Vaidya Marg, Bombay - 400 023 (Insurers of Taxi No MMQ-3837) ..Respondents Mrs. Anita S. Agarwal for the Applicants. Mr. G.S.Hegde and C.M. Lokesh for the Respondent No.1. Mr. A.M. Gokhale i/by Mr. M.B. Kotak for Respondent No.2. CORAM : A.S. OKA, J. DATE : 16TH DECEMBER, 2010. 3 fa812,813.90.sxw JUDGMENT ( PER A.S. OKA, J.) 1. These two appeals can be conveniently disposed of by a common judgment as the same have arisen out of the same accident. The First Appeal No. 812 of 1990 arises out of Claim Application No. 548 of 1987 filed by one Rajnish Lal Vohra. First Appeal No. 8l3 of 1990 arises out of Claim Application No. 547 of 1987 filed by one Sabhapati Saran. 2. With a view to appreciate the submissions made by the learned Counsel for the parties, it will be necessary to make a brief reference to the facts of the case. 3. The applicants in both the applications had engaged a taxi at Dadar for proceeding to Airport Hotel near Santacruz Air Port. When the taxi reached Vakola, one Ambassador car was proceeding ahead of the said taxi on the Western Express High Way. It is alleged that both the vehicles were in high speed. It is alleged that the driver of the Ambassador car without giving any warning suddenly applied breaks. However, notwithstanding the application of breaks, the driver of the taxi dashed into the rear side of the Ambassador car. It is stated that the impact of the accident was so violent that the front wind screen of the taxi was completely smashed and splinters of glass went into right eye and face of the applicant Rajnish Lal. As a result of the impact, the front seat of the taxi was pushed back and the other applicant Sapbhapati Saran was trapped between the front seat and the rear seat. Various injures were sustained by both the applicants. Taxi was insured with New India Insurance Company Ltd. and Ambassador car 4 fa812,813.90.sxw was insured with the 2nd appellant. (Oriental Insurance Company Ltd.). The first appellant in First Appeal No. 812 of 1990 is the owner of the Ambassador Car. The same are the appellants in the other appeal. Claim petition was filed both against owner of the taxi and the car as well as the insurers of both the vehicles on allegation that the accident occurred due to rash and negligent driving on the part of the drivers of both vehicles. 4. The owner of the taxi did not contest the claim petition. However, the owner of the car contested the claim petition by filing the written statement. It was contended that as a pedestrian appeared before the car, the driver of the car applied breaks to stop the car and before applying the breaks, the driver of the car had signalled by his hands to the vehicles following the car indicating to them that he was stopping the car. As far as the insurer of the taxi is concerned, a written statement was filed contending that the liability under the policy of insurance was limited to Rs. 15000/-. 5. The applicant Rajnish Lal claimed compensation of Rs. 1,50,000/- The applicant Sabhapati Saran made a claim in the sum of Rs. 2,00,000/-. The Tribunal delivered separate judgments and held that the drivers of both the vehicles were rash and negligent. The Tribunal granted compensation of Rs. 62,033/- inclusive of no fault liability to the applicant Rajnish Lal Vohra with interest thereon at the rate of 12% p.a. To the other applicant, the learned Member of the Tribunal granted compensation of Rs. 1,60,930/- inclusive of no fault liability with interest at the rate of 12% p.a..The Tribunal held that liability of the Insurer of the taxi was limited to Rs. 15,000/-. 5 fa812,813.90.sxw 6. In both the appeals, the original applicants have filed cross-objection. The applicant Ranjnish Lal has claimed total compensation of Rs. 1,00,000/- by cross-objection. Thus, he claimed enhancement by sum of Rs. 37,064. The other applicant Saphapati Saran has claimed total compensation of Rs. 2,00,000/- and thus his claim is for enhancement by a sum of Rs. 39,070/-. 7. When these appeals and cross-objections came up for final hearing on 5th October, 2010, this Court found that the appeals at the instance of 2nd Appellant i.e. Insurer of the car was not maintainable. This Court considered submission of the learned Counsel appearing for the appellants that the appeal at the instance of 2nd appellant was not maintainable. This Court by a detailed order dated 5th October, 2010 dismissed the appeals so far as 2nd appellant was concerned and the appeals were adjourned. The learned Counsel for the appellants was granted time to take instructions as to whether the 1st appellant desires to prosecute the appeals. The learned Counsel appearing for the appellants today stated that she has communicated the order to the appellants and has sought instructions. She stated that first appellant has not given any instructions in the matter to proceed with the appeal. Thus the appeals as far as first appellants are concerned stand dismissed for non prosecution. 8. The learned Counsel appearing for the 1st respondent in both the appeals in support of cross-objections invited the attention of the Court to the findings recorded by the Tribunal as regards the injuries sustained by the 1st respondent in the appeals. He submitted that apart from the fact that the compensation granted under the head of loss of enjoyment of life is on 6 fa812,813.90.sxw the lower side. The Tribunal has not granted any compensation towards the loss of income in future. He submitted that even assuming that the employment of the first respondent was not affected by the injuries, the loss of earning capacity and especially the loss of earning capacity after reaching the age of superannuation ought to have been considered. He submitted that considering the income derived by the 1st respondent prior to the accident, the first respondent is entitled to enhancement as prayed for. 9. The learned Counsel appearing for the appellants opposed the cross- objection. The learned Counsel pointed out that the evidence of both the original applicants indicates that their employment, the salary and prospects of promotions were not affected. She submitted that in absence of any evidence to show that there was a loss of earning capacity or loss of income in future, the Tribunal was justified in not granting compensation on that count. The learned Counsel for the appellants relied upon the decision of the Division Bench of this Court in the case of Ebrahim Fakir Ansari Vs. Sitaram Kamalaksha Kant and another, (1990) (2) T.A.C. 81. The learned Counsel pointed out that in both the cases, the admitted position is that as far as expenses incurred for treatment are concerned, the 1st respondent got reimbursement of the entire amount from his employer. The learned Counsel submitted that the first respondent in both the cases were not entitled to any compensation on account of reimbursement of expenses. The learned Counsel for the appellants submitted that no interference is called for with the impugned awards as far as the claim of enhancement is concerned. The learned Counsel for the 1st respondent relied upon a decision of this Court in the case of Kersasp Ardeshir Mehta Vs. Union of India, (1986 ACJ 1002) in support of his submission on entitlement to 7 fa812,813.90.sxw receive compensation on account of medical expenses incurred notwithstanding the reimbursement made by the employer. 10. I have carefully considered the submissions in the cross-objections. In the claim petition subject matter of First Appeal No.812 of 1990, the compensation of Rs. 62,033.15 has been granted as under:- 1. Pain and suffering (injuries) and Loss of expectation of life Rs.30,000.00 2. Medical expenses over treatment Rs. 15,000.00 3. Fees paid to Dr. Sawala Rs. 250.00 4. Loss of leave Rs. 6,036.00 5. Loss of enjoyment in life Rs. 10,000.00 ------------------ Rs. 62,03315 ------------------- The first respondent stepped into witness box. He described the injuries sustained by him and stated about the surgical procedures undergone by him. The injures sustained by him as found by Dr. Modi read thus: 1. CLW 3 in by 1/2 in Bone deep. Over the bridge of the nose and the eyebrows. 2. CLW R. eyelid upper, with avulsion of the medical canthal ligament and canalicilus tear. 8 fa812,813.90.sxw 3. Right laternal canthal avulsion. 4. Avulsion of the upper layers of the cornea R. from 4 to 6 o'clock. Ant. Chamber normal, pupil normal. 5. CLW Zin. By 1/2 in bone deep right side of the bridge of nose. 6. Multiple abrasions of the forehead. 7. CLW 1/2 in. by 1/2 in subcut, deep L. Upper Lid. The first respondent stated in his evidence that he was unable to see clearly with his right eye. He stated that his right eye cannot stand the glare and he cannot read or watch the television for a long time. He stated that there was no improvement of his right eye. He also stated that after the accident, he could not drive any vehicle. He admitted that the entire amount of medical expenses were reimbursed by his employer as a special case. 11. As pointed earlier a sum of Rs. 30, 000/- has been granted on account of pain and suffering and loss of expectation of life. A sum of Rs. 10,000/- has been granted on account of loss of enjoyment of life. The learned Counsel appearing for the 1st respondent submitted that the compensation granted these two heads is on the lower side. The accident is of 1986. Looking to the nature of injuries, an enhancement of about Rs. 15000/- will have to be granted together under these two headings. 12. As far as future loss of income is concerned, the 1st respondent had been cross-examined. His cross-examination discloses that at the time of accident his salary was about Rs. 3,400/- and his salary was subsequently increased to Rs. 5,000/- and he was likely to get promotion at any time. He 9 fa812,813.90.sxw stated that the other applicant Saphapati Saran was senior to him and he was the Chief Marketing Manager, whereas he himself was serving as a Regional Sales Manager. Thus, the evidence of first respondent does not make out a case for grant of compensation on account of loss of income in future. 13. Now turning to the First Appeal No. 813 of 2010. Even in this case, compensation has been granted under the various heads. A sum of Rs. 47,274.10 has been granted on account of Medical expenses. As in other case, sum of Rs. 30,000/- has been granted on account of pain and suffering and a sum of Rs. 10,000/- has been granted on account of loss of enjoyment in life. The amounts has been granted under various other heads such as services rendered by others including his wife and travelling expenses. As far as injuries sustained by him are concerned, there is evidence adduced by the 1st respondent. In his evidence he has described the nature of injuries sustained by him. The case papers and medical certificate has been placed on record. He examined Dr. Suresh Sadanand Vengsarkar, Orthopeadic Surgeon, to prove certificate issued by him. Apart from describing the injuries sustained by the 1st respondent he deposed that the right hip joint may become arthritic in future. According to Dr. Vengsarkar the final disability was 35%. Even in this case, the claimant will be entitled to total enhancement of a sum of Rs. 15,000/- under the headings loss of enjoyment in life and pain and suffering. 14. Sabhapati Saran has also deposed before the Court as regards to medical treatment under gone by him. In the examination-in-chief he described the nature of the injuries sustained by him and he stated that his 10 fa812,813.90.sxw right leg has become stiff and there is no free movement of that leg. He stated that long walk and climbing of the staircase has become painful. He stated that his right leg has been shortened and that he cannot bend the knee. Even in this case, there is a submission that compensation granted on account of pain and suffering. loss of enjoyment in life and loss of earning in on the lower side. As far as future loss of income is concerned, as in the other case, no evidence could be produced on record in that behalf and in fact the 1st respondent stated that the salary drawn by him at the time of accident was Rs. 4,400/- which was increased to Rs. 7,000/-. He stated that his next promotion was that of Managing Director. He admitted that a sum of Rs.27,000/- was paid to him by way of reimbursement of medical expenses. 15. The learned Counsel appearing for the 1st respondent relied upon the decision of learned single Judge of this Court in the case of Kersasp Ardeshir Mehta Vs. Union of India, (1986 ACJ 1002). He submitted that the fact that the reimbursement has been received from the employer is not at all relevant and in the claim petition, the first respondent was entitled to recover the same amount from the appellants. In the aforesaid case before this Court what has been observed by this Court is that most of the employees have an upper limit on the period of sick leave and medical expenses and hence exhaustion of this concession in the period during which the applicant had undergone the treatment will have to be taken into consideration. Perusal of the said judgment shows that it does not lay down as a proposition of law that notwithstanding the reimbursement of the medical expenses by the employer, the claimant in a claim petition can recover the said amount again from the tort feasor. In a given case the 11 fa812,813.90.sxw applicant can claim that he has sustained loss due to consumption of entire leave benefit or leave concession due to incapacity on account of injury sustained in the accident. In the present case, no such material is produced on record of both the claim petitions. The entire medical expenses have been reimbursed to the first respondent in the First Appeal No. 812 of 1990. In the First Appeal No. 813 of 1990, a part of the expenses amounting to Rs. 27,000/- have been reimbursed. The 1st respondents ought not to have been given any amount on account of the medical expenses which they have received from employer. 16. Though in both cross-objections a case is made out for grant of enhancement of about Rs. 15,000/-, power under Rule 33 of Order XLI of Code of Civil Procedure,1908 will have to be exercised by reducing the amount which was received from the employer. The amount of Rs. 15000/- will have to be set off against the amount granted in excess on account of medical expenses. Hence, the compensation ultimately awarded under the impugned award is reasonable and no interference is called for. 17. Hence, I pass the following order: (i) The appeals and cross-objections are dismissed with no order as to costs. (ii) Pending Civil Applications do not survive. JUDGE