1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.920 OF 2001 Ramchandra Sakharam Yadhav, Age 46 years, Occ. Service, R/o.36/1, Tingarenagar, Near Aashirwad Mangal Karyalaya, Post Dighi, Pune-15. Appellant VERSUS 1. Deepak Bhaktiram Bhandari, Occ.Driver, R/o.Natraj Theatre Compound, Jalgaon, Dist. Jalgaon. 2. Pralhad Vitthal Choudhari, R/o.102, Advait Apartment, Shivram Nagar, Jalgaon, Dist. Jalgaon. 3. The New India Insurance Co. Ltd. Jalgaon through Satara Branch, Satara. 4. National Insurance Co. Ltd., Jalgaon. Respondents Mr.Dilip Bodake, Adv. for appellant. Mr.Abhijeet Khandarkar i/by R.D.Suryawanshi, adv. for respondents 1 & 2 Ms.Bhakti Barve for respondent no.3. CORAM : A.S.OKA, J. DATE : 02nd December 2009 JUDGEMENT :- 1. The appellant who is the original claimant in a claim petition under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the said Act") has taken exception to the judgement and award dated 15th 2 December 2000 passed by the learned Member of the Motor Accident Claims Tribunal. The appellant had initially claimed compensation of Rs. 1.25 lakhs in the claim petition which was permitted to be enhanced to Rs. 2.50 lakhs. Under the impugned judgement and award, the compensation of Rs.75,160/- has been granted to the appellant togetherwith interest @ 12% p.a. from the date of filing of the claim petition till realisation. 2. On 4th February 1994 at about 6.00 p.m. the appellant was travelling as a pillion rider on a scooter on Pune-Bangalore National Highway. The accident occurred near village Velavade-Haveli. The case of the appellant is that when the scooter was being driven by the left side of the road, a jeep came from the opposite direction and gave a dash to the scooter thereby causing grievous injuries to the appellant. the allegation made in the claim petition is that the first respondent was driving the jeep in a rash and negligent manner. The second respondent was the owner of the jeep at the relevant time and the fourth respondent was the insurer of the jeep at the relevant time. The claim was contested by the first and second respondents by filing written statement. It was contended that the scooter was being driven on the wrong side of the road. As a result it gave dash to the jeep. Even the fourth respondent contested the claim by filing written statement. The Tribunal held that the accident occurred due to rash and negligent driving of the jeep on the part of the driver of the jeep. The Tribunal calculated the loss of earning capacity at Rs.200/- per month and applied multiplier of 12 years. On account of medical expenses, a sum of Rs.26,360/- was awarded. The bifurcation of the compensation amount of Rs.70,160/- is as under :- -------------------------------------------------------------------------------------------------- (i) On account of loss of earning capacity : Rs.28,800/- (ii) On account of medical expenditure and : Rs.26,360/- incidental expenditure (iii) Damages for mental and physical shock, pain : Rs. 5,000/- and sufferings. 3 (iv) Damages to compensate for the loss of : Rs. 5,000/- amenities of life. (v) Damages for loss of expectation of life and : Rs. 5,000/- future medical expenses (vi) Damages on account of inconvenience, : Rs. 5,000/- hardship, discomfort, disappointment, frustration and mental stress in life. --------------- TOTAL : Rs.75,160/- --------------- -------------------------------------------------------------------------------------------------- 3. The learned counsel for the appellant submitted that the compensation awarded is extremely on the lower side. He invited my attention to the evidence on record. He pointed out that as per the certificate at Exhibit-40, the disability has been assessed at 34.5%. He pointed out that the certificate at Exhibit-60 issued by the employer of the applicant shows that the loss of income for the period from 4th February 1994 to 8th March 1995 was Rs.61,520/-. It is pointed out that even the amount awarded on account of medical expenditure is on the lower side. Considering the evidence on record, he submitted that going by the evidence of the medical practitioner, even in future, further amount will be required for medical treatment. He submitted that the multiplier of 12 applied by the Tribunal is on the lower side considering the fact that the age of the appellant at the relevant time was less than 40 years. 4. The learned counsel for the first and second respondents supported the impugned judgement and award and submitted that no interference is called for as the compensation amount is reasonable, just and fair. The fourth respondent is duly served and is not represented by any advocate. The third respondent is a formal party inasmuch as no relief has been claimed against the said respondent. 5. I have given careful consideration to the submissions. As regards finding of negligence and the injuries sustained by the appellant, the Tribunal has held in favour of the appellant. There is no challenge to the 4 findings recorded by the Tribunal on this aspect. 6. The appellant examined Dr.Sharad Hardikar, an Orthopedic Surgeon. He stated that the appellant was under his treatment from 28th May 1994. He stated that the appellant had sustained compound infected comminuted fracture of right tibia fibula (lower third). He stated that though the fracture was operated upon earlier, the same did not unite. He stated that the appellant was operated upon by him on 25th July 1994. He stated that the appellant was admitted to the hospital on 19th July 1994 and was discharged on 5th August 1994. He stated that the follow- up treatment continued till 9th June 1995. He stated that the expenditure incurred by the appellant was Rs.29,500/-. The doctor stated that generally such patients are advised to take nutritious diet, if necessary supplemented by tonic. He proved the disability certificate at Exhibit-40. In his cross examination he stated that the general condition of the appellant is normal except details mentioned in the disability certificate. He stated that the appellant can walk without any support up to one kilo- meter without any significant discomfort. He stated that the fracture was united and consolidated. 7. In the disability certificate at Exhibit-40 Dr.Hardikar has stated that the appellant is able to walk normally and he has joined the duties from 9th March 1995. He assessed permanent disability on account of movements loss of ankle foot component at 22.5%. The disability on account of deformity and pain was quantified at 3% each and disability on account of infection was quantified at 6%. That is how the total disability has been calculated at 34.5%. 8. The second witness examined by the appellant is one Mr.A.R.Patwardhan. The appellant was employed with Kirloskar Oil Engine Limited and the said witness was an officer in the said company. The witness produced and proved the certificate at Exhibit-60 which shows that the loss of earnings of the appellant from 4th February 1994 to 5 8th March 1995 was to the extent of Rs.61,520/-. He stated that the appellant had submitted the original medical bills to the tune of Rs. 68,000/- out of which only a sum of Rs.7,000/- was sanctioned. He deposed that the original bills were destroyed by the company. In the cross examination, the witness stated that there can be a paid leave only for a maximum period of thirty days and no separate leave can be granted on medical grounds. 9. The appellant himself stepped into the witness box. He tried to depose that he can walk only for ten to fifteen minutes. However, this statement is contrary to the evidence of Dr.Hardikar. In the cross examination he admitted that he continued to work with the said employer. He denied the suggestion that his salary is not reduced. It must be stated here that Mr.A.R.Patwardhan, an officer working with the employer of the appellant did not state that the appellant suffered any loss of income except a sum of Rs.61,520/-. He did not state that after the appellant resumed his duties, he was deprived of any increment or enhancement in the salary. 10. As far as expenditure on medical treatment is concerned, Mr.A.R.Patwardhan deposed that the bills to the tune of Rs.68,000/- were submitted by the appellant which were destroyed by the company out of which a sum of Rs.7,000/- was paid to the appellant. Therefore, a sum of Rs.61,000/- will have to be awarded on account of expenditure on medical treatment. There is no evidence to show that in future any further amount will have to be spent by the appellant on medical treatment. The appellant had to undergo two surgeries and long hospitalisation. A sum of Rs.2,000/- deserves to be granted on account of travelling expenditure. A sum of Rs.2,000/- deserves to be granted for the special diet. 11. In view of evidence of Mr.A.R.Patwardhan and certificate at Exhibit-60, the appellant ought to have been granted a sum of Rs.61,520/- on account of loss of earnings for the period from 4th February 1994 to 6 8th March 1995. Therefore, the appellant is entitled to the said amount. The loss of earning capacity has not been established by the appellant and, therefore, no compensation can be granted on the said count. As far as pain and sufferings and loss of amenities on account of disability is concerned, a total amount of Rs.20,000/- deserves to be granted. Thus, the total compensation payable to the appellant will be Rs.1,46,520/- which can be rounded off to Rs.1,47,000/- which will be inclusive of the amount paid on account of no fault liability. The Tribunal has granted compensation of Rs.75,160/- with interest thereon @ 12% p.a.. Thus, balance amount comes to Rs.71,840/-. 12. After the year 1994 there has been considerable fluctuations in the interest rates of the nationalized banks. Therefore, on the enhanced amount, the interest will have to be granted @ 7.5% p.a.. 13. Hence, I pass following order :- A) In addition to the compensation awarded to the appellant in the impugned judgement and award, the appellant is entitled to recover a sum of Rs.71,840/- jointly and severally from first, second and fourth respondents together with interest @7.5% per annum from the date of filing of the claim petition till deposit or payment of the amount; B) The appellant will be entitled to recover proportionate costs of this appeal from first, second and fourth respondents; C) Time of four months is granted to fourth respondent to deposit the amount of additional compensation with the concerned Tribunal; D) After the amount is deposited, the Tribunal shall pay the said amount to the appellant by an account payee cheque; E) The appeal is partly allowed in above terms as against first, 7 second and fourth respondents. The appeal as against third respondent stands dismissed; F) Record and proceedings be sent back to the concerned Tribunal. (A.S.OKA, J.) Kolhapure