1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1665 OF 2008 Shri Govind Kondaji Shirke ... Appellant (orig. Applicant) Vs. Mr. Bhimrao Abasaheb Khese & Ors. ... Respondents (orig.opponents) Mr. T.J.Mendon, Advocate, for the appellant. Smt. Urmila K.Sanil,Advocate, for the respondent No.2. Mr. C.M.Lokesh, i/b. Mr. G.S.Hegde & Associates, Advocates, for respondent No.3. CORAM: J.H.BHATIA,J. DATE : 24th August, 2009. P.C. 1. The appellant was travelling by S.T. Bus running between Pune and Nandurbar on 7.2.2002. According to him, a goods truck No.MWQ-7257 coming from the opposite direction gave a dash to the S.T.Bus, due to which he had suffered multiple injuries and was required to be hospitalised at Sancheti Hospital, Pune where he had taken treatment for a long time. On account of the expenses of treatment, permanent disability, pain suffering, loss of income, etc. he made a claim of Rs.10 lakhs against the truck owner and the Insurance Company who were shown as opponent Nos. 1 and 2 in the Claim Petition No. 2 437 of 2002. He did not make a claim against S.T. because, according to him, the truck driver alone was responsible for the accident. The truck owner did not appear and the matter proceeded exparte. The claim was contested only by the Insurance Company which pleaded that the accident had taken place due to the negligence of the Bus driver alone. Several issues were framed. After hearing the oral and documentary evidence, the learned Member of M.A.C.T. Pune, held that the accident had taken place due to negligence of the truck driver and the present appellant had suffered several injuries. He awarded amount of Rs. 4,44,569/- as compensation inclusive of no fault liability. The truck owner and the Insurance Company were held liable to pay that amount jointly and severally. 2. Not being satisfied with the compensation awarded, the appellant has preferred the present appeal not being satisfied with the compensation awarded. It is contended that the learned Member committed an error in not granting any compensation on account of pain and suffering, loss of income, value of service being rendered to him gratuitously by his family members, the future expenses on the prolonged treatment,loss of future income, etc. 3. Heard the learned Counsel for the parties and perused the impugned judgment and evidence on record. 3 4. The following point arises for my determination :- (i) Whether the appellant was also entitled to more compensation on account of loss of income and other claims ? 5. On perusal of the impugned judgment, it becomes clear that in the claim petition, the petitioner had not given any specifications and details as to how the claim of Rs.10 lakhs was made. On the basis of the evidence on record, the trial court found that he was hospitalised intermittently from 7.2.2002 when the accident had taken place till 25.6.2006. First time he was hospitalized from 7.2.2002 to 12.3.2002, then he was hospitalised from 1.4.2002 to 11.4.2002 and then from 28.5.2002 to 25.6.2002. He produced several bills and receipts about the hospital charges, purchase of medicines, etc. and it was proved that he had spent amount of Rs.3,04,569/-. He produced a certificate from the Dr Sandip Patwardhan of Sancheti Hospital to show that he would be required to spend about Rs.45,000/- for deformity correction for post traumatic paralytic (L) foot Equino varus.The Tribunal noted that even though the certificate was produced., neither Dr. Patwardhan nor any other competent person was examined to prove the estimated expenses and taking into consideration the circumstances, the 4 Tribunal awarded Rs.30,000/- towards future medical treatment and amount of Rs.5,000/- each was awarded towards diet and conveyance. The appellant is a resident of Pune and he was taking treatment also at the same place. The Tribunal also granted the lumpsum of Rs.1,00,000/- towards pain and suffering and future earning, if any, deprivation of pleasures of life in future. The Tribunal noted that the accident had taken place on 7.2.2002 and the appellant was due to retire on 31.3.2002. He was in service of a Panchaya Samiti at Parner as an Extension Officer and it was proved that he had received full salary for the said period i.e. from 7.2.2002 to 31.3.2002. After that he was to receive pension and there could be no loss of earning on that point. The learned Tribunal opined that as he had received the full salary for the remaining period of his service, he had not suffered any loss of income and therefore, there was no reason for granting any compensation towards the same. 6. In my considered opinion, the Tribunal committed error in refusing the loss of income from 7.2.2002 to 31.3.2002 while all other aspects of which the compensation could be claimed were duly considered and the compensation was awarded. Naturally, if he has received the salary for the period of his absence from duty due to the accident, it must have been paid to him on account of encashment of earned leave or on account of availment of commuted leave 5 on medical ground, which he could have otherwise utilised had the accident not taken place. That was the benefit, which he could avail, because of the services rendered to the Panchayat Samiti and that benefit could not be given to the Insurance Company. What he had received from the Pabnchayat Samiti was the salary of earned leave which was to his credit. Had he not availed that, he could have encashed the same on retirement and the Insurance Company would be liable to pay the salary for the period as loss of income to him. The record reveals that his gross salary was Rs.14,157/- per month. For the total period of 22 days of February and for complete month of March 2002, he would be entitled to receive salary of Rs.25,280/-. The learned Counsel for the Insurance Company vehemently contended that as per the evidence, the appellant should get only Rs.10,983/- and not more than that. I am not satisfied with this contention. His gross salary could be reduced on several grounds like the contribution to the Provident Fund, deduction towards loan taken by him. In my considered opinion, the only deduction which could be allowed from his gross salary, is income tax which was required to be paid. It is to be noted that he was working as Extension Officer with Panchayat Samiti and that his basic salary was only Rs. 9,900/- per month. Therefore, the income tax could not be much. His salary certificate showing deductions is not before the Court Therefore, I find that on account of loss of income of the said period, the appellant may be given 6 compensation rounded off to Rs.25,000/-, leaving the amount of Rs.280/- towards the income tax which could be deducted. 7. In view of the facts and circumstances noted above, the Appeal deserves to be allowed to the extent of additional compensation of Rs.25,000/- on account of loss of income. 8. The Appeal is allowed and the amount of compensation awarded by the Tribunal stands modified as Rs.4,69,569/- including the amount of Rs. 25,000/- paid on account of no fault liability. The balance amount would carry interest at the rate of 7.5% per annum from the date on which one month period expires i.e. from 27.8.2007 when the Tribunal had passed the Award. The amount, if not deposited so far, be deposited within one month from today. Appeal stands disposed of accordingly. (J.H.BHATIA,J.)