1 FH fa.542.95 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 542 OF 1995 Hindurao alias Baburao Rangrao Jadhav, Kolhapur. ... Appellant Versus 1 The Inspector General of Police, Maharashtra State, Poona. 2 Revindra Dattatraya Kale, Poona. 3 Director of Insurance Fund, Maharashtra State, Bombay – 400 032. 4 The State of Maharashtra, through the Collector, Kolhapur. ... Respondents ­­­­­­­­ Mr. Sandeep J. Ghogare for the Appellant. Mr. A.R.Patil, AGP for the Respondents. ­­­­­­­­ CORAM : A.S.OKA, J. DATE : 21 st December, 2010. JUDGMENT: 1 The original claimant in claim petition under Section 110 (A) of the Motor Vehicles Act, 1939 has taken an exception to the judgment and award dated 29 th December, 1994 passed by the learned Member of the Motor Accidents Claims Tribunal. By the impugned judgment and award, compensation of Rs.50,000/­ was granted by the learned Member 2 FH fa.542.95 of the Tribunal to the Appellant together with interest at the rate of 12% per annum from the date of institution of the claim petition. 2 The Appellant was proceeding from Bahirewadi to Kolhapur by a motorcycle on 25 th May, 1983. At that time, an Ambassador car came from the opposite direction and gave a dash to the motorcycle. As a result of the dash, the Appellant sustained injuries and became unconscious. Claim petition was filed by the Appellant claiming compensation of Rs.2,00,000/­. The offending Ambassador car was owned by the 4 th respondent – State of Maharashtra, which was being used by the department of the 1 st respondent. The 2 nd respondent was the driver of the car and the 3 rd respondent was the insurer of the car. 3 The claim was contested by the Respondents by filing written statement. It was contended that the accident occurred due to rash and negligent driving of the motor­cycle by the Appellant. After considering the evidence, the learned Member of the Tribunal held that there was no fault on the part of the Appellant and the accident occurred due to rash and negligent driving of the 2 nd respondent who was driving the Ambassador car. 4 The learned counsel appearing for the Appellant has taken the Court through the record of the case and oral as well as documentary evidence. He pointed out that the appellant’s leg was required to be 3 FH fa.542.95 amputated due to the injuries sustained in the accident. He pointed out that considering the nature of treatment undergone by the Appellant, the compensation of at least Rs.50,000/­ ought to have been awarded for cost of medical expenses. He submitted that the loss of income of the Appellant has not been considered by the Tribunal. He pointed out that compensation granted on account of disability is nominal considering the amputation of one leg. He submitted that in fact, the claim made by the Appellant is on the lower side and the Appellant was entitled to compensation of a sum exceeding a sum of Rs.2,00,000/­. The learned AGP supported the impugned judgment and award. He submitted that there was no evidence of income of the Appellant and in any case, loss of earning capacity was not proved by the Appellant. He, therefore, submitted that the compensation granted is reasonable and no interference is called for. 5 I have given careful consideration to the submissions. The breakup of compensation of Rs.50,000/­ granted by the Tribunal is as under: “i) Compensation for permanent disability. Rs.25,000/­ ii) Compensation for expenses of motor cycle repairs. Rs. 3,500/­ iii) Compensation for expenses of travelling, hotel, boarding etc. Rs.10,000/­ iv) Compensation for expenses on special diet. Rs. 2,000/­ v) Compensation for expenses of medical treatment. Rs. 7,500/­ 4 FH fa.542.95 vi) Compensation for pains, sufferings, and physical discomfort etc. Rs. 2,000/­ Total Rs.50,000/­” 6 It will be necessary to make a reference to the evidence adduced by the Appellant. It is not necessary to consider the aspect of negligence as the finding on this aspect against the driver of the car has not been challenged by the Respondents. The injuries sustained by the Appellant are noted in the certificate issued by the Medical Officer, which is at Exhibit – 49. It records that he sustained crush injuries of anterior half of right foot from dorsum to sole. Apart from the crush injuries, he sustained fracture of right tibia middle 1/3, right femur at the junction of upper 1/3 and lower 1/3. Apart from the said injuries, he sustained three CLWs, which are noted in the certificate. 7 The Appellant stated in his evidence that initially he was admitted in the hospital of the Dr. N.D.Bhosale. On advise of Dr.N.D.Bhosale, on 27 th May, 1983, he was admitted to hospital of Dr.J.S.Kulkarni at Miraj. He was hospitalized for 38 days. He stated that he underwent two surgeries of thigh and grafting of the bone of the thigh was done. The Appellant was granted discharge and he got admitted in the hospital of sugar factory at Warana from 4 th July, 1983 to 15 th July, 1983. He stated that he was advised to take bed rest and he was 5 FH fa.542.95 continuously under treatment for a period of two years. He stated that as a result of amputation, he got artificial foot fitted at Sancheti Hospital, Pune, which ultimately did not suit him. Thereafter, he went to Military Hospital, Pune and another artificial limb was fitted, which again was not suitable for him. Thereafter, he had proceeded to Jaipur. After taking measurement, he was called after three months and artificial foot was provided to him. However, the same was again required to be changed in June, 1993, when the doctors fitted an artificial limb, which is being used by the Appellant. He stated that apart from all this, in the year 1985, he had to undergo a surgery for removal of the bar, which was fitted in his right thigh. He stated that in May 1986, he was required to be hospitalized due to pain. He stated that he incurred expenditure of Rs. 30,000/­. He stated that a sum of Rs.20,000/­ was spent by his family members on travelling, food and accommodation during the time when he was admitted in hospitals. He claimed a sum of Rs.20,000/­ on his own travelling and a sum of Rs.15,000/­ on special diet. 8 As far as his income is concerned, he stated that he was cultivating the field of Ramchandra Ganpati Patil on half crop basis. He stated that the sugarcane crop taken by him was supplied to Warana Sugar Factory. He relied upon the certificate issued by the said sugar factory and 7x12 extracts of the land held by the said Ramchandra Ganpati Patil. He claimed that he was earing profit of Rs.30,000/­ per year by cultivating the said field. 6 FH fa.542.95 9 The Appellant examined one Shamrao Ganpati Latgaonkar in support of his claim that sum of Rs.4,500/­ was required for repair of the motorcycle. The 4 th witness examined by the Appellant is Pandurang Raghunath Patil, who is the brother­in­law of the Appellant. He has deposed about the treatment given to the Appellant and the fact that at Miraj, he had taken one room on rent for himself and his sister as the Appellant was hospitalized in the hospital at Miraj for a considerable long time. 10 The said Ramchandra Ganpati Patil, whose land was being cultivated by the Appellant was also examined. His version is that the Appellant was getting annual income of Rs.10,000/­ to Rs.12,000/­. The Appellant also examined one Vasant Tatoba Jadhav, who was working as an accounts clerk in Warana Sugar Factory, who deposed that sugarcane crop of the filed of Ramchandra Ganpati Patil was supplied to the sugar factory in the name of the Appellant. 11 The Appellant also examined Dr.M.G.Kulkarni, who was working as orthopedic surgeon in the hospital of Dr.G.S.Kulkarni. He proved in evidence a certificate at Exhibit – 205. Dr.Arvind Sitaram Kamable, who was working as Medical Officer in C.P.R. Hospital, Kolhapur was examined to prove the certificate at Exhibit – 49. Dr.Sudhakar Vishwnath Kore was examined to prove the disability at 7 FH fa.542.95 Exhibit­52. He certified the permanent disability of the Appellant to the extent of 45%. The disability certificate is at Exhibit – 52, which also record that an artificial limb has been fitted. 12 The learned Member of the Tribunal has denied compensation on account of loss of earnings merely on the ground that in the claim petition, his monthly income was stated to be Rs.500/­. The learned Member ignored the evidence of the sale of sugarcane in the name of the Appellant to the Warana Sugar Factory. There was no reason for the learned Judge to disbelieve the evidence of Ramchandra Ganpati Patil, who stated that the Appellant was cultivating his agricultural land from 1979 to 1983 as a partner. He estimated the annual income of the Appellant at Rs.10,000/­ to Rs.12,000/­ per annum. There was corresponding evidence of sale of sugarcane to Warana Sugar Factory in the name of the Appellant. In the circumstances, income of the Appellant before the accident could have been taken at reasonable amount of Rs.10,000/­ per annum. The appellant was fitted an artificial limb in June 1993 which suited him. Thus, it can be safely stated that there was complete loss of income at least from June 1983 to June 1993 i.e. a sum of Rs.1,00,000/­. 13 As pointed out earlier, compensation on account of permanent disability has been granted at Rs.25,000/­. The said amount ought to have been minimum Rs.50,000/­. Looking to the amputation 8 FH fa.542.95 and prolonged treatment, even the compensation on the ground of pain and suffering could not have been less than Rs.35,000/­. Considering the prolonged hospitalization and the surgeries undergone by the Appellant, compensation granted on account of medical expenses and conveyance of Rs.7,500/­ and Rs.10,000/­ respectively is again on the lower side. Thus, even if no amount is granted on account of loss of income from June 1993, the compensation will not be less than Rs. 2,00,000/­. The claim made by the Appellant is Rs.2,00,000/­. Therefore, the entire claim ought to have been awarded. 14 During last few years, the rates of interest on fixed deposits of the nationalized banks have been considerably reduced. Hence, on the enhanced amount, interest will have to be granted at the rate of 9% per annum. 15 Hence, I pass the following order: i. In addition to the compensation granted under the impugned award, the Appellant will be entitled to compensation of Rs.1,50,000/­ with interest at the rate of 9% per annum from the date of filing of the claim petition till realization or deposit of the amount ; 9 FH fa.542.95 ii. The Appellant shall be also entitled to proportionate costs throughout ; iii. Time of three months is granted to the Respondents to comply with the modified award by depositing excess amount with the Tribunal ; iv. After the amount is deposited, the Tribunal will pass appropriate order regarding investment/ withdrawal of the said amount. [ A.S.OKA, J ]