1 fa650 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.650 OF 1994 Dr.Raghavendra Narayanrao Deshmukh ...Appellant vs. 1 Suchasingh Suratsingh 1-A Balvinder Singh S/oSuchasingh 2 The Divisional Manager National Insurance Co.Ltd. ...Respondents Mr.C.M.Lokesh for the appellant Ms A.A.Agarwal for the respondent no.2 CORAM :A.S.OKA,J. DATE :DECEMBER 23,2010 ORAL JUDGMENT : 1 Heard the learned counsel for the appellant and the learned counsel for the respondent and the learned counsel for the second respondent. The appellant is the claimant in a claim petition filed under section 166 of the Motor Vehicles Act,1988. At the relevant time the appellant was the District Health Officer of Zilla Parishad who was travelling by a jeep owned by the State Government on 30 th September 1984 from Vajreshwari to Thane. According to his case, the jeep was being driven in the slow speed on correct side of the road. At that time a truck which was driven by the original opponent no.1 which was owned by the opponent no.2 (respondent no. 1 herein) came from the opposite direction in a very high speed. According to the case of the appellant, the truck gave a violent dash to the jeep. As a result, the appellant and other persons travelling in the jeep were injured. The allegation is that the driver of the truck 2 fa650 was driving the vehicle in rash and negligent manner. The claim for compensation was made by the appellant in the sum of Rs.2,00,000/- claiming the said amount on account of personal injuries sustained by him. There were two written statements filed by the second respondent (opponent no.3A). The said respondent was impleaded as the insurer of the offending truck. The contention raised by the second respondent was that the negligence was on the part of the driver of the jeep. The second contention was that though the concerned Development Officer had issued a cover note, the record of the insurance company does not show that the premium of the policy was paid. It is contended that the cover note was canceled and therefore, the vehicle was not validly insured. It must be stated here that respondent no.1A was brought on record of the claim petition as legal representative of the second opponent to the claim petition. 2 The parties adduced evidence. After examining the evidence, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the truck and there was no negligence by the driver of the jeep. The Tribunal further held that though legal representative of the opponent no.2 was brought on record, the claim petition stood abated on 24 th December 1986 against the 2 nd opponent and therefore, the claim could not have proceeded further as there was no prayer made by the appellant for setting aside the abatement. The Tribunal accepted the evidence of one Ranganathan Raman, an Officer of the second respondent to the effect that cover note was not valid as premium was not paid. Without discussing the issue of quantum, the claim petition was dismissed. 3 fa650 3 The present appeal is preferred by the Appellant who is the original claimant. This Court by detailed order dated 5th May 2010 observed that there is already a finding recorded that the accident occurred due to negligence on the part of the driver of the truck which was insured with the second respondent. This Court also held that on the date of accident, the truck was validly insured with the second respondent. However, as no finding was recorded by the Tribunal on the quantum of compensation, this Court remitted the matter with direction to the Tribunal to record a finding on the issue of quantum. Accordingly, by Judgment and Order dated 21st September 2010, the learned Member of the Motor Accident Claims Tribunal has held that the appellant is entitled to compensation of Rs.95,800/- inclusive of no fault liability of Rs.7,500/- already awarded to him. 4 The learned counsel for the appellant has tendered objections to the said findings on various grounds. 5 The submission of the learned counsel for the appellant is that loss of income in future is not at all considered by the learned Member of the Tribunal. It is submitted that the appellant is suffering from 49.87% permanent disability and being a Doctor, chances of promotion stand completed defeated. His submission is that while taking double the income as the basis, the compensation ought to have been granted on account of further loss of income. It is submitted that the compensation of Rs.15,000/- ought to have been granted on account of special diet and conveyance. It is submitted that the compensation of Rs.20,000/- ought to have been granted on account of mental pain and sufferings and sum 4 fa650 of Rs.50,000/- on account of loss of enjoyment and emanation. 6 The learned counsel for the second respondent submitted that after granting compensation of Rs.60,000/- on account of permanent disability, separate compensation under the heads of mental shock, pain, mental agony and loss of enjoyment and emanation in life could not have been granted. Her submission is that there is no evidence adduced to show that the appellant incurred expenditure especially when the appellant was a Government Servant and has undergone the treatment in the civil hospital. 7 I have carefully considered the submissions. I have perused the evidence adduced by the appellant. As far as loss of income is concerned, the appellant has merely stated that he was compelled to join the side post. In the examination-in-chief, the appellant has not made out a specific case that he was denied the promotion to a particular post. The appellant has not examined any Superior Officer or Government Officer to prove that but for disability sustained by the appellant he was denied the promotion and/or chances of promotion were adversely affected. The appellant continued to be in the Government employment. The submission of the learned counsel for the appellant was that after retirement, the appellant will not be in position to earn any income. The fact remains that the appellant continued to be in the employment of the State Government even after the accident. Therefore, compensation of Rs.5800/- on account of loss of leave for a period of two months granted by the learned Member of the Tribunal is reasonable and no enhancement can be granted in that behalf. 5 fa650 8 As far as the proof of injuries sustained by the appellant are concerned, Dr.Govind Namdeorao Borulkar the then Civil Surgeon of Government Hospital at Thane was examined. In paragraph 2 of his deposition, he stated thus : 2 On 30-9-1984 the applicant Deshmukh was admitted in the Civil Hospital at Thane. He was admitted with a history of injuries in a motor accident. On the same day I examined him at 9.00 p.m. On examining the applicant, I had found that there was a fracture of accetalpulum of right side. Accetabulum is a part of the palvis i.e. A cavity where the head of the femur bone is fixed. There was also a dislocation of right hip joint. On the same night at about 10.00 p.m the patient was taken for operation. Myself and Dr.Thopadic Surgeon Dr.Mukhi has performed the operation. The dislocated head of femur bone was relocated the pelvis cavity under general anasthtia... 9 He proved the medical certificate at Exh.60 issued by him. The witness also proved the disability certificate at exh.61. As far as disability is concerned, the witness stated thus : 5...I had found that there was a partial Anoylosis of right hip joint along with partial restriction of movements of right hip joint. The restriction was to the extent of 25 degrees. I had found that in respect of the right hip joint, there was a permanent 6 fa650 disability to the extent of 49.87%. I had then issued a certificate... 10 All this has been considered by the learned Member of the Tribunal and therefore, a sum of Rs.60,000/- has been awarded on account of disability. It must be noted here that this Court is dealing with the accident of September 1984 and therefore, the amount granted on account of disability is reasonable. 11 To some extent, the grievance made by the learned counsel for the second respondent that separate compensation could not have been granted under the heads of physical pain and mental agony as well as loss of amenities and enjoyment in life, is correct. However, it must be noted that Dr.Borulkar has stated that the appellant will have to walk through out the life with the help of crutches. Moreover, permanent disability to the extent of 49.87% has been assessed in respect of hip joint. Total compensation of Rs.25,000/- ought to have been granted on this ground which has been bifurcated into two headings by the learned Member of the Tribunal. However, he has granted total compensation of Rs. 25,000/-. Therefore, there is no reason to disturb the finding of the learned Member of the Tribunal. The learned Member of the Tribunal has granted an amount of Rs.5000/- on account of expenses incurred by the relatives on their food, residence, conveyance as well as special diet. It cannot be ignored that the appellant was hospitalised for more than one and half months. He underwent the surgical procedure. It is true that he has not produced a single bill on account of expenditure incurred by him. However, it cannot be said that merely because he was a government employee and he underwent the treatment in civil hospital he has not incurred any 7 fa650 expenditure on medical treatment. Compensation granted on account of expenditure incurred by the family members of the appellant on their food, residence, conveyance as well as special diet is also on lower side. On account of medical expenses as well as expenses incurred by the relatives and on special diet, total amount of Rs. 20,000/- deserves to be granted. Hence, the amount granted by the learned Member will have to be enhanced to Rs.1,10,800/- which will be inclusive of the amount payable to the appellant under section 92-A of the Motor Vehicles Act,1939. 12 Though the claim petition is of the year 1985, in the recent past, the rates of interest of nationalised banks have been considerably reduced. Therefore, interest will have to be granted at the rate of 8% p.a. Hence, the appeal must succeed in part. 13 Hence, I pass the following order : i) Impugned Judgment and Award is quashed and set aside. ii)The claim petition is partly allowed. iii)There will be joint and several Award against the opponent no.2-A and opponent nos.3A in the claim petition in the sum of Rs.1,10,800/- which shall carry the interest at rate of 8% p.a from the date of filing of claim petition till realisation or deposit of the amount. iv)The opponent no.3A (second respondent herein) is granted time of four months to deposit the amount with the Tribunal. v) The appellant is entitled to proportionate costs throughout as against the opponent no.2A and 3A in the claim petition. 8 fa650 vi)The appeal is partly allowed in above terms. JUDGE