* 1 * F.A. 146.2000 18.3.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 146 OF 2000 1. Shri. Rajaram @ Rajesh Shivaji Shinde .......Appellant V/S. 1. Namdeo Maruti Birajdar & Ors. ....Respondents * * * * * Mr. M.G. Barve, Advocate for the appellant. Respondents no.1 and 2 absent despite notice. Mr. N.G. Ghotekar, Advocate for respondent no.3. CORAM :­ Smt. R.P. SondurBaldota, J. 18th March, 2011. P.C. :­ 1. This First Appeal preferred by the original claimant is for enhancement of the compensation awarded to him for the injuries sustained by him in a vehicular accident. 2. On 26th August, 1991 the appellant was proceeding on a motorcycle from Karad to Miraj. He was the pillion rider on the motor cycle which was being driven by one Uddhav, the owner of the motorcycle­original respondent no.4. When the motorcycle was near Agricultural Research * 2 * F.A. 146.2000 18.3.2011 Centre, truck bearing registration number MYE­5635 driven by original respondent no.1 came from behind and dashed against the motorcycle. With the impact, the appellant was tossed up and thrown on the road leading to fracture injury to his right leg. He therefore, filed petition claiming compensation of Rs.96,000/­ under different Heads. The petition was contested by all the respondents. The appellant examined himself and Dr. Date who had treated him. Respondent no.4, the owner of the motorcycle examined himself. On appreciation of the evidence, the Tribunal held that the accident had occurred on account of negligence on the part of the driver of the truck and there was no contribution to the negligence by original respondent no.4. It further held that on account of the injury sustained in the accident, the appellant suffered permanent disability to the extent of 15%. It then considered the claim of the appellant for compensation under different Heads and granted total compensation of Rs.51,000/­ with 12% interest on the part of compensation other than that for loss of future income and future medical expenses. The compensation granted to the appellant under different heads reads as follows : Rs.6,500/­ “ towards medical bill of Dr. Date Rs.1,500/­ towards medicinal charges. Rs.10,000/­ towards future operation and future attendance charges. * 3 * F.A. 146.2000 18.3.2011 Rs.2,000/­ towards attendance charges during accident period. Rs.6,000/­ towards pains and sufferings Rs.15,000/­ towards loss of future income (consolidated) Rs.10,000/­ towards loss of amenities.” 3. Being dissatisfied with the quantum of compensation, the appellant filed this appeal contending that the award is abysmally meagre and unjust. 4. The brief facts that are required to be stated to appreciate the correctness or otherwise of the quantum of compensation awarded by the tribunal are that the main injury suffered by the appellant in the accident was of fracture to his right leg. After the accident he was taken to Dr. Date’s clinic, where it was discovered that the fracture was to the right femur bone. He was admitted to the hospital on that day and his right thigh was operated upon and artificial plates and screws were fixed. He was discharged on 6th September 1991. Dr. date issued a disability certificate at Exhibit­74 certifying that the appellant suffered functional permanent disability to the extent of 15%. The certificate does not specify the actual nature of disability. 5. The tribunal noted that, though the appellant had claimed Rs. 17,000/­ under the head of expenses of medical treatment, he could produce evidence to support the claim only to the extent of Rs.6,500/­. * 4 * F.A. 146.2000 18.3.2011 The evidence produced was the medical bill issued by Dr. Date of Rs, 6,500/­ (Exhibit 69), which included items like consultation fees, x­ray fees, lodging medicines, injections, saline, implants, anaesthesist charges and operation fees. It was contended by the appellant that further medicines had been purchased by his relatives, the bills for which have not been retained. The Tribunal considering the nature of the injuries and medical treatment undergone by the appellant, despite non­ production of the evidence in support, granted an additional and reasonable amount of Rs.1500/­. This grant of compensation towards medical expenses is thus seen to be absolutely fair and reasonable in the circumstances of the case. 6. The appellant had claimed an amount of Rs.5,000/­ under the head of future medical treatment. Dr. Date, in his evidence stated that the approximate expenses for removal of plates and screws would of Rs. 5,000/­ to 6,000/­ and further Rs.5,000/­ will be required as expenditure of hospital. Based on his evidence, the Tribunal granted an amount of Rs.10,000/­ under the head of future medical treatment and future attendant charges. This means that the Tribunal has granted almost the entire amount demanded by the appellant. Therefore, no complaint can be entertained in respect of this head. * 5 * F.A. 146.2000 18.3.2011 7. For the attendant charges, the appellant claimed an amount of Rs. 4,000/­ and the tribunal awarded to him Rs.2,000/­. The appellant in his evidence had stated that he was hospitalised for 1 months. This ½ statement however, is falsified by the evidence of his own witness, i.e. Dr. Date, who stated that the appellant was in the hospital for only 10 days. According to the deposition of the appellant after he was discharged from the hospital, he was confined to bed for about six months to one year, whereas the evidence of Dr. Date is that the appellant was advised to take rest for about three months. The appellant has obviously overstated his case to claim higher compensation. Therefore, the Tribunal has rightly granted attendance charges of Rs.2,000/­. It has also granted compensation under the head of pain and suffering of Rs.6,000/­. Considering the nature of the injury sustained by the appellant, the compensation cannot be said to be unreasonable. 8. The next head under which the appellant claimed compensation was loss of income, during the period of treatment. He claimed an amount of Rs.20,000/­ for the same. According to the appellant, he used to cultivate his agricultural field. During the period of his confinement, the agricultural field was neglected and therefore he suffered loss of Rs. 20,000/­. He claimed that, he was doing all jobs required in cultivation of * 6 * F.A. 146.2000 18.3.2011 the field. The evidence of 7/12 extract, however, shows that the 2 acres of land, that is claimed to be cultivated by the appellant exclusively for his own benefit stands in the name of his father and father’s three brothers. This means the appellant does not have any present right either to the agricultural land or to the income derived from the land. Apart from this, the appellant himself also has a brother. In view of these facts, the Tribunal did not believe the word of the appellant that he alone was doing the work of cultivation of the field to the exclusion of others. The Tribunal also noted that considering the extent of the area of the land held by the appellant’s family, it is really doubtful whether the appellant was doing the work of cultivation of the field or doing any agricultural labour. The Tribunal next found that the claim of the appellant that the field was giving total yield of Rs.15,000/­ to 16,000/­ per annum was exaggerated. The 7/12 extract produced by the appellant shows that crop of Shalu was cultivated from the field in acre of the ½ land by each brother. Therefore, even if the claim of the appellant that he was working on the agricultural land of his father is to be accepted, he would be cultivating only acre of land. Considering these facts and ½ the evidence, the Tribunal has rightly rejected the claim of loss of income of Rs.20,000/­ during the period of treatment. In the claim petition, the * 7 * F.A. 146.2000 18.3.2011 appellant has shown his occupation as education, agriculture and agricultural labourer. In view of the evidence before the court, his claim of occupation of agriculture and agricultural labourer has been rightly rejected by the trial court. He has been rightly treated only as a student at the time of the claim petition. 9. The next head under which the appellant claims compensation is the Head of loss of future income. The appellant claimed a sum of Rs. 30,000/­ thereunder. The appellant has not in his evidence set out any other activity as the activity of earning his livelihood. As per his evidence, he holds a degree of Bachelor of Commerce. The Tribunal noted that the disability suffered by the appellant was of functional disability of 15% as per the certificate issued by Dr. Date. In the evidence Dr. Date, opined the patient finds difficulty in walking or climbing “ staircase. He cannot sit with crossed legs and also perform any agricultural work.” Dr. Date has not specified the nature of agricultural work that the appellant would find difficult to do. The agricultural work involves several activities that do not involve sitting cross­legged or climbing of staircase. Apart from it, the Tribunal held that it is immaterial whether the appellant would perform agricultural work in future or not, because his claim that he was doing agricultural work has * 8 * F.A. 146.2000 18.3.2011 been rejected for the reasons stated above. It, however, noted the fact that the appellant’s efficiency of the right leg has been reduced to some extent because of 15% loss of functional disability. This would mean that the right leg of the appellant would not work as effectively and efficiently as it was working previously and naturally whatever work to be undertaken by the appellant would be with reduced physical efficiency. 10. The Apex Court in it’s recent decision in Raj Kumar V/s. Ajay Kumar and another reported in 2011 ACJ Volume 1 page 1 has set out detailed guidelines for award of compensation to accident victims on account of the injuries sustained in the accident. The decision enumerates different heads under which compensation can be claimed by an accident victim. One of heads thereunder is loss of future earnings on account of permanent disability. While discussing the principles for assessment of future loss of income due to permanent disability, the Apex Court has held that the Tribunal has to first decide whether there is any permanent disability and if so, the extent of permanent disability. After it ascertains actual extent of permanent disability based on medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. It has further elaborated the * 9 * F.A. 146.2000 18.3.2011 assessment at paragraph­10 as follows :­ 10. Ascertainment of the effect of the permanent disability on “ the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation * 10 * F.A. 146.2000 18.3.2011 is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.” The Apex Court has further noted that in certain cases the two Heads i.e. head of loss of future earning capacity and the loss of amenities or loss of expectation of life may collapse and the compensation granted for loss of future earning capacity would either completely cover the loss of amenities or loss of expectation for life or a nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life so as to avoid duplication. In the instant case, the Court has awarded a consolidated amount of Rs. 15,000/­ for the reduced physical efficiency of the appellant for any work that he may undertake. This amount has been granted despite there being no evidence whatsoever, as regards his earning. The Court has granted an additional amount of Rs.10,000/­ towards the loss of amenities” “ observing that the appellant would not be in a position to enjoy life to its brink. Mr. Barve, the learned counsel for the appellant, submits that the Tribunal could have awarded compensation to the appellant under * 11 * F.A. 146.2000 18.3.2011 the head of future loss of earning capacity atleast as an agricultural labourer or on the basis of minimum wages under the Employment Guarantee Scheme, for the area where the appellant stays at Rs.50/­ per day. According to him, by taking this amount, the Court ought to have calculated the amount of compensation payable to the appellant by adopting the Second Schedule under Section 163A of the Motor Vehicles Act. He submits that the Court could also have taken the notional income provided for in the Second Schedule of Rs.15,000/­ per annum for compensation to a person who had no income prior to the accident. In the case of fatal and disability in non­fatal accidents, the notional income provided for in the Second Schedule is of Rs.15,000/­ per annum. According to him, 15% of this amount ought to have been awarded to the appellant. 11. It is not the case of the appellant that he is enjoying any benefit under the Employment Guarantee Scheme, hence, the minimum wages of Rs.50/­ per day provided under the Employment Guarantee Scheme cannot be taken into account. Similarly, any provision under law for an agricultural labourer can also not be taken into account because as has been rightly held by the Tribunal, the appellant is neither an agriculturist nor an agricultural labourer. That leaves the notional * 12 * F.A. 146.2000 18.3.2011 income provided under the Second Schedule under Section 163A of the Motor Vehicles Act. Even that amount cannot be taken into consideration because that is to be resorted to only in the case of a person who had no income prior to the accident. In the instant case, it has not been the case of the appellant that he had no income prior to the accident. On the contrary, it has been his case that he did have some income prior to the accident. However, he was not able to justify the same. It is required to be noted here once again that the appellant has resorted to falsehood in his evidence as regards his hospitalisation, his medical bills as also his activity as an agriculturist. Therefore, in my opinion, the Tribunal has rightly granted the consolidated amount of Rs.15,000/­ under the Head of loss of future income and a sum of Rs.10,000/­ for loss of amenities in future. Hence, the impugned judgment and order does not require any interference by this court. The appeal is dismissed with costs. [SMT. R.P. SONDURBALDOTA, J]