J-fa635.06.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.635 OF 2006
Shri Ramesh s/o. Deoraoji Admane,
Aged 49 years,
Occupation : Business,
R/o. Deoli, Tahsil Deoli,
District Wardha. : APPELLANT
...VERSUS...
1. Kishore s/o. Bhikamchand Rathi,
Aged Major, Occu.: Business,
R/o. 12, Vikas Nagar, Nagpur.
2. National Insurance Company Ltd.,
through its Branch Manager,
Laxmi Bhavan Chowk, Dharampeth,
Nagpur. : RESPONDENTS
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Shri M.R. Joharapurkar, Advocate for the Appellant.
Shri A.A. Bade, Advocate for the Respondent No.1.
Shri G.N. Khanzode, Advocate for Respondent No2.
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CORAM : S.B. SHUKRE, J.
th DATE : 8 NOVEMBER, 2017.
ORAL JUDGMENT :
1. This appeal challenges legality and correctness of the judgment and order dated 28th July, 2003, rendered in Claim Petition No.113/1998 by the Chairman, Motor Accident Claims Tribunal, Nagpur ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 2/11 on the ground that compensation awarded by the Tribunal is inadequate.
2. It so happened that on 22.8.1990, when the appellant was riding a motorcycle at a spot near village Butibori on Nagpur-Wardha Road, a Premier Padmini Car bearing registration No.MH-31-2008 came from the opposite direction and dashed against the right side of the motorcycle rode by the appellant. At that time, there was also one pillion rider on the motorcycle. The appellant as well as pillion rider fell down on the ground and sustained serious injuries. The appellant sustained fracture to his right leg. He was taken to hospital of Dr. Babhulkar where he was treated for about 5 days and discharged later on. At that time, the appellant was carrying on the business of execution of civil works on contract and had in his hand one work belonging to Sindi Agricultural Produce Marketing Committee. This work could not be completed by him because of the injuries suffered by him. Ultimately, the injuries suffered by the appellant resulted in his sustaining of permanent disability to the extent of 52%, which made the appellant stop his business of execution of civil works on contract. He lost his income. In order to indemnify his lossess the appellant filed a claim petition under Section 166 of the Motor Vehicles Act (in short, "MV Act").
3. The petition was resisted by the respondent No.1 owner of the offending vehicle Premier Padmini Car and respondent No.2 the insurer of the offending vehicle. Both of them admitted ownership and insurance, but denied that there was any fault on the part of the driver of ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 3/11 the offending vehicle in causing of the accident. They also submitted that the appellant was not entitled to receive any compensation.
4. By consideration of the evidence available on record, the Tribunal found that the appellant was entitled to receive total compensation of Rs.1,00,000/- only on the basis of fault liability of respondent Nos.1 and 2 together with interest at the rate of 9% p.a. and accordingly, the Tribunal partly allowed the claim petition by the impugned judgment and order.
5. I have heard learned counsel for the appellant and learned counsel for the respondent. I have gone through the record of the case including the impugned judgment and order.
6. Now, the only point which arises for my determination is :
Whether the compensation granted by the Tribunal is just and proper ?
7. I must make it clear here that this appeal has been preferred by the appellant who has raised injury claim by filing a petition under Section 166 of the Motor Vehicles Act. The appellant's grievance is that the compensation granted by the Tribunal is quite inadequate. According to him, not all the medical expenses claimed by him, not the entire amount of loss of earnings claimed by him and not the compensation under non-pecuniary heads like pain, agony and trauma, loss of natural faculties and transportation charges as claimed by him have been granted by the Tribunal. According to the learned counsel for the appellant, ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 4/11 there was sufficient evidence brought on record by the appellant, but this evidence was ignored by the Tribunal. He submits that there was discharge certificate (Exh.-37) which clearly showed that the appellant had suffered 52% permanent disability, that there was also a copy of notice (Exh.-42) which showed that the appellant was sought to be penalized by Seloo A.P.M.C. for not executing the civil works allotted to him in time and that there were also income tax papers (Exhs.-43 and
44) which showed that the appellant was a civil contractor. He also submits that if this evidence had been properly appreciated by the Tribunal, only conclusion that would have been made by it was that the appellant was a civil contractor, who lost his ability to execute the civil works to the extent of 52% after the accident and if such a conclusion was made by the Tribunal, the compensation claimed by the appellant under various heads would have been granted fully or substantially. But, he submits, that is not the case here and it is only because of the wrong appreciation of evidence available on record.
8. I do not think that the argument so made can be accepted in the facts and circumstances of the present case. Although the appellant stated before the Court that he incurred medical expenses of Rs.10,000/- while in the private hospital of Dr. Babhulkar, further incurred expenses of Rs.15,000/- towards hospital charges, medicines and misc. expenses, he did not produce any bills to support his such a claim. He put forward a lame excuse that all those bills were retained by his son-in-law and ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 5/11 because of his death, those could not be produced in evidence before the Court. The learned Chairman of the Tribunal has effectively dealt with such evidence of the appellant. It concluded that in ordinary course of nature, there is no reason for anybody to keep the medical bills with his son-in-law and if there is any special reason for doing so, it ought to have been brought to light by the appellant, but that was not to be. Even otherwise, the medical expenses and other expenses, whenever they are incurred, bills and vouchers are always issued by the authority or the persons to whom they are paid. They also maintain record of these bills and vouchers and, therefore, it is not impossible for a person incurring such expenses to adduce secondary evidence or at least examine the person who have received the payments. But, the appellant did not do so and, therefore, his evidence in this regard was ignored by the Tribunal and rightly so. But, at the same time adopting a humanitarian approach, the Tribunal found that because the appellant was required to take medical treatment as an indoor patient, he must have incurred some expenses for such treatment and therefore the Tribunal granted compensation of Rs.25,000/- under the head of general expenditure including medical expenses, attendance charges and other incidental expenses and rightly so.
9. The appellant grumbles that he has not been granted appropriate compensation for loss of his businesses during his hospitalization. Even about this, there is no specific evidence led by the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 6/11 appellant and yet, the Tribunal, again being sympathetic and humanistic, granted compensation of Rs.25,000/- under the head of loss of business during the period of hospitalization and medical treatment of the appellant, and rightly so.
10. It is also seen from the impugned order that although there was no evidence specifically adduced by the appellant to prove his claim as regards incurring of transportation charges, by generalization, the Tribunal has granted compensation of Rs.5,000/- under this head and I do not think that such grant of compensation can be said to be unreasonable in the present case.
11. The main contention of the appellant is that the Tribunal ought to have determined annual income of the appellant and then adopting an appropriate multiplier, ought to have calculated loss of income of the appellant to the extent of 52% commensurate with permanent disability of the appellant which was of 52%. However, on perusal of the evidence of the appellant as well as the documents like Exh.-42,43 and 44, I find that these documents do not bring on record any material circumstances to assist the Court in this regard in any manner. Exh.-42 is a document which shows that appellant was sought to be panalized for non-execution of the civil works allotted to him by Seloo A.P.M.C. and nothing more. It does not say that some penalty indeed visited the appellant for his failure to execute the civil works, rather there is no evidence to show that the appellant did not complete ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 7/11 the civil work after the incident. On the contrary, the evidence of PW 3 Vitthal, to whom this work was later on entrusted by the appellant for it's completion shows that on a remuneration of Rs.4,000/- paid to him, he completed the unfinished civil work. So, the document at Exh.-43 does not lead us any where nor is there any evidence to show that Seloo A.P.M.C. civil work was lost by the appellant because of the accident and he was also penalized for the same.
12. The documents Exhs.-43 as well as 44, which are respectively the assessment order of the income tax department and income tax clearance certificate do not show that the appellant was a registered civil contractor. These documents are based upon the income tax returns filled up and submitted by the appellant. If in the income tax return, the appellant had showed himself to be a civil contractor and accordingly filed his returns, these documents would also reflect the same thing, but these documents cannot be taken as proof of business authentically and regularly carried out by the appellant. For that matter, his registration as a civil contractor is necessary and I could not see any evidence having been adduced in this regard by the appellant nor the learned counsel for the appellant could show to me existence of any such evidence on record. On the contrary, the appellant who has examined himself as PW 1 has claimed in his evidence that his occupation is of an agriculturist. In his examination-in-chief he has nowhere stated that his regular occupation is of a civil contractor. He has not said anything about his registration as ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 8/11 civil contractor. He has also not stated anything about the nature of civil works that he used to execute regularly before the accident. Just one passing reference in his examination-in-chief has been made by him and it is to the effect "I was executing contractual work at that time, but I received notice of Sindi Krishi Utpanna Bazar Samiti to take action as I was unable to complete that work.". This would only show that whatever he was doing at that time was only execution of one civil work allotted to him by Sindi A.P.M.C. and nothing more. Such passing remark cannot taken to be an assertion of the fact that the appellant was regularly carrying on his business as a civil contractor which was his main source of livelihood or that he was a recognized or registered civil contractor.
13. Such being nature of the appellant's evidence adduced by the appellant, I find that there is no way that a finding could be recorded that the appellant was carrying on his business as a civil contractor and after the accident, his ability to execute the civil works was greatly affected. The argument of learned counsel for the appellant made in this regard is rejected.
14. Even if it is assumed, just for the sake of argument, that the appellant carried on the civil works as a part of his business and earned his bread, that would not entitle him to automatically receive compensation under head of loss of future earnings because of the disability suffered by him to the extent of 52% as per permanent ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 9/11 disability certificate (Exh.-37). In order to grant of compensation under this head, it is well settled law, there must be evidence available on record showing that there is a reasonable nexus between suffering of permanent disability and loss of earning. The evidence must show that the permanent disability resulted in functional disability either in equal or lessor or greater proportion. If one takes a look at the entire evidence of appellant (PW 1), we would find that except for a bald general statement that he cannot walk being disabled and could not do any work as a contractor which resulted in loss of his income, there are no specific details given by him as to how his inability to walk has affected his functioning as a civil contractor. Usually, a civil contractor sits in the office and gets executed the civil works entrusted to him through the labourers, skilled and unskilled workers, the supervisors and if need be the engineers as well. A civil contractor, as the common knowledge goes, does not himself perform various civil works. He also does not by himself take the measurements of the civil works completed rather he calls upon the supervisors or the engineers or the skilled workers to take measurements in his presence, record them and submit them to him so that he could prepare his bills accordingly. Therefore, it was absolutely essential on the part of the appellant to have brought on record the specifics of the works that he himself performed as a civil contractor, which the appellant has not done in the present case. On the other hand, there is an observation made categorically by the learned Chairman (as ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 10/11 his Lordship was then) that he had seen personally this appellant tender his evidence while standing in the witness box, all the while without any help or support, and that he could walk. Such personal observations of the Tribunal have great evidentiary value and they throw light upon the conduct of a deponent like the appellant. They sufficiently show that the appellant falsely stated before the Court that he was unable to walk or that he lost his income because of the disability suffered by him and that he desired to indulge in profiteering. There is also no evidence brought on record by the appellant that he was unable to supervise and cultivate the family lands and on this count also there has been no loss of earning.
15. The sum and substance of the above referred discussion is that the appellant has failed to prove that he is entitled to receive any compensation under the head of loss of future earning and it has been rightly denied to him by the Tribunal. The Tribunal, however, has granted compensation to him of Rs.10,000/- and Rs.35,000/- respectively for pain, agony and trauma and loss of natural faculties and pleasures of life. I think, this compensation to some extent can be enhanced and instead of Rs.10,000/- for pain, agony and trauma it could be Rs.20,000 and instead of Rs.35,000/- for loss of natural faculties and pleasures life, it could be Rs.75,000/-. To this existent only , this appeal can be allowed.
16. So, the total compensation payable to the appellant would be of Rs.1,50,000/- instead of Rs.1,00,000/- granted by the Tribunal ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 ::: J-fa635.06.odt 11/11 together with interest at the same rate as granted by the Tribunal. The point is answered accordingly.
17. The appeal is partly allowed.
18. It is declared that the appellant is entitled to receive total compensation of Rs.1,50,000/- which is inclusive of compensation granted under the impugned judgment and order together with interest at the same rate for the same period.
19. The amount of compensation granted under this order shall be paid jointly and severally by respondent Nos.1 and 2 to the appellant.
20. The impugned judgment and order stand modified in the above terms.
21. Parties to bear their own costs.
22. Appeal is disposed of accordingly.
JUDGE okMksns ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:15:31 :::