1 Jud.FA 795.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No. 795/2016
APPELLANT:- Laxminarayan S/o Parmeshwarlal
On R.A. Business & Cultivator,
(Ori Claimant) R/o. Shrawgi Plots, Opp. Dargha,
near Tower, Akola, Tq. & Dist.
Akola.
VERSUS
RESPONDENTS:- 1. Deorao Sadashiv Uke,
On R.A. Aged about 65 yrs, Occ. Business,
(Ori. Resp.1) (Truck owner), R/o. Plot No. 08,
near Gayatri Mandir, Lokhande
Nagar, IT Park, Nagpur - 22.
(Ori. Resp.3.) 2. The Oriental Insurance Co., Ltd.
Through its Branch Manager, Old
Cotton Market, Akola, Tq. & Dist.
Akola.
(Ori. Resp.4) 3. Shivkumar S/o Devkinandan
Jaiswal, aged about 46 yrs,
Occ. Service, R/o. Plot No. 16,
Yogeshwari Prasad Apartment,
Ring Road near Nag Mandir, above
Bollywood Bar, Trimurti Nagar,
Nagpur.
Shri N. L. Jaiswal & A. M. Ghare, Advocates for appellant.
Shri. V. M. Gadkari, Advocate for respondent No.1
Shri W. G. Paunikar, Advocate for respondent No. 2.
None present for respondent No.3.
___________________________________________________________________________
CORAM : S. B. SHUKRE, J.
DATE : 27.11.2017.
Oral Judgment :
Heard.
2. Admit.
3. Private paper book is taken on record. One set of ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:14 ::: 2 Jud.FA 795.16.odt each of the paper book has been furnished to Shri V. M. Gadkari, learned counsel for the respondent No. 1, owner of the offending vehicle, Shri W. G. Paunikar, learned counsel for the respondent No. 2, Oriental Insurance Co. of the offending vehicle. Respondent No. 3 is absent though duly served on final disposal.
Heard finally by consent as well as in terms of order passed by this Court on 23rd September, 2016.
4. By this appeal, the appellant who sustained injuries in accident which occurred on 03.11.2005 at about 09.30 a.m. on Nagpur - Akola road is claiming more compensation for the injuries, he suffered in the accident.
5. According to the learned counsel for the appellant, the evidence on record would show that there was no permanent disability suffered by the appellant. He further submits that if at all there was any permanent disability, the evidence did not show that it resulted in functional disability of the appellant which adversely affected his earning capacity. This, however, is seriously disputed by the learned counsel for respondent Nos. 1 and 2 respectively. They submit that the appellant has already been granted compensation in a liberal fashion by the Tribunal and so should make no grievance. Nobody has appeared on behalf of the respondent No.3 ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:14 ::: 3 Jud.FA 795.16.odt though served for final disposal.
6. I have gone through the record of the case. Only point that arises for my determination is:-
"Whether the compensation granted by the Tribunal is just and proper.?"
7. So far as the liability to pay compensation is concerned, the finding of the Tribunal has attained finality. The Tribunal has found that the compensation is liable to be paid jointly and severally by the respondent Nos. 1 and 2. No appeal against this finding has been filed. However, the appellant has challenged the finding recorded in respect of the compensation determined by the Tribunal terming it as illegal and perverse based upon the improper appreciation of the evidence available on record. So let us deal with the evidence available on record in order to examine the correctness or otherwise of the finding recorded by the Tribunal.
8. There are two Doctors who have been examined by the appellant in support of his claim that he suffered in the accident a permanent disability of 30% which caused actual loss of income to him.
9. PW-2, Dr. Joshi, appellant's witness, has not stated ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:14 ::: 4 Jud.FA 795.16.odt anything about the disability suffered by the appellant to be of permanent nature. He has only stated that the appellant sustained the disability to the extent of 30%. But, he admits that he was not the treating Doctor. He also admits that he issued the disability certificate (Exhibit-41) in his private capacity and that it was a certificate not issued by the Medical Board. He further admits that the appellant got himself treated in another hospital and that he simply issued the disability certificate.
10. This evidence of Dr. Joshi thus, does not lead us anywhere. It neither throws any light upon the nature of the disability suffered by the appellant nor provides any reliable clue to find that the injuries suffered by the appellant in the accident resulted in causing of permanent disability to him.
11. The evidence of the second and the treating Doctor, PW-7, Dr. Rajendra Chandak, however, brings on record some material on the basis of which inference about the disability of the appellant can be drawn. Of-course, in his examination-in-chief, this Doctor has maintained complete silence about the disability suffered by the appellant. But, it was in his cross-examination taken on behalf of the respondent No. 2, the Insurer of the offending vehicle, that the admission regarding suffering of disability of permanent ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:14 ::: 5 Jud.FA 795.16.odt nature has been elicited by the Insurance Company. This Doctor on a question raised in that regard by the learned counsel for the respondent No. 2, the Insurance Company, responded that since the joint surface fracture that the appellant suffered was there, some amount of stiffness would be inevitable in spite of complete bony healing and physio- therapy. Therefore, some amount on this count would be due and payable to the appellant.
12. At this stage, learned counsel for the appellant has submitted that this appeal has been filed to get more compensation on account of loss of income of the appellant suffered as a direct consequence of aforesaid permanent disability. The argument, however, can not be accepted. The appellant has not tendered any evidence to show that even though he was a salaried person and working as a Bank Manager, his salary got reduced or that he was demoted because of his permanent disability. It is now well settled that merely proving permanent disability is not sufficient and proving of functional disability is also essential to establish the loss of income because of permanent disability. The loss of income must be proved like any other fact in such a case, However, in this case, this has not been established by adducing evidence. So, I am of the considered view that nothing is due and payable to the appellant on this count. ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:15 :::
6 Jud.FA 795.16.odt
13. Learned counsel for the appellant has relied upon the case of Raj Kumar Vs. Ajay Kumar and Another, 2011(1) SCC 343 wherein principles have been laid down for assessment of loss of income and appreciation of evidence of the Doctor who was the treating Doctor. The learned counsel for the appellant submits that this judgment has also been relied on by the Trial Court. In this judgment it has been held that if the treating Doctor has been examined as a witness of the claimant, his evidence should stand in good stead for the claimants as it would make up for the deficiencies in the evidence of the Doctor who was not the treating Doctor and was the Doctor issuing permanent disability certificate. There is no dispute about the principle so laid down in this case and on which reliance has been placed by the learned counsel for the appellant. As discussed earlier, following this principle only, I have found in the instant case that the claimant i.e. appellant indeed suffered permanent disability. However, I have further found that this permanent disability has not been established to have caused actual functional disability in the appellant and therefore, he is not entitled to receive any compensation under the head of loss of future earnings on account of permanent disability.
14. In the result, I find that the appellant would be ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:15 ::: 7 Jud.FA 795.16.odt entitled to receive additional compensation under the head of permanent disability simpliciter, if it has not been already paid to him. On going through the impugned judgment and order, I find that no additional amount under this head has been paid to the appellant. In the operative portion of impugned award, the Tribunal has noted that the total compensation payable to the appellant is inclusive of the amount on account of No fault Liability but, the substantive portion of the judgment does not disclose anywhere that adjustment of the amount of Rs. 25,000/- has been made by the Tribunal while calculating the total compensation of Rs. 02,05,000/- payable to the appellant.
15. This amount of Rs. 25,000/-, thus I find in the facts and circumstances of the case as additionally due and payable to the appellant. The appeal deserves to be allowed partly and it is allowed accordingly.
16. It is declared that in addition to the amount of Rs. 25,000/- granted to the appellant as total compensation by the Tribunal, the appellant, shall also be entitled to receive amount of Rs. 25,000/- for the permanent disability that he has suffered in the present case and same shall be paid to the appellant by the respondent Nos. 1 and 2 jointly and severally together with interest @ 9% per annum from the date of ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:15 ::: 8 Jud.FA 795.16.odt petition till its actual realization.
17. The impugned judgment and order stand modified in the above terms.
18. Additional Court fees, if not paid, be paid in 8 weeks. The parties to bear their own costs accordingly.
19. Leave to deposit amount of Rs. 25,000/- together with interest as granted under this order is granted to the respondent No. 2 and same may be deposited within two months from the date of the order. On such deposit being made and on paying the deficit court fees, if any, the appellant shall be permitted to withdraw the same without reference to the Court.
20. The appeal stands disposed of accordingly.
JUDGE Gohane ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 01:26:15 :::