Vrajesh Navnitlal Desai vs K. Bagyam And Anr.
2005 Latest Caselaw 165 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard advocate for the appellant. Respondents are served. Nobody is present for them. This appeal is for enhancement of compensation granted by the Motor Accidents Claims Tribunal, Raigad at Alibag by its Judgment dated 31.7.1997. Since there is no cross-appeal or counter-appeal by any of the respondents, their liability to pay compensation has to be held in favour of the appellant. The question is of quantum. In the accident occurred, the present appellant suffered 44 per cent permanent partial disability. Certificate to that extent was proved by this appellant before the Tribunal by examining the doctor. Disability is in respect of inability to make movements of leg. The doctor stated that he, the appellant, will not be able to stand more than 2-3 hours and he cannot bend his leg, he cannot sit. He will have to undergo operation in future when pain will become intolerable. Hip joints which were replaced at the time of surgery, will have to be changed because, according to the doctor, artificial joints give problems after 15 to 18 years.

2. The claimant in his evidence stated that he cannot use Indian toilet, cannot sit on ground for taking meals, cannot drive vehicle for long time; he lost his four teeth and he cannot cut hard substance.

3. In view of this aforesaid evidence of the appellant as well as the doctor and proof of 44 per cent permanent partial disability, the counsel for the claimant contended that the Tribunal should have awarded compensation in that regard. He claimed that when the appellant has proved monthly income of Rs. 15,000 then considering 44 per cent disability, he will have to be compensated at least for 10 years, but he is claiming minimum amount of Rs. 50,000 on that head.

4. He further contended that the Tribunal, while awarding the compensation, came to the conclusion that the medical expenses incurred by the appellant were to the tune of Rs. 46,000. However, the Tribunal has wrongly deducted Rs. 29,000 which the claimant received as medical reimbursement. He has relied upon the Judgment of Madhya Pradesh High Court in Madhya Pradesh State Road Trans. Corporation v. Priyank 2000 ACJ 701 (MP). The issue before the court was similar, whether the medical reimbursement can be deducted from the compensation payable and Madhya Pradesh High Court answered the issue in the negative, i.e., that amount cannot be deducted because it is paid to him under the contract of insurance for which he had paid premiums. I do not find any reason to take any different stand in this matter. The Judgment is directly applicable to the facts and circumstances of the present case.

5. Thirdly, the counsel for the appellant contended that under the head of loss of business for the period during which the appellant could not pay attention to his business, they had claimed Rs. 30,000, but the court awarded only Rs. 10,000. He contended that every businessman has to supervise his business and has to take decision in the business and, if the claimant, on account of the accident, could not pay attention to, then he is liable to be compensated adequately. Therefore, he contended that under the three heads referred to above, the compensation is liable to be enhanced.

6. So far as deduction of Rs. 29,000 is concerned, that is obviously wrong, in view of the aforesaid Judgment of Madhya Pradesh High Court and that amount of Rs. 29,000 deducted by the Tribunal has to be awarded. So far as loss of business during period of suffering, out of Rs. 30,000, the Tribunal has awarded Rs. 10,000. In my opinion, further additional amount of Rs. 10,000 would be adequate.

7. On the third count of compensation because of 44 per cent permanent partial disability, the learned counsel for the appellant contended that the appellant is entitled to Rs. 50,000. Out of the amount of Rs. 70,000 awarded by the Tribunal, Rs. 10,000 are given for loss of business; Rs. 20,000 for loss of teeth; Rs. 15,000 for dislocation of right leg from hip to knee joint; Rs. 2,500 for special diet and Rs. 1,500 for clearing of teeth; total comes to Rs. 50,000. Therefore, it is clear that Rs. 20,000 only has been awarded towards compensation for the pain suffered in the accident. Therefore, considering the disability and the requirement of operation in the future, Rs. 30,000 additional would be sufficient in my opinion. Therefore, in all the appellant will be entitled to get Rs. 29,000 + Rs. 10,000 + Rs. 30,000 = Rs. 69,000. Hence the order:

The appeal is partly allowed.

The respondents to pay additional compensation of Rs. 69,000 to the appellant with costs and interest as awarded by the Tribunal.