Ramesh Deoraoji Admane vs Kishore Bhikamchand Rathi & ...
2017 Latest Caselaw 8528 Bom

        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


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        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.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      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

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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

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,

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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

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

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

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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

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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

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

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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

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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