Laxminarayan S/O. Parmeshwarlal ... vs Deorao Sadashiv Uke And Others
2017 Latest Caselaw 9063 Bom

                                                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

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

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

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

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.

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

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

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