Bombay High Court
Bhimrao Shamrao Shinde vs Rmaesh Devkar And Another on 16 January, 2018
Bench: Manish Pitale
1 fa562.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL (FA) NO. 562 OF 2005
Bhimrao Shamrao Shinde,
aged about 45 years, Occupation
Service and Agril., r/o Veni (Bk),
Tq. Mahagaon, Distt. Yavatmal. ... APPELLANT
VERSUS
1. Ramesh Sitaram Devkar,
aged about 43 years, Occupation
Business, r/o Patur, Tq. Patur,
Distt. Akola.
2. The Oriental Insurance Co. Ltd.,
through Branch Manager,
Yavatmal, Tq. and Distt. Yavatmal. ... RESPONDENTS
....
Shri U.L. Chhangani, Advocate holding for Shri S.U. Nemade, Advocate for
the appellant.
Respondent No.1 is served.
Shri S.K. Pardhy, Advocate for respondent No.2.
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING THE JUDGMENT : 08TH JANUARY, 2018.
DATE OF PRONOUNCING THE JUDGMENT : 16TH JANUARY, 2018.
JUDGMENT :
This appeal is filed by the appellant being dissatisfied by the
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judgment and order dated 28.03.2005 passed by the Motor Accident
Claims Tribunal, Yavatmal in Motor Accident Claim No. 56 of 1997. He has
approached this Court seeking enhancement of compensation over and
above the amount granted by the Tribunal.
2. The appellant was travelling in a tempo trax vehicle while
returning after attending a marriage on 19.05.1996, when at about 06:45
a.m., the said vehicle met with an accident. Due to rash and negligent
driving of the vehicle by the driver, it dashed against a road side tree
resulting in death of two persons on the spot and injuries to other
passengers in the said vehicle. The appellant sustained severe injuries
including fracture to his right femur, due to which he was admitted for
sustained period in hospitals at Yavatmal and Nagpur. Thereafter, he was
shifted for further treatment to a hospital in Pune wherein he remained
under treatment till August, 1996.
3. The appellant was 37 years old when the accident took place
and he was working as an Agricultural Overseer in Vasant Sahakari Sakhar
Karkhana, Pusad drawing a monthly salary of Rs.4,460/- only. Due to the
injuries suffered by the appellant in the said accident, he was not able to sit
on the ground or walk long distance. He was unable to drive any vehicle or
ride a bicycle. He suffered total loss of hip movements and suffered
permanent disability of 60 per cent.
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4. The appellant filed claim petition under Section 166 of the
Motor Vehicles Act, 1988, before the Tribunal seeking compensation of
rupees six lakhs for the permanent disability suffered as a consequence of
injuries due to the accident.
5. The fact of occurrence of the said accident was not disputed
and it was only the quantum of compensation which was subject matter of
dispute before the Tribunal. The appellant supported his claim by
appearing as witness No.1 and his treating doctor appeared as witness
No.2 in support of his claim. The appellant claimed before the Tribunal
that due to the permanent disability suffered by him, he had suffered loss
of salary of 47 days during the period of treatment and that he had lost
chances of promotion, as being an Agricultural Overseer, his field work had
suffered and his junior was promoted ahead of him. The appellant also
placed on record bills pertaining to medical expenses incurred by him and
thereby claimed the aforesaid amount of rupees six lakhs towards
compensation.
6. By the impugned judgment and order dated 28.03.2005, the
Tribunal held that the appellant was entitled to a sum of Rs.6,925/-
towards loss of salary of 47 days. It was further held that the appellant was
entitled to Rs.1,03,670/- towards claim of medical expenses and a sum of
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Rs.5,000/- towards mental and physical pains suffered by him. The
Tribunal further granted a sum of Rs.1,25,000/- towards loss of amenities
of life, loss of expectation of life, inconvenience, hardship, discomfort,
mental stress etc. On this basis, the Tribunal granted a compensation of
Rs.2,40,595/- to the appellant together with interest at the rate of nine
percent per annum from the date of application till realisation of the
amount.
7. Shri Chhangani, learned Counsel appearing on behalf of the
appellant submitted that the Tribunal committed an error in failing to
award compensation to the appellant for loss of future earnings on
account of permanent disability and further submitted that the amount of
compensation granted towards loss of amenities and under other heads as
also the amount of compensation granted towards mental and physical
pains and sufferings, was meager. Reliance was placed on judgments of
the Hon'ble Supreme Court in the cases of Sarla Verma (Smt) and
others .v. Delhi Transport Corporation and another (reported in 2009(6)
SCC, 121) and Rajkumar .v. Ajaykumar and another (reported in 2011(1)
SCC, 343).
8. On the other hand, Shri Pardhy, learned Counsel appearing on
behalf of respondent No.2/Insurance Company, submitted that the
quantum of compensation granted by the Tribunal in the impugned order
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was adequate and that the claim of enhancement made by the appellant
was not justified. It was contended that while granting the amount of
Rs.1,25,000/-, the Tribunal had taken into consideration all relevant heads
of compensation, including loss of future earnings.
9. Having considered the contentions raised on behalf of the
respective parties and upon perusal of the appeal and the documents on
record, I find that the Tribunal ought to have taken into consideration the
loss of future earnings due to permanent disability, in terms of the law laid
down by the Hon'ble Supreme Court.
10. In the case of Rajkumar .v. Ajaykumar and others (cited supra),
the Hon'ble Supreme Court has identified heads under which
compensation is to be awarded in cases of personal injury and the specific
head of concerning loss of future earnings on account of permanent
disability, has been identified. The various heads have been stated in the
said judgment in paragraph 6, which reads as follows :
"6. The heads under which compensation is awarded in
personal injury cases are the following :
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
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would have made had he not been injured,
comprising :
(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be awarded
only under heads (i), (ii)(a) and (iv). It is only in serious cases of
injury, where there is specific medical evidence corroborating
the evidence of the claimant, that compensation will be granted
under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of
future earnings on account of permanent disability, future
medical expenses, loss of amenities (and/or loss of prospects of
marriage) and loss of expectation of life."
11. Upon identifying the various heads of compensation, the
Hon'ble Supreme Court in the said judgment has also laid down the
manner in which the extent of permanent disability is to be factored into
arriving at a figure for compensation towards loss of future earnings on
account of permanent disability. It has been laid down that the extent or
percentage of permanent disability has to be proved by cogent evidence by
the claimant by bringing on record evidence of the doctor who can support
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the certificate of percentage of permanent disability issued to the claimant.
It is further held that when such extent of permanent disability is
established, it is for the Court to arrive at a conclusion regarding
functional disability leading to adverse effect on future earning capacity of
the claimant.
12. Thereafter, the annual income of the claimant is to be
ascertained and on that basis the loss of future earning capacity is to be
calculated by taking into account the percentage of functional disability
suffered by the claimant. The figure so arrived at is to be multiplied by the
relevant multiplier, as given in column 4 of paragraph 40 of the judgment
of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) .v. Delhi
Transport Corporation and another (cited supra) to arrive at the amount of
compensation to be paid to the claimant under the head of loss of future
earnings on account of permanent disability.
13. In the instant case, the appellant has no grievance in respect of
the amount of Rs.6,925/- calculated towards loss of salary of 47 days. He
also has no grievance towards the amount of Rs.1,03,670/- granted by the
Tribunal towards medical expenses. But, the appellant is aggrieved by the
amount of compensation of Rs.1,25,000/- granted by the Tribunal towards
loss of amenities and other heads. He is also aggrieved by the
compensation of Rs.5,000/- towards mental and physical pains and
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sufferings.
14. Perusal of the judgment and order of the Tribunal shows that a
composite amount of compensation has been granted towards various
heads of compensation including loss of amenities, loss of expectation of
life, inconvenience, hardship, discomfort and mental stress. This amount
has been calculated as Rs.1,25,000/- without any discussion or basis by the
Tribunal. Similarly, the amount of Rs.5,000/- granted towards mental and
physical pains and sufferings is also not based on any detailed discussion.
15. The law laid down by the Hon'ble Supreme Court in the case of
Rajkumar .v. Ajaykumar and others (cited supra), in paragraph 6 quoted
above, shows that in cases where compensation is to be granted for
personal injury in an accident, specific heads of pecuniary damages
(special damages) and non pecuniary damages (general damages) have to
be identified and compensation is to be granted under such heads of
compensation. It is evident that in the instant case, the Tribunal has not
taken into consideration the head of compensation of loss of future
earnings on account of permanent disability. Applying the formula laid
down by the Hon'ble Supreme Court in the aforesaid case of Rajkumar .v.
Ajaykumar and others (cited supra) to the facts of the present case, it would
be clear that the compensation under the head of loss of future earnings
on account of permanent disability would be as follows :
9 fa562.05
Annual income of the claimant : Rs.4,460/- X 12 = Rs.
53,520/-.
Functional disability suffered by claimant : 50 per cent.
Multiplier to be applied : 15.
Hence, amount of compensation equal to
50 per cent of Rs.53,520/- i.e. Rs. 26,760/- x 15
(multiplier as per judgment of Hon'ble
Supreme Court in the case of Sarla Verma .v.
Delhi Transport Corporation (cited supra)) : Rs.4,01,400/-
16. In arriving at the percentage of functional disability and hence
percentage of loss of future earnings at 50 per cent, I have placed reliance
on the certificate of permanent disability of 60 per cent given by the
doctor. The doctor has appeared as a witness in support of the claim of the
appellant and he has stated the fact that the appellant has suffered total
loss of hip movement due to which he is unable to drive or ride bicycle and
that he cannot walk for a long distance or sit on the ground. The appellant
has also stated in his evidence that his junior has been promoted ahead of
him to the post of Chief Agricultural Officer, only because the appellant
suffered the disability, due to which his field duties were affected, thereby
adversely affecting his chances of promotion. Although the disability
certificate of 60 per cent is issued by the doctor, I find that functional
disability and percentage of loss of future earnings capacity would be 50
per cent, as the appellant's chances of promotion have been adversely
affected. On this basis, the above figure of compensation for Rs.4,01,400/-
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has been arrived at, under the head of loss of future earnings.
17. The amount of compensation of Rs.5,000/- towards mental and
physical pains and sufferings granted by the Tribunal also appears to be on
the lower side because the appellant was required to be treated in the
hospital for long durations of time from the date of the accident till August,
1996. Hence, I find that the said amount also deserves to be increased to
Rs.10,000/-.
18. In addition, the appellant also needs to be compensated for
loss of amenities as the evidence on record clearly shows that due to the
disability suffered by him, directly attributable to the accident, he is unable
to drive vehicle or ride bicycle and he is unable to walk long distance or sit
on the ground. I hold that the appellant deserves compensation of
Rs.10,000/- under this head.
19. Applying the law laid down in paragraph 6 of the judgment of
the Hon'ble Supreme Court in the case of Rajkumar .v. Ajaykumar and
others (cited supra), identifying the various heads of compensation to be
granted in personal injury cases, it would be evident that the appellant is
not aggrieved by the amount determined by the Tribunal under the heads
(i) and (ii)(a). As regards compensation under the head (ii)(b) i.e. loss of
future earnings, the compensation shall stand enhanced as aforesaid. The
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appellant has not claimed and would not be entitled to any compensation
under the heads (iii) i.e. future medical expenses and (vi) i.e. loss of
expectation of life. The compensation for loss of prospects of marriage is
also not applicable in the case of appellant. The compensation under the
heads of loss of amenities and for mental and physical pains and sufferings
shall be enhanced as aforesaid.
20. Accordingly, the appellant is held entitled to enhanced
compensation in the following manner :
Compensation for loss of salary of 47 days : Rs. 6,925/-
Compensation towards medical expenses : Rs.1,03,670/-
Compensation towards loss of future earning
due to permanent disability. : Rs.4,01,400/-
Compensation towards mental and physical
pains and sufferings. : Rs. 10,000/-
Compensation for loss of amenities : Rs. 10,000/-
____________
Total : Rs.5,31,995/-
===========
21. Since the Tribunal had granted compensation of Rs.2,40,595/-,
it is held that the appellant would be entitled to additional compensation
of Rs.2,91,400/- (Rs.5,26,995 - Rs.2,40,595/-).
22. Therefore, the respondents are directed to pay the aforesaid
increased amount to the appellant and it is held that all other directions
12 fa562.05
given by the Tribunal in the impugned order shall apply to the aforesaid
increased amount also.
Accordingly, the appeal is allowed with no order as to costs.
JUDGE
*rrg.
