Bombay High Court

Shrikant Rangnath Surse vs Walmik Baburao Ingwale And Anr on 22 February, 2022

Bench: R. G. Avachat

                                                      First Appeal No.575/2019
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                        FIRST APPEAL NO.575 OF 2019


 Shrikant s/o Rangnath Surse,
 Age 45 years, Occu. Service,
 R/o Shivaji Maharaj Gruhanirman
 Society, Dasrenagar,
 Behind Hotel Garva, Ahmednagar                      ... APPELLANT

          VERSUS

 1.       Walmik Baburao Ingwale,
          Age 50 years, Occu. Agril.,
          R/o Jagegaon Bk. House No.685,
          Mulshi Road, Tal. Shirur,
          District Pune

 2.       The Branch Manager,
          Shriram General Insurance
          Company Ltd., Divisional Office -
          313, Third Floor, East Wing,
          Arora Towers, Premises Society,
          9, Dr. Ambedkar Road,
          Pune, District Pune.                       ... RESPONDENTS

                              .......
 Mr. R.S. Kasar, Advocate for appellant
 Shri V.N. Upadhye, Advocate for respondent No.2.
                              .......

                                  CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 1st December, 2021
                  Date of pronouncing judgment : 22nd February, 2022


 JUDGMENT:

The challenge in this appeal is to the judgment

and award dated 30/10/2018, passed by Member, Motor

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Accident Claims Tribunal (Tribunal), Ahmednagar, granting

compensation of Rs.30,06,000/- with interest @ 8% p.a. on

account of permanent disability suffered in an accident

involving motor vehicles. The appellant herein is the original

claimant. Finding the amount of compensation awarded

under the impugned award to be grossly inadequate, he has

filed the present appeal for enhancement therein.

FACTS

2. The appellant (claimant) was proceeding on his

Hero Honda Splender motorbike, Registration No.MH-16-V-

6497, along Nagar-Pune Highway. While he was passing by

Hotel Prathmesh, Shikrapur, a Hero Honda Deluxe motorbike,

Registration No.MH-12-MC-3766, dashed the claimant from

behind. As a result thereof, he fell off the motorbike and

suffered multiple injuries. He was immediately rushed to

Ruby Hall Clinic, Pune. He was indoor patient there. He has

suffered brain injury. He underwent operation. The doctor

certified him to have suffered 55% of disability. On due

investigation, the rider of the motorbike, (No.MH-12-MC-

3766) was proceeded against by filing the charge sheet for

being responsible for the accident. The claimant, on the other

hand, filed a petition, (No.290/2016) against the owner of the

First Appeal No.575/2019 :: 3 ::

offending motorbike and its insurer for compensation. It is

his case that, he was serving as a Senior Engineer with

Western India Forging Pvt. Ltd. at a monthly pay of

Rs.22,433/-. He was 45 years of age when met with the

accident.

On appreciation of the evidence in the case, the

Tribunal granted compensation as stated above.

3. Heard. Learned counsel for the appellant would

submit that, the monthly salary of the appellant was

Rs.22,433/-. The Tribunal ought not to have scaled it down to

Rs.21,650/- after making deductions towards Income Tax and

professional tax. The claimant had agricultural income as

well. Although he suffered 55% of disability, his loss of

earning capacity was 100%. The evidence of Dr. Sachin

Gandhi has not been properly appreciated. The appellant

incurred medical expenditure over Rs.13,00,000/- (Rupees

thirteen lakhs). The Tribunal granted only a sum of

Rs.10,00,000/- (Rupees ten lakhs) on that count. The

learned counsel has relied on judgment of the Apex Court in

case of Raj Kumar Vs. Ajay Kumar & anr. [ (2011) 1 SCC

343 ] to ultimately urge for substantial enhancement in the

First Appeal No.575/2019 :: 4 ::

amount of compensation.

4. The learned counsel for the respondent No.2

Insurance Company would, on the other hand, submit that,

the Tribunal has rightly appreciated the evidence in the case

and granted just and adequate compensation. The Tribunal

had an advantage to observe physical appearance of the

appellant. It has, therefore, rightly observed that the

appellant can do table work to earn his living. According to

learned counsel,no interference is warranted with the

impugned award.

5. Considered the submissions advanced. Perused

the evidence relied on. The question involved in this appeal is

as to whether the Tribunal has granted just and reasonable

compensation in the facts and circumstances of the case. The

Apex Court, in paragraph No.19 of its judgment in Raj

Kumar's case (supra), has observed thus :

"19. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

6. The appellant was admitted to Ruby Hall Clinic,

Pune. He was indoor patient there. Dr. Sachin Gandhi, who

had attended the appellant, was examined in proof of the

injuries and disability suffered by the appellant. The disability

certificate (Exh.31) reads thus :

(a) Permanent private of the slight of either eye or the hearing of the either ear or privation of any member or joint : Permanent left sided weakness.

First Appeal No.575/2019 :: 6 ::

(b) Destruction or permant impairing of the power of any member or joint, or : Left sided upper and lower limb power weak.

(c) Permanent disfiguration of the head of face :

(i) Left sided facial palsy (paralysis)

(ii) Left sided heuniparentis (paralysis)

(iii) Severe traumatic brain injury; can't concentrate, can't walk.

Permanent disability worth > 55%."

7. The Tribunal, while appreciating the medical

evidence, observed :

"22. . . . . Dr. Sachin Gandhi (P.W.2) has given details of the injuries caused to the head of the petitioner. It is stated that there was haemorrhage under the scalp and on the surface of the brain. Therefore, he performed surgery when the petitioner admitted immediately after the accident. Thereafter on 13/10/2015 he performed surgery of plantation of scalp implant and since then the petitioner is taking follow up treatment continuously. The witness has further stated that the petitioner has suffered from paralysis of left side and disfiguration of his face, particularly of the left side. The left hand and leg of the petitioner did not work when he walks and thereby the confidence of the petitioner has been shaken. When the petitioner talks, disfiguration of his face can be noticed. The doctor has therefore assessed disability of the petitioner to 55% as permanent disability.

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According to doctor, there are no chances of reduction of disability in future. Dr. Gandhi (P.W.2) has also stated that in future the petitioner will be depending upon someone else for his activities."

8. Dr. Gandhi had attended the appellant in the

hospital. Nothing has been brought to the notice of this Court

to disbelieve the evidence of Dr. Gandhi. As such, it was

proved that the disability suffered by the appellant was 55%.

The nature of disability suggests percentage of loss of earning

capacity. Shri Agatrao Pawar (P.W.3) was examined in proof

of income of the appellant. It is in his evidence that the

appellant tendered resignation of his post on 7/5/2018. The

resignation was accepted the next day i.e. on 8/5/2018.

There is nothing to suggest the appellant to have been in any

other employment or doing something to earn his living.

True, the Tribunal had an advantage to observe the physical

condition on his appearance before it to lead evidence. The

Tribunal observed :

"The petitioner has been paralysed and he cannot do field work. However, he is an Engineer. He has been recovered from the injuries to certain extent. Therefore he can certainly do some sitting job. Although it is stated that the petitioner is suffering from loss of memory, evidence of Dr. Gandhi (P.W.2) does not fortify this fact. Therefore even if the petitioner is not able to do

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manual work, he can certainly do table work being a skilled person, it cannot be said that he has become totally disabled."

With these observations, the Tribunal considered it

to be a case of 50% loss of earning capacity and granted the

compensation. The details of the compensation granted by

the Tribunal are as under : (Raj Kumar's case - supra).




  Sr.No.      Particulars                                    Amount (in Rs.)
  1           Permanent disability vis-a-vis loss of              18,20,000
              future income
  2           Loss of income during treatment                       86,600
  3           Medical expenses                                    10,00,000
  4           Pains and sufferings                                  40,000
  5           Special diet and attendant                            40,000
  6           Transportation                                        20,000
              Total : . . . .                                     30,06,600

9. The heads under which the compensation is

awarded in personal injury cases are the following :

Pecuniary damages (Special damages):

(i) Expenses relating to treatment, hospitalization,

medicines, transportation, nourishing food, and miscellaneous

expenditure.

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(ii) Loss of earnings (and other gains) which the injured

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).

10. When there is evidence to suggest the left side of

the appellant's person has been paralysed and he would be

dependent on one person for all his further activities, lead this

Court to observe to assess the loss of earning capacity to

75%. True, the appellant being an Engineer, may do

something to earn. His physical condition is, however, such

that he may not be able to earn as he was earning before the

accident. His left hand and left leg did not work when he

First Appeal No.575/2019 :: 10 ::

walks and thereby his confidence has been shaken.

Disfiguration of his face is evident. He would also be required

to spend on his health. In the peculiar facts and

circumstances of the case, the percentage of loss of earning

capacity is, therefore, assessed at 75% as against 50%

assessed by the Tribunal. As such, there would be addition of

compensation of Rs.6,10,000/- on this count.

11. A very meagre amount of Rs.40,000/- has been

awarded towards pain and sufferings. Considering the nature

of disability and injury suffered by the appellant, the same is

enhanced to Rs.1,40,000/-. On account of future medical

treatment, he is awarded a sum of Rs.1,00,000/-. There

would, however, be no interference with the quantum of

compensation awarded under other heads as the same has

been granted on due appreciation of the evidence in the case.

Some of the medical bills have rightly been discarded. Some

were found to be inflated. As such, there would be

enhancement in the amount of compensation by

Rs.8,10,000/-.

12. In the result, the appeal succeeds in terms of the

following order :

First Appeal No.575/2019 :: 11 ::



                                          ORDER


   (i)        The appeal is partly allowed.


   (ii)       The      amount        of   compensation           awarded         by     the

              Tribunal         is   enhanced         from      Rs.30,06,600/-            to

              Rs.38,16,600/-.


   (iii)      Clause (4) of the impugned award, which reads: "The

              respondent            insurance        company        to     follow       the