Bhimrao Shamrao Shinde vs Ramesh Sitaram Devkar & Anr.

This appeal is filed by the appellant being dissatisfied by the

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.

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.

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.

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.

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.

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

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.

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).

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

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.

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.

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

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."

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

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.

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.

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

sufferings.

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.

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 :

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/­

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/-

has been arrived at, under the head of loss of future earnings.

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/-.

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.

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

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.

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/-

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/-).

Therefore, the respondents are directed to pay the aforesaid

increased amount to the appellant and it is held that all other directions

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.