Abhay Harakchand Sancheti vs Baban Pandu Daswant and Others

Abhay Shreeniwas Oka, J.—By this Appeal, the Appellant who is the claimant in a claim petition under Section 166 of the Motor Vehicles Act, 1988 has taken an exception to the Judgment and Award dated 28th April, 2003 passed by the learned Member of the Motor Accident Claims Tribunal at Nashik.

The Appellant who was born on 29th April, 1959 claims to be a businessman. His case made out in the claim petition is that he is an Engineer and is a partner of a partnership firm. The case made out by the Appellant is that the partnership firm is taking government contracts of construction. The case of the Appellant is that his annual income as per the Income Tax Return was Rs. 5,00,000/- per year.

The case made out in the petition is that the said firm had taken a contract of the Maharashtra State Electricity Board worth about Rs. 2.89 crores at Nashik. For the purposes of business, he was travelling by a Premier Padmini car. He was coming back to Nashik from Mumbai. It is not necessary to go into the aspect of negligence as it is established that a truck insured with the second Respondent gave a dash to the vehicle by which the Appellant was travelling. He sustained several injuries due to the accident. The Tribunal has already recorded a finding that the driver of the truck insured with the second Respondent was negligent and there is no challenge to the said finding by the Respondent. The Appellant claimed compensation of Rs. 50,00,000/-.

The Respondents contested the claim by filing a joint writ statement. Apart from denying the allegations of negligence, several other contentions were raised by the Respondents..

By the impugned Judgment, the learned Member of the Tribunal held that the negligence on the part of the driver of the truck was established. As far as the quantum of compensation is concerned, the learned Judge awarded a sum of Rs. 3,77,968/- the brake up of which is as under:

The present Appeal is preferred for seeking enhancement of compensation.

The learned counsel appearing for the Appellant has taken us through the documents on record. She pointed out that in the examination-in-chief, the Appellant deposed that he was a partner of the firm of M/s. Shantikumar N. Sancheti Builders and Contractors in which he has 40% share. He stated that after the demise of his father, he acquired the share of his father. He claims that he was getting income of about Rs. 18 to 20 lac per year on account of his share. She pointed out that the case made out by the Appellant in his evidence regarding his income was not seriously challenged. She submitted that photocopies of the partnership deeds, various work orders received by the said firm were placed on record. She urged that a Tribunal constituted under the Motor Vehicles Act, 1888 is not bound by the strict rules of evidence and when the said documents were referred to in the examination-in-chief of the Appellant to which there is no serious challenge, the Tribunal ought to have considered the said documents. She urged that statements of the profit and loss account of the partnership business showing the share of income of the Appellant in the partnership business were also on record which are not considered. She submitted that as per the Income Tax Law applicable on the relevant date, the income which was received by the Appellant by way of a share in the profit from the partnership business was not amenable to the Income Tax and, therefore, in the individual return of the Appellant which is at Exhibit-30 for the Assessment Year 1996-97, only the income from the house property of the Appellant has been shown and that is how total income reflected from the return is of Rs. 1,59,079/-. She urged that looking to the nature of injuries sustained by the Appellant, the case of the Appellant that income from the business was reduced due to disability ought to have been accepted. She also urged that the case made out to that effect by the Appellant in his examination-in-chief is not seriously challenged. She urged that the income taken by the Tribunal at the rate of Rs. 10,000/- per month is completely erroneous as the learned Member of the Tribunal has not considered the income received by the Appellant from the business of partnership firm. She urged that no compensation has been granted to the Appellant on account of loss of business. She also urged that though there was a certificate produced on record at Exhibit-44 showing that the Appellant suffered permanent disability of 35%, compensation has not been granted on that account. She invited our attention to the decision of the Apex Court in the matter of Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and Another, (2011) 111 CLT 285 : (2010) 10 JT 254 : (2011) 161 PLR 740 : (2010) 10 SCALE 298 : (2010) 10 SCC 254 : (2010) AIRSCW 6085 : (2010) 6 Supreme 844 . She urged that in case of an Engineering Student who was not actually employed, the Apex Court has taken his earning at Rs. 60,000/- per annum and in the present case, there is a substantial evidence on record to show the extent of business of the firm in which the Appellant was a partner. She also relied upon a decision of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 .

The learned counsel appearing for the second Respondent opposed the Appeal. She urged that except for the Income Tax Return at Exhibit-30, no other document in relation to the income of the Appellant has been admitted in evidence. She pointed out the cross-examination of the Appellant conducted by the advocate for the Respondents. She pointed out that there is a specific challenge in the cross-examination to the case made out by the Appellant that he incurred loss of business to the extent of Rs. 6,00,000/- and that his earning capacity has been reduced to 50%. He pointed out that even the claim of the Appellant that his yearly income was Rs. 5,00,000/- was seriously challenged in the cross-examination. It was urged by her that except for the Income Tax Return at Exhibit-30 there is no evidence of income of the Appellant. She urged that the photocopies of the documents which are simply placed on record could not have been considered as the said documents are not referred to even in the examination-in-chief of the Appellant. Therefore, the Respondents had no opportunity to cross-examine the Appellant on those documents. Lastly, she submitted that there is no evidence adduced by the Appellant to prove alleged permanent disability. She submitted that there is no evidence of functional disability produced by the Appellant and therefore, no compensation is payable on the ground of disability.

We have given careful consideration to the submissions. In terms of Rule 255 read with Rule 281 of the Rules framed under the Motor Vehicles Act, 1988 along with the claim petition, the Appellant filed form COMP ''B''. It is a format of the Medical Certificate which is issued by the Medical Officer of the District Hospital at Nashik. There is an endorsement on the said certificate of the advocate representing the first and second Respondents before the Tribunal that he had no objection to exhibit the said documents. The said document records that the Appellant had a "fracture of upper 1/3 (L) Femur". It is further stated that he suffers from "post traumatic stiffness of (L) hip and knee. Quadriceps wasting". The permanent and the final disability has been assessed in the said certificate at 35%. In view of the consent by the advocate for Respondents, the said certificate was exhibited as Exhibit-44 and, therefore, it is not open for the Respondents to raise a contention that the claim of permanent disability of 35% was not established by the Appellant.

Now, as far as the argument regarding the functional disability is concerned, we have carefully perused the evidence of the Appellant-Claimant. Apart from setting out the details of the injury sustained by him, in paragraph 6 of the examination-in-chief, he has stated that he has been incapacitated to look after his business, and therefore, his earning capacity is reduced to the extents of 50%. He has stated that he was unable to do the work in full capacity. Except for giving a suggestion that the earning capacity of the Petitioner is not reduced by 50%, there is no cross-examination made by the Advocate for the insurer on the aspect of functional disability. It will be necessary to make a reference to evidence of Dr. Sudhir Madhukar Mangrulkar. The Appellant was referred to him by Dr. Raju Deshmukh, Orthopaedic Surgeon. In the second paragraph, Dr. Mangrulkar has stated thus:--

"He was treated by me for hot compress, Infra Real-Rays. Transcuteniens Electrical Nerve Stimulation (TENS). He was under my treatment from Jan. 95 to 30 April 95. The treatment is required to be continue in form a strengthening exercises, stretching exercise and mobilising exercises for fitness. If he is irregular his efficiency will be lowered and there will be problem of fatigue and pain in affected Limb and he is likely to put on weight if he does not exercise. The treatment of physiotherapy will be required for life long."

(Underline supplied)

We have perused the cross-examination of the said witness. In the cross-examination, the witness reiterated that the working capacity of the Appellant has been partially affected. Dr. Raju Deshmukh, Orthopaedic Surgeon who treated the Appellant has also been examined as a witness. A suggestion was given in his cross-examination that the left leg of the Appellant is not permanently disabled. The correctness of the said suggestion was denied by Dr. Deshmukh. In his examination-in-chief, Dr. Deshmukh has specifically stated that the left leg of the Appellant is shortened by half inch, and therefore, there is a strong possibility that the Appellant will suffer pain in the left hip. He stated that with the increasing age, the Appellant will suffer more pain and that his working capacity will be affected. Thus, there was more than sufficient material on record as regards the functional disability of the Appellant. Therefore, the argument of the learned counsel appearing for the insurer that the Appellant did not suffer functional disability deserves to be rejected.

We have already made a reference to the six heads under which compensation was granted to the Appellant. We find that on account of permanent disability, no compensation has been granted to the Appellant. As stated earlier, left leg of the Appellant has been shortened by half inch and, therefore, his working capacity has been affected. The learned Member has granted compensation only on account of loss of amenity, pain and suffering. It will be necessary to make a reference to evidence of Dr. Raju Deshmukh, Orthopaedic Surgeon. In examination-in-chief, he has stated thus:--

"As per my opinion, the claimants left leg is shortened by 0.5 inch, there is a strong possibility that the patient will suffer pain and stiffness in the left hip to more extent as compared to right Hip. It is true that as per the increasing age the claimant will suffer more pain as compared to the right Hip, and got permanent and final disability. Due to which his working capacity will be affected. He may require further treatment if and when the complications arises in regard to the pains and movements."

This version is not seriously tested in the cross-examination. Therefore, it can be safely concluded that the working capacity of the Appellant was permanently affected due to 35% permanent disability suffered by him.

Therefore, now the question is what should be the income taken into consideration for the purposes of computing compensation on account of permanent disability. The only document showing income of the Appellant which has been admitted in evidence is Exhibit - 30 which is the copy of the acknowledgement of the income tax return. As far as the other documents are concerned, especially the documents in relation to the income of the partnership in which the Appellant was a partner, none of the documents have been even shown to the Appellant in his examination-in-chief. The learned counsel appearing for the Appellant was right when she urged that the Tribunal constituted under the said Act of 1988 is not bound by the strict rules of evidence. However, the proof of genuineness of the documents relied upon by the Claimant is not dispensed with. Therefore, the documents which were not even shown to the Appellant could not be taken into consideration apart from the fact that none of the said documents have been exhibited. The learned Member of the Tribunal has proceeded on the footing that the monthly income of the Appellant on the date of the accident was Rs. 10,000/- per month. The said view taken is consistent with the document at Exhibit-30. Therefore, it is not possible to find fault with the approach of the learned Member of the Tribunal when he has taken the monthly income of the Appellant on the date of the accident at Rs. 10,000/-. On the date of the accident, admittedly the Appellant had completed 35 years of age but had not completed 36 years of age. If the examination-in-chief of the Appellant is carefully perused, there is no serious challenge to the version of the Appellant that he was a businessman and was a partner of a firm which was taking government contracts in partnership. However, the learned Member of the Tribunal has not taken into consideration the future prospects of increase in the income of the Appellant. Considering the evidence of the Appellant, a sum of Rs. 5,000/- will have to be added to the monthly income of Rs. 10,000/- towards his future prospects of increase in the income. Therefore, yearly income of the Appellant will have to be taken at Rs. 1,80,000/- for the purposes of computing compensation.

As far as the selection of multiplier is concerned, the law is laid down in the case of Sarla Verma (Supra). Paragraph 42 of the said judgment provides that for the age group of 31 to 35 years, multiplier of 16 will apply and for the age group of 36 to 40 years, the multiplier will be 15. The Appellant had not completed the age of 36 years on the date of accident. Therefore, multiplier of 16 will have to be applied. After applying the multiplier of 16 to the yearly income of Rs. 1,80,000/-, 35% of the said amount will have to be granted as compensation. The said amount comes to Rs. 10,08,000/-. As we are granting compensation on account of permanent disability, separate compensation will not be payable under the heading of loss of amenities. The learned Member has granted compensation of Rs. 20,000/- under the heading of pain and suffering. We have quoted what Dr. Raju Deshmukh has stated about the effect of the injury sustained by the Appellant. In our opinion, the said amount ought to have been Rs. 50,000/-. The sum of Rs. 35,000/- granted on account of loss of amenities will have to be deducted. Therefore, a case is made out for grant of total enhancement by a sum of Rs. 10,03,000/-. The Tribunal has granted interest at the rate of 9% per annum. The learned counsel appearing for the second Respondent pointed out that this Appeal was dismissed for non-prosecution on 21st July, 2009. The Appeal was restored under the order dated 30th July, 2013. The submission of the learned counsel appearing for the second Respondent is that the said Respondent cannot be saddled with interest at the rate of 9% considering this conduct of the Appellant.

We have perused the Farad Sheet. It is true that the Appeal was dismissed on 21st July, 2009. The Appeal was restored under the order dated 30th July, 2013 in Civil Application No. 476 of 2005. Thereafter, the Appeal remained pending for a considerable long time for service of notice to the first Respondent. The service was effected in March, 2014. Therefore, there is some justification for the contention that for no fault on the part of the second Respondent, the Appeal remained pending from 21st July, 2009 till at least March, 2014. Considering this aspect, instead of granting 9% interest on the additional amount, we propose to grant interest at the rate of 7% per annum.

Hence, we dispose of the Appeal by passing the following order:--

ORDER

"(i) The impugned judgment and award dated 28th April, 2003 is modified;

(ii) The compensation of Rs. 35,000/- granted on account of loss of amenities is hereby set aside. The compensation granted under the heading of pain and suffering shall be Rs. 50,000/- instead of Rs. 20,000/-. The compensation on account of permanent disability shall be Rs. 10,08,000/-. Thus, in addition to the compensation granted under the impugned judgment and Award, the Appellant shall be entitled to additional compensation of Rs. 10,03,000/-. The additional compensation of Rs. 10,03,000/- shall carry interest at the rate of 7% per annum from the date of filing of the claim petition till the realisation or deposit of the said amount with the Tribunal;

(iii) We grant time of three months to the second Respondent to deposit the additional compensation as above with the Tribunal. After the amount is deposited by the second Respondent, necessary order of disbursement/investment shall be passed by the Tribunal in accordance with law;

(iv) The Appellant shall be entitled to proportionate cost of the Claim Application and this Appeal from the second Respondent."