Pradeep vs Rajiv

S.B. Shukre, J.—By this appeal, the judgment and Award passed on 06.10.2001 in Claim Petition No. 341 of 1989 delivered by the Motor Accident Claims Tribunal, Nagpur, has been challenged.

The appellant is the person who had suffered injuries in the accident which had occurred at about 8-30 p.m. of 7.5.1989 near R.B.I. Square, Nagpur. According to the appellant, at that time, he was riding his motor cycle when one truck bearing registration No. MWY-7354 owned by late Ishwarchand Verma, respondents 1(A) and 1(B) are his legal heirs, and insured with respondent no. 2 coming from opposite direction in a great speed, gave a dash to the motor cycle, dragging the motor cycle rider as well as the motor cycle along with it. The appellant, who was the motor cycle rider, sustained grievous injuries in the nature of fracture of his ribs and dislocation of joints of his left leg. The appellant submitted that this accident was caused due to rash and negligent driving of the offending truck by its driver. The appellant submitted that at the time of accident he was 32 years of age and, being an educated person, had a very promising business career. He submitted that he was then partner in four firms, but on account of the grievous injuries suffered by him in the accident which led to causing of permanent disability in him, the appellant was unable to look after his business and his earning capacity was reduced substantially. Assessing the loss suffered by him, he claimed compensation of Rs. five lac from the respondents jointly and severally. He also claimed Rs. one lac towards mental agony and shock. Thus, he filed claim petition u/s 166 of the Motor Vehicles Act for payment of compensation of Rs. six lac to him.

The respondents filed their joint written statement denying the occurrence of the accident, the contentions relating to rash and negligent driving of the offending truck, sustaining of injuries and permanent disability, loss of income and the amount of compensation claimed by the appellant. The respondents, however, admitted the ownership of the truck. But, they denied the number of insurance certificate. They submitted that the accident had occurred most probably because of rash and negligent driving of the motor cycle driven by the appellant at the relevant time. They submitted that at the time of accident, the driver of the offending truck was required to suddenly apply the brakes because he noticed that one motor cycle rider approaching from behind the truck was overtaking the truck in a dangerous manner and, therefore, in order to avoid giving of any accidental dash to that motor cycle, the driver of the truck applied the brakes which led to skidding of the truck on the road and colliding it against the road divider. Thus, the respondents claimed that there was no fault of the truck driver in occurrence of the accident and, therefore, they prayed for their being absolved of liability in the case.

Upon consideration of the evidence available on record, the learned Member of the Tribunal found that the accident occurred only because of rash and negligent driving of the offending truck, and since respondents 1 and 2 were respectively the owner and insurer of the truck, the learned Member further found them to be liable to pay compensation. But, the learned Member did not grant any compensation for the income loss and held that an amount of Rs. 80,000/- in lump sum would be just and proper compensation for the injuries suffered by the appellant. The learned Member also granted medical expenses actually incurred by the appellant. Thus, the total compensation granted by the Tribunal was to the extent of Rs. 82,067/-. Accordingly, by its judgment and Award passed on 6.10.2011, the Motor Accident Claims Tribunal, Nagpur, partly allowed the petition of the appellant. Not satisfied with the same, the appellant has preferred the present First Appeal.

I have heard Shri Naidu, learned counsel for the appellant and Shri Kukday, learned counsel for the respondents. The points that arise for my consideration are as follows:

(i) Whether the Tribunal was justified in not granting any damages on account of loss of earning?

(ii) Whether the total amount of compensation granted by the Tribunal is just and proper?

Shri Naidu, learned counsel for the appellant, has submitted that the learned Member has committed a grave error of fact and law in not granting compensation for the loss of income suffered by the appellant. In support, he has taken me through the evidence available on record from which he has tried to show that his evidence was sufficient to record a finding that the appellant had suffered a loss of about Rs. one lac per year due to the injuries sustained by him in the accident due to his inability to carry on with his functions as a partner in the four Firms. He has submitted that the evidence of the appellant has received due support from the Income Tax Returns produced in evidence. According to him, this evidence is sufficient for assessing the loss of income of the appellant, which was the direct result of disability of the appellant arising from the injuries sustained by him in the accident.

Shri Kukday, learned counsel for the respondents, on the other hand, has argued that it was absolutely necessary for the appellant to adduce sufficient evidence, particularly documentary evidence, to show that even though there were other partners in the Firm, the inability of the appellant to perform his function as a partner resulted in the Firms'' incurring of continuous losses after the accident. He has submitted that if one partner is physically affected, although it was not the case here, there are always other partners who can take upon themselves performance of the functions of the affected partner and thus carry on the business of the partnership with same zeal and energy, as earlier. Having regard to this possibility, which is real, the learned counsel for the respondents submitted that it was necessary to tender specific evidence to show that the alleged impairment of power of the limbs of the appellant had directly resulted in loss of business and earnings by the partnership Firms, and since that evidence has not been produced on record by the appellant, the Tribunal has rightly not given any compensation on account of loss of earnings of the appellant. He has also submitted that the appellant has not proved the Disability Certificate and since the concerned Doctor was not examined before the Tribunal, the Disability Certificate cannot be read in evidence and it has not been rightly reconsidered in evidence by the Tribunal, so submits learned counsel. Thus, the learned counsel for the respondents submits that the impugned judgment and Award are properly delivered and no interference with them is required.

So far as the question relating to non-grant of compensation on account of loss of earnings of the appellant is concerned, I do not think that any error of fact or law could be found with the reasons and findings recorded by the Tribunal in this behalf. The Disability Certificate has not been proved in evidence. The appellant was admittedly a partner in four Firms and, therefore, it was incumbent upon him to adduce evidence explaining the role played by him in carrying on the business of all the Firms in details and as to how due to his functional disability he could not contribute towards the business of the partnership Firms and as to how the other partners were unable to perform his functions or change their respective roles in the partnership firms. Many a times, the business is of such a nature that same can be carried out by sitting at office and using various modes of communication like telephone and letters and in such a case, impairment of power of the limbs may not adversely affect the business. In some another case, the business would require some partners to step out of office and some partners to stay in the office. In such a case, roles can be swiped between the partners so that the role which requires making of lot of physical movements by one partner is exchanged for the role which does not require such movements to be made. Therefore, it was necessary for the appellant to produce some evidence showing in details as to how the role being performed by him in the business of partnership Firms could not have been carried out by the remaining partners, or in other words how his role was indispensable in nature and could not have been performed at all by the other partners. This evidence having not been brought on record by the appellant, a bald statement made by the appellant that after suffering of injuries in the accident, his income has been reduced to about Rs. 30,000/- to Rs. 40,000/- from Rs. 1,50,000/- cannot be accepted.

With such evidence on record, I am in agreement with the finding of the learned Member that not much importance can be attached to the evidence in the nature of income tax returns and the only proper method for ascertaining the compensation would be calculating the same in lump sum having regard to the injuries suffered by the appellant in the accident. The first point is, therefore, answered as in the negative.

As regards the quantum of compensation awarded in this case, I am of the view that the learned Member was in error in not taking into account the pain, sufferings, shock and loss of amenities of life as the relevant factors for determining the compensation payable to the appellant. While the learned Member has considered the compensation for the injuries sustained to be at Rs. Eighty lac and also the medical expenses to be at Rs. 02,067/-, the learned Member has not at all referred to the other elements of non-pecuniary damages. These other components are, as stated earlier, pain, sufferings, shock and loss of amenities of life. For giving of compensation under these heads, it would be necessary to refer to the evidence available on record. The appellant in his evidence vide Ex. 50 has stated that after the accident, he found it difficult to have free movements of his limbs and was not in a position to drive the vehicle. These statements have not been controverted by the respondents, if the cross-examination is looked into. Rather, the respondents in the cross-examination of the appellant, have elicited an answer from him that the appellant could not drive the vehicle or scooter, and that was the reason why he could not go to warehouses and godowns. This evidence would show that the appellant has sufficiently established the fact that because of the injuries suffered by him in the accident, he has not only been experiencing difficulty while walking but also finding himself as unable to drive a vehicle or a scooter. That would mean that there has been some loss of enjoyment and amenities of life for the appellant. Then, any accident which results in causing of grievous injury to a person certainly brings in its wake shock, pain and sufferings for the injured person and the appellant being an injured person in the instant case, would be no exception to these human experiences. Therefore, compensation on this count is due to him. Accordingly, an amount of Rs. 30,000/- for the pain, shock and sufferings of the appellant and an amount of Rs. 20,000/- for the loss of amenities and enjoyment of life would be just and proper compensation to be additionally paid to the appellant. The respondents have already been found to be liable to pay jointly and severally the compensation to the appellant and this finding of the Tribunal has attained finality.

Thus, I find that the respondents 1 and 2 are liable to pay jointly and severally additional amount of Rs. 50,000/- on account of pain, shock and sufferings and loss of amenities and enjoyment of life in addition to the amount of compensation already granted by the Tribunal. Point no. 2 is, therefore, answered accordingly.

In view of the above, the appeal is partly allowed with proportionate costs and the amount of compensation granted by the Motor Accident Claims Tribunal, Nagpur, is enhanced to Rs. 01,24,567/- and the same shall be paid jointly and severally by respondents 1 and 2 within a period of four weeks, failing which the amount shall be paid together with interest on the enhanced portion at the rate of 9% per annum from the date of Appeal till the date of final payment. As regards the interest to be paid on the amount of compensation granted by the Motor Accident Claims Tribunal, the order of the Tribunal remains unmodified and is confirmed.