Rahul vs Ravikant & Anr.

Heard Mr. Sable, learned counsel for the appellant and Mrs. Anita Mategaonkar, learned counsel for the respondent No.2.

The matter is heard finally with the consent of the learned counsel for the parties.

The appellant is challenging the judgment and award dated 04.05.2012 passed by the learned Motor Accident Claims Tribunal-3, Nagpur in M.A.C.P. No.58/2006 and is seeking enhancement of the compensation awarded by the learned Tribunal.

The appellant is an injured claimant, who, while proceeding on his Yamaha motorcycle bearing registration No.MH-31/BT-8931 from Wadi towards Nagpur, was hit by the offending travel bus bearing registration No.MH-31/W-6945, which came from the opposite direction. Due to the said accident, he sustained injuries and was required to undergo treatment initially at Dr. Dande Hospital and thereafter at Suretech Hospital, Nagpur. Therefore, he filed Claim Petition No.58/2006 before the learned MACT, Nagpur, claiming compensation of Rs.5 Lakhs with interest at the rate of 12% per annum from the date of accident.

According to the appellant, due to the accident, he suffered grievous fracture injuries and was required to be treated initially at Dr. Dande hospital and later on, at Suretech Hospital, Nagpur. The appellant was 18 years old at the time of accident and was pursuing studies. He submitted that he has incurred expenses of Rs.75,000/-towards medical treatment because of the accident and claimed loss of future earning of Rs.2 Lakhs. He has also claimed Rs.3 Lakhs towards pain, suffering and shortening of life due to permanent disability.

The learned Tribunal, while deciding the claim petition, observed that the appellant had suffered 20% permanent disability due to the accidental injuries. However, since the appellant failed to establish that due to the accidental injury and permanent disability, his working and earning capacity was reduced, the learned Tribunal did not award any amount towards loss of future earning capacity. The learned Tribunal awarded compensation of Rs.55,000/-, including No Fault Liability Compensation, along with interest at the rate of 7.5% per annum.

Being aggrieved by the said judgment, the appellant approached this Court by way of instant appeal under Section 173 of the Motor Vehicles Act.

Mr. Sable, learned counsel for the appellant submits that the learned Tribunal did not consider the actual medical expenses incurred by the appellant during the course of his treatment. He further submitted that the appellant was admitted to Suretech Hospital from 28.12.2005 to 04.01.2006. Thereafter, he was treated for Narcood post stiffness in right knee and ankle and operated on 13.03.2006. Thereafter, he was again admitted at Suretech Hospital from 21.05.2009 to 25.05.2009. According to the appellant, he has sufficiently established to demonstrate before the Claim Tribunal that he has suffered expenses to the tune of Rs.5 Lakhs. However, the learned Tribunal committed an error in not awarding the compensation in consonance with his expenses. In support of his submissions, learned counsel for the appellant has placed reliance upon the following judgments:

Sarla Verma (smt) and Ors. Vs. Delhi Transport Corporation and anr., reported in (2009) 6 SCC 121.

ii) National Insurance Company Limited Vs. Pranay Sethi and ors., reported in (2017) 16 SCC 680.

iii) Magma General Insurance Company Limited Vs. Nanu Ram Alias Chuhru Ram and Ors., reported in (2018) 18 SCC 130.

Per contra, Mrs. Mategaonkar, learned counsel for the respondent No.2-Insurance Company submitted that the appellant has virtually failed to demonstrate before the learned Tribunal as regards the expenses incurred by him during the treatment. She submitted that the appellant was 18 years of age and was a student. The appellant was required to establish that due to the permanent disability to the extent of 20%, his working, earning capacity is reduced and therefore, in absence of such evidence, the award passed by the learned Tribunal is correct and proper and as such, there is no merit in the appeal and hence, liable to be dismissed.

After hearing the learned counsel for the parties and going through the record placed before this Court, it is admitted fact that the appellant met with an accident on 28.12.2005 at 11:00 hours. The said accident took place on Nagpur Amravati highway in front of Nagoba Mandir, Nagpur. The appellant was proceeding on his Yamaha motorcycle bearing registration No.MH-31/BT-8931 and the luxury bus belonging to Royal Travels Bus bearing registration No.MH-31/W-6945 gave dash to him causing grievous injuries. The offended travel bus is insured with the respondent – New India Assurance Company Limited. The appellant has stated in his evidence that the offending bus was driven in rash and negligent manner at the relevant point of time, due to which, he has suffered grievous injuries.

The appellant has placed on record medical bills and other documents relating to his treatment. The learned Tribunal, having regard to the nature of injuries and the treatment undergone by the appellant, awarded an amount of Rs.15,000/- towards treatment and medicines.

After perusing the judgment delivered by the learned Tribunal and going through the entire record, this Court is of the opinion that the claim of the appellant towards loss of future earning capacity is required to be considered having regard to the principles laid down by the Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar, reported in (2011) 1 SCC 343, Jagdish v. Mohan and others, reported in (2018) 4 SCC 571 and Pappu Deo Yadav v. Naresh Kumar and others, reported in 2020 SCC OnLine SC 752 : AIR 2020 SC 4424. The principles laid down in National Insurance Company Limited v. Pranay Sethi and others, reported in (2017) 16 SCC 680, are also relevant for considering future prospects.

In the present case, the learned Tribunal has itself recorded a finding that the appellant suffered 20% permanent disability on account of the accidental injuries. The appellant was aged 18 years and was a student at the time of the accident. The medical evidence establishes that he had sustained fracture of the right femur and right tibia and had undergone operative treatment, and the medical evidence also records functional difficulty resulting from the injuries. Therefore, merely because the medical witness had not specifically stated that the disability had reduced the earning capacity of the appellant, the claim towards loss of future earning capacity could not have been rejected without assessing the functional impact of the permanent disability. The Hon'ble Supreme Court in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, has distinguished permanent physical disability from functional disability and has required the impact of the disability on earning capacity to be assessed. Further, in Jagdish v. Mohan, (2018) 4 SCC 571 and Pappu Deo Yadav v. Naresh Kumar and others, 2020 SCC OnLine SC 752 : AIR 2020 SC 4424, the Hon'ble Supreme Court has recognised the applicability of future prospects while assessing loss of future earning capacity in cases of permanent disablement.

As the appellant was a student at the relevant point of time and was aged 18 years, his future income is required to be assessed on a notional basis. Having regard to his age, educational status and the circumstances of the case, his notional monthly future income is assessed at Rs.5,000/-. The appellant has suffered permanent disability to the extent of 20% due to the accidental injuries. Having regard to the nature of the injuries sustained by him, namely fracture of the right femur and right tibia, the permanent disability certified by the medical evidence and the resultant functional difficulty, this Court is of the view that 20% disability can reasonably be taken into consideration for assessing the loss of future earning capacity. The appellant being below 40 years of age, addition of 40% towards future prospects is warranted in view of the principles laid down in Pranay Sethi (supra) and as applied to cases of permanent disablement in Jagdish (supra) and Pappu Deo Yadav (supra). Considering the age of the appellant as 18 years, multiplier of 18 is applicable for computing the loss of future earning capacity.

In that view of the matter, the following calculations are being made:

The aforesaid amount represents the compensation determined by this Court towards loss of future earning capacity on account of the permanent disability suffered by the appellant. Having regard to the overall facts and circumstances of the case and the compensation already awarded by the learned Tribunal under the other heads, this Court considers the total compensation of Rs.3,02,400/- to be just and reasonable.

In view of the above discussion and the calculation made hereinabove, the appellant is entitled to total compensation of Rs.3,02,400/- along with interest at the rate of 7.5% per annum, as awarded by the learned Tribunal. The deficit Court fees, if any, on the enhanced amount shall be paid by the appellant. The amount deposited in this Court shall be transferred to the learned Tribunal for being dealt with in accordance with this judgment. The respondents shall deposit the enhanced amount of compensation, if not already deposited, before the learned Tribunal within a period of eight weeks from the date of this judgment. Upon such deposit, the learned Tribunal shall disburse the amount to the appellant in accordance with law.

The First Appeal is, accordingly, partly allowed.