Ratankumar Madan & Ors. vs Divisional Controller, M.S.R.T.C. & Ors.

Heard.

In the present appeal, the challenge is to the judgment and order passed by Motor Accident Claims Tribunal, Nagpur, in Claim Petition No.701/2000 decided on 08.04.2010.

The undisputed fact of the present appeal that are necessary to be looked into, which are as under:

The applicant is a businessman and a wholesale cloth dealer having his shop in the wholesale cloth market under the name and style of ‘Prem Silk Stores’. He has also produced a Marathi film titled ‘Gharabaher’. Further, it is the submission of the appellant that he had started a new venture named ‘N.R. Editing’ in Shankar Nagar, Nagpur, and procured equipment worth Rs. 5.50 lakhs by taking a loan from the market.

On 19.03.1999, at around 5 a.m., while he was travelling from Nagpur to Pune as an occupant of a trax bearing No. MH 35/C–9388, near Masne Phata on the Nagpur–Pune Road, an ST bus bearing No. MH 12/FA-1794 came from the opposite direction at high speed and dashed to the jeep. In the said accident, the appellant sustained grievous injuries and was admitted to the hospital on 19.03.1999. He remained hospitalized for a period of one month, until 19.04.1999.

According to the appellant, due to this accident, he incurred expenses of Rs. 1,03,570/- for hospitalization, Rs. 12,800/- on medicines, Rs. 2,830/- on blood testing, ambulance charges, and other expenses Rs.1,420/-. At the time of the accident, the appellant was a 35 year old businessman earning Rs. 25,000/-per month. Therefore, considering the loss he suffered due to the accident, he preferred a claim petition before the Claims Tribunal and claimed compensation of Rs. 25 lakhs from the respondent.

In the present appeal, it is seen from the record that the appellant, in order to substantiate his submissions, examined himself before the Claims Tribunal and narrated the entire factual position as well as the loss caused to him due to the accident. To corroborate his financial loss, he relied upon the evidence of Ramsharan Tarachand Madan, who was the Auditor of the firm ‘Prem Silk Stores’ and was also looking after all the accounts of the appellant’s establishment. He also examined Shri Mahesh Bansilal Puniyani, who had provided a vehicle during the period when the appellant was hospitalised at Pune.

Dr. Parag Sancheti was examined to prove that the appellant had sustained injuries as reflected in the discharge card and the certificate issued by him on 07.02.2007, stating that due to the accident, the metallic implants inserted in the appellant’s body are not removable. Lastly, Dr. Maroti Kothede, a Member of the Medical Board at Mayo Hospital, Nagpur, was examined to prove the disability certificate.

It is an admitted fact on record that no evidence was led on behalf of the respondents before the Claims Tribunal. The respondents only cross-examined the witnesses and, on that basis, defended the claim petition before the Tribunal.

In light of the above factual position, which was brought to the notice of the learned Tribunal, the learned Tribunal, by its judgment, awarded compensation of Rs. 6,85,700/- under the following heads:

The appellant/claimant, being dissatisfied with the compensation amount awarded by the learned Claims Tribunal, preferred the present appeal seeking enhancement of the compensation. According to him, he is entitled to compensation of Rs. 30 lakhs by considering his income and the evidence he has produced on record. However, the learned Tribunal failed to consider the evidence in the right perspective and the law laid down by the Hon’ble Supreme Court of India.

In the present matter, although specific evidence regarding his yearly income was not brought on record, it is established by the appellant that his sales figure in the financial year 1998–1999 was Rs.78,69,631/- and therefore, his income is required to be considered in the matter. As such, appellant stated that his monthly income was Rs.25,000/- per month at the time of accident.

The appellant, in support of his submission, has relied upon following Case laws:

In the present appeal, respondent No. 1 has contested the matter on merits. According to respondent No. 1, in a case of permanent disability, it is the burden of the claimant to establish on record how the future loss of income has been caused due to the permanent disability. For that purpose, it was necessary for the claimant to adduce corroborative evidence on record. It was also necessary for the claimant to place on record substantial documents to prove the claim under the various heads permissible as per the law laid down by the Hon’ble Supreme Court of India.

However, the appellant failed to establish his permanent disability and the loss of income due to such disability before the Claims Tribunal. According to respondent No. 1, considering the nature of disability, which did not cause any future loss of income to the appellant, the amount determined by the learned Claims Tribunal is justified, and no enhancement is warranted in the matter.

The other respondents have adopted the submissions made by respondent No. 1 in the matter. According to them, respondent No. 1 has sufficiently covered their contentions, and therefore, they do not wish to add any further submissions. In light of the above factual and legal position pointed out by the parties, and the case laws relied upon, I have gone through the record and the case papers placed before me.

At the outset, in my view the Judgment of the Hon’ble Supreme Court in the case of Rajkumar (supra) certain observations particularly paragraph Nos.5, 9 and 10 are relevant to reproduce in the matter:

In light of the judgment of the Hon’ble Supreme Court of India, which till date hold the field and to ascertain the effect of permanent disability, the Court is required to first determine, what activities the claimant can still carry out despite the permanent disability and what activities he can no longer perform as a result of such disability. Further, it is necessary to ascertain his avocation, profession, and nature of work prior to the accident, as well as his age. Thereafter, it has to be examined whether the claimant has been totally disabled from earning any livelihood, or whether, despite the permanent disability, he can still effectively carry on the activities and functions he was performing earlier, and whether he has been prevented or restricted from discharging his previous activities and functions. On this basis, the extent of his disability has to be assessed.

Similarly, while considering the disability, it is necessary to examine whether the disability certificate refers to the injury to a particular part of the body or to the whole body. If the disability pertains only to a specific limb, can it be treated as a functional disability of the entire body, or can it be assumed to result in a corresponding loss of earning capacity.

In light of this legal position, I have gone through the evidence placed on record by the appellant. Admittedly, the appellant was engaged in the cloth business and had produced a Marathi film ‘Gharabaher’. According to him, he had also started another business under the name and style of ‘N.R. Editing’ at Shankar Nagar, Nagpur. In support of the income which he was earning prior to the accident, he produced his income tax returns on record to show that he was regularly paying income tax based on his earnings.

The appellant, in support of his income, examined the Auditor, namely Ramsharan Madan. From the evidence of this witness, it was brought on record by the respondent that he is the real brother of the appellant and he failed to establish that he was professionally working as a Chartered Accountant for the appellant’s firm. It was further brought on record during his cross-examination that, no regular audit accounts maintained by him, the books of account, copy of the passbook, and other relevant documents such as the audit report were not placed on record. It also emerged that only the income tax return till the financial year 1999–2000 were produced. Hence, in light of this evidence, it is clear that the appellant failed to establish on record, what financial loss caused to him, after the accident and more particularly due to permanent disability caused to him.

In the same manner, although the appellant stated that he had started a new business under the name and style of ‘N.R. Editing’ at Shankar Nagar, Nagpur, and purchased equipment worth Rs. 5.50 lakhs by taking a loan from the market, which was required to be closed due to the accident, it was therefore necessary for him to place on record at least the details of the equipment purchased and the source from which the loan was obtained. However no evidence in this regard has been placed on record in the matter. The evidence of accountant falls short to support the submission of appellant. In support of submission, it was necessary for appellant to produce documentary evidence on record. But, except oral statement, no documentary evidence produced on record to substantiate his submission that due to permanent disability he caused loss in his future income.

With respect to transport charges, the appellant relied upon PW-3, Mahesh Puniyani. This witness was not seriously cross-examined by the respondent, and therefore it stands established that the appellant paid Rs. 10,698/- towards travelling charges. Thus, this fact has been duly proved on record by the appellant.

As per the judgment in Rajkumar (supra), the Hon’ble Supreme Court of India has observed, in respect of disability certificates, the Court should act with caution if it proposes to accept the expert evidence of doctors who did not treat the injured but have issued a disability certificate. At the same time, it has been clarified that where disability certificates has been issued by duly constituted Medical Boards, that may be accepted, subject to evidence regarding the genuineness of such certificates. Mere production of a disability certificate or discharge certificate will not by itself prove the extent of disability unless the doctor who treated the claimant, or who medically examined and assessed the extent of disability, is tendered for cross-examination with reference to the certificate. Without such examination, the certificate cannot be accepted as conclusive proof.

In light of this proposition of law laid down by the Hon’ble Supreme Court of India, I have examined the evidence of Dr. Parag Sancheti. In his evidence, he stated that he issued the certificate dated 07.02.2007 (Exhibit 81), which shows that the appellant was treated by him and had metallic implants in his body. This witness specifically stated that the hip implants could not be removed as it might cause damage to the nerve supplying blood.

Further, from his evidence, it is clear that there were implants in the appellant’s knee, which could be removed after a considerable period; and after removal, there would be no defect in the knee. The witness also stated in cross-examination that, considering the treatment and injuries referred in the certificate, the appellant was referred to the Civil Surgeon. From this evidence, it is clear that the appellant was under the treatment of Dr. Parag Sancheti and had metallic implants in his body, particularly in the knee and hip.

The appellant then examined Dr. Maroti Raghoji Koihede, who was the Professor and Head of the Department at the Medical College and a Member of the Medical Board. In his evidence, this witness stated that, upon clinical examination, he found a crush injury to the appellant’s right leg and assessed 50% disability, which, according to him, is permanent in nature. He has proved the disability certificate issued by the Medical Board. Accordingly, the handicap certificate issued by the Medical Board (Exhibits 101 and 102) shows the disability of the left leg to be 55%.

In light of the above factual position, it is clear that the injury sustained to the left leg of the appellant is 50 to 55%. The injury does not affect his whole body. Moreover, it is not the case that this injury resulted in a loss of earning capacity. Therefore, considering the evidence available on record, although the permanent disability as per the medical evidence is stated to be 50 to 55%, in view of the two medical certificates, I am of the opinion that the loss of earning capacity can be assessed at the most at 15% based on the evidence on record.

This percentage of disability fortified from the evidence brought on record. The appellant failed to establish the future loss caused to him in his business. He has only filed income tax returns up to the year 1998–1999, i.e., the year in which the accident occurred. It is not the case of the appellant that the business was closed due to the accident, therefore, when his evidence was recorded before the Tribunal in 2007, he could have produced the income tax returns of his business or shop till year 2007, which would the best available documents to demonstrate the loss if certainly caused to him. However, appellant failed to produce without any sufficient reasons.

In respect of other business, particularly the production of Marathi cinema, no corroborating evidence was brought on record by the appellant. It is also pertinent to note that the appellant, both in his evidence and in the pleadings of the plaint and appeal, stated that he was involved in the production of the Marathi film Gharabaher and, for that purpose, he was travelling to Pune to attend the shooting of the film. He submitted that he sustained a loss of Rs. 2 lakhs per day due to the accident, as there was a delay in the completion of the film.

However, except this statement, nothing was placed on record either before the Claims Tribunal or before this Court. If the appellant was involved in the production of the Marathi film, it was necessary for him to bring on record details of how he suffered a loss due to the delay in completion of the film, what was his role in the production, and how his absence caused the delay. However, except this bare statement, nothing has been produced on record to substantiate the loss claimed due to the delay. The appellant has only placed on record a certificate from Suyog Chitra stating that he had produced the said film under the banner of Suyog Chitra.

From the above discussion, it is difficult to ascertain his monthly income, as there is no specific data available on record to show his actual income before the date of the accident. The only evidence available on record is the audit report till the date of accident, no audit report from year 2000-2001 are placed on record. Considering the evidence placed on record by the appellant, the net profit can be seen for the year 1997–1998 was Rs. 1,26,724/-, and for the year 1998–1999 it was Rs. 72,330/-. Therefore, it can be said that the appellant had an average yearly income of Rs. 1,20,000/- from the various businesses he was running before the accident. Hence, by accepting his annual income at the rate of Rs. 1,20,000/-, the calculation for enhancement of compensation is required to be carried out in the matter.

It is submitted that, as per the law laid down by the Hon’ble Supreme Court of India in the case of Mohammed Sabeer (supra) even in cases of permanent injury, the claimant is entitled to claim future prospects. According to the Hon’ble Supreme Court, just compensation is to be awarded in a manner that places the claimant in the same position as he was before the accident occurred. Therefore, even if the income of the appellant may have increased after the accident, this alone is not sufficient to prevent the appellant from claiming compensation for future prospects, as the rise in income may be attributed to multiple other factors also. Hence, relying upon the judgment in the case of Pranay Sethi (supra), the Hon’ble Supreme Court of India has held that a 40% addition for future prospects should be made in cases of permanent disability.

The Hon’ble Supreme Court of India in the case of Jagdish (supra) further clarified that the benefit of future prospects should not be confined only to those who have permanent jobs but would also extend to self-employed individuals. Hence, according to the Hon’ble Supreme Court, in cases where the victim is below 40 years of age, 40% of the amount towards future prospects should be added in cases of permanent disability.

In light of the factual position and law laid by the Hon’ble Supreme Court of India, in my opinion, appellant is entitled for the compensation as under:

In view of above, I proceed to pass the following orders:

The First Appeal stands disposed of in above terms. No order as to the costs.