1. The challenge in this appeal is to the judgment and award rendered by the M.A.C.T. (Aux.), Rajkot on 27.12.2001 in M.A.C.P. No.616 of 1993 whereby the concerned Tribunal was pleased to award by way of compensation Rs.99,040/- by way of compensation to the appellant – claimant with running interest @ 9% p.a. from the date of said claim petition till the realisation. The original claimant felt that the amount awarded by way of compensation was on very lesser side, as in the claim petition, he had claimed Rs.2,92,000/- by way of compensation. Therefore, in this appeal, enhancement sought by the appellant – original claimant is to the extent of Rs.1 Lac.
2. As per the case of the appellant – original claimant, on 23.11.1992, he was serving as cleaner in truck No.GTW-8969 and because of rash and negligent driving by the driver of the said truck, the vehicular accident occurred and in the accident, he sustained serious bodily injuries. In the claim petition, it was his case that at the time of vehicular accident, he was aged about 23 years and his monthly income was Rs.1000/-. The respondent No.3 – Insurance Co. resisted the claim of the claimant by filing written statement and inter-alia all the contentions raised by the claimant in his claim petition came to be denied, except that, at the time of accident, the truck was insured with respondent No.3 – Insurance Co.
3. Before the Claim Tribunal, by way of oral evidence, the claimant himself stepped into the witness box and was examined. The claimant produced necessary documentary evidence like disability certificates, bills and vouchers, showing purchase of medicines and other relevant police papers.
4. The Tribunal, after examining the oral and documentary evidence on record, ultimately, came to the conclusion that the disability certificates, Exhs.38 and 42 came to be admitted by both the sides and the total functional disability of the claimant of body as a whole was considered of 24%. The Tribunal further observed that at the time of accident, the claimant was earning Rs.1200/-
p.m. It was further observed that at the time of accident, the claimant was aged about 23 years. Accordingly, the Tribunal came to the conclusion that the claimant was entitled to recover Rs.51840/- under the head of future loss of income, Rs.15000/- under head of pain, shock and suffering, again Rs.15000/- under the head of purchasing medicines, Rs.7200/- towards actual loss of income for the period of six months and Rs.10000/- under the head of transportation, rich diet, attendance charge etc. and in all the Tribunal came to the conclusion that the claimant was entitled to recover Rs.99040/-
by way of compensation.
5. Mr.Paul, learned advocate for the appellant – claimant, at the outset, submitted that the amount awarded by way of compensation to the claimant by the Tribunal is on a very lesser side. It is submitted that considering the injury certificates produced by the claimant, it is submitted that the claimant sustained multiple fracture injuries as well as he sustained injury to his urethra. It is further submitted that considering the nature of the serious injuries sustained by the claimant, which reflects from the two disability certificates, which came to be admitted by both the sides, it can safely be said that the injury was very serious in nature as well as there was persistent urinary discharge from suprapubic cystostomy. It is, therefore, submitted that on account of fracture of right ulna and considering the nature of work, which the claimant was doing at the time of the incident, the Tribunal should have awarded reasonable amount under the head of pain, shock and suffering. In support of such submission, Mr.Paul, learned advocate for the appellant – claimant relied upon a case of National Insurance Co.Ltd. Vs.Minor Ramanbhai Fulabhai Bhoi & Ors. reported in 1983 ACJ 779. Mr.Paul submitted that it is true that in the instant case, the claimant did not examine any medical officers, but the disability certificates, Exhs.38 and 42 were admitted and, therefore, there was no requirement for the claimant to examine any medical officer.
5.1 Mr.Paul, learned advocate for the appellant – claimant submitted that in the instant matter, the Tribunal has not at all taken into consideration the future perspective income of the claimant. It is submitted that even if it is considered that the monthly income of the claimant was Rs.1000/- p.m., as pleaded by him in his claim petition, then atleast the future perspective monthly income would have been Rs.1500/- p.m. It is further submitted that multiplier applied by the Tribunal is of 15 years and my attention was drawn to the case of Sarla Verma Vs. D.T.C. reported in (2009)6 SCC 121 and submitted that at the time of incident, the Tribunal should have considered 18 years as appropriate multiplier. Mr.Paul, learned advocate for the appellant – claimant, therefore, submitted that considering Rs.1500/- p.m. as future perspective income and the functional disability affecting his earning capacity at 24%, the monthly loss would come to Rs.360/-
and multiplying the same with 12 as well as with 18 years, the total would come to Rs.77760/-. It is submitted that in the instant case, the Tribunal awarded Rs.51840/- towards future loss of income and, therefore, the claimant is accordingly entitled to recover Rs.25920/- by way of more amount towards future loss of income.
5.3 Relying upon the minor Ramanbhai Fulabhai Bhoi's case (supra), Mr.Paul, learned advocate for the appellant – claimant submitted that in the said matter, the injured sustained complicated fracture of the pelvis with both the public rami fractured and ruptured urethra and this Court awarded Rs.75000/- by way of pain, shock and suffering and loss of amenities and enjoyment to life. It is, therefore, submitted that the Tribunal awarded Rs.15000/- under said head and, therefore, the appellant – claimant is entitled to recover Rs.60000/- more. It is, therefore, submitted that the claimant is entitled to recover Rs.85920/- by way of enhanced amount of compensation. Mr.Paul, learned advocate for the appellant – claimant drew my attention to the additional affidavit filed by the appellant – claimant, and at the outset, submitted that the said affidavit is not filed claiming Rs.3 Lacs more by way of compensation as stated in said affidavit, but the said affidavit is filed to show that even after the accident, the applicant had to undergo 8 to 9 operations and had to incur huge medical expenses and because of the injuries, he was unable to marry and his life is totally ruined.
6. Mr.Nair, learned advocate for the respondent No.3 – Insurance Co. fully supported the impugned judgment and award rendered by the Tribunal. It is submitted that in the instant matter, since the claimant did not examine any medical officer, the claimant cannot claim any parity with the decision rendered by this Court in minor Ramanbhai Fulabhai's case (supra). It is submitted that in the instant matter, in absence of any medical evidence on record, it cannot be presumed that the life of the claimant was totally ruined and perished because of the accident and that he was required to put catheter throughout his life. It is further submitted that though in the claim petition, the claimant pleaded that his monthly income was Rs.1000/- p.m., but in the judgment and award, the Tribunal assessed his actual monthly income at Rs.1200/- p.m. and, therefore, in that view of the matter, it cannot be said that the Tribunal failed to take into consideration future perspective income. Under such circumstances, it is submitted that the appeal deserves to be dismissed.
7. I have taken into consideration the submissions advanced on behalf of both the parties in context with the R & P of this case.
8. There is no dispute that so far as the oral evidence before the Tribunal is concerned, it consist only the oral evidence of the claimant. Since the instant appeal appeal is filed by the claimant for enhancement to the extent of Rs.1 Lac and since the insurance co. or any of the opponents did not file any separate appeal or any cross objection, I do not think it proper to go into the aspect of negligence, as discussed by the Tribunal. However, according to the claimant the awarded amount is on a very lesser side. Considering the impugned judgment and award, it transpires that the Tribunal did not take into consideration a very vital aspect of future loss of income. The injured was at the time of accident, aged about 23 years and even as per his evidence, and as pleaded by him, he was earning Rs.1000/- p.m. by way of of cleaner. It is true that the Tribunal assessed his actual monthly income at Rs.1200/-, but the fact remains that the Tribunal did not consider the future perspective income of the claimant at the time of awarding just and fair amount of compensation to him. Under such circumstances, even it is considered that at the time of accident, the actual income of the claimant was Rs.1000/- p.m. as claimed by him, it can safely be said that his future perspective monthly income can be considered to be atleast Rs.1500/- p.m. The Tribunal in the impugned judgment observed that the disability certificates, Exhs.38 and 42 were exhibited with the consent of both the sides and accordingly, the Tribunal came to the conclusion that the functional disability of the claimant of body as a whole agreed by both the sides, was 24%. Considering Rs.1500/- as future perspective income and the disability at 24%, the monthly loss would come to Rs.360/- and if the same is multiplied by 12, it would come to Rs.4320/-
p.a. Now, the Tribunal applied the multiplier of 15 years. There is no dispute that at the time of vehicular accident, appellant – claimant was aged about 23 years and considering the ratio laid down by Hon'ble the Apex Court in Sarla Verma's case (supra), this Court is of the opinion that the appropriate multiplier, which the Tribunal should have applied in the instant case, should have been 18 years. Thus, the Tribunal should have awarded Rs.77760/- (Rs.4320 x 18) under the head of future loss of income. The Tribunal awarded Rs.51840/- under this head and, therefore, it can safely be said that the claimant is entitled to recover Rs.25920/- by way of additional amount of compensation under the head of future loss of income.
9. Mr.Paul, learned advocate for the appellant – claimant submitted that the amount of Rs.15000/- awarded by Tribunal under the head of pain, shock and suffering is on very lesser side. Mr.Paul relied upon minor Ramanbhai Fulabhai's case (supra) and submitted that the Tribunal should have awarded Rs.75000/- under that head. Considering the submissions advanced by Mr.Paul, learned advocate for the appellant – claimant and coming back to the evidence adduced by the claimant in the instant case, it clearly transpires that the claimant did not examine any medical officer in support of his case. However, it is true that both the disability certificates came to be exhibited by consent of both the sides and the consented disability arrived at was 24%. It further transpires that over and above the injury on right ulna, which resulted into fracture, the claimant sustained the injury of urethra. As per the disability certificates issued by Dr.Gandhi, it has been observed that the claimant sustained fracture of radius ulna right side with injury to urethra. It is further stated in the disability certificates that there was persistent urinary discharge from suprapubic cystostomy. It is, therefore, submitted that when such facts are otherwise not disputed by the insurance co., it was not necessary for the claimant to examine any medical officer.
10. Now, turning back to minor Ramanbhai Fulabhai's case (supra), it clearly transpires that in the said case, as observed by this Court, the injured claimant was aged about 15 years. He sustained complicated fracture of the pelvis with both the public rami fractured and ruptured urethra. In the said matter, the claimant examined medical officer and considering paragraph 8 in said decision, it transpires that detailed medical evidence was produced by the claimant including the evidence of Dr.Kansara. In the said matter, in the deposition of Dr.Kansara, it came on record in said case that throughout the life, the claimant required suprapubic chatheter. It was further medically opined that serous physical condition of the claimant might lead to complications like septicimia and stone formation. It was further medically opined that the claimant would not be able to enjoy the coitus because there would be erection but no ejaculation. Dr.Kansara also discussed in his evidence other serious ailments suffered by the claimant on account of the injuries sustained by him. Now, in the instant matter, even if the documentary evidence adduced by the claimant is
claimant would not be in a position to enjoy the coitus or that there was any possibility of other complications like speticimia and stone formation. It is true that in the additional affidavit, the claimant stated that he was unmarried, but nothing emerges from the medical evidence in form of
every respect with the case of minor Ramanbhai Fulabhai's case (supra). However, it cannot be lost sight of that in the instant matter, the injury sustained by the claimant can never be said to be minor or superficial. The injury sustained by the claimant was serious one and he had to undergo operations and had to undergo long drawn hospitalization in the hospital. Under such circumstances, this Court is of the opinion that Rs.15000/- awarded by the Tribunal under the head of pain, shock and suffering can be said to be on lesser side. In the above view of the matter, considering the facts and circumstances of the case and considering the overall evidence on record, including the documentary evidence in form of disability certificates and injury certificates etc., this Court is of the opinion that the Tribunal should have awarded atleast Rs.35000/- under the head of pain, shock and suffering. Since the Tribunal awarded Rs.15000/- under said head, appellant – claimant is, therefore, entitled to claim Rs.20000/- more under said head.
11. Mr.Paul, learned advocate for the appellant – claimant submitted that even after the incident, as per the additional affidavit, appellant – claimant had to undergo 8 to 9 operations and had to incur huge medical expenses, which comes to about Rs.3 Lacs and, therefore, certain reasonable amount may be awarded to the appellant – claimant for future medical expenses. It is true that in the additional affidavit, the appellant – claimant narrated above facts, but in support thereof, no documents are produced. Moreover, it is pertinent to note that in none of the medical papers produced by the claimant before the Tribunal, including the disability certificates, there was any medical opinion to the effect that in future the appellant – claimant shall have to undergo more operations. In above view of the matter, this Court is of the opinion that as discussed above, the claimant is entitled to recover Rs.45920/- rounded off at Rs.46000/- more by way of additional amount of compensation. The Tribunal awarded the compensation to the claimant with running interest @ 9% p.a. from the date of the claim petition till the
additional amount of compensation at the same rate of interest with proportionate cost thereon.
12. For the foregoing reasons, the appeal is partly allowed and it is hereby ordered that the appellant – claimant is entitled to recover in all Rs.46000/- (Rupees Fourty-six thousand only) by way of additional amount of compensation with running interest @ 9% p.a. from the date of filing of the claim petition till the realization of the said amount with proportionate cost thereon. The appellant – claimant shall be entitled to recover said amount jointly and severally from the respondents. There shall be no order as to costs.
(binoy) (J.C.UPADHYAYA, J.)