Karnataka High Court
Shanta Rathod And Anr. vs Mahantesh on 25 September, 2001
Equivalent citations: II(2002)ACC656, 2003ACJ491, 2002 AIR KANT HCR 1528, 2002 A I H C 2537, 2002 AIR - KANT. H. C. R. 1528, 2002 AIHC 2537, (2003) 1 TAC 597, (2002) 2 ACC 656, (2003) 1 ACJ 491
Author: R.V. Raveendran
Bench: R.V. Raveendran, N.K. Patil
JUDGMENT R.V. Raveendran, J.
1. M.F.A. No. 3535 of 1999 and Cross-objection No. 28 of 2000 arise from M.V.C. No. 1768 of 1998, on the file of Addl. M.A.C.T., Saundatti. M.F.A. No. 3536 of 1999 and Cross-objection No. 29 of 2000 arise from M.V.C. No. 1769 of 1988. They relate to the same accident and involve common questions. Appeals are filed by the owner and the insurer of the vehicle involved in the accident and the cross-objections are filed by the claimants. For convenience the appellants will also be referred to as the owner and insurer. The cross-objectors will also be referred to as claimants or by name.
2. The respective claimant in the two claim petitions (Mahantesh B. Hanashi and Ashok Baligar) alleged that on 31.8.98 when Mahantesh was proceeding on scooter bearing registration No. CTB 6243 from Ugargol to Saundatti, it developed some snag; therefore, he got down and along with one Ashok Baligar started pushing the scooter towards Yellamma Gudda; that at that time a Tempo Trax bearing registration No. GA 02-C 5310, driven in a rash and negligent manner, came from the opposite direction at a great speed; and its driver lost control of the said vehicle and dashed against Mahantesh and Ashok and the scooter; that as a result, both of them sustained grievous multiple injuries and were hospitalized and underwent treatment. Hence, they filed the said claim petitions against the owner and insurer of the Tempo Trax vehicle.
Facts in M.F.A. No. 3535 of 1999 with Cross-objection No. 28 of 2000 (from M.V.C. No. 1768 of 1998) 3.1. Mahantesh filed M.V.C. No. 1768 of 1998 seeking compensation amount of Rs. 19,50,000, subsequently increased by amendment to Rs. 29,50,000.
3.2. Owner and insurer filed separate objections, by engaging different counsel. They denied negligence on the part of the Tempo Trax driver and contended that the compensation sought was excessive. The Tribunal framed appropriate issues regarding negligence, entitlement and quantum of compensation.
3.3. Dr. M.C. Bellad was examined as PW 1. The claimant was examined as PW 2. The attendant, who served the claimant while he was in hospital, was examined as PW 3. The claimant got marked Exhs. P-1 to P-21. On behalf of the appellants, no witness was examined, but the copy of the insurance policy was marked as Exh. P-1.
3.4. On appreciation of evidence, the Tribunal by its judgment and award dated 17.4.1999, allowed the claim petition in part, holding that the accident occurred due to rash and negligent driving of the Tempo Trax by its driver. It held that the claimant had sustained serious injuries in the accident and awarded a compensation of Rs. 10,49,550 with interest at the rate of 9 per cent per annum from the date of claim petition till realization.
3.5. Feeling aggrieved, the owner and the insurer of the Tempo Trax have jointly filed M.F.A. No. 3535 of 1999 contending that the compensation awarded is excessive. In particular, the determination of the monthly income, percentage of disability and loss of future earnings, are seriously challenged. The findings regarding negligence are not challenged.
3.6. Mahantesh filed Cross-objection No. 28 of 2000 contending that the compensation awarded is inadequate; and that the Tribunal committed an error in taking the disability as only 80 per cent, instead of 100 per cent, as opined by the doctor. The claimant also raised a preliminary objection to the appeal, contending that an appeal by the owner and insurer challenging only the quantum of compensation, is not maintainable.
Facts in M.F.A. No. 3536 of 1999 with Cross-objection No. 29 of 2000 (from M.V.C. No. 1769 of 1998) 4.1. Ashok Baligar filed M.V.C. No. 1769 of 1998 claiming a compensation of Rs. 9,00,000.
4.2. Owner and insurer filed separate objections, by engaging different counsel. They denied negligence on the part of the Tempo Trax driver and contended that the compensation sought was excessive. The Tribunal framed appropriate issues regarding negligence, entitlement and quantum of compensation.
4.3. The claimant Ashok examined himself as PW 2, Dr. M.C. Bellad as PW 1 and one Gopal Lamani (attender) as PW 3. He marked Exhs. P-l to P-12. The owner and insurer did not examine any witness, but marked the copy of insurance policy as Exh. D-l.
4.4. On appreciation of evidence, the Tribunal by its judgment and award dated 17.4.1999, allowed the claim petition in part, holding that the accident occurred due to rash and negligent driving of the Tempo Trax by its driver. It held that the claimant had sustained serious injuries in the accident and awarded a compensation of Rs. 3,97,000 with interest at the rate of 9 per cent per annum on Rs. 3,81,000 from the date of petition till realisation.
4.5. Feeling aggrieved, the owner and the insurer of the Tempo Trax have jointly filed M.F.A. No. 3536 of 1999 contending that the compensation awarded is excessive. In particular, the determination of the monthly income, percentage of disability and the loss of future earnings, are seriously challenged. The findings regarding negligence are not challenged.
4.6. Ashok has filed Cross-objection No. 29 of 2000 contending that the compensation awarded is inadequate and that the Tribunal ought to have awarded compensation as claimed. He also contended that an appeal by the owner and insurer challenging only the quantum of compensation, is not maintainable.
Points for consideration:
5. In view of the rival contentions, the following points arise for consideration:
(a) Whether the appeals by the owner and the insurer of the vehicle causing the accident, on the facts and circumstances, are barred?
(b) Whether the compensation awarded in M.V.C. Nos. 1768 and 1769 of 1998 is excessive as contended by the appellants or inadequate as contended by the cross-objectors.
Re: Point (a) Maintainability:
6. The claimants relied on the following observations of the Supreme Court in Chinnama George v. N.K. Raju, , to contend that insurer, cannot by associating with the owner/driver, file an appeal challenging the quantum:
(6) Admittedly, none of the grounds as given in Sub-section (2) of Section 149 exist for the insurer to defend the claim petition. That being so, no right existed in the insurer to file appeal against the award of the Claims Tribunal. However, by adding N.K. Raju, the owner as co-appellant, an appeal was filed in the High Court, which led to the impugned judgment. None of the grounds on which insurer could defend the claim petition was the subject-matter of the appeal as far as the insurer is concerned. We have already noticed above that we have not been able to figure out from the impugned judgment as to how the owner felt aggrieved by the award of the Claims Tribunal. The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating the owner or the driver in the appeal, when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibits the insurer from filing any appeal except on the limited grounds on which it could defend the claim petition...
(8) If none of the conditions as contained in Sub-section (2) of Section 149 exist for the insurer to avoid liability under the policy of insurance he is legally bound to satisfy the award, he cannot be a person aggrieved by the award. In that case insurer will be barred from filing any appeal against the award of the Claims Tribunal.
(9) The question that arises for consideration is: can the insurer join the owner or the driver in filing the appeal against the award of the Claims Tribunal as driver or owner would be the person aggrieved as held by this Court in Narendra Kumar v. Yarenissa, ? This court has held that appeal would be maintainable by the driver or the owner and not by the insurer and, thus, a joint appeal when filed could be maintainable by the driver or the owner. This is how the court held:
For the reasons stated above, we are of the opinion that even in the case of a joint appeal by the insurer and owner of offending vehicle if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer.
(10) There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of the appellants. The appellate court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken in the pleadings and was pressed before the Tribunal. On the appellate court being so satisfied the appeal may be entertained for examination of the correctness or otherwise of the judgment of the Tribunal on the question arising from/ relating to such defence taken by the insurer. If the appellate court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal, the appeal filed by the insurer has to be dismissed as not maintainable. The court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceeding of claim of compensation is not rendered irrelevant by the subterfuge of the insurance company joining the insured as a co-appellant in the appeal filed by it...
(Emphasis supplied)
7. We will examine the facts of this case with reference to the said principles. In this case, the owner and the insurer engaged separate counsel before the Tribunal and filed separate objections. The owner had specifically denied that there was any negligence on the part of his driver. The insurer filed an application under Section 170 of the Motor Vehicles Act, 1988, in both cases seeking permission to contest the claim not only in regard to the grounds available under Section 149(2), but also on the grounds which are available to the owner. The Tribunal considered the said application and by order dated 12.4.1999 (in M.V.C. No. 1768 of 1998) and by order dated 8.4.1999 (in M.V.C. No. 1769 of 1998) rejected the said application, on the ground that the owner of the vehicle has contested the matter. Thus, the facts of these two cases clearly disclose that the owner actively contested the claim and in view of the contest by the owner, the insurer was not granted permission to contest the matter under Section 170 of the Act. In such a matter, if an award is made, the owner is certainly a person aggrieved.
8. Instances are not wanting where the owner of the vehicle remains ex pane or does not contest the proceedings before the Tribunal. In such matters, if the insurer does not obtain the permission of the Tribunal to contest the matter under Section 170, but nevertheless challenges the judgment and award by filing an appeal in regard to quantum, by adding the owner as a formal co-appellant, just to get over the bar under Section 149(2), the appeal will not be maintainable. The Supreme Court in Chinnama George, , was dealing with such a case, where the owner and driver did not have any grievance and had not contested the matter.
9. Under the scheme of the Act as contained in Sections 149, 166, 168 and 170, the parties to a claim petition are the persons making the claim (claimants) and the person against whom the claim is made (the driver and owner of the vehicle which caused the accident). The insurer is only a person who is entitled to a notice of the proceedings so that it can either satisfy the award, or contest the claim petition under any of the grounds mentioned in Section 149(2) of the Act. However, if there is any collusion between the person making a claim (claimants) and the persons against whom the claim is made (driver and/or owner) or where the person against whom the claim is made (driver and/or owner) fails to contest the matter, then the insurer shall have to be impleaded as a party by the Tribunal, by recording reasons therefor. In practice, claimants normally implead insurer also a party to the claim proceedings along with the owner and, therefore, when one of the two events mentioned in Clauses (a) and (b) of Section 170 occur, there is no need to again implead the insurer as party (as it is already a party). In such an event, the Tribunal, instead of passing an order for impleading the insurer, will pass an order giving permission to the insurer to contest the matter on merits on all or any of the grounds available to the driver/ owner.
10. In this appeal, as noticed above, the owner had put forth specific and detailed objections by engaging a separate counsel and the Tribunal had rejected the request of the insurer to contest the proceedings on merits under Section 170, on the ground that the owner was contesting the proceedings. Hence, these are not cases which fall under the category where the owner does not have any grievance or contest, nor can these cases be equated to cases where the owner who has not contested the claim proceedings by filing objections, gets impleaded in the appeal at the instance of the insurer. When the owner and the insurer together file an appeal, it cannot be assumed in all cases that the owner has no grievance and that he has been added by the insurer as a co-appellant only to help the insurer. It is possible that the owner who has contested the matter in the Tribunal is an active appellant having a grievance. Having regard to the facts and circumstances of these appeals, we are satisfied that both these appeals have been filed by the owner as an aggrieved party, along with the insurer and are, therefore, maintainable.
11. Learned counsel for claimant contended that wherever a vehicle is insured, the owner is not really aggrieved by the judgment as the insurer will be made liable to bear and pay the compensation amount. Such a contention cannot be accepted. The Act itself makes it clear that the primary responsibility to contest a claim is on the owner, even though his vehicle is insured. The liability is primarily on the driver, vicariously on the owner and contractually on the insurer. Merely because the owner has taken a contract of insurance and is, therefore, indemnified against loss, it does not follow that he has no interest in a claim or in the contest of the claim.
12. We do not of course mean that all appeals by an insurer and the owner are maintainable. Having regard to the decision in Chinnama George, , in cases where the owner has remained ex pane before the Tribunal or having entered appearance does not contest the matter by filing statement of objections or cross-examining witnesses, it has to be inferred that the owner has not contested the proceedings and, therefore, did not have a 'grievance' before the Tribunal. In such cases, if the owner joins with the insurer in filing an appeal (and the insurer had not obtained permission under Section 170 to contest the matter on merits) the principle enunciated in Chinnama George's case (supra) will apply, and the appeal will not be maintainable.
13. Learned counsel for the respondent-claimant next relied on the decisions of Supreme Court in Shankarayya v. United India Insurance Co, Ltd., and Rita Devi v. New India Assurance Co. Ltd., . In the cases considered in those decisions, the insurer alone had filed appeal against the orders of Tribunal, challenging the quantum. The insurer, had not earlier applied to the Tribunal seeking permission under Section 170 of the Act to contest the matter on all available grounds. The Apex Court held that the insurer not having obtained any permission under Section 170 permitting it to contest the matter on merits, was not entitled to file an appeal challenging the quantum of compensation. The said decisions are not applicable, as the owner was not an appellant in those cases, but is an appellant in these appeals.
14. If the contention of the learned Counsel for claimant is to be accepted, then an owner of a vehicle which is duly insured cannot file an appeal, because the insurer will be paying the compensation amount, and the insurer cannot file an appeal because the quantum of compensation is hot one of the grounds on which the insurer can contest the claim under Section 149 of the Act. In other words, the contention would mean that there cannot be any contest at all in regard to the quantum under any circumstances. That is not the intention of the Act nor the ratio laid down by the Supreme Court.
15. We may, therefore, summarise the position as follows:
(i) Where the owner has contested the claim petition before the Tribunal, he can file and appeal, on any ground, either by himself or by adding the insurer as a co-appellant.
(ii) Where the owner did not contest the claim petition and the insurer did not obtain permission of Tribunal under Section 170, the insurer cannot file an appeal in regard to any ground other than those contained in Section 149(2), either by itself or by adding the owner as a party [vide decision in Chinnama Goerge, ].
(iii) Where the owner did not contest the claim petition and the insurer obtained the permission of Tribunal under Section 170 to contest the claim on all grounds available to the owner, then the insurer can file an appeal (either by itself or by impleading the owner as a co-appellant) not only on grounds specified in Section 149(2), but also an merits (re: quantum and/or negligence).
16. We, therefore, hold that the appeals by the owner and the insurer, on the facts and circumstances, are maintainable.
Re: Point (b):
17. The claimant who gave evidence as PW 2, stated that he suffered fracture of right femur and fracture of both hands, that he was initially taken to the General Hospital at Saundatti and after first aid and thereafter admitted to Dr. M.M. Hooli's Hospital, Saundatti, where he was operated and was treated as an inpatient for six months, that is, from 31.8.98 to 22.2.1999.
18. But, significantly, the claimant has not examined either the doctor who treated him at General Hospital, Saundatti, or Dr. M.M. Hooli or any other doctor who treated him at Dr. Hooli's Hospital. It is not the case of claimant that none of those doctors from Dr. Hooli's Hospital, which is situated in Saundatti itself, were available to give evidence. On the other hand, just before the commencement of evidence, the claimant claims to have gone to Dr. Bellad at Belgaum on 22.3.1999, for obtaining a disability certificate. The said Dr. Bellad examined the claimant only for the purpose of giving disability certificate. Immediately thereafter, on 1.4.1999, Dr. Bellad came over to Saundatti and gave evidence. The fact that the claimant chose to examine someone who has not treated him but someone who has examined him (Dr. Bellad) only in connection with assessing the disability shows an obvious motive to heighten the effect injuries. This aspect will assume importance while considering the evidence regarding injuries and its effect.
19. Dr. Bellad has given a certificate dated 22.3.1999 in a printed form (marked as Exh. P-l). The relevant portion of the said certificate is extracted below:
This is to certify that I have examined Mr. Mahantesh B. Hanashi today. He was ... by profession. He has come to me for assessment of permanent physical disability. As per the records shown by the patient, the injuries were noted. This patient had met with road traffic accident on 31.8.1998. He was admitted to Hooli Clinic, Saundatti. He was discharged on 22.2.99. As per the records, the main injuries he sustained were:
(1) Comminuted fracture lower one-third-Rt. femur.
(2) Comminuted fracture lower end- Lt. radius.
(3) Fracture olecranon process Rt.
At present the patient complains of:
(1) Pain in Rt. leg, Rt. elbow, Lt. wrist.
(2) Inability to walk without support.
(3) Inability to squat and sit cross-legged.
(4) Inability to lift weight with both hands.
Thereafter, the said certificate proceeds to record the following alleged findings by the doctor on examination of claimant:
Right lower limb is two inches shorter than the left (Rt: 33"; left: 35").
Tenderness present at the fracture site. Right knee movements are grossly restricted.
Right elbow healed scar present. Right elbow is in 20° flexion; further flexion of about 60° present.
Left wrist is deformed. Tenderness over lower left radius. Movements of left wrist and forearm are grossly restricted.
Squatting not possible, sitting cross-legged is not possible.
On the basis of the above findings the doctor has observed that functional disabilities of Mahantesh as inability to squat and sit cross-legged, to walk independently and to lift weight with both hands. He has concluded that the disability of the right lower limb was 50 per cent, right upper limb was 25 per cent and left hand was 25 per cent. In his evidence, Dr. Bellad has repeated what he has recorded in his certificate. He further stated that the claimant cannot do his normal duties and requires the assistance of an attendant for his day-to-day work and for answering the call of nature and that claimant cannot do any business or work.
20. The claimant has also produced the medical certificates dated 31.10.1998 and 22.2.1999 (Exhs. P-6 and P-7) issued by Dr. M.M. Hooli's Surgical Fracture Clinic, Saundatti, which merely show that the claimant had suffered comminuted fracture of M/3 right femur, comminuted fracture of lower end left radius and right olecranon process fracture and was an in-patient between 31.8.1998 and 22.2.1999.
21. We have referred to the matter in some detail, as the compensation awarded appears to be rather on the higher side and wholly based on the evidence of a doctor (PW 1) who did not treat the claimant at all, but who examined the claimant only a few days before giving evidence for giving a disability certificate. The Tribunal should be careful in considering the evidence of doctor from outstation who has not treated the injured, but who examines the injured just before evidence only for the purpose of giving extent of disability particularly when the local doctor who treated the injured is not examined. We make it clear that such evidence is not to be discarded. It is possible that in some cases the doctor who treated the injured is not available for giving evidence for any of several reasons and it may therefore become necessary to examine some other doctor who assesses the current position of the injured. The claimant was treated locally (at Saundatti). The doctor who has given evidence is from Belgaum. There is no explanation as to why the doctor who treated him is not examined. We have examined the records of the Tribunal and find that no efforts were made to summon the doctor, who treated the injured, though in Saundatti. In such a case the evidence of a doctor who gives such certificates on regular basis, without giving treatment, should be approached with caution. Let us now consider the evidence relating to injuries and the effect thereof and the correctness of compensation of Rs. 10,49,550 awarded by the Tribunal in the above background.
22. The claimant was aged 24 years at the time of the accident. The evidence shows that the claimant is a B.Com. graduate and he was helping his father, who was a coconut merchant having business in Saundatti Market Yard and also near Yallamma Temple and also helping his father in managing the family lands. The evidence shows that he suffered fracture of both hands that is left radius (outer bone of the arm) and right olecranon (bony prominence of elbow) apart from fracture of right thigh bone. The evidence is that the fracture of the right femur is malunited resulting in 2" shortening. The left wrist is deformed and the movement of left wrist and forearm are restricted. The right elbow is in 20 degree flexion (bent position) with further flexion of about 60 degree.
23. Regarding injury, pain and suffering: The Tribunal has awarded a sum of Rs. 50,000 under the head of pain, injury and suffering. Having regard to the number of fractures, the period of treatment as in-patient (31.8.1998 to 22.2.1999) and other circumstances, we feel that the award of Rs. 50,000 under this head is reasonable and does not call for interference.
24. Medical and incidental expenses: The Tribunal has awarded Rs. 66,000 under the head of medical expenses and Rs. 15,000 under the head of incidental expenses in all Rs. 81,000. The claimant has marked at prescriptions and medical bills as Exhs. P-9 (series) and P-10 (series) aggregating to Rs. 66,266. It is possible that the claimant may not have retained all the bills. Further he would have required the assistance of an attender. In fact PW 3 has been examined to show that he had attended on the claimant. He has also stated that he was paid daily Rs. 60 for food and other expenses during the period of treatment. Having regard to the period of treatment, medical bills produced and the evidence of PW 2 (claimant) and PW 3 (the attender), we award a global sum of Rs. 1,00,000 under the head of medical and incidental expenses which includes cost of medicines, treatment, expenses relating to transportation and attender and nourishing food instead of Rs. 81,000 awarded by the Tribunal.
25. Loss of future earning capacity: The claimant was not earning any amount by himself. He was neither employed on any salary nor was he carrying on any independent business. Nor was he an income tax assessee. He was helping his father and all documents produced to show business (Exhs. P-15 to P-21) related to and refer to the business carried on by his father. The Tribunal has considered the business, income and land held by his father as that of the claimant. Though the evidence discloses that the claimant was helping his father in his business, it is not possible to treat the business and income of the father as the business and income of the claimant for the purpose of determination of loss of future earning capacity.
26. The Tribunal took the income as Rs. 4,000 per month, the percentage of physical disability as 100 per cent and the percentage of loss of earning capacity as 80 per cent. Therefore, loss of earning capacity was arrived at Rs. 3,200 x 12 = Rs. 38,400 per annum. By applying a multiplier of 17, the Tribunal determined the future loss of earning capacity as Rs. 6,52,800.
27. In the absence of proof of personal income of the claimant, the Tribunal ought not to have taken the income as Rs. 4,000 per month. Having regard to the educational qualification, and the nature of assistance rendered to his father, we can safely take the value of the services rendered by the claimant as the income of the claimant at Rs. 3,000 per month or Rs. 36,000 per annum.
28. Next we will have to calculate the loss of future earning capacity as a result of the injuries sustained by the claimant. This is where we find that the evidence of Dr. Ballad is a little too liberal. Dr. Ballad has given a certificate showing that the permanent disability of right lower limb as 50 per cent and right limb as 25 per cent and left hand as 25 per cent. But significantly Dr. Ballad has not given the percentage of disability with reference to entire body. The Tribunal has proceeded on the basis that the doctor has stated that the claimant has suffered 100 per cent disability, which is not correct. The doctor has merely given disability of right lower limb, right limb and left hand separately. They cannot be added for the purpose of finding out the total disability with reference to the body. If the disability in regard to right lower limb is 50 per cent, with reference to whole body, it may at best be 20 per cent to 25 per cent. Similarly, if the disability of right upper limb and left hand assessed at 25 per cent each when converted with reference to whole body, may get reduced to 20 to 25 per cent in all. Therefore, the Tribunal has committed a serious error in adding up the percentage of the disability given with reference to separate limbs and calculating it as disability of the entire body. The assessment by Dr. Ballad in regard to disability appears to be rather on the higher side. This is where the evidence of the doctor who treated the claimant would have been relevant and helpful. In the absence of the evidence of the doctor who treated the claimant, the disability certificate and evidence of Dr. Ballad will have to be viewed with caution, as the claimant has approached him only for the purpose of obtaining a disability certificate. The certificate shows that most of the findings of the doctor are with reference to what the claimant himself claimed. Though the doctor might have examined the claimant, the entire process appears to be an exercise to assist the claimant to put forth a high percentage of disability.
29. On the facts and circumstances we, therefore, hold that the loss of future earning capacity as 50 per cent with reference to entire body, after discounting the exaggeration that has crept in the certificate and evidence of Dr. Ballad. Thus, the loss of future earning capacity would be 50 per cent of Rs. 3,000 per month, i.e., Rs. 1,500 per month or Rs. 18,000 per annum. Having regard to the age of the claimant, the appropriate multiplier would be 17. Thus the loss of future earning capacity will be Rs. 3,06,000.
30. Loss of amenities: As a result of the accident, the claimant has suffered partial permanent physical disability. The Tribunal has awarded Rs. 50,000 for the loss of amenities, Rs. 25,000 towards shortened expectation of life and Rs. 40,000 towards the diminished marriage prospects, in all Rs. 1,15,000. The certificate also shows that claimant will have difficulties in squatting or sitting cross-legged or in lifting weights and walking or running like a normal person. The injuries and the effect thereof will also have an adverse effect on his marriage prospects. He will have to undergo pain and suffering during the remainder of his life. However, there is no evidence of shortened expectancy of life. Keeping all these aspects in mind and the amount awarded under the head of loss of future earning capacity, we award a sum of Rs. 1,00,000 (as against Rs. 1,15,000 awarded by the Tribunal) as loss of amenities including diminished prospects of marriage.
31. Future treatment and attendant: The doctor, PW 1, stated that the claimant will have to incur some expenses for some future treatment without giving any details. He has stated that the claimant will require assistance of an attendant. The Tribunal has awarded Rs. 17,000 for future medical expenses and Rs. 1,25,000 towards future expenses for medical attendant. But there is no clear evidence showing the need for attendant in future. We, therefore, award a sum of Rs. 20,000 under the head of future treatment charges.
32. Thus the total amount to which the claimant (Mahantesh) will be entitled is Rs. 5,76,000.
M.F.A. No. 3536 of 1999 and Cross-objection No. 29 of 2000 (From M.V.C. No. 1769 of 1998)
33. The claimant in this petition was a hotelier aged 26 years at the time of accident. He suffered compound fracture of right femur shaft and compound fracture of right fibula and other injuries. He was initially given first aid at General Hospital, Saundatti and, thereafter, shifted to Dr. Hooli's Surgical & Fracture Clinic, where he was an in-patient for 27 days. The Tribunal awarded a sum of Rs. 3,06,000 under the head of loss of future earning capacity, Rs. 25,000 under the head of pain and suffering, Rs. 20,000 under the head of loss of amenities, Rs. 25,600 as medical expenses, Rs. 1,350 as attendant charges, Rs. 3,050 as incidental expenses and Rs. 16,000 for future medical charges. The Tribunal has in all awarded Rs. 3,97,000 as compensation.
34. Here again, though the claimant was treated at Dr. Hooli's Clinic at Saundatti and the claim case was filed at Saundatti, the doctor who treated the claimant has not been examined. No reason is forthcoming for not examining the doctor who treated him. On the other hand, the claimant went to one Dr. M.C. Ballad on 22.3.1999, only for the purpose of obtaining the disability certificate. The said doctor has been examined as PW 1 and he has given the certificate (Exh. P-l) stating that the claimant had suffered fracture of the shaft of right femur and there was a shortening of right lower limb by 1" and that the X-ray shows a malunited fracture. The only disability mentioned in the certificate is that the claimant will not be able to squat and sit cross-legged. He has assessed the permanent physical disability as 40 per cent of the left lower limb. But in the evidence, the doctor has stated that the claimant cannot stand nor can he walk for long distance and he cannot do hotel business. In fact this is something which even the claimant did not plead. The doctor has also stated that there will be future medical expenses of Rs. 800 per year without stating how or for what the said expenses would be. He has also stated that the removal of steel rod in the right thigh would cost about Rs. 20,000. On the basis of the said evidence, the Claims Tribunal has taken the same as 40 per cent of the entire body. The claimant had stated that he was earning Rs. 8,000 per month by running a hotel.
35. The Tribunal assessed the monthly income of the claimant as Rs. 3,750 and loss of earning capacity at 40 per cent as Rs. 1,500 per month or Rs. 18,000 per annum. By applying the multiplier of 17, it arrived at loss of future earning capacity as Rs. 3,06,000. As in the first case we find that PW I has been very liberal in assessing the disability and the Tribunal also more liberal in assessing the disability and granting compensation. The nature of the injury and the effect thereof clearly shows that the disability cannot be 40 per cent of the entire right lower limb, let alone 40 per cent of the entire body. Here again, the absence of evidence of doctor who treated the claimant is a great disadvantage in assessing the disability. On the evidence, and the nature of disability recorded by the doctor himself in the certificate the disability is nominal and cannot exceed more than 5 per cent to 10 per cent and the compensation awarded under the head of Joss of future earning capacity is unwarranted. We will now assess the compensation under the following heads.
36. Pain, suffering and injury: The Tribunal has awarded Rs. 25,000 under this head. The fact that the claimant has suffered a fracture of the shaft of the right femur is established. We therefore hold a sum of Rs. 25,000 awarded by the Tribunal under the head of pain, suffering and injury though marginally high, does not call for interference.
37. Medical and incidental expenses: The claimant has produced the prescription and medical bills and P-8 series and P-9 series. Though claimant stated that he spent Rs. 60,000 towards medical expenses, he produced bills for Rs. 25,600. The Tribunal awarded Rs. 25,600 as medical expenses. As claimant was in the hospital for 27 days, it has also awarded attendant charges at Rs. 50 per day in all Rs. 1,350 and awarded Rs. 3,050 towards special diet and transportation and incidental expenses. Thus we find the total amount awarded by the Tribunal under medical expenses is Rs. 30,000. Having regard to the facts and circumstances, we find the award of Rs. 30,000 under the head of medical and incidental expenses is reasonable.
38. Future medical expenses: The doctor has stated that the steel rod which has been fixed has to be removed by operation costing Rs. 20,000. The Tribunal has awarded Rs. 16,000. Having regard to standard expenses for such operation, though the amount is marginally high, we do not propose to disturb the same.
39. Loss of future earning capacity: The claimant is not a manual labourer or an employee. According to him he himself is running a hotel. Therefore, his work is mainly supervising. The effect of injuries is minimal as the certificate makes it clear that the disability is only difficulty while squatting and sitting cross-legged. It is, therefore, not possible to hold that there is any loss of future earning capacity. The Tribunal has taken the loss of earning capacity as 40 per cent and taking the income as Rs. 3,750 per month has arrived at loss of future earning capacity as Rs. 3,06,000. We reject the claim under this item in entirety.
40. The claimant has stated that his income was Rs. 8,000 per month but the Tribunal has taken Rs. 3,750 per month. The evidence shows that he was in the hospital for 27 days. If he was in the hospital for 27 days, thereafter he could not attend to his work for some more time and, therefore, the total period of treatment and rest is taken as 4 months. By taking the income as Rs. 3,750 per month, the loss of income will be Rs. 15,000. We accordingly award Rs. 15,000 towards loss of earning during period of treatment.
41. Loss of amenities: The evidence of the doctor shows that there is shortening of the leg to an extent of 1". But, the claimant himself states in his evidence that the shortening is only half an inch. It also shows that the claimant has some difficulty in squatting or sitting cross-legged. Having regard to these inconveniences and difficulties, which he will have to suffer through rest of his life, we do not propose to disturb the award of Rs. 20,000 awarded by the Tribunal under this head.
42. Thus the total amount to which the claimant will be entitled to is Rs. 1,06,000 with interest at 9 per cent per annum.
Conclusion:
43. We accordingly dispose of the appeals and cross-objections as follows:
I. M.F.A. No. 3535 of 1999 and Cross-objection No. 28 of 2000:
(i) M.F.A. No. 3535 of 1999 is partly allowed and the compensation awarded is reduced from Rs. 10,49,550 to Rs. 5,76,000 with interest at 9 per cent per annum from the date of petition till the date of realisation.
(ii) Cross-objection No. 28 of 2000 is rejected.
(iii) 50 per cent of the amount awarded shall be kept in fixed deposit with a nationalised bank for a term of 5 years with liberty to draw interest thereon.
II. M.F.A. No. 3536 of 1999 and Cross-objection No. 29 of 2000:
(i) M.F.A. No. 3536 of 2000 is allowed in part and the award is reduced from Rs. 3,97,000 to Rs. 1,06,000 with interest at date of realisation.
(ii) Cross-objection No. 29 of 2000 is rejected.
(iii) 50 per cent of the amount awarded as compensation may be kept in a fixed deposit for a period of 5 years in a nationalised bank with liberty to draw interest.
The amount deposited by the insurer in this Court shall be transferred to the Tribunal. Parties to bear their respective costs.