Bombay High Court
Ebrahim Fakir Ansari vs Sitaram Kamalaksha Kamat And Anr. on 7 June, 1989
Equivalent citations: I(1991)ACC603
JUDGMENT T.D. Sugla, J.
1. The appellant herein is the original applicant. In a motor accident which took place on 29th August, 1984, the applicant sustained injuries. He was hit on his left leg and sustained serious injuries. He had to be operated twice and was under plaster for about a year. He had to be on leave for 8 months and 7 days. Dr. H.R. Jhunjhunwala, whose certificate dated 25th March, 1986 was obtained and produced, estimated his permanent disability at about 30 per cent.
2. The learned Member found the driver of the Vehicle to be negligent and accordingly liable to pay compensation to the applicant However, as against the claim of the applicant for Rs. 1, 00, 000/-, the learned Member allowed the claim to the extent of Rs. 60, 504/-. Being not satisfied with the amount of compensation, the applicant has come in appeal.
3. The amount of compensation was computer by the learned Member under six heads though they actually would constitute five heads Rs. 20, 000/- and Rs. 5, 000/- were awarded in respect of pain and suffering and consequent loss of comfort on account of injuries sustained by the applicant; Rs. 4, 000/- was the amount estimated to have been spent by the applicant over the period of two years of special diet. A sum of Rs. 28, 304/- was determined as the amount of compensation for loss of earnings as a result of his being on leave for a period of 8 months and 7 days. Rs. 200/- was the amount stated to have been spent by the applicant towards taxi fare and Rs. 3, 000/- was the amount awarded for another operation which was likely to be performed on the applicant for taking out the plate inserted in his left leg.
4. Mr. Kudrolli, the learned Counsel for the appellant, has not challenged before us the determination of the amounts under items Nos. 3, 4 and 5 at Rs. 28, 304/-, Rs. 200/- and Rs. 3, 000/- respectively. He has challenged the determination of amount of compensation in respect of special diet, pain and suffering and consequent loss of comfort and amenities and against non-awarding of any compensation in respect of likely loss of future income as a result of loss of earning capacity.
5. As regards the first item, Mr. Kudrolli took us through para 9 of the judgment to show that the applicant had made a statement that he had spent Rs. 10/- per day as expenditure on special diet over a period of two years. Such an expenditure, thus, amounted to about Rs. 7, 000/-. It was argued that the learned Member had no material whatsoever for not accepting the claim and reducing the amount of expenditure from Rs. 7, 000/- to Rs. 4, 000/-. We have carefully gone through para 9 of the judgment. It is seen that except for a bald statement that the applicant had to spend Rs. 10 per day on special diet for a period of two years, no evidence whatsoever was produced as regards requirement of the special diet and the likely expenditure on the special diet if that was necessary. In that view of the matter, the estimate of expenditure on the so-called special diet at Rs. 4, 000/- by the learned Member is, to say the least, quite reasonable and certainly does not call for interference.
6. As regards the loss in capacity to earn income after retirement, Mr. Kudrolli stated that the lifespan of a person in these days can be and should be taken at about 70 years. The applicant, at the time of accident, was 50 years of age. Fairly admitting that the applicant was allowed to continue in his existing post by his employers without any detriment whatsoever in career prospects, Mr. A.R. Kudrolli stated that it would not be so after the applicant retired and would be taking up some other vocation. After all in the present-day situation a person is supposed to earn even after retirement. The doctor's certificate to the effect that he had a permanent disability to the extent of 30 per cent would, according to Mr. Kudrolli, certainly come in his way of earning after the retirement. His claim in this regard is that assuming the applicant would be earning a sum of Rs. 4, 000/- per month at the time of his retirement and would be entitled to a pension at the rate of Rs. 2, 000/- per month, he would atleast be expected to earn about Rs. 1, 800/- to Rs. 2, 000/- per month. If 30 per cent permanent disability is taken into account, he will run the risk of proportionate reduction in income. So estimated, this would come to about Rs. 70, 000/-. The amount being paid in lump, he was restricting his claim to rupees 30 to 35 thousand only.
7. We have seen the certificate Exh. 19, issued by Dr. Jhunjhunwala. We have also gone through his evidence at pages 43 and 44 of the paperbook. It is pertinent to mention that the applicant was treated by other eminent doctors throughout the period of his treatment. For reasons best known to him, he obtained a certificate from Dr. Jhunjhunwala. No doubt, Dr. Jhunjhunwala estimated the permanent disability at 30 per cent. However, when he was cross-examined, he fairly stated that he had not taken even the X-rays of the patient and that the certificate was given on the basis of other reports shown to him and the clinical examination when the patient visited him. He made it clear that the estimate of permanent disability was a conjecture and the disability could as well be 20 per cent or more. Apart from the fact that the learned Member had rightly observed that on the basis of this certificate and the evidence of the doctor it was not possible to accept as a fact that the applicant was really suffering from any permanent disability to the extent of 30 per cent or near about, we have found no material on record to even remotely suggest that such a disability would have affected or was likely to affect the earning capacity of the applicant. After all every disability cannot affect the earning capacity of a person. For instance, a minor injury in the leg may be vital for a football or a hockey player, for an engineer or a mechanic or a driver. It may not be so for an officer who does table work. In the present case, what has been shown to us is this that one leg of the applicant has become somewhat rigid, i.e., it is not as flexible as it should be. For the nature of work that the applicant is doing or he is likely to do after retire (sic), whether such a disability would really affect, or can affect his earning capacity is very doubtful. In any event, it was for the applicant to show by some cogent evidence that it (sic). In the absence of any material, we are not able to persuade ourselves ((sic) Mr. Kudrolli that the injury sustained by the applicant had incapacitated him to (sic) of 30 per cent if he ventured to take up some work after retirement. This contention is, therefore, also rejected.
8. Next contention of Mr. Kudrolli is about the amount of compensation on account of pain and suffering and consequent loss of comfort and amenities on account of the injuries sustained by the applicant including the fracture. Though a sum of Rs. 20, 000/- has been awarded by the learned Member under this head, we find that a further sum of Rs. 5, 000/- has been awarded by the learned Member in respect of more or less the same discomfort. Thus, it has to be considered that a sum of Rs. 25, 000/- has been awarded by the learned Member on account of pain and suffering etc. by the applicant as a result of accident. It was the case of Mr. Kudrolli that the amount of Rs. 25, 000/- awarded by the learned Member was too meagre and a bigger amount should have been awarded. In support of his claim, he placed reliance on two Gujarat High Court decisions in the cases of Ahemdabad Municipal Corporation v. Niranjan Ambalal Patel 1981 ACJ 53 (Guj.), and State of Gujarat v. Dushyantbhai Nagjibhai Patel 1984 ACJ 560 (Guj.), for the purpose of showing that in those cases the injury was not so grave and yet the amount of compensation awarded was Rs. 22.500/-. Mr. Kamat, the learned Counsel for the respondents, on the other hand, relied upon the aforesaid Gujarat High Court decision in State of Giijarat v. Dushyanibhai Nagjibhai Patel, (supra) as well as a Madhya Pradesh High Court decision in the ease of M.P. State Road Trans. Corps v. Kishanlal Suri 1987 ACJ 519 (MP), where a sum of Rs. 20, 000/- was awarded. He also placed reliance on a decision in DarshaniDevi v. Sheo Ram 1987 ACJ 931 (Raj.) : 1(1988) ACC 272, where there was a fracture of both the legs and an amount of Rs. 40, 000/- was awarded. All this was to show that the amount of Rs. 25, 000/- awarded in this case was reasonable and should not be interfered with. In reply, Mr. Kudrolli stated that so far as Madhya Pradesh High Court decision is concerned, a further sum of Rs. 12, 400/- was awarded in that case towards loss of amenities and thus the amount awarded was Rs. 32, 400/- and not Rs. 20, 000/-. He also placed reliance on a Punjab and Haryana High Court decision in the case of Swatantra Kumar Lamba v. Sheila Didi 1988 ACJ 74 (P.H.) : 11(1978) ACC 179 (P.H.), where disability was estimated at 20 per cent and the amount awarded was Rs. 40, 000/-.
9. We have already referred to the facts of this case above. We have been taken through all these decisions by the learned Counsel on both sides. There cannot certainly be any hard and fast rule as to how the amount of compensation for loss of amenities, for suffering, pain and discom fort etc. is required to be awarded. One has to take an overall view of the matter. For instance, the age of the person injured is one relevant factor. The nature of his vocation may be another relevant factor. There might be many more relevant factors. What we have to consider in this case is that the age of the applicant at the time of accident was 50 and he was allowed to continue in his job upto the age of retirement without suffering any loss in position or prospects. Whether one would like to work after the age of retirment or not is a matter of conjecture. Assuming in the present case one would like to work, the nature of disability from which the applicant is suffering is not likely to come in his way of earning. In any event, as stated earlier by us, there is no material before us in that regard. The ages of the injured persons in the cases cited vary from 15 to 30. In some cases both the legs were fractured. Taking an overall view of the matter, we do not find anything wrong with the estimate of compensation awarded by the learned Member on this count at Rs. 25, 000/-.
10. In the result, the appeal is dismissed. No order as to costs.