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First Appeal No.2500/2021:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.2500 OF 2021 WITHCIVIL APPLICATION NO.13834 OF 2023Prashant s/o Sukhdev Kale,Age 37 years, Occ. Nil,R/o Omkar Nagar, Kedgaon,At Post Tq. Dist. Ahmednagar… APPELLANT(Orig. Claimant)VERSUS1.Shaikh Shabir s/o Shaikh AhmedAge 45 years, Occ. Driver, R/o Vishwakarma Colony, Verul,Tq. Khultabad, Dist. AurangabadMob. 94216868292.Rangnath s/o Govindrao Mali,Age major, Occ. Business (Owner)R/o Plot No.85, N-1, Hari Niwas, CIDCO,Aurangabad3.The New India Assurance Co. Ltd.,through its Branch Manager,Branch office at Adalat Road,Aurangabad… RESPONDENTS(Orig. Respondents).......Mr. S.B. Rajebhosale, Advocate for appellant Mr. Punit S. Mehta, Advocate for respondent No.1 Mr. R.N. Chavan, Advocate for respondent No.2 Mr. S.V. Kulkarni, Advocate for respondent No.3 (Applicant in X-Objection No.116/2023....…WITHCROSS OBJECTION NO.116 OF 2023 INFIRST APPEAL NO.2500 OF 2021 First Appeal No.2500/2021:: 2 ::The New India Assurance Company Ltd.,through its Branch Manager/ Authorized Signatory,Mahesh Auto Compound, Adalat Road, Aurangabad, Tq. & Dist. Aurangabad…CROSS OBJECTIONER(Orig. Respondent No.3) VERSUS1.Prashant s/o Sukhdev Kale,Age 37 years, Occ. Nil,R/o Omkar Nagar, Kedgaon,Tq. Dist. Ahmednagar2.Shaikh Shabir s/o Shaikh AhmedAge 45 years, Occ. Driver, R/o Vishwakarma Colony, Verul,Tq. Khultabad, Dist. Aurangabad3.Rangnath s/o Govindrao Mali,Age major, Occ. Business (Owner)R/o Plot No.85, N-1, Hari Niwas, CIDCO,Aurangabad, Tq. & Dist. Aurangabad… RESPONDENTS(No.1 Orig.Claimant, No.2 & 3 Orig. Respdts. No.1 & 2).......Mr. S.V. Kulkarni, Advocate for Cross ObjectionerMr. S.B. Rajebhosale, Advocate for respondent No.1Mr. Punit S. Mehta, Advocate for respondent No.2 Mr. R.N. Chavan, Advocate for respondent No.3 ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 13th August, 2024.Date of pronouncing judgment : 13th September, 2024.JUDGMENT (PER R.G. AVACHAT, J.) : First Appeal No.2500/2021:: 3 :: This is an appeal under Section 173 of the MotorVehicles Act. The appellant herein was the original petitioner/claimant in Motor Accident Claim Petition (MACP),No.497/2016. He met with accident involving motor vehicleand thereby suffered permanent disability. He, therefore,preferred the MACP before the Motor Accident Claims Tribunal(MACT), Aurangabad. The learned Member, MACT,Aurangabad, vide judgment and award dated 22/3/2021,directed the respondents No.1 to 3 herein (originalrespondents No.1 to 3) to jointly and severally pay theappellant/ claimant a sum of Rs.77,43,696/- with interest @9% p.a. thereon from the date of petition to the date of itsrealisation. A sum of Rs.17,43,696/- was directed to be kept infixed deposit for three years in any of the Nationalised Bank ofthe appellant’s choice.2.Being aggrieved and not satisfied with the quantumof compensation awarded by the learned Member, the presentappeal has been preferred for enhancement of compensation.3.The respondent No.3 Insurance Company haspreferred Cross-Objection in this appeal on the following twogrounds:- First Appeal No.2500/2021:: 4 ::(I)Contributory negligence, and(II)The appellant/ claimant to have received a salary for aperiod of four years immediately after he met with the accidentand the same amount has also been awarded by the Tribunal.That much amount i.e. Rs.17,07,650/- was sought to bereduced from the amount of compensation awarded by theTribunal.4.The facts giving rise to the present appeal are asfollows :-The appellant had been serving with a Company,“Exide”, a known manufacturer of batteries. He was serving asSenior Accounts Officer with a monthly pay of Rs.36,550/-. On9/11/2015 by 5.55 p.m., the claimant was on his way backhome on his motorbike bearing Registration No.MH-16/AB-6285 after his duty hours were over. While he was passing byVit Bhatti (Brick Kiln) on Kedgaon Bypass-Kalyan Road, oneInnova Car bearing Registration No.MH-24-F-3540 came inhigh speed from opposite side. The car was being driven byrespondent No.1 in a rash and negligent manner. It lost itstrack and knocked down the appellant. The appellant thereby First Appeal No.2500/2021:: 5 ::suffered multiple injuries and paraplegia as well. The carbelonged to the respondent No.2. Admittedly, the car had aninsurance cover granted by the respondent No.3 InsuranceCompany. 5.The learned Member of the Tribunal held therespondent No.1 to be exclusively responsible to the accidentand resultant injuries suffered by the appellant and granted thecompensation as stated above. The details thereof (split up)will be referred to at appropriate stage.6.Heard. The respondents No.1 and 2 remainedabsent in spite of service of notice of this appeal. Both, theappellant and Number Three respondent – InsuranceCompany filed written notes of arguments. The appellant filedan application (Civil Application No.13834/2023) for additionalevidence. The additional evidence proposed to be adduced isin the nature of medical bills worth Rs.23,73,467/-. As statedabove, the respondent Insurance Company has come with adefence of contributory negligence and the claimant to havereceived four years salary from his employer and equalamount of compensation for that period from the InsuranceCompany as well. That much amount i.e. Rs.17,07,650/- was, First Appeal No.2500/2021:: 6 ::therefore, sought to be reduced from the amount ofcompensation awarded by the Tribunal.7.Perused the written submissions. LearnedAdvocate for the appellant has placed on record detailed notesof arguments along with a host of citations. According to him,the appellant suffered 80% of disability. The functionaldisability was, however, 100%. According to learned Advocate,the Tribunal erred in awarding compensation considering theloss of future earning to be at 80% of his total income.According to the learned Advocate, the Tribunal ought not tohave observed the appellant would be able to do a sitting job.Had the appellant been granted compensation considering himto have suffered 100% of functional disability, he would havebeen entitled for addition of 50% therein towards futureprospects. Moreover, a very meagre amount has beenawarded on the count of non-pecuniary compensation. Nocompensation has been awarded under various heads.According to learned Advocate, the appellant has now becomewheel chair bound person. He is required to sleep on air-inflated or water bed. Physiotherapy Sessions are requiredthroughout his life. Nothing has been awarded on account ofloss of amenities in life. The appellant is unable to enjoy First Appeal No.2500/2021:: 7 ::sexual pleasure. Accompanied to him, the appellant isrequired around Rs.60 Lakhs for future medical expenditure.The appellant is required to undergo operation for removal ofimplants. He, therefore, urged for enhancement of amount ofcompensation to a great extent. 8. Learned Advocate for the Insurance Company, asstated above, adverted our attention to the crime scenepanchanama to indicate it to be a head on collision. He wouldsubmit that, it was a case of contributory negligence. Theappellant was equally responsible for his sufferings as a resultof the accident. He availed double benefit of four years salary.The learned Advocate, therefore, urged for allowing the Cross-Objection.9.In reply to the Cross-Objection, the learnedAdvocate for the appellant submitted in writing that a crime hasbeen registered against the driver of the offending vehicle.The crime scene panchanama would indicate the car lost itstrack and went to its wrong side before it knocked down theappellant. The car driver did not step into the witness box. Sofar as regards availment of salary for first four years next afterthe accident is concerned, he would submit that, the appellant First Appeal No.2500/2021:: 8 ::is entitled for one month Earned Leave every year. He has lostthe benefit thereof for remainder of his service. Whatever wasgranted by the employer Company was towards the same andmay also be considered as ex-gratia payment. The same,therefore, could not be deducted from the appellant’sentitlement of compensation under various heads.10.Considered the written submissions. Perused theevidence on record and the authorities relied on. Followingpoints arise for determination. (1)Whether it was a case of contributory negligence ?(2)Whether the appellant proved to have suffered 100%of functional disability ?(3)Whether the appellant proved to have not beengranted compensation under various heads andtherefore entitled for enhancement as urged for ?(4)What order ?11.As to Point No.1 :Admittedly the accident betweenthe motorbike ridden by the appellant and the Innova Cardriven by the respondent No.1 occurred on 9/11/2015 by littlepast 6.00 p.m. at Kedgaon Kalyan By-pass Road. The First Appeal No.2500/2021:: 9 ::appellant testified on oath, wherein he gave details as to howthe accident took place. The driver of the offending vehicle didnot examine himself on oath. On due investigation, the chargesheet has been filed against him for being responsible to theaccident and resultant injuries. The crime scene panchanama(Exh.61) indicate the Innova Car to have had not kept left sideof the road while proceeding along Kalyan Kedgaon Bypass. Italso indicates the car left its track and went to somewhatwrong side and dashed against the motorbike ridden by theappellant. There being no other evidence to indicate theappellant to have slightly been responsible or a contributory tothe accident, we find the Tribunal’s finding holding the driver ofthe offending vehicle to be exclusively responsible to theaccident calls for no interference. Point No.1 is thus answeredaccordingly.12.As to Point No.2 to 4 :-The appellant tendered inevidence various documents in the nature of hospital andmedical bills. Admittedly, he was indoor patient for about 8months at various hospitals. The respondent InsuranceCompany admitted the disability certificate (Exh.196) issued bythe Medical Board headed by the Committee of Civil Surgeon,Ahmednagar indicating the appellant/ claimant to have First Appeal No.2500/2021:: 10 ::suffered post traumatic paraplegia and suffered 77% ofphysical disability. The Disability certificate shows :-DisabilityAffected part Diagnosisof BodyPhysical Bil. L/LPost traumatic ImpairmentparaplegiaThe above condition is Permanent, non-progressive, not likelyto improve. While the appellant tendered in evidence anothercertificate issued by Dr. Jaiswal. The appellant examined himas his witness. Admittedly, he was not a treating doctor. Thecertificate issued by him indicates the appellant to havesuffered 80% of disability. The Tribunal has considered thesaid certificate. The respondent Insurance Company has nottraversed the same before us. Both the disability certificatesindicate the petitioner to have suffered following injuries : “Fracture shaft femur and fracture radius ulna right sidewith fracture dorsal vertebrae fourth and fifth withparaplegia with acute renal artery thrombosis.” 13.The appellant placed on record documentindicating his employer to have terminated him from service. First Appeal No.2500/2021:: 11 ::The aforesaid injuries coupled with the fact that the petitionersuffered paraplegia lead us to infer the appellant to havesuffered 100% of functional disability. True, he may move a bitwith sitting in a wheel chair. It would, therefore, be anybody’sguess who would employ him and at what salary. 14.The appellant placed on record the income taxreturn for the Assessment Year 2015-2016 (Exh.89). Hisannual income was Rs.4,18,200/-. A sum of Rs.10,628/- waspaid towards income tax. That much amount has beendeducted therefrom besides a sum of Rs.2500/- towardsProfessional Tax. The annual income of the petitioner wasconsidered at Rs.4,05,072/-. As the petitioner was in the agegroup of 31-32, relying on the judgment of the Apex Court incase of Sarla Verma & Ors.Vs. Delhi Transport Corp. & Anr.[AIR 2009 SC 3104], a multiplier of 16 was applied. Applyingthe same, his income was arrived at Rs.64,81,152/-.Considering the appellant to have suffered 80% of functionaldisability and treating it to be his future loss of earning, he wasawarded 80% of the said amount, which came toRs.51,84,921/-. The appellant candidly admitted before theTribunal to have received Rs.3 Lakhs towards mediclaim. Thatmuch amount was also deducted from the amount of First Appeal No.2500/2021:: 12 ::compensation. Thereafter the amount of compensation underthat head was calculated at Rs.48,84,921/-. Thecompensation granted under other heads and detailed inparagraph No.42 of its judgment is as under : 42.In the circumstances, the claimant is entitled for totalcompensation amount as follows :Rs.48,84,921 Towards future loss of earning.Rs.01,00,000/- Towards Pain & sufferings, attendance charges, diet charges, loss of amenities, etc.Rs.17,927/- Towards medicine purchase bill.Rs.4,200/- + Rs.9,530/- + Rs.10,000/- Hospital BillsRs.05,54,654/- + Rs.13,050/- Towards KEM Hospital Bill, PuneRs.11,60,000/- + Rs.15,380/- + Rs.48,000/- + Rs.100/- +Rs.1,078/- Towards MRI Brain, etc.Rs.2,78,800/- Towards loss of Salary Income of claimant for nearabout 8 months during the hospitalization period.Rs.6,46,056/- Towards Hospital & Medical Bills as admitted by Insurance Company vide Exh.197 to Exh.209===========Rs.77,43,696/-15.In our view, when the appellant has sufferedmultiple injuries and afflicted by paraplegia, it is a case of100% functional disability. The Tribunal ought to have grantedhim the compensation considering it to be a case of loss of First Appeal No.2500/2021:: 13 ::100% functional disability. We, therefore, recalculate thecompensation under the head of loss of future income andearning capacity as under : 16.In view of the directions of the Constitution Benchof the Apex Court in case of National Insurance CompanyLimited Vs. Pranay Sethi [AIR 2017 SC 5157], 50% ofannual income of the appellant is added towards futureprospects since he was in permanent employment. Thus, theamount of compensation on account of loss of future earningwould be as under : Rs.4,05,072/- + 50% =2,02,536=Rs.6,07,608/-X Multiplier 16 =Rs.97,21,728/-He has been granted Rs.2,78,800/- towards loss of salaryincome for a period of 8 months of hospitalization. The samewould be considered as compensation on account of loss ofleave. We do not propose to make any interference with thesaid quantum of compensation. On account of hospital andmedical bills, a total sum of Rs.18,70,614/- has been granted(duly proved/ admitted by the respondent InsuranceCompany). First Appeal No.2500/2021:: 14 ::17.True, under the head of loss of income theappellant has been awarded compensation for the periodcommencing from the date of the accident. Whereas he hasadmittedly received a salary for a period of four years nextafter the date of the accident. The said quantum gets coveredunder the head of loss of future income. As such, ostensiblythe appellant has received compensation twice for a period offour years. We take it as an ex-gratia payment made by theemployer. We also do not propose to make any deduction onthat count since we are not granting the appellant any amounttowards medical bills placed on record as additional evidence.The learned Advocate for the appellant before the Tribunal hadproved the hospital and medical bills. Here he did not urge forpermission to lead additional oral evidence in proof of the bills.The bills are not for small amount. The bills placed on recordas additional evidence are worth Rs.23,73,467/-. We,therefore, do not propose to grant any compensation onaccount of those bills though we were inclined to grant theappellant a lumpsum amount towards future medicaltreatment.18.The appellant examined P.W.11 Sumedh Kedare inproof of future medical expenditure. He would be required to First Appeal No.2500/2021:: 15 ::spend a sum of Fifty to Sixty Lakhs towards future medicalexpenditure. No details thereof have been given. We,therefore, propose to award him a lumpsum of Rs.30 Lakhstowards future medical expenditure including Physiotherapycharges, undergoing operation for removal of implant etc.Under the head pain and suffering, attendant charges, dietcharges, loss of amenities etc., a very meagre sum of Rs.1Lakh has been awarded by the Tribunal. On account of painand suffering and loss of amenities in life, we propose to grantthe appellant a sum of Rs.15 Lakhs. The appellant has reliedon the judgment of the Apex Court in case of Sidram Vs.Divisional Manager, United India Insurance Co. Ltd. [ 2022(16) SCALE 452 ]. It was case wherein the injured hadsuffered 45% of disability in the nature of paraplegia. Inparagraph no.32 of its judgment, it has been observed thus : “32.This Court has emphasised time and againthat “just compensation” should include allelements that would go to place the victim in asnear a position as she or he was in, before theoccurrence of the accident. Whilst no amount ofmoney or other material compensation can erasethe trauma, pain and suffering that a victimundergoes after a serious accident, (or replace theloss of a loved one), monetary compensation is themanner known to law, whereby society assuressome measure of restitution to those who survive,and the victims who have to face their lives.” First Appeal No.2500/2021:: 16 ::19.It then referred to the Apex Court judgment in caseof R.D. Hattangadi V. Pest Control (India) (P) Ltd. [ AIR1995 SC 755] and reproduced paragraph 9 thereof as under : “9.Broadly speaking while fixing the amount ofcompensation payable to a victim of an accident,the damages have to be assessed separately aspecuniary damages and special damages. Pecuniarydamages are those which the victim has actuallyincurred and which are capable of being calculatedin terms of money; whereas non-pecuniarydamages are those which are incapable of beingassessed by arithmetical calculations. In order toappreciate two concepts pecuniary damages mayinclude expenses incurred by the claimant: (i)medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far asnon- pecuniary damages are concerned, they mayinclude: (i) damages for mental and physical shock,pain and suffering, already suffered or likely to besuffered in the future; (ii) damages to compensatefor the loss of amenities of life which may includea variety of matters i.e. on account of injury theclaimant may not be able to walk, run or sit; (iii)damages for loss of expectation of life i.e. onaccount of injury the normal longevity of theperson concerned is shortened; (iv) inconvenience,hardship, discomfort, disappointment, frustrationand mental stress in life.”20.The appellant has also placed on record a copy ofthe judgment in case of R.D. Hattangadi (supra), wherein thecompensation has been awarded for Physiotherapy, bedsoredressing charges, wheel-chair, Fowler’s bed etc. It was ajudgment delivered way back in 1995. With the passage of First Appeal No.2500/2021:: 17 ::time, the charges thereof must have been increased. We,therefore, propose to grant the appellant a sum of Rs.1 Lakhtowards wheel-chair. He would be required to be attended atleast by one person. On that count, a total sum of Rs.10Lakhs is proposed to be awarded. We are not inclined to grantany compensation on account of travelling expenses alreadyincurred and likely to incur. The appellant being permanentresident of Ahmednagar, preferred to file the claim petitionbefore the Tribunal at Aurangabad. Although thecompensation has been claimed under various heads, we arenot inclined to grant the same since a lumpsum amount ofRs.30 Lakhs has been awarded towards future medicalexpenses, besides under other heads referred to hereinabove.Thus the total compensation comes to Rs.1,53,21,728/-(Rs.97,21,728 + 30 Lakhs + 15 Lakhs + 1 Lakh + 10 Lakhs.)We round it of to Rs.1,55,00,000/- (Rupees One Crore FiftyFive Lakhs only). The additional amount while making thefigure round off is considered towards miscellaneous expenseswhich the appellant may be required to incur. 21.For all the aforesaid reasons, the appeal partlysucceeds. The Cross-Objection fails. Both the appeal and the First Appeal No.2500/2021:: 18 ::cross-objection, therefore, stand disposed of in terms of thefollowing order : O R D E R(i)The First Appeal is partly allowed.(ii)The amount of compensation awarded by the Tribunal isenhanced from Rs.77,43,696/- (Rupees Seventy Seven LakhsForty Three Thousand Six Hundred Ninety Six) toRs.1,55,00,000/- (Rupees One Crore Fifty Five Lakhs only).The amount of enhanced compensation i.e. Rs.77,56,304/-(Rupees Seventy Seven Lakhs Fifty Six Thousand ThreeHundred and Four) shall carry interest @ 7% p.a. from thedate of claim petition i.e. 22/8/2016 to the date of payment.(iii)The Cross-Objection stands dismissed.(iv)Civil Application No.13834/2023 stands disposed of. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)fmp/-