Madhukar Dnyanoba Shinde v. The Maharashtra State Road Transport Corporation & Ors.

1. This appeal is preferred by the appellant-claimant for enhancement of compensation.

2. It is contention of learned counsel for the claimant that the claimant was serving as professor in Rayat Shikshan Sanstha’s Padmaraje Vidyalaya and Junior College at Shirol and was drawing gross salary of Rs.46,664/- per month. Due to accidental injuries, he has suffered 70% permanent physical disability but his functional disability is 100%. The injury is caused to his brain. After the accident, he is completely bed-ridden. The claim petition was filed through his next friend i.e. his wife. Since the claimant was unable to come to Court the Tribunal had appointed Court Commissioner and evidence of the claimant came to be recorded through the Court Commissioner. Learned counsel further submitted that while awarding compensation, the Tribunal has not awarded loss of income and future prospects on the ground that the claimant has taken voluntary retirement (for short “VRS”) from his service. Learned counsel further submitted that the Tribunal has not considered the fact that the claimant was forced to take VRS as he was unable to continue in work due to his disability. Learned counsel further submitted that had the claimant been continued in his service, he would have become principal of the said college and his salary would have enhanced. But due to disability, he was forced to quit his job before his retirement. The Tribunal has awarded compensation on lower side under other heads. Hence, requested to allow the appeal.

3. It is contention of learned counsel for respondent No.1- Corporation that the claimant has opted for VRS and in view of the same, the claimant had got benefits which would have accrued to the claimant in various monthly intervals. Instead he has got the said huge amount. Learned counsel further submitted that while computing the loss of income, this Court has to consider as to what income he would have earned in future. Since a part of the income has already been received by the claimant under VRS, the same has to be deducted from the total loss of income which ultimately is computed as the loss sustained by him. If the amount of VRS is not deducted, then it will amount to double benefit to the claimant as he shall get the entire loss of income as normally computed and in addition, he will have the benefit of getting amount by virtue of VRS availed by him. Learned counsel further submitted that the Tribunal has passed well reasoned order, no interference is required in it and requested to dismiss the appeal.

4. I have heard both learned counsel, perused the judgment and order passed by the Motor Accident Claims Tribunal, Sangli, (for short “the Tribunal”).

6. It is claimant’s case that due to accidental injuries, the claimant has suffered injury to his brain and other parts of body. To prove the disability, the claimant has examined PW2-Dr. Sanjiv M. Kulkarni. He has stated that the claimant was admitted in his hospital on 22nd November 2011 and discharged on 25th January 2012. According to this witness, there was brain contusions and fracture of skull bone. The patient was treated in his hospital for above period and he has issued injury certificate on 19th March 2012. It is at Exhibit-59. The discharge card is at Exhibit-

60. The disability certificate was issued on 4th March 2013. It is at Exhibit-

61. This witness has stated that the claimant has suffered 70% disability of both limbs. In cross-examination, he has stated that the medical impairment and disability are altogether different. He has admitted that he has not shown functional problem in the disability certificate at Exhibit-61. He has stated quadriparesis means weakness of both lower and upper limb. There is no quadriparesis to the claimant. He has admitted that he has no power to issue disability certificate.

7. To prove the disability, the claimant has produced disability certificate issued by Medical Board of Vasant Dada Patil Government Hospital, Sangli, dated 24th April 2014 but it appears that though this certificate is taken on record showing 70% permanent physical disability but this disability certificate is nor exhibited or referred in the judgment of the Tribunal.

8. While dealing with the issue of disability of the claimant, the Tribunal has observed that bifurcation of disability is not given by the PW2-Doctor. Moreover, he has clearly admitted that he has no power to issue disability certificate. In such circumstances, it can be inferred that the patient sustained the injuries in the accident and there was permanent disability, however, the percentage of disability in the absence of bifurcation cannot be accepted. At the most, the patient is having some disability due to the accident, has been observed. I am unable to understand the observations of the Tribunal. PW[2] who is a medical expert has stated that there was brain contusion and fracture of skull bone and the claimant was admitted in his hospital for more than one month. Due to physical disability, the claimant was forced to take VRS. Due to his physical inability, the claim petition was filed through next friend. He was examined by appointing court commissioner. It is claimant’s case that he is bed-ridden and unable to walk properly but the Tribunal has not considered these facts. Moreover, the disability certificate issued by the Medical Board of Government Hospital, Sangli has not been considered by the Tribunal. Though it is not exhibited as per the view of Hon’ble Apex Court in the order dated 10th February 2022 passed in Writ Petition (Civil) No. 534 of 2020 (Bajaj Allianz versus Union of India), the medical certificate issued by the Medical Board can be taken on record without summoning the concerned witness to give formal proof of the document, unless there is some reason for suspicion in the said document. In the present case, PW[2] has issued disability certificate showing 70% disability of the claimant. The medical board has also issued disability of same percentage. The Tribunal should have considered this fact. Hence, I am considering permanent physical disability of the claimant at 70%. Though the claimant has 70% permanent physical disability, it has been proved that his functional disability is 100%.

9. Now the question remains about loss of income. It is contention of learned counsel for the claimant that due to permanent physical disability, the claimant was forced to take VRS, hence, he is entitled for loss of income. Whereas it is contention of learned counsel for respondent-Corporation that the claimant has already received lump-sum amount after taking VRS and giving the loss of income would amount to double benefit to the claimant. In my view, the claimant took voluntary retirement at the age of 48 years and his 12 years service was remaining. Had he been continued in service, he would have got promotion and his salary would have been enhanced but due to accidental injuries, he has lost his promotional benefits and monetary benefits. Moreover, when any person takes VRS, at that time, his future benefits are not calculated in VRS benefit and he would get benefits what he is entitled at the age of VRS. In the present case, the claimant was forced to take VRS at the age of 48, so he is deprived of getting benefits of his further service. Hence, the claimant is entitled for loss of income and future prospects.

10. The Tribunal has not applied multiplier. At the time of accident, the claimant was 48 year old, hence, the proper multiplier is 13.

11. The Tribunal has not awarded compensation for pain and suffering. Considering the injuries suffered to brain, I am considering Rs.5,00,000/- for pain and suffering. The Tribunal has not awarded amount for loss of amenities in life, I am considering it at Rs.3,00,000/-. The Tribunal has not awarded amount for loss of expectations of life, I am considering it at Rs.2,00,000/-. The Tribunal has awarded amount of Rs. 6,50,000/- for future medical expenses. Considering the nature of injuries, I am considering Rs.3,50,000/- more for future medical expenses. The Tribunal has not awarded amount towards cost of nursing and attendant. It appears from record that the claimant is bed-ridden and will require attendant for his entire life, hence, I am considering Rs.4,00,000/- for Nursing & Attendant. The Tribunal has not awarded future expenses for physiotherapy, I am considering it Rs.4,00,000/-. The Tribunal has not awarded amount for special diet, I am considering it at Rs.2,00,000/-. The Tribunal has not awarded amount for cost of wheelchair, I am considering it at Rs.75,000/-.

12. Considering the above calculations, the claimant is entitled for following enhanced compensation: Particulars Rs. Amount Loss of Earning (Rs.44,464/ (-) Rs.2200(tax) = Rs.42,264/- (+) Rs.10,566/- (25% future prospectus) = Rs.52,830/- x 12(months) x 13 (multiplier) Rs. 82,41,480.00 Pain and Suffering Rs. 5,00,000.00 Loss of Amenities in Life Rs. 3,00,000.00 Loss of Expectation of Life Rs. 2,00,000.00 Future Medical Expenses Rs. 3,50,000.00 Nursing and Attendant Rs. 4,00,000.00 Future Expenses towards Physiotherapists Rs. 4,00,000.00 Special Diet Rs. 2,00,000.00 Cost of Wheelchair Rs. 75,000.00 Total Enhanced Compensation Rs. 1,06,66,480.00 The claimant is entitled for enhanced compensation of Rs.1,06,66,480/-.

13. In view of above, I pass the following order: O R D E R (1) The appeal is allowed. (2) The claimant is entitled for enhanced compensation of Rs.1,06,66,480/- @ 7.5% interest per annum from the date of filing claim petition till realisation of the amount. (3) Respondent No.1-Corporation shall deposit the enhanced amount along with accrued interest thereon within eight weeks from the receipt of this order. (4) The claimant is permitted to withdraw the enhanced amount along with accrued interest thereon. (5) The claimant shall pay deficit court fees on enhanced amount, if any, as per Rule. (6) Record and Proceedings be sent back to the Tribunal.

14. Pending applications, if any, stand disposed of. (SHIVKUMAR DIGE, J.)