M.K. Shah, J.
1. x x x x
2. The appellant received injuries showing fracture, dislocation, cervical 6th and 7th with complete quadriplegia with complete motor and sensory loss below the injured segment. He had, multiple abrasions over chest and shoulder. Due to injuries to the spinal cord there was paralysis below the injured level. There was paralysis of both the upper limbs and both the lower limbs, including paralysis of the front and back abdominal muscle, below the injured segment and his nervous system of the spinal cord was also affected following the injuries. He was immediately - removed to the L. G. Hospital at Maninagar but was shifted within a few hours to the V. S. Hospital. There, he was treated up to 25th March 1973 and thereafter 4he had to go to the hospital for physio-therapy treatment and consultation with the Orthopedic surgeon.
3. Originally, he had claimed a sum of Rs. 1,75,000/- but the same was reduced by an amendment to Rs. 1,25,000/-. There was contest from the side of the respondent No. 1 who denied that the accident happened because of a rash and negligent act of driving on the part of respondent No. 1, driver; and the quantum as well as the basis of compensation claim were also challenged.
4. x x x x x
5. The appellant, who was original applicant before the Tribunal, has approached this Court in appeal, being aggrieved by the said award for Rs. 27,500/- only as against the claim of Rs. 1,25,000/-, and he prayed that the additional amount of Rs. 97,750/- be awarded to him.
6-11. x x x x x
12. It will be thus seen that the contest before this Court is limited to only five items, i.e. items set out in the following paragraphs of the petition:-
(1) 11 (1) (a) - for medical expenses for which Rs. 6,303.98 p. were claimed and nothing was awarded by the Tribunal.
(2) 11 (1) (b) - for transport charges i.e. conveyance expenses incurred by persons attending on the claimant while he was in the hospital, for which also the claim of Rs. 1,050/- was disallowed.
(3) 11 (1) (c) - expenses for trip to Bombay to consult Dr. Dholakia, the claim in respect of which was for Rs. 500/which was disallowed.
(4) 11 (3) (a) - is in respect of loss of earning during treatment and an amount of Rs. 7,000/- was claimed which was totally disallowed;
(5) 11 (3) (b) is In respect of future economic loss and a claim for R4s. 1,50,000 was made but it was allowed to the extent of Rs. 7,500/- only.
13. We will take each of these items one after another and consider the rival contentions in respect thereto advanced by both the sides.
14. So far as the first item Is concerned with regard to medical expenses incurred, the claimant has led evidence to show that the bills in respect of the expenses incurred for medical charges were submitted by him to the New India Assurance Co. Ltd. who were the insurers for the Mafatlal Group Medical Aid Scheme; and, as the claimant deposed the Mihir Textile was a Mafatlal Group Mill having scheme for medical expenses and he had to pay premium under the scheme which was deducted from his salary. Under the scheme, the claimant and the members of his family got medical treatment for which the insurance company used to pay and for reimbursement purposes he had to send the original bill to the company while preferring clear bill. He had produced with list Ex. 58 the bills submitted by him on the claim forms of work-sheet setting out all details about the payments made and he said that those forms borne his thumb impressions and signatures; that they were filled in triplicate and that the set which he was producing was the one returned to him after the liability was dulv disharged. The said forms were put in and marked Ex. 63 collectively. In our opinion, this evidence clearly establishes that expenses to the extent of Rs. 6,157.39 p., as shown by these claim forms, were incurred by the claimant and the liability was discharged by the insurance company In pursuance of the scheme earlier referred to. These forms were exhibited without any objection from the respondents-opponents, and, they, therefore, can be relied upon, not only for the formal part of Proving the signatures or thumb impression of the claimants but also with regard to the contents thereof. Our attention was drawn to P. C. Purshothama v. Perumal, AIR 1972 SC 608, wherein it has been clearly laid down that once a document Is Properly admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence. The relevant remarks at page 613 are in the following terms:-
'Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Rammurthi learned Counsel, for the respondent. He contended that police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondents now to object to their admissibility. It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. Once a document is Properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.'
15. Thus, In, the instant case not only the claim forms are admitted on record but the contents thereof also are admitted, on record and the oral evidence of the claimant is therefore corroborated by the said documentary evidence, which is Ex. 63 colly and the learned Tribunal, therefore, in our opinion, erred In disallowing this claim on the ground that the claimant had not produced any evidence in support of the said claim in respect of medical expenses. The remarks by the learned Judge, constituting the Tribunal, that the contents of these forms cannot be relied on as evidence of expenses which were actually incurred and that the appellant had not produced vouchers and bills in support of the claim for medical treatment, room charges, operation charges, injection charges, etc. and that therefore, he cannot be held entitled to receive the said amount from the opponents, are, in our opinion, misconceived. If one looks at these forms, they set out all the details of all the expenses incurred. These documents, therefore, fully corroborate except with regard to a negligible part of the claim, the say of the appellant~ from the witness box; and therefore, the claim to that extent, i.e., to the extent of Rs. 6157-39 Ps. should have been allowed by the learned Judge.
16. Again, this is not a case in which the claimant was entitled to free medical aid by virtue of his employment as some such consideration and that he has been reimbursed on such consideration. This is also not a case in which the Government or some such official agency under the scheme like the National Health Scheme of U. K. provides free medical aid to the claimant, in which case, different considerations could Possibly weigh though we should not be taken to have expressed a considered opinion on the question. This is a case in which the claimant had joined a scheme of insurance by paying premium and therefore, benefits which he got were ones which he had obtained with his own money and these benefits could never go to a tortfeasor as per the ratio laid down in L. I. C. v. Kasturben Naranbhai, 13 Guj LR 920: (AIR 1973 Guj 216) to which reference has already been made by the learned Judge in his judgment in para 14; and, in this view of the matter also, the appellant would be entitled to the said amount to the extent of Rs. 6157-39 Ps.
17. The next item is in respect of conveyance expenses incurred by persons who had attended on the claimant who had to go to the hospital and back home and again go for attending on him during the period of 69 days he was in the hospital. The learned Judge had disallowed this claim on the ground that barring the say of the claimant, there is no other evidence on record to prove the expenses. The learned Judge has also remarked that the claimant could have maintained account of such expenses; but he did not seem to have done so and it would, therefore, be difficult to allow the said claim relying on the in interested say of the claimant alone. In our opinion, the learned Judge erred in disallowing this claim. This is not the case of a businessman who was maintain the accounts with regard to all his affairs, including moneys withdrawn for personal purposes. In this case, account could have been expected. But here was a person employed with a mill and, there could hardly be an account expected to be maintained in respect of rickshaw charges paid for the purposes of visits of the relatives who were attending on him during the crucial period when he was hospitalized and undergoing treatment. His evidence in this behalf in examination-in-chief is not challenged, except on the ground that accounts were not maintained it would be too much to expect any accounts being maintained of such charges. In our opinion, the claim made in this behalf was a reason able one and should have been allowed. For a return trip of a person so attending, the claimant had to spend Rs. 5/ as deposed to by the claimant, and, on that basis, even if two persons were attending on him, the expenses would come to at least Rs. 700/-. It may be some times one more member of his family would also come and some expenses would be incurred and the claim, therefore, at Rs. 1050/- in this connection in our opinion, cannot be said to be exaggerated and hence, deserving to be disallowed. This amount therefore will be awarded to him.
18. With regard to the next item which concerns the expenses incurred for a trip to Bombay and back in respect of consultation with eminent Orthopedic Surgeon Dr. Dholakia, the claimant in his evidence did say that he, along with his wife, his wife's brother, and son had gone to Bombay for the purpose, and that, in all, he spent Rs. 5001- for the railway fare, (first class railway ticket charges) and Rs. 100/- for sundry expenses. There is no reason why a man of the status of the claimant should make a false claim for such an amount, had he not actually visited Bombay for the purpose. It is true that the prescription of Dr. Dholakia and other papers in connection with the examination have not been brought on record, but, it is precisely for that reason that no claim in respect of consultation charges which he must have paid to Dr. Dholakia has been preferred. Here also, there is no challenge except with regard to the accounts having been maintained, and, when cross-examined, the claimant did make a statement that he did maintain accounts in this connection. They have not been produced. In our opinion, there is no reason to disbelieve the oral word of the claimant in respect of such a small claim, which should have been allowed. This claim, therefore, will also be allowed.
19. That takes us to the next item with regard to loss of earning during the period from 12-10-72 to 19-3-1973 when the claimant was under treatment. It is an undisputed fact that, though the claimant did not attend to his work during this period, his employer did not make any deduction in respect of his salary during the period of absence, and that he was fully paid for that period. The learned Judge disallowed this claim on the ground that the claimant had not utilised earned leave for the purpose nor was there any evidence showing that payment was made ex gratia; and that, in fact, the claimant had not suffered any loss of income during this period, because he was fully paid by his employer. Mr. Oza, the learned advocate appearing for the claimant, in this connection relies on Cunningham v. Harrison, (1973) 3 W. L, R. 97. This was a case of a personal injury received by the plaintiff in an accident which occurred in Dec. 1970, and the plaintiff's employer paid him his full salary up to September 1971, and then made him an ex gratia payment of F.828 a year which was to be continued until his death. It was observed that damages are not to be reduced by reason of ex gratia payment made by his employer. This was observed by Lord Denning, M. R and Orr L. J. as also Lawton L. J. agreed with the said observation. The learned Judge in this connection has found that there is no evidence showing ex gratia payment. In our opinion, the evidence on record does not establish the fact that the salary paid during the period of absence on account of the accident was an ex gratia payment. The burden would -be on the claimant to establish this fact, if he wants to claim this amount from the opponents as compensation, and he has failed to discharge this burden. The learned Judge, therefore, in our opinion, was right in disallowing this claim.
20. That would take us to the last item which requires to be considered, namely, the claim of Rs. 1,50,000/- made on the ground of future economic loss for which the learned Judge has awarded an amount of Rs. 7500/- only. The claimant at the time of the accident was 55 years old and when the matter went to trial, he was about 58 years old. The age of retirement for him at the mill where he was working was 60 years. But, 'in his evidence, he said that ordinarily, even after the age of retirement, he would have continued for 2 or 3 years in service, if he was fit and healthy and, after retirement, he would have been able to practice as a Dyeing consultant for the Dyeing Department of textile mills. It should also be borne in mind, in this connection, that he had a record of 35 years service -in the mill. He was head of the Dyeing Department, and his duty included examining colour mixture, looking into the defects in the machines, supervising and checking cloth while in the process of passing over the rollers and taking rounds in the department. His witness Jayant Desai says that though he was feeling handicapped, because of his long service, he was continued and that his retirement age is 60 years. He also said that the claimant had long experience and possesses a good knowledge of technical know-how. The claimant has referred to his handicaps and defects after the accident and he has also examined two doctors, namely, Dr. Mahendra Desai, Professor of Orthopedic Unit, V. S. Hospital, Ex. 69, and Dr. Manublial J.Patel, Ex. 75 in this connection.
22. Three questions are required to be considered in the context of this background with regard to the physical handicaps and disability of the claimant. The first question is as to whether the claimant is entitled to any compensation for future economic loss from the date of trial till the date of his retirement. Secondly, whether he is entitled to any compensation for a further period of two years, i.e. up to his age of 62, up to which age, according to him, his services would have been continued, if he was in fitness of health; and, thirdly, whether any compensation is awardable to him for loss of earning which he is likely to suffer in his practice as a dyeing consultant, which he contemplates to start after retirement from service.
23. With regard to the first two aspects, we do not find any reason to interfere with the order of the learned Judge refusing to award any amount in that connection. As a matter of fact, in spite of the handicaps, the claimant has been continued in service and his earnings are a little on the higher side, as compared to his earnings at the time of the accident. As the learned Counsel for the claimant states, the claimant, though he is about 60 by now, still continues in service. The question, therefore, of compensating him for loss of earnings, from the date of the accident till he retires from service, does not arise because, as a matter of fact, there is no such loss. So far as his continuance after retirement is concerned, for 2 to 3 years, as the claimant envisages, there is nothing beyond his bare word to warrant a finding that he had reasonable chances of being continued in service for a couple of years after retirement. No attempt was made to bring out this f act from the mouth of the manager of the mills, examined as claimant's witness. It is not his say that any dyeing masters have been continued in service after the age of retirement; and, this would, therefore, be straying into the realm of speculation, if a view is taken that he had reasonable chance of continuing in service for a couple of years, even after retirement.
24. But so far as the period beyond the termination of his service is concerned, in our opinion, the claimant has a good case for additional compensation. Here is an experienced man working in a mill for the last 35 years, retiring as a head of the dyeing department, He intends, , as his evidence shows, to start practice as a dyeing consultant. As the manager of the mill says, the claimant has long experience and possesses a good knowledge of technical know-how. With his expertise knowledge and experience of working for all these years behind him, it can be reasonably assumed that he would make a good headway if he starts his practice as a dyeing consultant. In the petition it was stated that he would have earned Rs. 500/- per month in such practice. But while giving evidence, he has not given a specific figure about his expected earning in this behalf. However, looking to his experience and technical knowledge, in all probability, such a person would, at least, earn Rs. 500/- per month, if he starts practice, provided he is fully able to attend to the same, and provided he has no such handicap or disability as the claimant has. His disabilities and handicaps, therefore, will have to be evaluated in terms of money to find out what would be the effect of the same on his earning capacity as a practitioner. But, this has to be distinguished from his present job which he is doing as an employee of a mill where he has assistants, equipments and all other necessary facilities, as also the good-will of his employer qua him to enable him to continue with his job, in spite of handicaps. As Dr. Patel puts it, percentage of his disability is 60 to 70% for the upper limb, and, 70% for the lower limb. But, that may not necessarily reflect to that extent. So far as his earning capacity as a consultant is concerned, because, as a consultant, he will not have to attend physically on machines and to sit to regular hours in mills. But it is manifest that he will be handicapped in establishing and developing his practice, because, to establish and carry on such practice, it would require visits to mills, moving from place to place, and even town to town. In our opinion, considering all the relevant factors, the reflection of permanent disability on the earning capacity in his prospective professional career as a consultant should be taken at 50%; and on that basis, beating in mind his age, the expected loss in this connection should be assessed for a period of seven years for the remainder of his life, and so calculated, the amount of compensation will be, 250 X 12 = 3000 X 7 = 21000/-. The learned Tribunal has already awarded Rs. 7500/- on this count; and the appellant-claimant. therefore, will be entitled to an additional amount of Rs. 13,500/- on this count.
We may in this connection refer to Marine and General Insurance Co. v. Dr. Balkrishna Ramehandra Nayan, 1976 ACC CJ 288: (AIR 1977 Bom 53). This was a case in which a doctor who was practising as a surgeon was injured with fracture of the right elbow. He was aged 63 years and was having his nursing home and consulting room yielding him an yearly income of Rs. 20,4001-. Apart from awarding loss of income for four years, on the basis of actual loss of income for the period during which he could not attend to his profession at all, a sum of Rs. 63,000/- was awarded by the Tribunal as expected loss for seven years for the remainder of his life. While approving this, the Bombay High Court observed as follows at p. 294 (of ACC CJ): (at P. 58 of AIR) -
'The learned Member further added to this a sum of Rs. 63,000/- being 50% of Rs. 1,26.000/- expected loss for 7 years for the remainder of the life of Dr. Navan, who was when the award was given, 63. The learned Member has correctly said that as lump sum amount was to be given to Dr. Nayan, the loss of 7 years must be reduced to 50%. As this is also calculated on the basis of the average loss calculated on the formula adopted by the learned Member, as stated above, we find no error in principle therein.'
The matter was taken up to the Supreme Court in Minu B. Mehta v. Balkrishna Ramehandra Navan, AIR 1977 SC 1248. After referring to the said award of Rs. 63,000/- for the seven years as the likely loss of prospective earnings due to the doctor's disability, it was observed as under:-
'In this case also we do not feel called upon to interfere with the quantum arrived at by the Tribunal as well as the High Court.'
25. We have referred to Dr. Navan's case with a view to show that the method of evaluating expected loss of future earnings which we have adopted and, which was also adopted, by the concerned Tribunal in the case before the Supreme Court was not found to contain any error in principle by the Bombay High Court, nor was it disapproved by the Supreme Court. Of course, the evaluation is to be done on the facts of each case, and no universal rule can be laid down covering all cases; and it need not necessarily be co-extensive with the percentage of disability. In Dr. Navan's case (supra), the percentage of expected loss was taken at 50%, though the percentage of disability was much lower, L e. 30%. In the instant case, though the percentage of disability is 60 to 70%, we accepted a lower figure (50%) while evaluating expected loss of earning. But the method is the same and would involve the following process of reasoning:-
Has the accident endowed the claimant with any defects, disabilities or handicaps - temporary or permanent total or partial ?
What is the nature and extent (including precise percentage, if ascertained) of such disablement?
What would have been the expected yearly earnings of the deceased in future, had he not met with the accident ?
Will the said disablement affect the earning capacity of the claimant in future? If so, what is the extent L e. the percentage of reduction in the said earning capacity of the claimant as reflected by the said disablement
And lastly, what is the multiplier to be adopted to assess the said expected loss of earnings.
26. That is precisely the method and the formula we have adopted in arriving at the figure of Rs. 21,000/- as the expected loss of future earnings for the remainder of the claimant's life.
27. Thus, the additional amount awardable to the appellant-claimant, when added together, will be as follows:-
Rs. 6,157.39 p.----- Para. 11 (1) (a) Rs. 1,050.00p.----- Para. 11 (1) (b)Rs. 500.00 p.------ Para. 11 (1) (c) Rs. 13,500.00 p---- Para. 11 (3) (b)------------------------Total: Rs. 21,207.39 p.------------------------
28. xx xx xx xx
29. Appeal partly allowed.
30. xx xx xx xx xx xx
31. Appeal partly allowed.