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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.313 OF 2006
Saiyyad Arif s/o. Saiyyed Gyasoddin,
Aged about 23 years,
Profession : Nil, R/o. At Post - Manbha,
Tq. Karanja Lad, District - Washim. : APPELLANT
...VERSUS...
1. The New India Assurance Company Ltd.,
through its Divisional Manager,
Old Cotton Market Rd., Akola,
Tq. & District Akola.
2. Sau. Anuradha Rajesh Sharma,
Aged Adult,
Occupation : Owner of
Tata Indica Car No.MH-27/H-2376,
R/o. Moti Nagar, Amravati,
District : Amravati.
(P.S. Fresurpura)
3. Jagdish s/o. Subhashchandra Sharma,
Aged 29 years,
Occupation : Driver
of Tata Indica Car No.MH-27/H-2376,
R/o. Moti Nagar, Amravati,
Tq. & Distt. Amravati.
(P.S. Fresurpura Amravati) : RESPONDENTS
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Shri J.B. Kasat, Advocate for the Appellant.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
rd DATE : 3 NOVEMBER, 2017.
ORAL JUDGMENT :
1. By this appeal, the appellant has questioned the legality and correctness of the judgment and order dated 27.12.2005, rendered in Motor Accident Claim Petition No.233/2003, by the Chairman, Motor Accident Claims Tribunal, Akola on the ground of compensation granted being inadequate.
2. The accident in the present case occurred on National High- way No.6, at about 5.00 p.m., near Panjabi Dhaba, situated on the road between Murtizapur and Akola, within the limits of Murtizapur, District Akola. At that time, the appellant was crossing the road for going towards Dhaba when Tata Indica car bearing registration No.MH-27-H- 2376 driven by respondent No.3, owned by respondent No.2 and insured with respondent No.1 suddenly appeared and gave a dash to the appellant. The appellant sustained serious injuries including head injury. He was admitted to L.D. General Hospital, Murtizapur for initial treatment and later on was taken to District General Hospital, Akola. The appellant had to be hospitalized for a period of about 2 months and after his discharge also, he could not completely recovered from the injuries suffered by him. Those injuries were in the nature of loss of ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:33:48 ::: J-fa313.06.odt 3/7 memory. In the opinion of the doctor, there was no possibility of improvement in the memory function of the appellant and, therefore, he issued a permanent disability certificate showing that his disability was of 20%.
3. At the time of the accident, the appellant was working as a cleaner on the truck and because he had suffered permanent disability, he was not able to perform his job properly. He, therefore, filed a claim petition under Section 166 of the Motor Vehicles Act for grant of compensation. It was resisted by the respondent by filing written statement. On merits, the Tribunal found that the respondents were liable to pay jointly and severally compensation of Rs.90,067/- with interest at the rate of 7.50% p.a from the date of petition till actual realization to the appellant and accordingly it passed the impugned judgment and order. Not being satisfied with the same, the appellant is before this Court in the present appeal.
4. I have heard Shri J.B. Kasat, learned counsel for the appellant. None appears for the respondents though duly served on merits. I have gone through the record of the case including the judgment and order.
5. Now, the only point which arises for my determination is :
Whether the compensation awarded by the Tribunal is just and proper ?
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6. Learned counsel for the appellant submits that the Tribunal has not taken into consideration the future prospects and has also not considered the permanent disability suffered by the appellant while computing final amount of compensation. He submits that there is evidence available on record showing that the appellant had suffered permanent disability to the extent of 20% which disability affected his functioning as a cleaner and, therefore, proportionate amount of compensation on account of loss of earnings ought to have been granted by the Tribunal.
7. It is seen from the impugned judgment and order that the Tribunal has not considered loss of earnings of the appellant nor has considered addition of future prospects to the income of the appellant. In the present case, evidence of PW 3 Dr. Manoj Jain shows that there is no possibility of any improvement in the memory function of the appellant. It is not in dispute that at the time of accident, the appellant was working as a cleaner on the truck. This fact having been established on record. No one would doubt that job of the cleaner demands undertaking of rigorous movements as well as assisting the truck driver in navigation and maintenance of the truck. This would require memory function to be intact in order. If there is any impairment in this function, it would naturally have adverse impact upon the performance of duty as a cleaner. In the case of Sandeep Khanuja vs. Atul Dande and ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:33:48 ::: J-fa313.06.odt 5/7 another, reported in 2017(4) Mh.L.J. 1, the Hon'ble Apex Court has held that it is important to assess as to whether or not permanent disability would have any adverse impact on the earning capacity of the injured. In the present case, I have found that given the nature of job being performed by the appellant, loss of memory function would certainly have adversely effect on his performing work as a cleaner and it would result in proportionate loss of his earning capacity. Therefore, I am of the view that loss of earning capacity in proportion to the disability suffered by the appellant in the present case ought to have been considered by the Tribunal. The Tribunal having not considered it, has committed a serious error of law and fact, which error now would have to be corrected by this Court. Similarly, future prospects are also required to be considered while determining the final amount of compensation, but in the present case that has also not been considered by the Tribunal and as such even this error would have to be taken care of by this Court.
8. The evidence of PW 3 Dr. Manoj Jain discloses that this appellant suffered permanent disability to the extent of 20%. So, to this extent, the loss of earning capacity of the appellant could be assessed. In the case of National Insurance Company Limited vs. Pranay Sethi and others, passed in Special Leave Petition (Civil) No.25590 of 2014, decided on 31st October, 2017, the Hon'ble Apex Court has held while ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:33:48 ::: J-fa313.06.odt 6/7 determining the income, future prospects must be added as per the guidelines laid down in that case. The future prospects having not been taken into account by the Tribunal, now they would have to be considered and added to the income of the appellant. The age of the appellant at the time of accident was 22 years and that he fell in the category of self employed person. Therefore, 40 % of the income determined would have to be added on account of future prospects. The appropriate multiplier having regard to the age of the appellant would be of '18' in the present case. Thus, calculated the amount of compensation payable in a just and fair manner to the appellant would be as under :
(A) Annual Income Rs.18,000/-
(+) 40% future prospects Rs. 7,200/-
-----------------
Rs.25,200/-
Multiplier : as per Judgment of
Sarla Verma (Smt.) and others vs. X 18
Delhi Transport Corporation and another,
reported in (2009) 6 SCC 121 would have
to be '18'. ------------------
Total amount Rs.4,53,600/-
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(B) 20% of Rs.4,53,600/-
matching to functional disability Rs.90,720/-
of 20%
TOTAL : (A) + (B) = Rs.5,44,320/-
9. In addition to the above norms, the appellant would also be entitled to receive medical expenses of Rs.61,057/-, actual economic loss for a period of 2 months for hospitalization totaling to Rs.3,000/- and ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:33:48 ::: J-fa313.06.odt 7/7 Rs.25,000/- towards pain, suffering and mental agony. So, the final amount of compensation payable to the appellant would be of Rs.5,44,320/-, which shall be inclusive of the amount on account of no fault liability and shall carry interest at the rate of 7 ½ % p.a. from the date of petition till actual realization, which shall be payable to the appellant jointly and severally by the respondents.
10. The impugned judgment and order stand modified in the above terms.
11. The appeal is allowed accordingly.
12. The parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 01:33:48 :::