1 Jud.FA 1207.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No. 1207/2016
APPELLANT:- National Insurance Company Ltd., having
On R.A. its Regional Office at Mangalam Arcade, 2 nd
Floor, Dharampeth Extension, North Bazar
Road, Nagpur and having its Branch office
at, Wardhaman Nagar, Nagpur through its
Regional Manager, Nagpur (Origional
Defendant No.2.)
VERSUS
RESPONDENT:- 1. Rajesh Sundarlal Amge,
On. R.A. aged about 37 years,
R/o. Plot No. 37, Ujjwal Layout, Juni Toli,
Near Raza Town, Kamptee Road, Naka No.2,
Mhasala Nagpur (Original Claimant)
2. Sardar Kashmiri Singh Multani,
aged about major,
R/o. Guru Teg Bahadur Nagar, Nari Road,
Nagpur (Original Defendant No.2).
Mr. Shashikant Borkar, Advocate for appellant.
Mr. V. R. Thote, Advocate for respondent No.1.
_____________________________________________________________________________________
CORAM : S. B. SHUKRE, J.
DATE : 15.11.2017.
Oral Judgment :
Heard.
2. This appeal questions legality and correctness of the judgment dated 13th March, 2015 rendered in Motor Accident Claims Petition No. 628/2006 on a short point. The ground of challenge is that ::: Uploaded on - 27/11/2017 ::: Downloaded on - 27/11/2017 23:48:42 ::: 2 Jud.FA 1207.16.odt the Tribunal has not calculated loss of future earnings on the basis of actual and functional disability and has wrongly presumed that the percentage of permanent disability is the same percentage as that of functional disability.
3. The law now is settled. In Sandeep Khanuja Vs. Atula Dande & anr. 2017(3) SCC 351 and Rekha Jain Vs. National Insurance Co. Ltd. & anr. 2013(8) SCC 389, Hon'ble Supreme Court has held that in order to determine compensation under the head of loss of future earnings, it is the functional disability and its percentage which matters and not really the percentage of permanent disability simpliciter and therefore, the Tribunal must apply its mind to this aspect in order to arrive at the amount of compensation in a just and fair manner. On perusal of the impugned judgment and order, it is manifestly seen that this fundamental aspect of law has not been considered by the Tribunal. Both the rival parties also could not show to me from the impugned judgment and order that this important facet of petitioner's case has been properly considered by the Tribunal. Such being the situation, this appeal would have to be allowed and remanded back to the Tribunal for its decision afresh upon consideration of the basic aspect of fact and law involved in the matter.
4. In the circumstances, the appeal is allowed. Impugned
judgment and order are hereby set aside. The claim petition is
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3 Jud.FA 1207.16.odt
remitted back to the Tribunal for a decision afresh from the stage of the arguments.
5. The appellant and the respondent No. 1 shall appear before the Tribunal on 15th December, 2017. Fresh notice shall be issued to the respondent No. 2, the owner of the offending vehicle.
6. The claim petition shall be decided within one month after appearance or service of notice upon the respondent No. 2, the owner of the offending vehicle which ever is earlier.
7. The respondent No. 1 in the present appeal who is the claimant has withdrawn so far amount of Rs. 05,00,000/-. This withdrawal shall be subject to the final decision of the claim petition. Rest of the amount deposited in this Court by the appellant shall be transferred to the Tribunal and it shall be held in deposit by the Tribunal till final disposal of the claim petition. No costs.
JUDGE Gohane ::: Uploaded on - 27/11/2017 ::: Downloaded on - 27/11/2017 23:48:42 :::