J-fa715.06.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.715 OF 2006
Sk. Rasul s/o. Sk. Munir,
a/a 60 years,
Occ. : Nil,
R/o. Solashe Plots, Akot File,
Akola, Tq. And Distt. Akola. : APPELLANT
...VERSUS...
1. Rajendraprasad s/o. Raghvirprasad
@ Reghuvirsharan Agrawal,
R/o. Shravgi Plots, Akola,
Tq. And Distt. Akola.
2. National Insurance Company Ltd.,
through Branch Manager,
Akola, Mahatma Gandhi Road,
Akola, Tq. & Distt. Akola.
3. The State of Maharashtra,
through Collector, Akola,
Tq. And Distt. Akola. : RESPONDENTS
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Shri C.A. Joshi, Advocate for the Appellant.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
th DATE : 20 NOVEMBER, 2017.
ORAL JUDGMENT :
1. This appeal questions legality and correctness of the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:12:42 ::: J-fa715.06.odt 2/6 judgment and order dated 20th December, 2005, rendered in Motor Accident Claim Petition No.38/2001, by the Motor Accident Claims Tribunal, Akola on the point of inadequacy of compensation granted by the Tribunal.
2. The appellant worked as a cleaner in the year 2000 for the truck bearing registration No.MBI-7539, owned by and insured with respondent Nos.1 and 2. On 17th December, 2000, he had boarded the truck as its cleaner and when the truck reached at a spot near Anchar- Wadi Fata, near Jalna, the truck driver Mohd. Shakil Khan, lost control over it and the result was the truck suddenly left the road and turned turtle. The driver died on the spot of the injuries sustained by him. The appellant suffered fractures to his left shoulder joint and elbow joint. Initially, he was treated at District Hospital, Akola and then shifted to the hospital of Dr. Ghuge, Akola. He incurred considerable expenses for his medical treatment. He was diagnosed to have suffered permanent disability of his left hand to the extent of 10%. He claimed that at the time of accident he was 50 years of old and earning salary of Rs.3,000/- per month. In order to get compensation for the loss that he suffered, he filed a petition under Section 166 of the Motor Vehicles Act claiming compensation from the owner and the insured i.e. respondent Nos.1 and 2 of the offending truck. It was contested on merit by both the respondents. The Tribunal partly allowed the petition and granted compensation of Rs.25,000/- inclusive of no fault liability amount with ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:12:42 ::: J-fa715.06.odt 3/6 interest at the rate of 6% p.a. from the date of petition till realization and this compensation amount was made payable jointly and severally by both the respondents.
3. Not being satisfied with the same, the appellant is before this Court in the present appeal.
4. I have heard Shri C.A. Joshi, learned counsel for the appellant. Nobody appears on behalf of the respondents though duly served on merits. I have gone through the record of the case including the impugned judgment and order.
5. Now, the only point which arises for my determination is :
Whether the compensation granted by the Tribunal is just and proper ?
6. Shri C.A. Joshi, learned counsel for the appellant submits that the compensation granted by the Tribunal is grossly inadequate and that the monthly income of the deceased in the present case ought to have been taken to be at Rs.3,000/- per month. He also submits that the Tribunal did not grant adequate compensation under non-pecuniary heads of pain and suffering and loss of amenities.
7. On going through the evidence of the appellant, who examined himself as PW 1, I find that the monthly income of the appellant could be safely taken to be at Rs.3,000/-. No circumstance whatsoever has been brought on record during the course of his cross- examination to enable me to express doubt about genuineness of the ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:12:42 ::: J-fa715.06.odt 4/6 assertion made by the appellant in his examination-in-chief that he was drawing salary of Rs.3,000/- per month. It is also noticed that the respondent No.2 did not question this assertion of the appellant in any manner when it cross-examined the appellant. Of course, the respondent No.1 disputed the deposition of the appellant on the point of salary. But, the respondent No.1 admittedly being the employer, could have supported his defence by producing on record, the salary certificate or the acknowledgments that he obtained from the appellant after payment of wages to him on monthly or daily basis. The employer i.e. respondent No.1 did not produce any such document on record. In these circumstances, the evidence of appellant on the point of salary can be accepted and a reasonable conclusion can be made that his salary in the year 2000 was of Rs.3,000/- per month which I do so.
8. As regards the age of the appellant, I find that the conclusion reached by the Tribunal that he was 70 years of age at the relevant time is supported by the evidence available on record and, therefore, I uphold this finding of the Tribunal. For the age of 70, appropriate multiplier is of '5' and it will have to be applied in the present case.
9. There is a disability certificate proved in evidence by the appellant, which has also been accepted by the Tribunal. The Tribunal has found that because of the injuries suffered by the appellant in the present accident, the appellant sustained 10% disability of permanent nature and rightly so. This finding now has attained finality as no appeal ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:12:43 ::: J-fa715.06.odt 5/6 has been preferred against it by any of the respondents. So, I am of the view that now the loss of future earnings of the appellant would have to be calculated by considering 10% permanent disability of the appellant. This 10% permanent disability arises from the proportionate inability of the left hand of the appellant to make its movement. The appellant was working as a cleaner at the relevant time and for performing job of a cleaner, complete efficiency of both forearms is required and if their efficiency has been reduced, such reduction would have a direct bearing upon the ability to earn the income. Therefore, in the present case, given the nature of job performed by the appellant, 10% permanent disability would have to be found to be also his functional disability in equal measure and so, the loss of future earnings of the appellant would have to be calculated on the basis of his suffering of 10% functional disability.
10. So far as the aspect of future prospects is concerned, considering the age of the appellant, nothing would be due to him on this count. However, some reasonable amount of compensation under non-pecuniary heads of pain and suffering and loss of amenities would be due and it should be of Rs.25,000/- each or Rs.50,000/- in total by a reasonable estimate, apart from medical expenses.
11. In the circumstances, I am of the view that the appellant is entitled to receive, from both the respondents jointly and severally, enhanced compensation calculated in the following manner : ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:12:43 :::
J-fa715.06.odt 6/6 Yearly income (Rs.3,000/- X 12 = 36,000/-) Total income (Rs.36,000 X '5" as multiplier=Rs.1,80,000/-) (A) Future loss of earning (10% of Rs.1,80,000/-) Rs. 18,000/-
on account of 10% functional disability.
(B) Add : (expenses paid to doctor R.Khan) Rs. 6,000/-
(expenses for medicines) Rs. 4,000/-
(for pain and sufferings) Rs. 25,000/-
(for loss of amenities) Rs. 25,000/-
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T O T A L (A +B) : Rs. 78,000/-
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12. In view of above, it is declared that the appellant is entitled to receive total compensation of Rs.78,000/- which is inclusive of no fault liability amount, payable to him jointly and severally by respondent Nos.1 and 2 along with interest at the rate of 6% p.a. from the date of petition till actual realization.
13. Appeal is allowed partly.
14. The impugned judgment and order stand modified in the above terms.
15. Parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 24/11/2017 ::: Downloaded on - 25/11/2017 01:12:43 :::