Shri Chandraprakash Kisan ... vs M/S Airman Transport & Anr
2009 Latest Caselaw 28 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                  
                           FIRST APPEAL NO.305 OF 1997




                                                 
     Chandraprakash Kishan Waghmare                                      Appellant

                  versus

     1. M/s.Airman Transport, Dadar, Mumbai-28.




                                        
     2. New India Assurance Co. Ltd, Mumbai-23.
                       ig                                            Respondents


     Mr.T.J.Mendon for appellant.
                     
     Mr.S.R.Singh for respondent no.2.
      

                                     CORAM : A.S.OKA, J.

DATE : 08th December 2009

JUDGEMENT :-

1. This is an appeal preferred by the claimant seeking enhancement in compensation awarded by the Motor Accident Claims Tribunal. The appellant who claims that he was working as a Mason suffered injury in a motor accident on 7th March 1992. He suffered fracture of lower third

right radius. He claimed permanent partial disability of 15%. The claim for compensation was made by the appellant. The claim was of Rs. 50,000/-. The Tribunal granted compensation of Rs.17,000/-. A sum of Rs.15,000/- was awarded on account of pain and suffering and a sum of Rs.2,000/- was awarded on account of medical expenses.

2. The learned counsel for the appellant has taken me through the evidence on record. He submitted that no amount has been granted by

the Tribunal on account of special diet and conveyance charges. He submitted that even on account of disability no amount of compensation

has been awarded. As far as loss of income is concerned, he submitted

that the evidence on record shows that the appellant who was working as Mason lost income for a period of one year. He, therefore, submitted that the compensation ought to have been awarded under the aforesaid three headings. The learned counsel appearing for the second respondent

submitted that there is no evidence of hospitalization of the appellant. He submitted that the compensation on account of pain and sufferings could have been granted only to the extent of Rs.5,000/- and in fact the Tribunal

has granted Rs.15,000/-. He submitted that there is no evidence of actual

loss of income. He, therefore, submitted that no interference is called for.

3. I have perused the record. The papers relating to treatment of the

appellant do not establish that the appellant required hospitalization. None of the said documents produced by the claimants proved the case of hospitalization. The papers show that the appellant was treated as out

patient.

4. In the evidence, the appellant stated that at the time of accident he was working as a Mason in Mumbai and was getting Rs.60/- per day. He

submitted that he used to get the work for the whole month in Mumbai barring one or two days. He stated that he could not work for one year after accident. He stated that subsequently he started working as Mason at Nanded and he was not able to do the same work which he was doing

prior to the accident. He stated that he was doing the ground work as he was unable to climb the ladder. He stated that when the evidence was being recorded, a person working as Mason was getting Rs.130/- per day in Mumbai. A perusal of the cross examination of the claimant made by the learned counsel for the second respondent shows that there is absolutely no challenge to the aforesaid version of the appellant. The challenge is to the evidence relating to negligence. Therefore, the fact that the appellant was working as a Mason in Mumbai and was getting Rs.

60/- per day has gone unchallenged. Even the fact that he could not get the work for one year after the accident has gone unchallenged.

Therefore, the learned Member of the Tribunal has committed an error by

not granting any compensation on account of loss of income.

5. The accident occurred in the year 1992. The claim of the appellant which has gone unchallenged is that he was getting Rs.60/- per day.

Assuming that he was working for 24 days a month, he must be getting Rs.1,440/- per month and for an year his approximately income can be taken as Rs.17,280/-. Considering the evidence, it is not possible to

grant any amount on account of future loss of income.

6.

It is true that on account of alleged disability of 15% no amount has been granted by the Tribunal. However, on account of pain and suffering

a sum of Rs.15,000/- has been granted. In fact, the said amount is on the higher side and therefore the said amount also includes the compensation on account of disability.

7. Therefore, the appellant has made out a case for grant of enhancement of Rs.17,280/- which figure can be rounded off to Rs. 17,300/- and interest @ 7.5% per annum will be payable on the said

amount.

8. Hence, I pass following order :-

(A) In addition to the compensation awarded under the impugned judgement and award, the respondents shall pay an additional compensation of Rs.17,300/- with interest thereon @ 7.5% p.a. from the date of institution of claim petition till deposit of the amount with the Tribunal;

(B) The appellant will be entitled to proportionate costs of this appeal from the respondents;

(C) Time of four months is granted to the fourth respondent for

depositing the amount with the Tribunal;

(D) The appeal is partly allowed in the above terms.

(A.S.OKA, J.)