In The High Court Of Judicature At ... vs Unknown
2013 Latest Caselaw 318 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                              NAGPUR BENCH : NAGPUR




                                                     
    First Appeal No.  384 of 2003




                                            
    Appellant :
                          
                       JC-73562 (Hon. Captain) K. Gangadharan, aged about

                      51 years, resident of Sathivila, Post Kathu Paramba,
                         
                      District Cannahore, Kerala 670643

                      versus
        


    Respondents :     1.National Insurance Company Limited, Nagpur, through

its Divisional Manager, Division Office-I, Firdos

Chambers, Near Radhika Hotel, Wardha Road, Nagpur

2. Dilip son of Harichand Morghade, occ: business,

resident of Kandri (Kanhan), Tahsil Parseoni,

District Nagpur.

Ms Suman Chokhare, Advocate for appellant.

Mr B. B. Raipure, Advocate for respondent no. 1

Respondent no. 2 served

Coram : A. P. Bhangale, J

Dated : 11th December 2013

Oral Judgment

1. The claimant/appellant is aggrieved by the judgment and

award dated 7th January 2003 delivered by learned Member, Motor

Accident Claims Tribunal, Nagpur in claim petition no. 677 of 1995

whereby Award was passed in favour of the claimant in the sum of Rs. 1

lakh only inclusive of no-fault liability together with interest at the rate of 9

per cent per annum from the date of petition till realization.

2. It is contended on behalf of the claimant that motor vehicle

accident had occurred on 7th December 1991 at Nagpur-Kamptee Road

opposite Hotel Sangril at Kamptee when claimant was traveling by military

van towards Kamptee. When the van was on Nagpur-Bhandara Road at

Kamptee, offending truck bearing No. MTG-8430 gave forcible dash to the

military van as a result of which claimant had suffered permanent disability

to the extent of 60%. Thus, claimant had claimed compensation before

the Tribunal on the ground that he suffered damages to the tune of Rs. 3

lacs as he remained in hospital at Kamptee as well as Military Hospital at

Pune due to his permanent physical disability arising out of accident.

Applicant-claimant also lost opportunities of promotion and consequent

increases in his income because of permanent partial disability of 60%.

3. Learned Tribunal held on the basis of evidence led that the

applicant-claimant had proved that he had sustained injuries and

permanent disablement in the motor vehicle accident occurred on 7th

December 1991 caused by rash and negligent driving of the truck. Thus,

it was held that claimant was entitled to claim compensation. However,

only a sum of Rs. 100,000/- was awarded.

4. Learned counsel for appellant invited my attention to the

evidence of claimant in which claimant in paragraph 2 of his deposition

deposed that his monthly salary was in the sum of Rs. 4000/- and he was

serving as platoon commander, but according to him because of injuries to

left portion of his body, he was unable to work. He also suffered loss of his

memory because of injuries. He is unable to walk due to damage to the

left leg. He thus lost opportunities of further promotion as Subhedar,

Major as also prospective increases in his salary. According to learned

counsel for the appellant, this evidence before the Tribunal was ignored

while awarding compensation which ought to have been just and

reasonable. Learned counsel for the appellant calculated compensation to

be awarded taking the monthly income of Rs. 4000 for the claimant-

injured at the time of motor vehicle accident. Since 60% of the permanent

disability was caused as a result of accident, she claimed compensation on

the basis of monthly loss of Rs. 2400/- which, according to her, would

amount to annual loss of Rs. 28,800/- and considering age of the claimant

which was 52 years at the time of accident, she prayed for to apply

multiplier of "11". Thus, according to her, compensation would exceed

even a sum of Rs. 3 lacs. She fairly submitted that if the amount of Rs. 3

lacs is awarded including pains and sufferings, special diet, requirement of

attendant, future medical treatment etc. claimant is ready to restrict the

claim of compensation to the tune of Rs. 3 lacs only along with reasonable

interest as awarded by the Tribunal.

5. On the other hand, learned counsel for the respondent-insurer

submitted that the Tribunal has awarded a sum of Rs. 1 lakh which was

just and proper compensation for pain and suffering suffered by claimant.

He also submitted that claimant was in military service and even after

retirement he is earning Rs. 8000/- as pension and he was re-employed

after the accident also and was earning. Learned counsel for appellant

submits that claimant was not in service after accident.

6. Having considered the permanent total disability assessed at

60% for the claimant, loss of promotional opportunity as Subhedar Major

for the claimant as also loss of prospective increases in his salary, the

claimant did suffer on account of motor vehicle accident. One cannot

ignore pains and sufferings resulting from the accident in case of a

permanent disabled person. In the present case disability was ascertained

at 60%. Hence, it is but essential that when claimant has suffered

permanent physical disability, he would require medical expenses in future.

In this case due to military service, claimant may save such expenses. But

certainly, his total loss of earning in expected span of his life, at least to the

extent of 11 years would deem "11" as appropriate multiplier in the

present case. If we bear in mind the factors like sufferings of the claimant;

pains which he will have to experience; his loss of enjoyment in life;

requirement of attendant and conveyance and special diet etc. for a

handicapped person during expected span of his life, a sum of Rs. 3 lakh as

compensation is a fairly restricted claim in the present case and

undoubtedly just, fair and reasonable compensation. Hence, impugned

Award is required to be set aside and substituted by order as under:

O R D E R

Appeal is allowed with costs. Respondent is directed to pay

Compensation in the sum of Rs. 3 lacs to the appellant together with

interest @ 9% per annum from the date of petition till realization.

Amount deposited by respondent be adjusted for disbursement of

compensation to the claimant. Amount deposited in this Court be

transmitted to the Tribunal for disbursal OF COMPENSATION AWARDED

to the claimant pursuant to passing of final Award. Appeal stands disposed

of accordingly.

A. P. BHANGALE, J

joshi