Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 11 December, 2013
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 33 of 2004
Appellant : Vilas son of Zabuji Bagde, aged about 30 years,
occupation : service, resident of Raghuji Nagar,
Nagpur
versus
Respondents : 1) Manohar Kasahinath Manwatkar .. Abated
2) Oriental Insurance Company Limited, Division Office,
No. II, Kanoria Building, Civil Lines, Nagpur
Mr P. J. Malvi, Advocate for appellant
Ms T. D. Khade, Advocate for respondent no.2
Coram : A. P. Bhangale, J
Dated : 11th December 2013
Oral Judgment
1. Appellant-claimant is aggrieved by the judgment and award
dated 9th April 1999 delivered by learned Member, Motor Accident Claims
Tribunal, Nagpur in Claim Petition No. 28 of 1995.
2. Briefly stated, it is the case of claimant/appellant Vilas Bagde
that he had prayed for compensation in view of Section 163A of the Motor
Vehicles Act from respondents jointly and severally in respect of motor
vehicle accident occurred on 23.1.1995 at about 07.30 am in front of house
of Dr Rathor, LIC Colony, Nagpur when claimant Vilas was serving as a
constable and was attached with Ajni Police station and he was going to
attend his duty by his scooter. He was dashed by Jeep bearing No.
MH-31/H-1259 due to which claimant fell down and sustainED compound
shaft femur left. The claimant was admitted in the Medical College &
Hospital, Nagpur and took treatment for about twenty days before he was
discharged on 12th February 1995. He also underwent operation of his leg
and rod was inserted in his leg and wiring was also done. Appellant had to
take private medical treatment in Dr Lavange's Hospital. His permanent
disability was assessed at 45% by doctor. At the time of accident, appellant
was aged about 26 years only. He had spent a sum of Rs. 10,000/- for his
medical treatment, but due to permanent disability, he is unable to walk
properly and unable to run and having been rendered physically unfit, he
could not appear for promotional examination.
3. Respondent Oriental Insurance Company with whom offending
motor vehicle was insured, disputed its liability. Claimant had also relied
upon police papers such as, injury certificate, disability certificate, salary
certificate etc.
4. Learned Member was satisfied that appellant suffered
permanent disability due to accident on 23.1.1995 and was entitled to
claim compensation. However, compensation awarded was meagre only in
the sum of Rs. 54,725/- only. It is submitted that due to injuries suffered,
applicant is permanently disabled to the extent of 45% and is unable to
serve as police constable as prior to the incident of accident. He, therefore,
claimed compensation on the basis of monthly emoluments, medical
expenses, pains and sufferings, special diet, assistance of attendant and
conveyance with reasonable interest. It is argued that since claim of the
appellant was under Section 163A of the Motor Vehicles Act, appellant was
not required to prove negligence or tortuous act as Section 163A read with
Schedule II of the Act provide for compensation payable based upon
structural formula as provided in Schedule II. Therefore, injured could
have been awarded compensation in accordance with prescribed format
from the driver, owner and insurer and they could be held liable to pay
compensation jointly and severally.
5. Learned counsel for the appellant submitted that monthly
salary of the appellant was in the sum of Rs. 2257/-. Considering the
permanent disability to the extent of 45%, monthly compensation payable
could have been calculated @ Rs. 1200/- per month. Multiplied by 12, the
compensation annually comes to Rs. 14,400/-. Considering the age of
claimant which was 26 years at the time of accident, multiplier in the facts
and circumstances of the case could have been "18" as appropriate
multiplier. Considering the compensation which comes to rs. 2,59,200/-,
the appellant also claimed medical expenses in the sum of Rs. 5725/- on
the basis of bills and non-pecuniary damages on account of pains,
sufferings, special diet, requirement of attendant etc. in the sum of Rs.
10,000/- only. Thus, appellant is claiming compensation which is
reasonable and just in the sum of Rs. 2,74,925/- inclusive of non-pecuniary
damages.
6.
Having considered the facts and circumstances and the fact
that the application was under Section 163A of the Act, the amount of
compensation in the sum of Rs. 2,74,925/- ought to have been awarded by
the tribunal instead of meagre amount as awarded.
7. Hence, appeal is allowed with costs. Award is modified as
under:
Respondents shall jointly and severally pay amount of Rs.
2,74,925/- to the claimant/appellant inclusive of no-fault liability along
with interest @ 12% per annum from the date of claim petition till
realization.
A. P. BHANGALE, J
joshi
