Bombay High Court
The National Insurance Co. Ltd vs Mr.Razique Ahmed on 16 December, 2013
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.752 OF 2008
The National Insurance Co. Ltd.,
M.G.Road, Akola, Distt. Akola,
Through its Regional Manager,
"Mangalam Arcade", Dharampeth,
Nagpur. ..........APPELLANT
// VERSUS //
1. Mr.Razique Ahmed s/o. Afsar Ahmed,
Aged 24 yrs., Occ. Nil,
At & Tah. Murtizapur,
Distt. Akola.
2. Mr.Asharafkha s/o. Babookha,
Aged Adult, Occ. Owner of Truck,
r/o. Roshani Ghar Road,
Gwalior (M.P.).
3. Mr. Rajesh Singh Rambarojsingh
Thakur, Aged 43 yrs., Occ. Driver,
r/o. Near Moti Jail, Gwalior (M.P.).......RESPONDENTS
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Mr.A.R.Godbole, Adv. for the Appellant.
Mr.M.S.Sambre, Adv. for respondent no.1.
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CORAM : A.P.BHANGALE, J.
DATE : 16.12.2013.
ORAL JUDGMENT :
1. This appeal is preferred against the Judgment and
Award dt.27.3.2008 passed by the learned Additional
Member, Motor Accident Claims Tribunal, Akola in
M.A.C.P. No.203 of 2003.
2. The facts, briefly stated, are as under :
That the claimant (respondent) had claimed a sum of
Rs.4,00,000/- on account of 20 % permanent disability
occurred to him as a result of motor vehicle accident
dt.10.10.2002. According to the claimant, while he was
proceeding towards Yeoda in an auto rickshaw bearing
registration no.MH-30 E 809, the offending motor vehicle
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i.e. truck bearing registration no.MP-07 G-3056 coming
from the direction of Daryapur in a zig-zac manner, driven
rashly and negligently turned turtle and gave severe dash to
the auto rickshaw, which turned turtle. The passengers
proceedings by the auto rickshaw suffered severe injuries
and the claimant suffered severe fracture injuries to both
shaft femurs. The claimant also contended that the driver of
the truck was prosecuted for the offence punishable under
Sections 279 and 337 of the Indian Penal Code which was
registered as crime no.173 of 2002 by the local Police
Station. At the time of accident, the claimant was aged
about 19 years and in a very good health. He was driving
auto rickshaw and earning a sum of Rs.5,000/- p.m. It is
further case of the claimant that he had spent a sum of
Rs.40,000/- towards medical treatment, which is still
continuing as he is unable to walk properly and also unable
to do usual work. The learned Tribunal held that the
claimant had received fracture injuries as a result of motor
vehicle accident which occurred on 10.10.2002 because of
rash and negligent driving of Truck No.MH-07 G-3056. The
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Tribunal also found that the claimant has suffered
permanent disability of 20 %. Thus, the Tribunal,
considering the income of the claimant as an auto rickshaw
driver, nature and extent of permanent disability as also
non-pecuniary damages and expenses of medical treatment
including expenses for medicines, granted compensation as
follows :
The earning of claimant was considered as Rs.5,000/-
p.m. and his age was considered as 19 years at the time of
the accident. Thus, compensation was calculated by
applying guidelines u/s. 163A of the Motor Vehicles Act,
1988 on the basis of daily earning by a labour class person
in the area as Rs.80/- to Rs.100/- per day. It was
considered that the claimant would be earning a sum of
Rs.2,400/- to Rs.3,000/-p.m. and his income per year came
be assessed as Rs.30,000/- minimum per year. Thus, the
Tribunal applied at multiplier of 16 to arrive at total
compensation in the sum of Rs.4,80,000/-. However, the
same compensation was divided by 20 % disability and
5 fa752.08.odt
thus, the compensation in the sum of Rs.96,000/- was held
payable for permanent disability of 20 % to the claimant.
3. The learned Counsel for the appellant has no
grievance in respect of above calculation. But his main
grievance is that, according to the claimant, he has spent a
sum of Rs.14,000/- for operation. But, the Orthopedic
Surgeon gave a random figure that he had charged a sum
of Rs.20,000/- to Rs.22,000/- for operation underwent by
the claimant. The learned Counsel for the appellant has
grievance that there was no any documentary evidence was
produced on record to support this claim of Rs.20,000/-
incurred by the claimant for operation. Therefore, he
submitted that compensation in the sum of Rs.20,000/-
was wrongly granted. He has no grievance, however,
regarding bills for medicines in the sum of Rs.9,350/- plus
medicines purchased for Rs.120/- - total expenses
calculated in the sum of Rs.29,470/-. The learned Counsel
for the appellant submitted that such compensation on
medical ground without documentary evidence cannot be
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granted merely for asking; but there must be some evidence
in support of the contention that the medical expenses were
incurred as claimed.
4. In the present case, it does appear from the record
that though the claimant had claimed a sum of Rs.40,000/-
for treatment of both the legs because of fracture of shaft
femurs and also the fact that iron rods had to be inserted in
both his legs, one cannot ignore the fact that treating
doctor was examined on behalf of the claimant and
Dr.Rahemankhan Kalekhan, Orthopedic Surgeon deposed
before the Tribunal that he had charged a sum of
Rs.20,000/- to Rs.22,000/- for such operation. The doctor
described the injury to the claimant as lateral communated
sharp fracture, sharp femurs. The doctor also deposed that
the patient was operated for the same. The operation was
described as intra medulary inter locking nailing and the
patient was advised strict bed rest for four months as he
had suffered fracture of thigh bones of both the legs.
Again, according to the doctor, after the patient was
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discharged on 3.11.2007, he was admitted again for
removal of implants and at that time, he had charged a sum
of Rs.9,350/-. The doctor was also cross-examined at length
in respect of medical treatment given to the patient and the
doctor deposed that he had issued Disability Certificate on
the basis of fact that the patient was having 1) Quadriceps
muscles (shrinking of muscles), 2) bilateral painful hip, 3)
restricted movements of knee and 4) shortening of bone.
He advised to the patient for removal of implants after
complete reunion of joints or after two years. Looking to
the evidence of doctor, therefore, the claim of the patient
for operation in the sum of Rs.20,000/- for undergoing
operation as described by the doctor cannot be considered
as exorbitant or excessive claim, particularly when the
Discharge Card also mentions the nature of diagnosis as
bilateral fracture shaft with advice of implant removal.
5. The learned Counsel for the appellant made reference
to the ruling in the case of Kapil Kumar vs. Kudrat Ali and
Ors. reported in 2002 ACJ 852, wherein the victim had
8 fa752.08.odt
suffered fracture of three bones of right hand. In the result,
right hand had become irregular in shape and its
movements became restricted. It was assessed as 20 %
permanent disability. It caused the student loss of his
studies as well as loss of prospects of earning and
considering the age of the victim as minor aged about nine
years, compensation in the sum of Rs.50,000/- with interest
@ 12 % p.a. was granted in that case. The learned Counsel
wants me to apply this ruling in the facts and circumstances
of the present case and contends that when multiplier is
used for arriving at compensation, non-pecuniary damages
for various reasons such as pains, sufferings and loss of
enjoyment in life, use of conveyance, attendant, special diet
ought not to be awarded. It would not be possible to accept
this submission as calculation of compensation is on the
basis of monthly/yearly earnings which is divided by extent
of permanent disability and the figure is multiplied in order
to assess what was loss of earning in expected span of life.
But it cannot be considered as total loss of earning because
when the victim is injured in the motor vehicle accident and
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suffers permanent disability, he not only suffers loss of
earnings during expected span of his life, but also suffers
mental and physical pains and sufferings. He also has to
bear continuing medical expenses to get over the personal
difficulties. He suffers loss of enjoyment in life which could
have been possible because of marriage with a suitable
person and enjoyment of marital life. But, for the
permanent disability suffered as a result of accident, the
injured claimant who suffers permanent disability also will
have to use conveyance, as also engage an attendant and
consume special diet for remaining physically fit in rest of
his life. That being so, the compensation awarded by the
Tribunal in the sum of Rs.80,000/- only cannot be blamed
as it is inclusive of mental and physical pains and sufferings
for the victim, prospective medical expenses, loss of
enjoyment in his life as well as requirement of conveyance,
attendant and special diet. In the facts and circumstances,
therefore, it is not possible to apply ruling in Kapil Kumar's
case (cited supra) to the facts and circumstances in present
case because compensation has to be just, reasonable and
10 fa752.08.odt
fair. Bearing in mind the facts and circumstances of the
case, the sum of Rs.2,05,470/- inclusive of no fault liability,
compensation for expected span of life, medical treatment -
which includes two operations performed upon the injured
- one for planting iron rods in both the legs of the victim
while the another for removal of implants and sum of
Rs.80,000/- for non-pecuniary damages was rightly
awarded by the Tribunal. Thus, the compensation awarded
by the Tribunal may be listed as under :
1. A sum of Rs.96,000/- for loss of earning
during expected span of life.
2. A sum of Rs.29,470/- for two operations
which the victim underwent for inserting iron
rods as a result of fracture in both legs and
removal of implants, which is inclusive of
medicines and,
3. Non-pecuniary damage for a sum of
Rs.80,000/- for loss of enjoyment, pains and
sufferings, conveyance, attendant and special diet.
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The compensation so granted by the Tribunal cannot
be described as unjust, exorbitant or unreasonable. Hence,
no interference is warranted in the impugned Judgment
and Award. The appeal is dismissed.
JUDGE
jaiswal
