Vachandas S/O Parmanand Badole vs The Secretary,Thr.The ...
2016 Latest Caselaw 1266 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                        
                                 NAGPUR.

                         FIRST   APPEAL     NO.   46      OF     2007




                                                               
    Vachandas Parmanand Badole,




                                                              
    aged 40 yrs. Occu. Service,
    R/o Khamla Nagpur.                                                       APPELLANT.


                                               VERSUS




                                                
    1] The Secretary,
                              
    M.S.R.T.C. through Divisional
    Manager, Hingana Road, Nagpur.
                             
    2] Yeshwant Shivaji Gajbhiye,
    aged 32 yrs. Occu. Driver, 
    R/o St. Depot Aheri, Distt. 
    Gadchiroli.                                                              RESPONDENTS.

Shri D. C. Chahande, Advocate for the appellant.

Shri R. S. Charpe, Advocate for respondent nos. 1 and 2.

                              CORAM:     A. S. CHANDURKAR  J.
                                     Dated    :   APRIL  06, 2016.


    ORAL JUDGMENT: 

This appeal filed under Section 173 of the Motor Vehicles Act,

1988 (for short, the said Act) is by the claimant who seeks enhancement in

the amount of compensation that has been awarded by the Motor Accident

Claims Tribunal, Nagpur.

2] It is the case of the appellant that on 07.07.1997 he along with

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his wife and daughter were proceeding on a scooter to Gadchiroli. A bus

owned by the Maharashtra State Road Transport Corporation coming from

the opposite side gave a dash to the said scooter resulting in an accident. The

appellant, his wife and daughter suffered various injuries. The left leg of the

appellant was required to be amputated from below the knee. According to

the appellant he was serving as an Assistant Professor in the Agriculture

College at Sindewahi. According to the appellant on account of said accident

he was entitled for compensation of an amount of Rs. 5,00,000/-. He

therefore filed Claim Petition No. 564 of 1998 under the provisions of Section

166 of the said Act seeking aforesaid compensation.

3] The claim was opposed by the respondent no.1 by filing his

written statement. According to the respondent the accident occurred on

account of negligence on the part of the appellant. It was the further case

that the appellant had not suffered any loss whatsoever as a result of said

accident.

4] After the parties led evidence, the Claims Tribunal vide judgment

dated 03.04.2006 granted compensation of an amount of Rs. 1,75,000/- with

interest at the rate of 8% per annum. Being aggrieved by aforesaid

adjudication, the appellant has filed the present appeal seeking enhancement

in the amount of compensation.

5] Shri D. C. Chahande, the learned counsel for the appellant

submitted that the Claims Tribunal was not justified in granting

compensation only to the extent of Rs. 1,75,000/-. He submitted that the

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appellant had placed on record various documents in support of his claim for

compensation. The appellant had suffered 50% permanent disability due to

amputation of his left leg below the knee. The appellant had intended to

implant an artificial limb and the cost of the same was Rs. 3,59,000/-.

Though this amount was demanded by the appellant from his employer, the

same was not granted. It was submitted that the appellant had to himself

incur the expenses in that regard. It was then submitted that the future

prospects of the appellant were also affected and he could not complete his

further education by obtaining Ph.D. In the given circumstances it was,

therefore, submitted that considering the permanent disability of the

appellant coupled with the expenses which he was required to incur loss of

further earning, the Claims Tribunal ought to have awarded compensation of

Rs. 5,00,000/- as claimed.

6] In support of his submission the learned counsel placed reliance

on the following judgments:

1] Chandra Prakash Vs. Mangal Singh and others 2002 (1) T. A. C. 763 (Raj.)

2] Sabir Mohammad Qureshi Vs. Anil Kumar Kalra and another 2004 (3) T. A. C. 945 (M.P.)

3] Chetan Vs. H.P. Road Transport Corporation and others 2006 (3) T. A. C. 156 (H.P.)

4] N. Velu Vs. Anna Transport Corporation 2006 (3) T. A. C. 261 (Mad.)

5] Sunil Kumar Vs. Basant and others 2006 (1) T. A. C. 571 (M. P.)

6] Rajinder Singh Vs. National Insurance Co. Ltd. And

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others 2001 ACJ 677.

7] Shri R. S. Charpe, the learned counsel for respondent no.1

opposed the aforesaid submissions. He submitted that the amount of

compensation granted by the Claims Tribunal was just and proper

considering the evidence on record. According to him there was no evidence

placed on record by the appellant to indicate that an artificial limb had been

implanted and for said purposes, an amount of Rs. 3,59,000/- had been

spent. The documents sought to be relied by the appellant were neither

proved nor exhibited. It was then submitted that the appellant continued in

employment despite the accident and he was receiving his salary. There

was no evidence led to show the loss of future prospects or the earning

capacity. It was therefore submitted that the compensation granted did not

deserve to be enhanced. He placed reliance upon the judgment of the

Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar and another (2011) 1

Supreme Court Cases 343.

8] With the assistance of learned counsel for the parties I have gone

through the records of the case and also gone through the impugned order.

The following point arises for consideration:

Whether a case has been made out to enhance the amount of compensation in favour of the appellant?

9] In support of the claim for compensation the appellant had filed

on record his affidavit at Ex. 28. He has stated therein that his left leg was

amputated from below the knee on account of injuries sustained in the

accident. He had applied for permission to purchase an artificial implant for

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walking purposes. He had stated that the expenses for the same were Rs.

3,59,000/- but the said amount was not sanctioned by the University. He has

then stated that he was aged 32 years and receiving Rs. 5000/- per month as

salary. He has further stated that because of the accident he could not do his

Ph.D. and could not get four increments.

In his cross examination it was suggested that he had been

negligent in driving the scooter. He admitted that he was in service and was

getting Rs. 24,000/- per month.

10] The driver of the M. S. R. T. C. was examined below Ex. 42.

Besides this there is no other evidence on record. It is on this basis that the

Claims Tribunal granted a sum of Rs. 1,00,000/- for the permanent disability,

Rs. 50,000/- for loss of future prospects and Rs. 25,000/- for mental pain and

agony. In the present case the documents at Ex. 32, 33 and 34 indicate that

the appellant had suffered 50% permanent disability and his left leg had to

be amputated below the knee. At Ex. 35 is the certificate issued by the

Medical Officer, Indira Gandhi Medical College in which it is stated that there

was permanent impairing of power of both the legs.

11] In Rajkumar (supra) it has been held by the Hon'ble Supreme

Court that the Claims Tribunal should first decide whether the disablement is

permanent or temporary. If the disablement is with reference to a specific

limb then the effect of said disablement of the limb on the functioning of the

entire body should be considered by ascertaining the effect of permanent

disability. The judgments relied upon by the learned counsel for the

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appellant are based on the facts of the respective case wherein the amount of

compensation has been enhanced. There cannot be any dispute in that

regard in the matter of grant of compensation.

12] It is not in dispute that the appellant was serving as Assistant

Professor. He was aged about 32 years when the accident took place. The

appellant has stated that the expenses of Rs. 3,59,000/- were required for

implanting the artificial limb. Though the documents in that regard had not

been exhibited, a judicial note of the fact can be taken that after amputation

of a part of the left leg from below the knee, a normal person would prefer

to have an artificial limb implanted to increase his mobility. The Claims

Tribunal while observing that the accident had proved to be expensive for the

appellant has granted a sum of Rs. 1,00,000/- as compensation for

permanent disability. On the touch stone of pre-ponderance of probabilities

coupled with the fact that the appellant was denied any amount by his

employer for implanting an artificial limb, the amount of Rs. 2,00,000/- as

compensation for permanent disability appears to be just and reasonable.

13] The Claims Tribunal had awarded sum of Rs. 25,000/- towards

mental pain and agony. Considering the loss of vital limb, this amount is

liable to be increased to Rs. 75,000/- in the facts of the present case. For loss

of prospects an amount of Rs. 50,000/- has been awarded. The evidence on

record indicates that the appellant was Assistant Professor in his early

thirties. Though he has been continued in service, the effect of loss of one

leg would have effect of causing some loss of future prospects. The grant of

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an amount of Rs. 75,000/- on that count would serve the ends of justice.

Thus in the facts of the present case, in my view the total amount of

compensation of Rs. 3,50,000/- would be fair compensation in the facts of

case. The point as framed is answered by holding that the appellant would

be entitled for an amount of Rs. 3,50,000/- as total compensation.

14] Accordingly the following order is passed:

1] The judgment dated 03.04.2006 in Claim Petition No. 564 of

1998 is partly modified and it is held that the claimant is entitled for total

compensation of Rs. 3,50,000/- with interest at the rate of 7.5% from the

date of filing of the petition till its realisation.

The enhanced amount of compensation be paid to the appellant

within a period of three months from today. The first appeal is partly

allowed in aforesaid terms with no order as to costs.

JUDGE

svk