Laxman Khanderao Darade vs Rajesh Rameshwar Joshi And ...
2016 Latest Caselaw 1440 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD




                                                    
                             FIRST APPEAL NO. 2084 OF 2015


     Laxman S/o Khanderao Darade




                                                   
     Age: 51 years,
     Occ : Agriculture (Bataidar)- now nil,
     R/o. Naigaon, Taluka Patoda,
     District Beed,
     At present r/o. Indraprastha Colony,




                                       
     Balepeer, Beed.                                         ... Appellant-
                              ig                              (Orig. Claimant)

              Versus
                            
     1)       Rajesh S/o Rameshwar Joshi,
              Age : Major, Occu. Business,
              R/o. Near Kalika Mandi,
              Bhusari Galli, Fatakpura,
              Khamgaon, Taluka Khamgaon,
      


              District Buldhana.
   



     2)       The Oriental Insurance Company,
              Through its Branch Manager,
              Branch Office, Jalna Road,
              Beed.                                          ... Respondents





                                          .....
                   Advocate for the appellant : Mr. M. R. Deshmukh
                    Advocate for respondent No. 2 : Mr. R. F. Totla
                              Respondent No.1 served.





                                          .....

                                                CORAM : V. K. JADHAV, J.

RESERVED FOR JUDGMENT ON: 11th MARCH, 2016 JUDGMENT PRONOUNCED ON: 12th APRIL, 2016

JUDGMENT :-

1. Being aggrieved by the judgment and award dated 15.04.2015

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passed by learned Member, MACT, Beed in MACP No. 20 of 2014,

the original claimant has preferred this appeal to the extent of

quantum.

2. Brief facts giving rise to the present appeal are as follows:

On 30.01.2011 at about 1.30 p.m., appellant-claimant was

proceeding to Beed from Naigaon on his motorcycle. He was riding

said motorcycle from the correct left side of the road in moderate

speed. On way, within the limits of Village Pimpargavan, one TATA

Indica Car bearing registration No. MH-28/V-143 came from his

backside in speed. It was being driven in rash and negligent manner

by its driver. Said car gave dash to the motorcycle, in consequence

of which, the appellant-claimant sustained grievous injuries to both

the legs and other parts of his body. He was immediately taken to

Civil Hospital, Beed and therefrom, he was shifted to Government

Medical College and Hospital, Aurangabad. The appellant-claimant

had taken treatment in various hospitals, however his right leg above

the knee was amputated. The appellant-claimant accordingly filed

claim petition before MACT, Beed for grant of compensation under

various heads. Respondent No.2-insurer has strongly resisted the

claim petition by filing written statement. Learned Member of MACT,

Beed, by its impugned judgment and award dated 15.04.2015, partly

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allowed the claim petition the thereby directed the respondents to

pay compensation of Rs.7,30,400/- jointly and severally, including

NFL amount, to the appellant-claimant. Being aggrieved by the

quantum, the appellant-claimant has preferred this appeal.

3. Learned counsel for the appellant-claimant submits that he

appellant-claimant was working as Bataidar in the field of one

Shobha Tandale. The appellant-claimant has specifically pleaded his

income from cultivating the land on Batai basis in the claim petition

and he has also deposed on oath before the court. Learned counsel

submits that the appellant-claimant was earning Rs.1,00,000/- by

cultivating the land of said Shobha Tandale on Batai basis and a

Batai Patra Exh.39 is also placed on record before the tribunal.

Learned counsel submits that even though no evidence in rebuttal is

given by the other side with regard to the income as pleaded by the

claimant and stated on oath before the tribunal, the tribunal has

discarded the income of claimant from doing work as Bataidar and

erroneously considered the notional income of claimant at Rs.3,000/-

per month only. Learned counsel submits that the accident took

place in the year 2011 and while computing the notional income, the

tribunal ought to have considered the price index, inflation in the

economy, increase in rates etc. Learned counsel, by referring

various cases, submits that the Apex Court has also considered this

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aspect and introduced change in the context of notional income.

Learned counsel submits that as per the Government Notification

issued by Industries, Energy and Labour Department, State of

Maharashtra dated 20.07.2010, minimum rates of wages for

unskilled employees is mentioned as Rs.3750/- in Zone II category.

Zone I comprises of all the areas falling within the local limits of

Municipal Corporations and Zone II comprises of all other areas in

the State which are not included in Zone I. Learned counsel submits

that said minimum rates of wages payable to the employees are

revised from time to time and in the year 2014, the same has been

reached to more than Rs.6,000/- per month. Learned counsel

submits that under the provisions of The National Rural Employment

Guarantee Act, 2005, the Ministry of Rural Development has issued

a Notification dated 23.03.2012, wherein, the State-wise Wage rate

for Unskilled Manual Workers is mentioned/fixed and so far as the

State of Maharashtra is concerned, the same is specified at the rate

of Rs.145.00 per day. Learned counsel, in support of his

submissions, placed all the Notifications before this Court.

4. Learned counsel submits that so far as the unorganized

sectors like agricultural labour in the State of Maharashtra are

concerned, rates of wages are not specified in progressive State like

Maharashtra. Learned counsel submits that the tribunal has

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considered notional income of Rs.3,000/- per month without

considering the rates of minimum wages earned by the

labours/employees in other sectors. Learned counsel submits that

the rates of wages of agricultural labour, thus, are required to be

worked out by considering the price index, inflation in economy etc.

Learned counsel, in order to substantiate his submissions with regard

to the notional income, placed reliance on the following cases:

1.

Syed Sadiq etc. v. Divisional Manager, United India Ins. Co., reported in AIR 2014 SC 1052,

2. Arun Kumar Agrawal and another vs. National Insurance Company Limited and Others, reported in

(2010) 9 SCC 218,

3. Judgment delivered by Hon'ble Supreme Court in the case of Smt.Neeta W/o Kallappa Kadolkar and Ors.

Etc. Vs. The Div. Manager, MSRTC, Kolhapur (Civil Appeal Nos. 348-349 of 2015),

4. Kala Devi and others vs. Bhagwan Das Chauhan and others, reported in 2014 ACJ 2875,

5. Judgment delivered by the Supreme Court in the case of Sanobanu Nazirbhai Mirza & ors. vs. Ahmedabad Municipal Transport Service (Civil Appeal No.8251 of 2013) and

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6. Puttamma and others vs. K. L. Narayana Reddy and

another, reported in AIR 2014 SC 706.

5. Learned counsel for the appellant-claimant further submits that

in cross-examination, the claimant has stated his date of birth and as

on the date of accident, he was 49 years of age. However, the

tribunal has considered the age of claimant as 51 years and

erroneously applied multiplier 11 instead of 13.

6. Learned counsel submits that the tribunal has awarded paltry

sum of Rs.25,000/- towards medical treatment. Learned counsel

submits that though major treatment of the claimant was taken in

Government Hospital, yet he was required to spend amount towards

his stay, attendance, medicine bills, food, diet etc. Learned counsel

submits that the tribunal has not considered the same. Furthermore,

the claimant also requires future medical treatment and even he opt

for fixing artificial leg, however, tribunal has failed to consider this

aspect of the matter as well.

7. Learned counsel submits that if the victim is aged between 40

to 50 years, while computing just compensation, there shall be

addition of 30% of income towards "loss of future prospects".

Learned counsel submits that considering the age of claimant in the

present case, the tribunal ought to have added 30% of amount to his

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actual income as future prospects.

8. Learned counsel submits that the tribunal has awarded interest

at the rate of 7.5% per annum, however, the same ought to have

been at the rate of 9% per annum from the date of application till the

date of its realisation. In support of this submission, learned counsel

placed reliance on the decision in following cases :

1.

Sarla Verma (smt.) and others vs. Delhi Transport Corporation and another, reported in 2009 (6) SCC

121 and

2. Rajesh and others vs. Rajbir Singh and others,

reported in (2013) 9 Supreme Court Cases 54.

9. Learned counsel for respondent No.2-insurer submits that the

claimant has failed to prove his income from cultivating land of said

Shobha Tandale on Batai basis. Learned counsel submits that even

though affidavit of said Shobha Tandale was placed before the

tribunal, she failed to appear before the tribunal. Learned counsel

submits that thus, the contents of so called Batai Patra cannot be

read in the evidence. Learned counsel submits that in absence of

any income proof, the tribunal has rightly considered notional income

of the claimant at Rs.3,000/- per month as an agricultural labour.

Learned counsel submits that claimant was doing labour work in rural

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place like Naigaon, and therefore, the tribunal has rightly considered

his notional income at Rs.3,000/- per month. Learned counsel

submits that the tribunal has awarded a lump sum amount for

sustaining permanent disablement, pains and sufferings and also for

loss of future amenities in life. Learned counsel submits that the

tribunal has awarded just and reasonable compensation. Even the

tribunal has considered medical expenses in absence of any

documents. Learned counsel submits that the claimant has taken his

treatment in Government Hospital free of costs. Learned counsel

submits that the claimant had no permanent employment and he was

also not earning any fixed income. In view of this, there is no reason

to consider the addition of income towards future prospects. Learned

counsel submits that there is no merit in the appeal and the appeal

is, thus, liable to be dismissed.

10. The claimant has proved that he has sustained permanent

disability in the accident occurred on 30.01.2011 due to rash and

negligent driving of vehicle TATA Indica Car bearing registration No.

MH-28/V-143. The same is also not disputed by respondent-insurer.

Owner of the said vehicle involved in the accident remained absent

before the tribunal though duly served. Therefore, the claim petition

ordered to proceed ex parte against him. Even respondent No.2-

insurer has failed to prove contributory negligence on the part of

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claimant while riding his motorcycle at the time of accident.

Respondent No.2-insurer has also not preferred any appeal/cross

objection for alleged breach of terms and conditions of the policy.

11. In view of this, the following points arise for my determination

and I have recorded my findings to those points for the reasons given

below :

POINTS ig FINDINGS

1. Whether the tribunal has correctly Partly in the

assessed the compensation under negative.

various heads?

      


     2.       Whether the impugned judgment                 Partly in the
   



              and award calls for an                        affirmative.
              Interference?





     3.       What order ?                                  As per final order.


                                        REASONS

12. Admittedly, right leg of the claimant above the knee is

amputated. PW2 Doctor Pravin Deshmukh has deposed that

claimant has sustained permanent disability to the extent of 90% and

issued certificate Exh.45 to that effect. Even assuming that claimant

was doing agricultural work, the amputation of his right leg above

knee has affected his earning capacity to the extent of 100%.

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13. Claimant has failed to prove his earning by cultivating land of

one Shobha Tandale on Batai basis. According to the claimant, he

was earning Rs.1,00,000/- per annum by cultivating the land of said

Shobha Tandale on Batai basis. Said Shobha Tandale has failed to

appear before the tribunal for her cross-examination. As per the

affidavit of evidence of claimant, he was cultivating the land ad-

measuring 1H 85R owned by said Shobha Tandale on Batai basis

and as per Batai Patra, he was getting 1/4 th of the income after

deducting expenses incurred by him. The claimant neither proved

the contents of said Batai Patra, nor lead any evidence to show his

actual income from the said land after deducting expenses incurred

by him as per the agreement of Batai Patra. Consequently, the

tribunal has rightly discarded his income from cultivating land on

Batai basis.

14. Learned Member of the tribunal has considered the notional

income of claimant at Rs.3,000/- per month as agricultural labour.

So far as the notifications issued by the Industries, Energy and

Labour Department, State of Maharashtra, relied upon by learned

counsel for the applicant, are concerned, those rates of wages

specified in the Notification are payable to the employees employed

in any industry engaged in the scheduled employment in the State of

Maharashtra. The said rates are fixed by calculating average of the

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"Cost of Living Index Number" applicable to the said employees.

Thus, the same can not be considered while deciding the notional

income of an agricultural labour in the State of Maharashtra.

15. Learned counsel placed reliance on certain provisions of The

National Rural Employment Guarantee Act, 2005. The said Act

provides for enhancement of the livelihood security of the households

in the rural areas of the country by providing at least one hundred

days of guaranteed wage employment in every financial year to such

households, whose adult members volunteer to do unskilled manual

work. As per the Notification dated 23.03.2012, State-wise wage

rates for Unskilled Manual Workers are specified. So far as the State

of Maharashtra is concerned, the same is specified as Rs.145/- per

day with effect from 1st April, 2012. Said Notification is subject to

outcome of Special Leave to Appeal pending before the Supreme

Court. Learned counsel for the appellant has not brought to the

notice of this Court the decision, if any, rendered in the said Special

Leave to Appeal, as referred to in the said Notification.

16. It appears from the said Notification that the Central

Government specified the wage rates payable to the Unskilled

Manual Workers working under various schemes under the

provisions of The National Rural Employment Guarantee Act, 2005.

It also appears from the provisions of the said Act of 2005 that for the

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purpose of giving effect to the guarantee of rural employment to

household, every State Government is required to make a scheme

for providing not less than 100 days of guaranteed employment in

one financial year to every household in rural areas covered under

the scheme. It thus appears that, the wages are specified

considering the provisions of said Act and for implementation of a

scheme for the purpose of giving effect to the provisions of the said

Act by the State. ig In absence of any fix minimum wages for

agricultural labour in the State, I am not inclined to consider the

above rates as specified considering the provisions of the said Act.

17. Learned Member of the tribunal has, thus, rightly considered

the notional income of claimant at the rate of Rs.3,000/- per month as

the income of an agricultural labour. In addition to that, even though

the claimant has no permanent job or any fixed income as such, the

tribunal has made addition of income of 15% by considering his

future prospects. In the case of Shashikala & others vs.

Gangalakshmamma & another, reported in 2015 ACJ 1239, since

the Supreme Court has disagreed only so far addition towards future

prospects in the case of self employed or fixed wages to be added to

the compensation towards dependency, the matter was requested to

be placed before the Hon'ble Chief Justice of India for appropriate

order for constitution of a suitable larger Bench to decide the said

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issue. Furthermore, in the case of National Insurance Co. Ltd vs.

Pushpa and others (Special Leave to Appeal (c) No. 8058/2014)

decided by the Supreme Court on 02.07.2014, considering the

divergent opinion as regards the manner of addition of income for

future prospects, the Supreme Court referred the matter to the larger

Bench for the authoritative pronouncement. In view of this, I do not

want to interfere in the judgment and award passed by learned

Member of the tribunal to the extent of considering notional income of

claimant at Rs.3,000/- and addition of 15% of income towards future

prospects.

18. So far as the multiplier is concerned, there is apparent mistake

in applying multiplier 11 instead of 13. Thus, recalculation of grant of

compensation is required to be done by applying multiplier 13.

Learned Member of the tribunal has awarded substantial amount for

the disablement, pains and sufferings, loss of amenities in future life.

Admittedly, the claimant has taken treatment in Government

Hospital. He was admitted in Government Hospital for a period of

one month after the accident and after discharge, he was again

admitted in one private hospital for a period of four days. According

to the claimant, he has incurred medical expenses more than of

Rs.25,000/-. Even though the claimant has taken treatment in

Government Hospital at Aurangabad, he had to incur expenses like

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traveling, staying, diet expenses etc. Considering the same, it would

be just and appropriate to award Rs.25,000/- more under the heads

of medical expenses, traveling for medical purpose, staying and diet

expenses. The tribunal has also erroneously awarded interest at the

rate of 7% per annum instead of 9% per annum.

19. In view of the above discussion, the break up of compensation

which can be broadly categorized as under:

              1. Loss of future income                          Rs.5,38,200/-
                            
                  (3000 notional income + 15% addition
                  towards future prospects=3450X12
                  X13=5,38,200)

              2. Permanent disablement                          Rs.1,00,000/-
      


              3. Pains and sufferings                           Rs.50,000/-
   



              4. Loss of future amenities                       Rs.1,00,000/-
              5. Medical expenses                               Rs.50,000/-
                                                ------------------------------------





                                                TOTAL           Rs.8,38,200/-
                                                ------------------------------------

The claimant is, thus, entitled for a total amount of

Rs.8,38,200/-. I answer point Nos. 1 and 2 accordingly and proceed

to pass the following order:

ORDER

I. The First Appeal is hereby partly allowed with proportionate costs.

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II. The judgment and award dated 15.04.2015 passed by

learned Member, MACT, Beed in MACP No. 20 of 2014, is hereby modified in the following manner:

Respondent Nos. 1 and 2 shall jointly and severally pay compensation of Rs.8,38,200/-, including the "no-fault

liability", to the claimant with interest at the rate of 9% per annum from the date of application till its realization.

III. Rest of the judgment and award stands confirmed.

IV. Award be drawn up accordingly.

             V.    The First Appeal stands disposed of.
      


                                                         ( V. K. JADHAV, J.)
   



                                             ...


     vre/-