Bombay High Court
Gajanan Mahadeo Gulhane vs Bharat Trading Co. And 2 Ors on 13 April, 2016
Bench: A.S. Chandurkar
1 fa.197.07.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.197 OF 2007
Appellant : Gajanan Mahadeo Gulhane,
Aged about 17 years, Occu. Education,
Minor, through his natural guardian father
Mahadeo namdeorao Gulhane,
R/o LIG Colony, Arvi, Tah. Arvi, Distt. Wardha.
ig -- Versus --
Respondents : 1] Bharat Trading Company,
Patel Nagar, Tah. Bramhapuri,
Distt. Chandrapur.
2] The New India Assurance Co. Ltd.,
Kasturba Marg, Chandrapur.
3] Sharad Domaji Giradkar,
Aged about 30 years, Occu. Driver,
R/o Dewalwadi, Tah. Bramhapuri,
Distt. Chandrapur.
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Shri B.D. Vora, Advocate for the Appellant
Shri A.H. Patil, Advocate for Respondent No.2
None for Respondent Nos.1 and 3
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C ORAM : A.S. CHANDURKAR, J.
DATE : APRIL 13, 2016.
ORAL JUDGMENT :-
This appeal filed under Section 173 of the Motor Vehicles Act,
1988 (for short, the said Act) is by the original claimant who seeks
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enhancement in the amount of compensation of Rs.25,335/- that was
awarded by the Motor Accident Claims Tribunal, Wardha by judgment
dated 16.09.2006.
02] The appellant, who was a school going boy, was returning
home on 14/02/2003 from his school on his bicycle. He was given a dash
from the opposite side by a matador owned by respondent No.1 and driven
by respondent No.3. The appellant suffered various injuries including a
fracture of his right hand. On that basis a claim for compensation of
Rs.2,00,000/- came to be filed under Section 166 of the said Act.
03] No written statement was filed by respondent Nos.1 and 3.
The respondent No.2-Insurance Company filed its written statement below
Exh.14. It was pleaded that the accident occurred as the appellant was
negligent in riding the bicycle. The disability of the appellant was disputed
and therefore, it was stated that the claim for compensation was liable to
be rejected.
04] The father of the appellant-Mahadeorao examined himself
below Exh.22. He placed on record various documents to support the
claim for compensation. One Dr. Vilas Dhage was examined as the second
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witness below Exh.41. He was a Member of the Medical Board and he
proved the certificate issued by the Board.
The Claims Tribunal after considering the evidence on record
granted compensation of Rs.25,335/- including the amount towards 'no
fault liability'. Being aggrieved, the original claimant has filed the present
appeal.
05] Shri B.D. Vora, the learned counsel for the appellant
submitted that the Claims Tribunal ought to have granted higher
compensation as claimed by the appellant. He submitted that as per the
Medical Certificate at Exh.42, the appellant had suffered 40% permanent
disability. This disability was functional in nature and therefore, a case for
grant of just compensation was made out. He submitted that the Claims
Tribunal merely granted Rs.5,000/- for mental and physical sufferings and
Rs.2,500/- towards expenses for travelling and special diet. The loss of
earning has been taken at 10% which was not legally justifiable. No
amount of compensation had been granted towards loss of future
prospects. It was, therefore, submitted that the appellant was entitled for
higher compensation and the Court ought to adopt a liberal approach while
granting compensation. The learned counsel relied upon the following
decisions in support of his submissions:
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i. S. Perumal vs. K. Ambika and another - 2015 ACJ 1117.
ii. APSRTC vs. M. Ramadevi and ors. - I (2008) ACC 356 (SC).
iii. The Branch Manager, Oriental Insurance Co. Ltd. vs. Smt.
Shanta wd/o Khushal Dongre & Ors. - 2016(1) ALL MR 684.
iv. Smt. Baby wd/o Narayanrao Deogade & Ors. vs. Amin s/o
Prayali Lakhani & Ors. - 2-16 (1) ALL MR 30.
v. Balwant Singh vs. Sohan Singh and others - 2011 ACJ 2819.
vi. New India Assurance Co. Ltd. vs. Sujata and others, 2011 ACJ
1344.
vii. Nitadevi wd/o Liladhar Sarda & Ors. vs. National Insurance
Co. Ltd. & Ors. - 2016 (1) ALL MR 818.
viii. Lakhiramji s/o Nilkanth Pillondare, through L.Rs. vs. Sahid
Hussain s/o Shabbir Hussain & anr. in First Appeal No.370 of
2001.
ix. S. Manickam vs. Metropolitan Transport Corp. Ltd. - 2013 (5)
ALL MR 477 (S.C.)
x. Asgarali s/o Fakruddin Bohra vs. Surajpal Shriyeshkumar Jain
& ors. in First Appeal No.606 of 1997.
xi. United India Insurance Co. Ltd. vs. Shushil Kumar & Ors. in
MAC.APP.246/2011 of Delhi High Court.
5 fa.197.07.jud
06] There is no appearance on behalf of respondent Nos.1 and 3.
Shri A.H. Patil, the learned counsel for respondent No.2-Insurance
Company opposed aforesaid submissions and supported the impugned
judgment. He submitted that considering the nature of injuries suffered by
the appellant, the Claims Tribunal had rightly awarded the amount of
compensation. According to him, the disability certificate at Exh.42 was a
doubtful document. It was urged that only actual medical expenses were
liable to be granted and same had been rightly granted by the Claims
Tribunal. It was submitted that the principles applicable in the matter of
grant of compensation in cases of fatal accidents could not be applied in
the present case in which the claim for compensation for injuries was
made. It was, therefore, submitted that the compensation as granted by
the Claims Tribunal was just and proper requiring no interference. In
support of his submissions, the learned counsel placed reliance on the
following judgments:
i. New India Assurance Co. Ltd. vs. Sujata and others - 2011
ACJ 1344.
ii. Bijoy Kumar Dugar vs. Bidyadhar Dutta & Ors. - 2006 AIR
SCW 1116.
6 fa.197.07.jud
07] With the assistance of the learned counsel for the parties, I
have gone through the records of the case and I have also perused the
impugned judgment. The following point arises for determination:
Whether a case has been made out for enhancing the amount of
compensation?
08] In support of the claim for compensation, the father of the
appellant-Mahadeorao was examined below Exh.22. He has stated that the
appellant was aged about 17 years and was taking education when the
accident occurred. He referred to various documents which included the
spot-panchnama, insurance policy and medical bills on record. Dr. Vilas
Dhage was also examined below Exh.41. This witness stated that he was a
Member of the Medical Board and after examining the appellant, it was
noted that the percentage of disability was 40. In his cross-examination, he
denied the suggestion that the word 'temporary' was scored by using
another ink.
09] The documents at Exh.30 and Exh.31 indicate the treatment
taken by the appellant during the period from 17/02/2003 till
28/03/2003. Thus, these documents along with certificate at Exh.42
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indicate that the appellant suffered disability to the extent of 40%. This
certificate is dated 06/01/2004 when the appellant was examined by the
Medical Board which is almost a year after the accident.
10] While considering the quantum of compensation, it will have
to be noted that the appellant has aged about 17 years when the accident
took place. As per the decision in Balwant Singh (supra) and the New India
Assurance Co. Ltd. (supra), the aspect of minimum wages can be taken into
consideration in such situation while calculating the approximate monthly
income that could have been normally earned. By taking an amount of
Rs.100/- per day, the same can be calculated at Rs.3,000/- per month. As
per the medical certificate at Exh.42, on account of 40% disability, which
could be considered as functional disability, the loss of income per month
would be Rs.1200/-. Thus, the loss of annual income would be
Rs.14,400/-. The appellant was aged 17 years and therefore, the multiplier
of 16 can be made applicable. The loss of earning can, therefore, be taken
to be Rs.2,30,400/-.
11] Considering the nature of injury suffered by the appellant on
his right hand, the loss of income to the extent of 40% has been taken into
consideration. There is no question of deducting any amount towards
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personal expenditure of the injured/ claimant as held in Raj Kumar vs.
Ajay Kumar - (2011) 1 SCC 343. However, considering the observations
made in paragraph 14 of the said judgment, I am not inclined to grant any
amount towards loss of future earnings.
12] Insofar as compensation towards pain and suffering, medical
treatment and other expenses are concerned, in the facts of the present
case, an amount of Rs.70,000/- would serve the ends of justice. Thus in
my view, an amount of Rs.3,00,000/- in the facts of the present case would
amount to just compensation. The ratio of the decisions relied upon by the
learned counsel for the appellant as well as the respondent No.2 have been
taken into consideration while determining the aforesaid amount. The
point as framed is answered by holding that the appellant would be
entitled to receive compensation of Rs.3,00,000/- in the present
proceedings.
13] In view of aforesaid, the following order is passed :
(I) The judgment dated 16/09/2006 in M.A.C.P. No.31/2005 is
partly modified.
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(II) It is held that the appellant is entitled to receive an amount of
Rs.3,00,000/- including the amount of 'no fault liability' from
respondent Nos.1 to 3 jointly and severally with interest at the
rate of 7.5% per annum from 03/02/2005 till its realization.
(III) The amount already received by the appellant shall be
adjusted accordingly.
(IV) The first appeal is allowed in aforesaid terms with no order as
to costs.
JUDGE
*sdw
