Bombay High Court
Vasant Bhagwant Pandav vs M.S.R.T.C. Ahmednagar & Ors on 18 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 456 OF 1998
Vasant Bhagwant Pandav,
Age 68 years, Occu: At present Nil,
R/o Paithan, Taluka Paithan,
District Aurangabad. ...Appellant
Versus
1. Maharashtra State Road Transport
Corporation, (The Divisional
Controller, Sarjepura,
Ahmednagar).
2. Kisan Vishwanath Shelke,
Age Major, Occu: Driver,
R/o Paithan, District Aurangabad.
3. Ankush Aaba Jagdale,
Age Major, R/o Karhade,
Taluka Shirur,
District Pune. (Deleted)
4. M/s. P. G. Roadways,
Kundan, 180/1, Timber Market,
M.P.Peth, Pune-2.
5. The United India Insurance Co. Ltd.,
Kisan Kranti Building,
Market Yard, Ahmednagar. ...Respondents
.....
Mr. M. D. Joshi, Advocate for the appellants
Mr. M. K. Goyanka, Advocate for respondent No.1
Mr. Mohit R. Deshmukh h/f Mr. S. G. Chapalgaonkar, Advocate for
respondent No.5
.....
CORAM : V. K. JADHAV, J.
DATED : 18th APRIL, 2016
ORAL JUDGMENT:-
1. Heard learned counsel for the respective parties.
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2. Being aggrieved by the common judgment and order passed
by the learned Member, M.A.C.T., Ahmednagar dated 30.11.1996 in
M.A.C. Application Nos. 172 and 173 of 1990, the original claimant in
M.A.C. Application No. 173 of 1990 has preferred this appeal to the
extent of quantum of compensation.
3. Brief facts, giving rise to the present appeal, are as under:-
i)
On 22.11.1989, claimant No.1-Vasant along with his daughter
deceased Sunita was proceeding from Paithan to Pune in S.T. Bus
bearing registration No. MCA 7656. Respondent No.2 was driving
the said S.T. Bus at the relevant time. On way, within the limits of
village Kamargaon on Nagar-Pune road, one truck bearing
registration No. MWQ-9601 came from opposite side and gave dash
to the S.T. Bus. Said truck was being driven in rash and negligent
manner in excessive speed by original respondent No.3 at the time of
accident. In consequence of which, claimant No.1 Vasant was
seriously injured and suffered permanent disablement. The claimant,
therefore, had filed M.A.C. Application No. 173 of 1990 for grant of
compensation on account of personal injuries sustained by him in the
accident.
ii) Being aggrieved by the quantum, in respect of injury claim, the
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original claimant has preferred this first appeal No. 456 of 1998.
4. Learned counsel for the appellant submits that the claimant
was performing Kirtan in various villages prior to the accident and
was getting Rs.1000/1500 per Kirtan. The claimant was renowned
Kirtankar and secured honour of Hari Bakta Parayan issued by the
Government. The claimant used to have 10/15 Kirtans in a month
and he was earning substantial sum by performing Kirtans. Learned
counsel submits that the claimant is also having agricultural land and
prior to the accident he was cultivating the same. The Tribunal has
not considered his income from performing of Kirtans well as from
agricultural source. The medical certificate Exh.40 is not considered
by the Tribunal in its proper perspectives. Learned counsel submits
that even though percentage of disablement is not mentioned in said
certificate Exh.40, considering the nature of disablement and since
claimant was performing Kirtan by visiting various villages and he
used to perform it in standing position for 2/3 hours in a day, the
Tribunal should have considered the loss of earning capacity to the
extent of 50%.
5. Learned counsel for the respondent insurer submits that there
is no evidence of income from the source of performing Kirtan.
According to the claimant himself, he was performing Kirtan for 15
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days in a month and during remaining period of the month, he was
looking after his agricultural lands. Learned counsel submits that
even considering the nature of disablement, there is no loss in the
income as such. So far as the agricultural income is concerned, the
lands are owned and possessed jointly by claimant, his major sons
and wife. Even in absence of claimant, his major son is capable to
cultivate the lands. The tribunal has considered the same and
accordingly awarded the loss of future earning to the extent of
Rs.50,000/-. The tribunal has awarded compensation for medical
expenses, pains and sufferings, special diet etc. Learned counsel
submits that the Tribunal has awarded just and reasonable
compensation and no interference is required.
In order to substantiate his submissions, learned counsel place
reliance on the judgment in the case of Ponnumany @ Krishnan
and Anr. vs. V.A. Mohanan and others, reported in AIR 2008 SC
2014.
6. I have also heard learned counsel appearing for the
M.S.R.T.C.
7. The claimant has examined himself on oath and deposed
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before the Tribunal that he was performing Kirtan in various villages
in the State of Maharashtra prior to the accident. He was getting
Rs.1000/- to 1200/- per Kirtan in the form of cash and/or kind. He
has also secured the honour of "Hari Bhakta Parayan". So far as
agricultural income is concerned, he is having 23 acres of land at
Paithan, 8 acres of land at village Tambha Rajuri, Taluka Patoda,
District Beed. Furthermore, he also own and possess 5 acres of
land at Rakshashbhuvan in Patoda Taluka in Beed district.
ig The
claimant has produced on record 7x12 extract in support of his
contention. According to him, he was personally looking after the
aforesaid lands prior to the accident and he was getting cash crops in
the said lands. Leaned counsel for the respondent insurer has rightly
pointed out that there cannot be any loss in the agriculture income
since major son of the claimant is capable of cultivating the land.
However, as per the claimant's contention, he was performing Kirtan
for 15 days in a month, and remaining 15 days, he was supervising
the aforesaid lands situated at various places. In view of this, the
Tribunal ought to have considered his income from the source of
performing Kirtan as well as from agricultural income. It is true that
there cannot be complete loss in the agriculture income, however,
the loss on account of skilled, experienced supervision should have
been considered by the Tribunal. The claimant may not visit his land
and there may not be actual supervision in the field, however, he can
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advise his son in cultivating those lands situated at various places.
8. So far as disablement sustained by the claimant is concerned,
medical certificate is produced before the Tribunal and the same is
marked at Exh.40. It appears from the contents of the said certificate
that after follow up examination carried out on 07.04.1990, the
concerned Medical Officer found tenderness on right hip with
restriction & painful movement of right hip of the claimant.
ig It is
further observed in the certificate that it signals the onset of many
things as detailed in the certificate. It is also observed that the
interval between the the time of dislocation and the reduction has
been more in the case of claimant. It is also stated in the said
certificate that this complication leads to permanent disablement as
there is marked pain on weight bearing on the injured leg, the
movement of the joints are restricted which incapacitates the person
from squatting, sitting cross legged, prolonged standing and walking.
Lastly it is concluded that despite prompt and correct treatment, the
claimant has to continue with this disability for the remaining period
of his life.
9. The claimant has deposed that he was known as Hari Bhakta
Parayan. There is no cross examination on this point. He has further
deposed that he had to stand 2 to 2.5 hours for one Kirtan i.e. in
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standing position. He was required to visit various villages in the
State of Maharashtra. Thus, considering the nature of permanent
disablement, the claimant would not be in a position to visit villages
so frequently and giving same performance as it was prior to the
accident. Thus, considering the same and also considering the loss
in the agricultural income by way of personal supervision for
cultivating the lands, in my considered opinion, there is loss of
income to the extent of Rs.1500/- p.m. which corresponds to
Rs.18,000/- per year. It is not disputed that the claimant was 60
years old at the time of accident. Thus, considering his age, 9 would
be the appropriate multiplier in this case. In view of this, the loss of
future income comes to Rs.1,62,000/-. In view of details given in the
medical certificate and considering the profession of the claimant and
the fact of agricultural lands possessed by him situated at difference
places, the disablement as described in the certificate at Exh.40, in
my opinion, affected his earning capacity to the extent of 50%. In
view of this, the claimant is thus entitled to Rs.81,000/-. So far as the
future loss of earning is concerned, learned Member has awarded
compensation for medical expenses as well as diet and also for pains
and sufferings. I do not find any fault in it.
10. In view of the above discussion, breakup of compensation
under various heads which can be broadly categorized is as under:-
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i) Loss of future income Rs.81,000/-
ii) Medical expenses Rs.8,000/-
iii) Special diet, conveyance etc. Rs.5,000/-
iv) Pains and sufferings Rs.10,000/-
----------------------------------
Total Rs.1,04,000/-
----------------------------------
Thus, the claimant is entitled for total compensation of Rs.
1,04,000/-. Hence, I proceed to pass the following order:
ig ORDER
I. The appeal is hereby partly allowed.
II. The Judgment and award dated 30.11.1996 passed by
learned Member M.A.C.T. Ahmednagar in M.A.C.
Application No. 173 of 1990 is hereby modified in the
following manner:-
Respondent Nos. 4 and 5 jointly and severally do pay
the claimant in M.A.C. application No. 173 of 1990 a sum
of Rs.1,04,000/- (Rupees one lac four thousand only) to
the claimants with interest @ 9% p.a. from the date of
filing of application till realisation, and proportionate
costs.
III. Award be drawn up in tune with the above modification.
IV. Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
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