Bombay High Court

Mohd Saleem Mohd Ibrahim vs Manmat Bokhare & Ors on 25 April, 2016

Bench: V.K. Jadhav

                                                                                 fa601.04
                                           -1-




                                                                              
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                      
                               FIRST APPEAL NO. 601 OF 2004


     Mohd. Saleem s/o Mohd. Ibrahim
     aged 45 years, Occupation business




                                                     
     At present NIL, Resident of Manwat
     now Resident of Majalgaon,
     Taluka Majalgaon, District Beed.                        ... Appellant
                                                             (Original Claimant)
              Versus




                                         
     1.       Manmat s/o Devidasrao Bokhare
                             
              aged 32 years, Occupation Driver,
              Resident of Kolha, Taluka Sailu,
              District Parbhani.
                            
     2.       Pralhad s/o Laxman Bhavar,
              aged 35 years, Occupation business,
              Resident of Hatta, Taluka Basmat,
              District Parbhani.
      


     3.       The New India Assurance Co. Ltd.,
              Yeshodeep Building,
   



              Parbhani.                                      ... Respondents
                                                             (Original Respondents)
                                           .....
                         Advocate for Appellant : Mrs. A N Ansari





                      Advocate for Respondent No.3 : Mr. A.B Gatne
                                           .....

                                                  CORAM : V. K. JADHAV, J.

DATED : 25th APRIL, 2016

JUDGMENT:-

1. Being aggrieved by the judgment and award dated 17.4.2001

passed by learned Ex-Officio Member, M.A.C.T. Parbhani, in

M.A.C.P. No. 308 of 1997, the original claimant has preferred this

appeal to the extent of quantum.

fa601.04

2. Brief facts, giving rise to the present appeal, are as under:-

On 2.11.1997 the claimant had gone to Parbhani in connection

with his hotel business and after doing some marketing, he started

returning to his village Manwat. He had gone to Parbhani S.T. bus

stand pick up a bus for Manwat. At that time, respondent No.1 was

present there and he was also proceeding towards Manwat by his

jeep. The claimant boarded in the said jeep bearing registration No.

MH-22-A-9705. On way the respondent No.1 driven the said jeep in

rash and negligent manner. Consequently, said jeep gave a dash to

one tempo which was coming from opposite directions. As a result of

which, claimant had sustained multiple injuries all over his body and

particularly his right leg, head etc. He was treated in various

hospitals. However, the injuries sustained by him resulted into

amputation of his right leg. The claimant was aged 40 years at the

time of accident. He was running hotel near S.T. Stand Majalgaon,

District Beed. Respondent No. 1 and 2 i.e. driver and owner of the

jeep respectively, failed to file their written statements and therefore,

the claim petition ordered to be proceeded without their written

statements. Respondent insurer has strongly resisted the claim

petition by filing written statement. It is contended that the accident

took place due to rash and negligent driving of the tempo driver and

that the claimant should be put to strict proof that he had spent huge

fa601.04

amount on the treatment and there is loss of complete income.

Learned Member, M.A.C.T. Parbhani by impugned judgment and

award dated 17.4.2001, partly allowed the claim petition and directed

the respondents to pay jointly and severally an amount of

Rs.1,51,200/- as compensation alongwith interest at the rate of 9%

p.a. from the date of application till realization of the amount. Being

aggrieved to the extent of quantum, the original claimant has

preferred this appeal.

3. Learned counsel for the appellant-original claimant submits

that claimant was running a hotel near S.T. Stand Majalgaon, Tq.

Majalgaon, District Beed and he was earning Rs.3500/- to 4000/- per

month. He was holding licence to run the said hotel, which is

produced on record and marked as Exh.41. After the accident, since

right leg of the claimant has been amputated, he had to close his

hotel business. The Tribunal has considered the loss of income for

two years only by considering monthly income of the claimant to the

tune of Rs.2000/- p.m. Learned counsel submits that, further, the

Tribunal erroneously awarded compensation by considering future

loss of income at the rate of Rs.300/- per month with observation that

the claimant could run his hotel by getting assistance and in that way

there could be loss of payment of salary of the said assistant/waiter

in the hotel. The Tribunal has committed error in considering income

fa601.04

of the claimant from his hotel business to the tune of Rs.2000/- and

further erroneously awarded the compensation for two years only

and thereafter, by different rate, considering the loss of income of

Rs.300/- p.m. Even though the claimant was required to attend

various hospitals for his treatment, the Tribunal has not awarded any

compensation towards medical expenses. Learned counsel submits

that the Tribunal ought to have considered income of the claimant

from his hotel business to the tune of Rs.3500/- to Rs.4000/- p.m.

Learned counsel submits that the Tribunal has erroneously applied

multiplier 12 instead of 15. Considering the age of the claimant,

relevant multiplier would be 15 instead of 12. Learned counsel

submits that the Tribunal has not considered that on account of

amputation of right leg, claimant is not able to move from one place

to another and he cannot sit at one place for more than 10 to 15

minutes.

4. Learned counsel for the respondent-insurer submits that in

absence of any income proof, the Tribunal has rightly considered the

loss of income for two years at the rate of Rs.2000/- p.m. The

multiplier applied by the Tribunal as 12 is relevant multiplier.

Learned counsel submits that the Tribunal has rightly observed that

with the help of assistant/waiter, claimant can run his hotel and there

can be loss of income in strict sense to the extent of salary which is

fa601.04

required to be paid to the said employee. Learned counsel submit

that the Tribunal has awarded compensation under non pecuniary

heads. Learned counsel submits that the Tribunal has awarded just

and reasonable compensation and no interference is required in the

impugned judgment and award.

5. The claimant has deposed that prior to the accident, he was

running a hotel near S.T. stand Majalgaon, which is a Taluka place

and he was earning Rs.3500/- to Rs.4000/- per month prior to his

accident. In order to substantiate this contention, the claimant has

produced shop licence issued by the competent authority in his name

and the same is marked at Exh.41. On careful perusal of the same, it

appears that the claimant was running a mess and as per the

address given in the said licence, he was running the said hotel/mess

near S.T. stand Majalgaon which is a Taluka place. However, in

absence of any income proof, I do not find any fault in the impugned

judgment and award considering the income of claimant from his

hotel business at Rs.2000/- p.m.

6. However, I do not find any justification in the impugned

judgment and award considering the loss of income form the said

hotel business for the initial period of two years only. The claimant

has examined witness No.2 - Medical Officer Dr. Balasaheb Masare.

fa601.04

He has deposed that there is permanent disability to the extent of

89% and there is amputation of right leg above the knee. He has

issued certificate in Form Comp. B and same is marked at Exh.53.

He has further deposed that due to amputation of right leg, the

claimant can sit continuously only for 15 to 20 minutes and he

cannot do hard labour work. It is not disputed that the accident had

taken place on account of rash and negligent driving of driver of the

jeep bearing registration No. MH-22-A-9705 alone. The respondent-

insurer has not preferred any appeal against the judgment and

award, nor filed any cross objection. In the light of the above opinion

expressed by the expert, the Tribunal ought to have considered total

loss in future income and instead of that the Tribunal has erroneously

considered the loss of income to the extent of payment of salary to

the said assistant/waiter.

7. In view of this, if income of the claimant is considered at

Rs.2000/- per month and if future loss of income is considered to that

extent, the yearly loss in future income comes to Rs.24,000/-. The

Tribunal has erroneously applied the multiplier 12 instead of 15. If

yearly income is worked out as mentioned herein before and the

relevant multiplier 15 is applied, the total loss of future income comes

to Rs.3,60,000/-. Thus, the claimant is entitled for compensation

towards future income of Rs.3,60,000/-.

fa601.04

8. It also appears from the impugned judgment and award that

the Tribunal has awarded meager amount under non pecuniary

heads, such as pains and sufferings etc. The Tribunal has also

refused to award compensation for medical expenses as claimed,

since the claimant has failed to prove the bills though produced on

record. The claimant is not in a position to move from one place to

another place on account of amputation of his right leg up to knee

level. It would be improper to expect from him to prove the medical

bills and other documents in support of medical expenses incurred by

him. Even though there is amputation of right leg up to knee level,

the Tribunal has awarded only Rs.10,000/- as compensation for

pains and sufferings. The Tribunal should have awarded Rs.25,000/-

for pains and suffering and Rs.50,000/- for medical expenses.

9. Thus, the break up of compensation under various heads

which can be broadly categorized is as under:-

              I)      Loss of future income                 Rs.3,60,000.00

              II)     Pains and sufferings                  Rs. 25,000.00

              III)    Medical Expenses                      Rs. 50,000.00

              IV)     Loss of enjoyment of life          Rs. 25,000.00
                                                         ---------------------
                                                   Total Rs.4,60,000.00
                                                         ============

              (Rupees four lacs and sixty thousand only)



                                                                                     fa601.04

10. In the light of above, I proceed to pass the following order:-

ORDER

I. The appeal is hereby partly allowed with proportionate costs.

II. The judgment and award dated 17.4.2001 passed by

learned M.A.C.T. Parbhani in M.A.C.P. No. 308 of 1997 is hereby modified in the following manner:-

"The respondent Nos. 1 to 3 jointly and severally pay an amount of Rs.4,60,000=00 (Rupees Four lacs sixty thousand) as compensation with interest @ 9% p.a. from

the date of filing of petition i.e. from 29.11.1997 till

realization of the entire amount".