Bombay High Court
Sunil Pandurang Agrawal vs Suresh Kishanrao Chitewar And Ors on 29 February, 2016
Bench: T.V. Nalawade
1 FA 170 & 173/2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.170 of 2002
* Arvind Ramkrishna Patil,
Age 49 years,
Occupation : Nil,
R/o Ganj Golai, Latur. .. Appellant.
Versus
1) Suresh Kishanrao Chitewar,
Age 35 years,
Occupation : Driver,
R/o C/o Ramesh Ramkishan Niraj,
Market Yard Gangakhed,
Taluka Gangakhed,
District Parbhani.
2) Ramesh Ramkishanrao Niraj,
Age 45 years,
Occupation : Business,
R/o Market Yard, Gangakhed,
Taluka Gangakhed,
District Parbhani.
3) United India Insurance Co. Ltd.
Branch Parbhani,
Through its Branch Manager,
Branch Office, Hanuman Chowk,
Latur, District Latur. .. Respondents.
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Shri. B.R. Kedar, Advocate, for appellant.
Shri. J.R. Patil, Advocate, for respondent No.2.
Shri. S.V. Kulkarni, Advocate, for respondent No.3.
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2 FA 170 & 173/2002
With
First Appeal No.173 of 2002
* Sunil s/o Pandurang Agrawal,
Age 31 years,
Occupation : Business,
R/o Market Yard, Jalna.
Taluka and District Jalna. .. Appellant.
Versus
1) Suresh Kishanrao Chitewar,
Age 35 years,
Occupation : Driver,
R/o C/o Ramesh Ramkishan Niraj,
Market Yard Gangakahed,
Taluka Gangakahed,
District Parbhani.
2) Ramesh Ramkishanrao Niraj,
Age 45 years,
Occupation : Business,
R/o Market Yard, Gangakhed,
Taluka Gangakhed,
District Parbhani.
3) United India Insurance Co. Ltd.
Branch Parbhani,
Through its Branch Manager,
Branch Office, Hanuman Chowk,
Latur, District Latur. .. Respondents.
--------
Shri. B.R. Kedar, Advocate, for appellant.
Shri. J.R. Patil, Advocate, for respondent No.2.
Shri. S.V. Kulkarni, Advocate, for respondent No.3.
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3 FA 170 & 173/2002
CORAM: T.V. NALAWADE, J.
DATE : 29th FEBRUARY 2016
JUDGMENT:
1) Both the proceedings have arisen out of the
same accident. The appellant from first proceeding,
Arvind had filed Claim Petition No.528/1997 and the
appellant from other appeal namely Sunil had filed Claim
Petition No.529/1997 before the Claims Tribunal Latur.
The appeals are filed to challenge the quantum of
compensation. Both the sides are heard.
2) Arvind has given evidence that in the accident
he sustained injuries to his both legs which were fracture
injuries and he was indoor patient for about 48 days for
the treatment. He has given evidence that he was
required to spend Rs.40,000/- for treatment and
medicines. He has given evidence that in the past he was
working as driver but due to the injuries there is
permanent disability and he cannot work as a driver. He
has given evidence that in the past he was earning
Rs.2000/- per month but due to the injuries he cannot
4 FA 170 & 173/2002
make any income. The MLC and disability certificate are
not disputed and so they are exhibited by the Tribunal.
No doctor was examined. The MLC shows that fracture
was noticed by the doctor to the tibia, fibula. The
disability certificate shows that there was fracture to both
left and right legs. There was fracture of tibia left and
there was fracture of shaft right and operation was
performed on right leg. Due to the injuries there is
stiffness in left knee and ankle and the extent of
permanent disability is mentioned as 45%. No discharge
card is produced to show the period spent in hospital as
indoor patient.
3) The claimant Arvind has given his age as 45
years i.e. he had crossed the age of 45 years at the
relevant time. As no doctor is examined it is difficult to
believe that he cannot drive any vehicle. Only due to
aforesaid circumstances and the nature of injuries it can
be presumed that the earning capacity has come down by
50%. the Tribunal has held that monthly income of the
claimant was Rs.2000/-. Thus there is monthly loss of
Rs.1000/-. In view of the age of the claimant, 13 can be
5 FA 170 & 173/2002
adopted as multiplier for calculation of future loss of
income and that amount comes to Rs.1,50,000/-
(1000x12x13). In view of nature of injuries, this Court
holds that the claimant must have spent at least Rs.
40,000/- on treatment, medicines, attendant, conveyance
etc. Bills of medicines and treatment of around Rs.37000/-
are produced though they are not proved. Under this head
amount of Rs.40,000/- could have been granted as
compensation. Similarly, Rs.30,000/- can be granted under
the head of pains, suffering and permanent disability.
Thus, total amount of compensation comes to Rs.2.2 lakh.
The Tribunal did not attempt to calculate the loss of
earning on the basis of aforesaid circumstances and
compensation is given by doing some guess work. It is
observed that consolidated sum of Rs.40,000/- can be
given under the head of loss of future income. Total
amount of only Rs. one lakh is awarded as compensation.
So, the judgment needs to be modified to make the
compensation as Rs.2.2 lakh.
4) Claimant Sunil from second proceeding has
given evidence that he sustained injuries to both his legs
6 FA 170 & 173/2002
and hip etc. He has given evidence that he was indoor
patient for about one and half months and he has
undergone one operation. In this case also record like
MLC, disability certificate which are at Exhibits 38 and
39, is not disputed. The record shows that there was
dislocation of right hip, there was CLW over scalp and
there was bilateral fracture to tibia. The extent of
disability is said to be 40%. In this case the claimant has
not produced record like discharge card to show that he
was really indoor patient for long time. Some bills of
medicines and treatment are produced. Those bills are not
proved.
5) The claimant Sunil has given evidence that in
the past he was working as commission agent and he was
making some income. No record at all is produced in
respect of the income. Though he tried to say that there is
shortening of leg there is no mention in the aforesaid
record of shortening of leg. Even if it is presumed that he
was doing some work like agent in the area of Agricultural
Produce Marketing Committee it can be said that his
income was Rs.2000 per month. After the accident the
7 FA 170 & 173/2002
earning capacity of the claimant must have come down to
some extent as his movements must have been affected.
This Court holds that the earning capacity has come down
by 25%. Thus there is loss of income of Rs.500/- per
month. In view of the age of the claimant this Court holds
that 17 can be adopted as multiplier for calculating the
future loss of income. The amount of future loss of income
comes to Rs.1,02,000/-. This Court holds that amount of
Rs.15,000/- can be given towards amount spent on
treatment and medicine as some receipts are produced
though they are not proved. This Court holds that under
the head of pains, suffering and permanent disability,
Rs.10,000/- can be given. Thus, total amount of
Rs. 1,27,000/- can be given in this case. The Tribunal has
awarded compensation of Rs.80,000/- in this case. So, the
judgment and award needs to be modified to make the
total compensation as Rs.1,27,000/-.
6) In the result, following order is passed.
7) First Appeal No.170 of 2002 is allowed. The
judgment and award of the Tribunal is modified to make
8 FA 170 & 173/2002
the total compensation as Rs.2.2 lakh (Rupees Two lakh
and Two Thousand only) which is inclusive the amount
which must have been paid on the principle of No Fault.
Interest at the rate of 9% is payable on the amount from
the date of petition till the date of realization. Award to
be prepared accordingly.
8)
First Appeal No.173 of 2002 is allowed. The
judgment and award of the Tribunal is modified to make
the total compensation as Rs.1.27 lakh (Rupees One Lakh
and Twenty Seven Thousand only) which is inclusive the
amount which must have been paid on the principle of No
Fault. Interest at the rate of 9% is payable on the amount
from the date of petition till the date of realization. Award
to be prepared accordingly.
Sd/-
(T.V. NALAWADE, J. )
rsl
