Bombay High Court
Santosh Anandrao Kedare vs Bharatsingh Ratansingh & Ors on 31 March, 2016
Bench: V.K. Jadhav
1 FIRST APPEAL NO.215.2006.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 215 OF 2006
...
Santosh s/o Anandrao Kedare,
age 29 years, Occ. Labour,
R/o Georai, Tq. &
Dist. Aurangabad. ..Appellant..
(orig. claimant)
VERSUS
1. Bharatsingh s/o Ratansingh
Rajput, age 33 years, Occ. Driver,
R/o Dahegaon Bungalow,
Tq. Gangapur, Dist. Aurangabad.
2. M/s Shamal Prestressed Cement
Products Pvt Ltd., Shriniketan
Colony, Jalna Road,
Aurangabad.
3. United India Insurance Company
Ltd., through Branch Manager,
New Osmanpura, Branch Near
Darling Hotel, New Osmanpura,
Aurangabad. ...Respondents..
(orig Resp No.3.)
...
Advocate for Appellant : Mr P M Gaikwad
Advocate for Respondent 3 : Mr S V Kulkarni
...
CORAM : V.K. JADHAV, J.
Dated: March 31, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the judgment and Award
passed by the learned Member, Motor Accident Claims
2 FIRST APPEAL NO.215.2006.odt
Tribunal, Aurangabad dated 11.10.2005 in Motor
Accident Claims Petition No.273 of 2003, the original
claimant has filed present appeal.
2. Brief facts giving rise to the present appeal are as
under :-
a] On 17.7.2002 at about 09.00 a.m. the claimant
was proceeding to village Chitegaon on foot alongwith
his relatives. One truck bearing registration No.MCA-
2764 being driven by its driver in a rash and negligent
manner gave dash to him. In consequence of which the
appellant/claimant had sustained grievous injuries on
his right hand. He was immediately shifted to the
private hospital of Dr. Patwardhan, Aurangabad. The
injuries sustained by the appellant/claimant resulted
into permanent disablement to the extent of 15%. Thus,
the appellant-claimant has filed M.A.C.P. No.273 of
2003 before the Tribunal, Aurangabad, for grant of
compensation under various heads.
b] Respondents No.1 and 2 the driver and owner of
the vehicle involved in the accident failed to contest the
3 FIRST APPEAL NO.215.2006.odt
petition. The Respondent No.3-insurer has strongly
resisted the claim by filing written statement at Exh.26.
The learned Member of the Motor Accident Claims
tribunal, Aurangabad by its impugned judgment and
award dated 11.10.2005 partly allowed the claim petition
and thereby directed the respondents No. 1 to 3 jointly
and severally to pay Rs.25,000/- (Rs. Twenty Five
Thousand) including 'No Fault Liability' amount to the
claimants with interest. The appellant-claimant has
thus preferred this appeal to the extent of quantum of
compensation.
3. The learned counsel for the appellant submits
that, the learned Member of the Tribunal has not
applied the multiplier method and awarded lumpsum
compensation of Rs.25,000/- only. The learned counsel
submits that, after the accident, the claimant was
hospitalized in a private hospital of Dr. Patwardhan and
he had to undergo surgery. Learned counsel submits
that, the claimant was remained as indoor patient for
some days in the said hospital and thereafter he had
attended Dr. Patwardhan Hospital as out door patient
4 FIRST APPEAL NO.215.2006.odt
for follow up treatment. Learned counsel submits that,
the injuries sustained by the claimant on his right hand
resulted into permanent disablement to the extent of
15% and certificate is issued by Orthopaedic Surgeon is
produced on record and marked as Exh.29. Learned
counsel submits that, the claimant was doing labour
work in Videocon Company on wages of Rs.70/- per day.
Furthermore, he was also selling vegetables in the
market and gets Rs.1,500/- to Rs.2,000/- p.m. Learned
counsel submits that, the claimant is not able to
perform his work as it was prior to the accident. The
claimant had sustained loss in the actual income as well
as he will loose his future income on account of his
permanent disablement sustained by him. Learned
counsel submits that, the Tribunal has not considered
the same and awarded lumpsum compensation which is
not proper, correct and legal. The learned counsel for
the appellant-claimant submits that, the Tribunal has
erroneously awarded interest @ 7.5% p.a.
4. Learned counsel for respondent no.3 - Insurer
submits that, there was a breach of policy as the driver
5 FIRST APPEAL NO.215.2006.odt
of the truck was not holding valid and effective driving
licence at the time of the accident. Learned counsel
submits that the permanent disablement sustained by
the claimant even accepted as it is, it hardly affects his
earning capacity. Learned counsel thus, submits that,
considering the same, the Tribunal has awarded
lumpsum amount as compensation. No interference is
required and the appeal is thus liable to be dismissed.
5. It is not disputed that the claimant has proved
that the driver of the vehicle Tempo Truck bearing
registration No. MCA-2764 was rash and negligent in
driving his vehicle at the time of accident and the
claimant sustained injuries on account of such driving.
In view of this, following points arises for my
determination and I have recorded my findings to those
points for the reasons given below :-
Sr No POINTS FINDINGS
1. Whether the Tribunal has correctly
assessed the compensation ? Negative.
2. Whether the impugned Judgment
and Award calls for any Affirmative.
interference ?
3. What order ? As per final order.
6 FIRST APPEAL NO.215.2006.odt
R E A S O N S
6. POINT NOS.1 AND 2 :-
It appears that the learned Member of the
Tribunal has not applied multiplier method and awarded
lumpsum compensation to the claimant. The Tribunal
has not given any specific reasons for not applying the
multiplier method and for awarding the lumpsum
amount as compensation. I do not find any reason to
grant lumpsum amount as a compensation by not
applying multiplier method.
7. The appellant-claimant Santosh has deposed that,
on account of dash given by the said truck he had
sustained injuries on his right hand. He was
hospitalized for about three days in the hospital of Dr.
Patwardhan, Aurangabad who is a Orthopaedic surgeon
and thereafter he remained as out door patient for follow
up treatment. In order to substantiate his contention,
the claimant has produced on record permanent
disablement certificate in form Comp. 'B' issued by Dr.
Patwardhan, who is orthopedic surgeon, the same is
marked as Exh.29. On perusal of said certificate in
7 FIRST APPEAL NO.215.2006.odt
form comp. 'B', it appears that, the injuries are
described in the certificate. It is stated in the certificate
that the claimant has sustained CLW over volar aspect
of right forearm alongwith cut injury to the median
nerve. It has thereafter certified that said injury lead to
15% (Fifteen Percent) permanent disability. The
Respondent-insurer has only suggested to the claimant
that he has not sustained any sort of disability. So,
there is no reason to discard certificate which is in form
comp 'B' issued by Dr. Patwardhan, Orthopaedic
Surgeon, Aurangabad.
8. According to the claimant, he was serving in
Videocon Company on wages of Rs.70/- per day.
Further he also used to sell vegetables in the market
and earning Rs.1,500/- to Rs.2,000/- p.m. It is true
that the claimant has not filed any document to
substantiate his contention before the tribunal, however,
the tribunal should have considered his notional income
on the basis of wages earned by the Labour during that
period. As per the claimants own version, he was
getting Rs.70/- per day in the said company as wages
8 FIRST APPEAL NO.215.2006.odt
for doing labour work. In absence of any evidence of
earning from selling of the vegetables, claimant's
notional income can be considered as Rs.70/- per day.
Hence, his monthly income comes to Rs.70 x 30 =
Rs.2,100/-. The injuries sustained by the claimant
resulted in permanent disability to the extent of 15%.
The claimant has not deposed before the Tribunal that,
in what way said permanent disablement has affected
his earning capacity. In absence of any positive
evidence in this regard, same percentage can be treated
as percentage affecting his earning capacity. There is no
dispute that appropriate multiplier considering the age
of the claimant would be '17' in the present case.
9. In view of this, if the monthly income of the
claimant is considered as Rs.2,100/-, then his yearly
income comes to Rs.2,100 x 12 = 25,200/-. If yearly
income is multiplied by the multiplier '17', it comes to
Rs.25,200 x 17 = Rs. 4,28,400/-. Thus, total loss of
income would comes to Rs.4,28,400/-. Since the
claimant has sustained disablement to the extent of
15% and the same is treated as affecting his earning
9 FIRST APPEAL NO.215.2006.odt
capacity, then, 15% of Rs.4,28,400 comes to
Rs.64,260/-. The claimant is entitled to Rs.64,260/- for
loss of future income.
10. Though the claimant has not produced before the
Tribunal any medical bills, certificate issued by Dr.
Patwardhan is placed on record and the same is marked
as Exh.29. On perusal of the same, it appears that the
claimant was treated as indoor patient from 17.7.2002 to
19.7.2002 and out door patient from 20.7.2002 and then
stated in the certificate that the claimant is still under
treatment. Said certificate is issued on 12.3.2003.
Considering the same, and the fact that Dr. Patwardhan
runs a private hospital, it would be just and proper to
award Rs.15,000/- to the claimant as medical expenses.
The claimant Santosh is resident of village Georai, Tq.
Bidkin, District Aurangabad. It would be thus
appropriate to award him Rs.5,000/- as a travelling
expenses for visiting hospital of Dr. Patwardhan at
Aurangabad frequently during the course of his
treatment. The claimant is also entitled for an amount
of Rs.5,000/- for pains and sufferings and Rs.5,000/-
10 FIRST APPEAL NO.215.2006.odt
for loss of amenities in future life. The claimant has
also remained in door patient of Dr. Patwardhan initially
for a period of three days and thereafter for almost a
year as out door patient, the claimant is entitled for an
amount of Rs.5,000/- as compensation for loss of actual
income. Thus, break up of compensation can be
categorized as under :-
No. ig HEADS AMOUNT (IN RUPEES)
1. Loss of future 64,200/-
income/permanent disablement.
2. Loss of actual income 05,000/-
3. Medical Expenses 15,000/-
4. Travelling Expenses 05,000/-
5. Pains and sufferings 05,000/-
6. Loss of amenities 05,000/-
TOTAL 99,260/-
(Rs. Ninety nine thousand two
hundred sixty only)
11. Thus, the claimant is entitled for total
compensation of Rs.99,260/- (Rs. Ninety nine thousand
two hundred sixty only) with interest at the rate of 9%
per annum from the date of application till the
11 FIRST APPEAL NO.215.2006.odt
realization. The Respondents are jointly and severally
liable to pay the same. Accordingly, I answer the points
and proceed to pass the following order.
O R D E R
I. First Appeal is hereby partly allowed with
proportionate costs.
II. The Judgment and Award dated 11.10.2005
passed by the learned Member, Motor Accident
Claims Tribunal, Aurangabad in Motor
Accident Claims Petition No.273 of 2003 is
hereby modified to the following effect :-
The respondents No. 1 to 3 shall jointly and
severally pay Rs.99,260/- (Rs. Ninety nine
thousand two hundred sixty only) including
'No Fault Liability Amount' to the
appellant-claimant. The claimant is entitled
to get interest @ 9% p.a. from the date of
application till realization.
III. Rest of the impugned Judgment and Award
stands confirmed.
IV. Award be drawn up accordingly.
V. First Appeal is disposed of.
sd/-
( V.K. JADHAV )
JUDGE
aaa/- .....
