Bombay High Court
Kishan Rupaji Mutukule vs Premeshwar Maroti Khedekar And ... on 3 March, 2016
Bench: T.V. Nalawade
FA No. 138/2002
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL NO. 138 OF 2002
Kishan s/o. Rupaji Mutukule,
Age 35 years, Occu. Service
and Agriculture,
R/o. Umra Tal. Hingoli,
Dist. Hingoli ....Appellant.
(Ori. Claimant)
Versus
1.
Shri. Premeshwar s/o. Maroti
Khedekar, Age 32 years,
Occu. Driver, R/o. WAdgaon Jahagir,
Tal. Hadgaon, Dist. Nanded.
2. Vishambar s/o. Ganpath Madaswar,
Age 32 years, R/o. C/o. Narayan
Dresses, Near Police Station, Himayat
Nagar, Tal. Hadgao, Dist. Nanded.
3. National Insurance Co. Ltd.,
Through Divisional Manager,
Hajari Chember, Aurangabad. ....Respondents.
(Ori. Respondents)
Mr. B.S. Kudale, Advocate for appellant.
Mr. P.V. Mandlik, Senior Counsel for respondent Nos. 1 and 2.
Mr. M.M. Ambhore, Advocate for respondent No. 3.
CORAM : T.V. NALAWADE, J.
DATED : 3rd March, 2016.
JUDGMENT :
1) The appeal is filed by original claimant against the
judgment and award of Claim Petition No. 256/1996 (old),
FA No. 138/2002
M.A.C.P. No. 46/2000 (new), which was pending before the
Claims Tribunal, Hingoli. The claim was filed under section 166 of
Motor Vehicle Act by appellant in respect of injuries sustained by
him in motor vehicle accident and the appeal is filed by him as
he is not satisfied with the quantum of compensation. Both the
sides are heard.
2) The accident took place on 13.9.1996. It is the case
of claimant that he was aged about 35 years at the relevant time
and by doing private service and by cultivating the land, he was
making income of more than Rs. 3,000/- per month. The jeep
had given dash to the motorcycle of the claimant and in the
accident, he lost his right leg above knee. He had claimed
compensation of Rs. 8.5 lakh from the owner, driver and
Insurance Company.
3) The owner and Insurance Company filed written
statement and contested the matter.
4) To substantiate the claim, the claimant examined
himself and gave evidence which is as per aforesaid contentions.
He produced discharge card at Exh. 31 issued by Government
Medical College and Hospital, Nanded and it shows that he was
FA No. 138/2002
indoor patient in this hospital and he was required to take follow
up treatment. He has produced a certificate of his salary which is
exhibited as Ex.32. Though the employer of the claimant was not
examined, it appears that the salary certificate was exhibited as
it was not disputed. Similarly, the bill issued by one private
hospital is at Exh. 33 and it is for Rs. 21,645/-. There are many
bills of medicines at Exh. 34. The 7/12 extracts in respect of his
agricultural lands are produced at Exhs. 38 to 41. Licence issued
to his so called employer, zerox copy of it is also produced.
5) Claimant has lost right leg in the accident. In view of
the aforesaid record and substantive evidence, this Court holds
that it can be easily presumed that in the year 1996, he was
getting atleast Rs. 3,000/- per month. Due to nature of injury, his
earning capacity has come down and it can be safely presumed
that 50% earning capacity is lost. Thus, there is monthly loss of
Rs. 1500/- to the claimant. Though in the petition, he has given
his age as 35 years, in view of the other record, this Court holds
that 13 can be adopted as multiplier for calculation of loss of
future income. Future loss of income comes to Rs. 2,34,000/-
(1500 x 12 x 13). This Court holds that amount of Rs. 50,000/-
can be given under the head of permanent disability, amount of
Rs. 30,000/- can be given under the head amount spent on
FA No. 138/2002
medicines, treatment, conveyance, diet and amount of Rs.
5,000/- can be given under the head of pain and suffering. Thus,
total amount of Rs. 3,19,000/- needs to be given to the claimant
as a just compensation.
6) The Tribunal has awarded compensation of Rs. 2.5
lakh only. The Tribunal has not calculated the compensation by
using any procedure on the basis of extent of permanent
disability and approximate amount of Rs. 1.75 lakh is given
under that head. The amount of Rs. 15,000/- is awarded under
other heads and amount of Rs. 25,000/- is given under the head
of amount spent on medicine. Even when it is not disputed that
the claimant lost his right leg, observations are made that
claimant ought to have examined doctor to prove that his
earning capacity has come down.
7) The learned counsel for Insurance Company placed
reliance on the case reported as 2011 (7) ALL MR 800 (S.C.)
[Govind Yadav Vs. The New India Insurance Company
Limited]. In this case, the Apex Court has made observation
that when there is no cogent evidence about earning, the
amount of minimum wages payable to worker can be taken in to
account. There cannot be dispute over this proposition. The
FA No. 138/2002
learned counsel for Insurance Company has produced the
schedule prepared under the Minimum Wages Act, 1996 to show
that unskilled labour in village was to get hardly Rs. 1100/- per
month as minimum wages at the relevant time. In the present
matter, there is specific evidence about the salary and further,
there are 7/12 extracts showing that the claimant was having
agricultural land from which also by personally cultivating he
could have get sufficient income. The salary certificate is
exhibited and in view of these circumstances, it can be safely
presumed that his monthly income was around Rs. 3,000/-. Thus,
the case cited for Insurance Company, respondent cannot be
used in the present case. In the result, following order is made.
ORDER
The appeal is allowed. The judgment and award of
the Tribunal is modified to make the total compensation as Rs.
3,19,000/- (Rupees three lakh nineteen thousand). Interest at
the rate of 9% will be payable on the enhanced amount from the
date of petition till the date of realization.
[ T.V. NALAWADE, J. ]
ssc/
