Bombay High Court
Yunus Yusuf Shaikh vs The Divisional Controller M S R T C ... on 3 March, 2016
Bench: T.V. Nalawade
1 FA 2850 of 2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
First Appeal No.2850 of 2008
Yunus s/o Yusuf Shaikh
Age 42 years,
Occupation : Labourer,
R/o Siddharthnagar, Ward No.1,
Taluka Shrirampur,
District Ahmednagar. .. Appellant.
Versus
The Divisional Controller,
Maharashtra State Road
Transport Corporation
Head Office at Sarjepura,
Taluka & District Ahmednagar. .. Respondent.
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Shri. Rahul A. Tambe, Advocate, for appellant.
Shri. M.K. Goyanka, Advocate, for respondent.
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CORAM: T.V. NALAWADE, J.
DATE : 3rd MARCH 2016
JUDGMENT:
1) The appeal is admitted. Notice after admission,
made returnable forthwith. Heard both sides by consent
for final disposal.
2 FA 2850 of 2008
2) The appeal is filed by the original claimants of
Claim Petition No.76 of 2002 which was pending before
Claims Tribunal, Shrirampur, District Ahmednagar. In the
claim filed for compensation in respect of injuries
sustained in a motor vehicle accident, the Tribunal has
awarded the compensation of Rs.41,500/- and the
claimant has challenged the decision on the point of
quantum in the present appeal.
3) The accident took place on 26-3-2002 within
local jurisdiction of City Police Station Shrirampur. It is
the case of the claimant that at the relevant time he was
aged about 37 years and by working as coolie in the
godowns of the railway he was earning monthly
Rs.4,000/-. It is his case that in the accident he sustained
injuries to his right hand and even after the treatment he
is not fully recovered. He has contended that due to
permanent disability he cannot work as coolie and there is
no other source of income to him. He had claimed Rs.
One lakh. The claim was contested by the MSRTC,
respondent.
3 FA 2850 of 2008
4) To substantiate the claim, claimant examined
himself and he gave evidence as per the aforesaid
contentions. He examined Dr. Bhagwat Murade,
Orthopedic Surgeon to prove that due to the injuries he is
suffering from permanent disability. The evidence of the
doctor shows that there was fracture to all fingers of right
hand and due to this injury, there is permanent disability
to the extent of 30%. The evidence and the certificate at
Exhibit 34 show that due to the injuries he cannot close
the fist, he has no firm grip and he will be suffering from
pains also.
5) The claimant examined one Dhananjay Jadhav
to prove that he was working as a coolie in the go-downs
of railway but no independent evidence is given to prove
that he was making particular income per month.
6) The Tribunal has considered one admission
given by the doctor in the cross-examination that
condition of the claimant is improved. The Tribunal has
held that there is possibility of variance in the percentage
of the disability. In view of this possibility, in stead of
ascertaining the extent of future loss of income, the
4 FA 2850 of 2008
Tribunal has awarded amount of Rs.25,000/- only under
the head of loss of future income. Under the head of
amount spent on treatment and medicines amount of
Rs.7,500/- is given and under other heads like pains and
sufferings and the amount spent on special diet, total
amount of Rs.5,000/- is awarded as compensation. Under
the head of loss of income during treatment some amount
is given.
7) The aforesaid approach of the Tribunal was not
proper. The Tribunal ought to have calculated the loss of
future income by following proper procedure. The
Tribunal on one hand has believed that the claimant was
working as coolie and on the other hand the aforesaid
approach is shown by the Tribunal. For a coolie use of
both hands is required, for lifting heavy goods like bags
and for that firm grip on the articles lifted is also required.
In view of the nature of injuries and the evidence given by
the doctor this Court holds that the earning capacity has
certainly come down. It is clear that he cannot use force
by using right hand even for doing work of digging, hard
labour work.
5 FA 2850 of 2008
8) Learned counsel for the insurance company
placed reliance on a case reported as (2015) 10 SCC 506
(Rajan v. Soly Sebastian). The facts and circumstances of
each and every case are always different and this Court
has considered the relevant facts of the present matter.
9) The accident took place in the year 2002 and at
that time the notional income can be presumed as
Rs.3000/- per month. This Court holds that earning
capacity has come down by 30% and so there is monthly
loss of income of Rs.900/- to the claimant. In view of the
age of the claimant which was around 37 years, 15 can be
adopted as multiplier for calculation of future loss of
income. The future loss of income comes to Rs.1,62,000/-
(900×12x15). This Court holds that amount of Rs.30,000/-
needs to be given under the head of permanent disability
and loss of enjoyment of life. Amount of Rs.7,500/- needs
to be given under the head of amount spent on treatment,
medicines and other heads. Amount of 15,000/- needs to
be given under the heads like pains and suffering. Thus
total amount comes to Rs.2,14,500/-. The judgment &
award of the Tribunal needs to be modified & for that
6 FA 2850 of 2008
following order is made :-
10) The appeal is allowed. The judgment and award
of the Tribunal is modified to make the total amount of
compensation as Rs.2,14,500/- (Rupees Two Lakh
Fourteen Thousand and Five Hundred Only). This amount
is inclusive of the amount which must have been paid on
the principle of no fault. Interest at the rate of 9% will be
payable on the compensation from date of petition till
realisation. Interest will be paid on the remaining amount
after deducting the amount which is already paid by the
insurance company. Award is to be prepared accordingly.
Sd/-
(T.V. NALAWADE, J. )
rsl
