Pradeep Janardhan Upade vs Sayed Nasirullah Sayed ...
2016 Latest Caselaw 2489 Bom

                                        1                             fa45.06.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                          BENCH AT AURANGABAD

                             FIRST APPEAL NO. 45 OF 2006




                                                    
        Pradeep s/o Janardhan Upade,
        age 30 years, Occupation Labour,




                                                   
        R/o Takli (B), Taluka and District Latur.               ... Appellant

                 Versus




                                       
        1.       Sayed Nasirullah s/o Sayed Vikayatullah,
                 age : Major, Occupation Business,
                 R/o. Waman Nagar, Nanded,
                             
                 Taluka and District Nanded.

                 Respondent No. 1 is deleted
                            
                 as per Court's order dated 18.01.2006.

        2.       The Manager,
                 National Insurance Co. Ltd.,
      

                 Branch Office Latur.                       ... Respondents
   



                                        .....
           Advocate for Appellant : Mr. A. V. Rakh h/f Mr. N. D. Kendre
               Advocate for respondent No. 2 : Mr. D. V. Soman
                                        .....





                                                CORAM : V. K. JADHAV, J.

DATED : 30th MAY, 2016

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and award dated

20.09.2004 passed by learned Member, Motor Accident

Claims Tribunal, Latur in M.A.C.P. No. 271 of 2000, the

original claimant has preferred this appeal to the extent

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of quantum.

2. Brief facts giving rise to the present appeal are as

follows :

a) On 10.04.2000 at about 11.30 p.m., claimant was

proceeding by Latur-Barshi road by riding his motorcycle

bearing registration No. MH-24-C-1814. At the place of

occurrence of the accident, a travel bus having

registration No. MH-26-B-686 came in opposite direction

in speed and gave dash to the motorcycle of claimant

resulting into an accident. In consequence of which,

claimant sustained severe injuries which resulted into

permanent disablement. Thus, the claimant preferred

claim petition before M.A.C.T., Latur for grant of

compensation under various heads. The original

respondent Nos. 1 and 2, i.e. the driver and the owner of

the said travel bus had not filed their written statement

and therefore, hearing of the claim petition was ordered

to proceed without their written statement. Respondent

No. 3-insurer strongly resisted the claim petition by

filing written statement. According to respondent-

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insurer, the claimant himself was responsible for the

accident and driver of the bus was not at all responsible.

It is further contended that the claimant has not

sustained any permanent disablement.

b) Learned Member, Motor Accident Claims Tribunal,

Latur, by the impugned judgment and awarded dated

20.09.2004, partly allowed the claim petition with

proportionate costs and thereby directed the

respondents jointly and severally to pay total amount of

compensation of Rs.1,18,000/-, inclusive of interim

compensation, along with interest at the rate of 9% per

annum. Being aggrieved by the quantum, the original

claimant has preferred this appeal.

3. Respondent-insurer has not preferred any appeal,

nor filed any cross objection to the present appeal. The

claimant has proved before the tribunal that the

accident was caused solely on account of rash and

negligent driving of the driver of travel bus bearing

registration No. MH-26-B-686. Furthermore, the

claimant has also succeeded in proving before the

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tribunal that the injuries sustained by him resulted in

permanent disablement as certified by the Government

Medical Officer.

4. In view of the above, the present appeal is

considered to the extent of quantum of compensation as

awarded by learned Member, Motor Accident Claims

Tribunal, Latur.

5. Learned counsel for the appellant-original claimant

submits that the appellant-claimant has claimed total

amount of compensation of Rs.1,50,000/- and the

tribunal has awarded Rs.1,18,000/- as total

compensation. Even though the appellant-original

claimant has restricted his claim in the appeal to the

extent of the remaining amount of Rs.32,000/-, the

claimant is entitled for a just and reasonable

compensation. The claimant is ready to pay the deficit

court fees if he is legally entitled to enhancement in

compensation as awarded by the tribunal. The tribunal,

without giving any reasons, made a departure from the

multiplier method and awarded a lump sum amount as

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compensation for permanent disablement sustained by

the claimant. The tribunal has not considered that the

injuries sustained by the claimant, which resulted in

permanent disablement, affected the earning capacity of

claimant to the considerable extent and as such, there is

total loss of future income. Claimant has examined Dr.

Arun Kumar Rao as witness No. 2. The said witness has

given all the details of disablement sustained by the

claimant and further opined that the claimant, being

agricultural labour, cannot do the said work in future.

Even learned Member of the tribunal, in light of opinion

expressed by witness No. 2 Dr. Rao, has observed that

the claimant is unable to work with the same strength

as that of prior to the accident, however, failed to apply

multiplier method for assessing the loss of future

income.

6. Learned counsel for the respondent-insurer

submits that the appellant-original claimant has

restricted his appeal to the extent of remaining amount

of compensation of Rs.32,000/-. There are two disability

certificates produced on record by the claimant. So far

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as the disability certificate Exh.35 is concerned, the

claimant is shown to have been suffering from 27% of

disability and as per the disability certificate Exh.40, the

claimant is suffering from disablement to the extent of

37%. Considering these two certificates, the learned

Member of the tribunal has rightly awarded lump sum

amount of compensation. No interference is called for in

the impugned judgment and award and the appeal is

thus, liable to be dismissed.

7. On careful perusal of the record and proceedings,

it appears that the claimant has examined Dr. Rao as

witness No. 2 who is Head Of Department of

Orthopaedics at Medial College, Latur. Witness No. 2

Dr. Rao has deposed that claimant Pradeep was

admitted at the Medical College and Hospital firstly on

08.10.2000 and at that time, he was treated by him. On

his examination, he noted the following injuries :

1. Fracture of neck or femur - right side.

2. Fracture shaft with the nailing - right side, which was operated with the nailing. The

7 fa45.06.odt

said fracture was not united and was infected.

3. Open wound over the right knee with infection relating to fracture of patala right side which was operated at govt. hospital,

Latur.

4. There was fracture of clavicle left side

which was united.

He has further deposed that the claimant was

operated on 12.10.2000 for removing the wires over the

knee, as knee cap was already removed while operating

the said injury at govt. hospital, Latur. He has further

clarified that the claimant was again operated on

01.01.2001 for removing the nail of right femur and

further operated on 02.11.2001 for the fixation of

fracture of neck of femur. He has further deposed that

the claimant was operated again on 23.01.2004 for

removing dead bone of right femur. Accordingly, witness

No. 2 Dr. Rao has issued certificate in Form Comp "B"-

Exh.40 with the specification that because of the

fractures, the claimant is suffering from restrictions of

movement of hip and knee joint and there is shortening

8 fa45.06.odt

and infection to right femur.

8. So far as the earlier disablement certificate Exh.35

issued by the Government Hospital, Latur is concerned,

the same was issued after examination of the claimant

on 03.03.2001. Even witness No.2 Dr. Rao has deposed

that the wires over the knee came to be removed by him

as the knee cap was already removed while operating the

said injury at government hospital, Latur. Furthermore,

witness No.2 Dr. Rao has given reference of the

operation dated 23.01.2004 when the claimant was

lastly operated for removing dead bone of right femur.

Permanent disability certificate Exh.40 came to be

issued on 04.08.2004. Witness No. 2 Dr. Rao has

further stated in his cross-examination that with the

nature of disability, the claimant cannot work with the

capacity of other agricultural labour.

9. In view of the above, the tribunal should have

considered the permanent disablement certificate Form

Comp "B" Exh.40 issued by witness No.2 Dr. Rao, which

is later in time. It appears that the tribunal has not

9 fa45.06.odt

considered the said disablement certificate Exh.40 and

awarded the lump sum compensation of Rs.50,000/-.

The same cannot be justified on any ground. There is no

reason for the tribunal to make departure from the

multiplier method for assessing the loss of future

income.

10. Though witness No.2 Dr. Rao has stated in his

cross-examination that the claimant cannot work with

the capacity of other agricultural labours, the claimant,

in paragraph No. 5 of his examination-in-chief has

deposed that he is unable to fold his injured leg

resulting into inconvenience and difficulty for day to day

work. The claimant has not deposed before the tribunal

that because of the injuries sustained by him, which

resulted in permanent disablement as per certificate

issued by Dr. Rao, his earning capacity is affected to the

extend of 100%, and thus, there is total loss of future

income. However, considering the permanent

disablement certificate Exh.40, issued by witness No.2

Dr. Rao, and the specifications of the permanent

disablement sustained by the claimant, I am of the

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considered view that the earning capacity of the

claimant is affected because of the said permanent

disablement to the extent of 50%.

11. Learned Member of the Tribunal has rightly

considered the normal wages of labour in the rural area.

Hence, it can be safely concluded that the claimant was

earning Rs.70/- per day by doing agricultural labour

work prior to the accident. It is not disputed that the

claimant was 32 years of age at the time of accident. If

the income of the claimant is considered as Rs.70/- per

day, which corresponds to Rs.2100/- per month, and

Rs.25,200/- per annum, considering the age of the

claimant at the time of his accident, multiplier 16 would

be appropriate for assessing the loss of future income.

In view of the above, the total loss of future income

comes to Rs.4,03,200/-. As discussed above, since the

earning capacity of the claimant is affected to the extent

of 50% due to the permanent disablement sustained by

him, the claimant is entitled for an amount of

Rs.2,01,600/- as loss of future income. Learned

Member of the tribunal has awarded just and reasonable

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compensation under the non-pecuniary heads.

12. Thus, the break up of compensation under various

heads which can be broadly categorized as under:

1. Loss of future income - Rs.2,01,600/-

2. Loss of actual income - Rs.0,10,000/-

3. Pains and sufferings - Rs.0,20,000/-

4. Additional amount for - Rs.0,15,000/-

injuries sustained by

the claimant

5. Medical expenses - Rs.0,16,000/-

6. Ancillary expenses - Rs.0,07,000/-

---------------------------------

TOTAL Rs.2,69,600/-

---------------------------------

The claimant is thus, entitled for an amount of

Rs.2,69,600/- along with interest as prescribed by

learned Member of the tribunal. Hence the following

order:

O R D E R

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

II. The judgment and award dated 20.09.2004 passed

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by learned Member, Motor Accident Claims Tribunal, Latur in M.A.C.P. No. 271 of 2000 is

hereby modified in the following manner:

The opponent Nos. 2 and 3, jointly and severally shall pay total amount of compensation of

Rs.2,69,600/-, inclusive of interim compensation of Rs.25,000/- and shall pay interest @ of 9% p.a. on the unpaid amount of compensation till realization

of the entire amount.

III. Needless to say that the amount as per the original award, if paid by the respondent-insurer, the same

shall be deducted from the amount of compensation as per the modified award.

IV. The appellant-claimant shall pay the deficit court

fees within a period of one month from the date of this order.

V. Award be drawn up in tune with the modification as aforesaid.

VI. The First Appeal is accordingly disposed of.

( V.K. JADHAV, J. )

...

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