Bombay High Court

Popat Machindra Sathe vs Shankar Bapur Shinde And Anr on 22 November, 2016

Bench: P.R. Bora

                                        1               FA NO.1050 OF 2010


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                      BENCH AT AURANGABAD




                                               
                           FIRST APPEAL NO.1050 OF 2010

      Popat s/o Machindra Sathe,
      Age:35 years, Occ. Service,




                                              
      R/o. Narayandoh, Tq. Ahmednagar
      Dist. Ahmednagar
                                                ...APPELLANT
                                                (Ori. Applicant)




                                     
                       VERSUS

      1.
                             
               Shankar s/o Bapu Shinde,
               Age Major, Occ. Business,
                            
               (Owner of Auto Rickshaw
               bearing No. MH-16-3771)
               R/o. Plot No.2, Vaiduwai, Savedi
               Ahmednagar, District Ahmednagar
      


      2.       The National Insurance Company Ltd.
               Through the Divisional Manager,
   



               Divisional office, Ambar Plaza,
               Opp. S.T. Stand, Ahmedngar,
               District Ahmednagar





                                               ...RESPONDENTS
                                                (Ori. Opponents)

                                     ...
               Mr. V.D. Hon, Senior Advocate for Appellant.





               Mr. R.K. Temkar, Advocate for Respondent No.1.
               Mr. A.B. Gatne, Advocate for Respondent No. 2.
                                     ...

                         CORAM: P.R.BORA, J.
                                    ...
               Date of reserving the judgment: 22/9/2016

               Date of pronouncing the judgment: 22/11/2016
                                 ...




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                                                  2                  FA NO.1050 OF 2010

      JUDGMENT:

1. The appellant has filed the present appeal

seeking enhancement in the amount of compensation as

awarded by the Motor Accident Claims Tribunal,

Ahmednagar, in Motor Accident Claim Petition

No.679/2004 decided on 18th of January, 2010.

The aforesaid Claim Petition was filed by the

appellant under Section 166 of the Motor Vehicles Act,

claiming compensation on account of injuries caused to

him in a vehicular accident happened on 15th of May,

2004, having involvement of a Rickshaw bearing

registration No.MH-16-3771 owned by respondent no.1

and insured with respondent no.2. It was the contention

of the appellant in the aforesaid claim petition that

because of the injuries caused to him in the alleged

accident, he has incurred 15 per cent permanent disability.

It was his further contention that because of the

permanent disability incurred by him, he was declared

unfit to be continued in the service of Army and was

prematurely discharged from the services on that count

w.e.f. 31st of March, 2008. It was also the contention of

3 FA NO.1050 OF 2010

the appellant that had he not met with an accident and

incurred the permanent disability, he would have been

promoted to the post of Havildar and then to the post of

Subhedar. It was also the contention of the appellant that

because of the injuries caused to him and the permanent

disability incurred by him, he may not be able to enjoy the

amenities of life as a normal person. On all these counts

the appellant had claimed compensation of Rs.25 lacs. It

has to be stated that when the claim petition was filed, the

appellant was in service and during pendency of the

petition, he was discharged from the services of the Army.

The petitioner, therefore, amended his petition bringing on

record the fact of his premature discharge from the service

and on that count enhanced the claim amount.

3. In order to substantiate the contentions raised

in the petition the appellant himself deposed before the

Tribunal and had also placed on record all necessary

documents. Appellant examined one more witness by

name Ramdas Nanabhau Ithape. The learned Tribunal

after having assessed the oral and documentary evidence

brought on record before it, partly allowed the claim

4 FA NO.1050 OF 2010

petition and awarded the compensation of Rs.8,71,000/-

inclusive of the No Fault Liability compensation to the

appellant jointly and severally from the owner and insurer

of the offending Rickshaw. Aggrieved thereby, the

appellant has preferred the present appeal.

4. Shri V.D.Hon, learned Senior Counsel appearing

for the appellant criticized the impugned judgment on

several counts. Learned Senior Counsel submitted that

the Tribunal has utterly failed in taking into account the

future prospects of the appellant while determining the

amount of compensation though evidence in that regard

was brought on record by the appellant. Learned Senior

Counsel further submitted that had the appellant not been

prematurely discharged from the services on medical

ground, he would have been definitely promoted to the

next higher posts upto Subhedar. Learned Senior Counsel

further submitted that for wrong reasons the Tribunal has

rejected the contentions raised in that regard by the

appellant and has misconstrued the evidence of AW-2

Ramdas Nanabhau Ithape. Learned Senior Counsel further

submitted that the Tribunal has also grossly erred in

5 FA NO.1050 OF 2010

deducting the amount of pension while determining the

compensation on account of future loss of income to the

appellant. Relying upon the judgment of the Honourable

Apex Court in the case of Vimal Kanvar and others Vs.

Kishore Dan and others ( (2013) 7 SCC 476).

Learned Senior Counsel submitted that in no case the

Tribunal should have deducted the amount of pension

while assessing the compensation payable to the appellant

on account of loss of future income. Learned Counsel

further submitted that the compensation awarded by the

Tribunal under the head of pain and suffering is too

inadequate. Learned Senior Counsel further submitted

that the Tribunal has wrongly refused to award medical

and diet expenses. To buttress his contention as about

the consideration of future prospects by the Tribunal, the

learned Senior Counsel placed his reliance on the

judgment of the Honourable Apex Court in the case of

Zakir Hussain Vs. Sabir & Ors ( (2015) 7 SCC 252).

On all above grounds, the appellant has sought

enhancement in the amount of compensation as awarded

by the Tribunal.

6 FA NO.1050 OF 2010

5. Shri A.B.Gatne, learned Counsel appearing for

respondent no.2 i.e. the Insurance Company, supported

the impugned judgment and award. Learned Counsel

submitted that the Tribunal has not committed any error in

deducting the amount of pension being received to the

appellant while determining the compensation under the

head of loss of future income. Learned Counsel

submitted that the Tribunal assigned apt reasons for

deducting the amount of pension in paragraph no.18 of the

impugned judgment. Learned Counsel further submitted

that under the other heads also, the compensation as

awarded by the Tribunal is just and adequate and no case

is made out by the appellant for enhancement in the

amount of compensation. Learned Counsel, therefore,

prayed for dismissal of the appeal.

6. I have carefully considered the submissions

made by the learned Counsel appearing for the respective

parties. I have perused the impugned judgment and the

other material placed on record. It is not in dispute that

during pendency of the claim petition before the Tribunal,

the appellant was discharged from the Military Services

7 FA NO.1050 OF 2010

w.e.f. 31st of March, 2008. It is further not in dispute

that the appellant was placed in "Permanent Low Medical

Category" because of the injuries sustained to him in the

alleged accident and the consequent disablement incurred

by him because of the said injuries. The appellant was

discharged vide letter dated 8th of October, 2007, w.e.f.

31st of March, 2008, due to non availability of sheltered

appointment being in permanent low medical category

under Item 1(iii) ( for JCO) and Item V (for OR) of the

Table annexed to the Army Rule 13(3). After the

appellant was discharged from the Military Services, he

amended the claim petition and thereby enhanced the

claim amount. It was the contention of the appellant that

had he been continued in Military Services, he would have

definitely secured further promotions and consequently

would have been benefitted with the hike in his pay in the

promoted post. As such, it was the contention of the

appellant that while determining the amount of

compensation, the Tribunal ought to have considered the

future prospects of his promotion.

7. In order to substantiate his contention in regard

to chances of his promotion, the appellant has examined

8 FA NO.1050 OF 2010

one Ramdas Nanabhau Ithape. It has come on record in

the evidence of said witness that in normal course, 99 per

cent persons get promotion from Lance Naik to Naik. The

said witness has also deposed that he got the promotion

as Havildar after having worked for a period of four and

half years on the post of Naik and after having worked as

Havildar for seven years, he received promotion of Naib

Subhedar and, lastly, he got the promotion of Subhedar

after he had put in service of four and half years on the

post of Naib Subhedar. It is the contention of the

appellant that appellant would have also secured the

similar promotions had he not been discharged from the

Military Services prematurely. The Tribunal has, however,

not accepted the said contention of the appellant. In

paragraph No.17 of the impugned judgment, the Tribunal

has elaborately discussed the evidence on the point and

has also assigned the reasons for not accepting the

contention of the appellant in regard to chances of his

prospective promotions. It has come on record through

the evidence of AW 2 Ramdas Ithape that every promotion

in Military is on the basis of merit and results of tests. The

appellant had also admitted in his cross examination that

9 FA NO.1050 OF 2010

the promotions in Military Services depend on merit and

physical ability. The appellant had further admitted that

the promotions also depend upon the vacancies and for

every promotion passing of examination is necessary.

The learned Tribunal has observed that though it was

claimed by the appellant that he was having fair chances

of promotion, from the evidence on record, it was

revealing that the appellant could not secure the further

promotion after he got the first promotion from the post of

Lance Naik for more than 12 years till the date of his

accident i.e. 15th May, 2004. Learned Tribunal has also

observed that the appellant was also not possessing any

bright academic career and had secured only 50 per cent

marks in his H.S.C. examination. Learned Tribunal has

observed that since the promotions in the Military were

dependent on merit and the result of the tests to be

undergone by aspiring candidates, the contention of the

appellant that he was having bright future prospects was

not liable to be accepted. I do not see any infirmity in

the observations so made by the learned Tribunal and the

ultimate conclusion recorded by it.

10 FA NO.1050 OF 2010

8. For the aforesaid reasons though the Tribunal

has rejected the contention of the appellant of determining

the amount of compensation under the head of loss of

income to the appellant by taking into account his future

prospects, the Tribunal has assessed the future loss of

income likely to be suffered by the appellant because of

his premature discharge from the Military Services.

While so determining the amount of compensation, the

Tribunal has taken into account the salary of the appellant

as on the date of his premature retirement which was

Rs.9,000/- per month as stated in the impugned

judgment. Further, while determining the amount of

compensation, the Tribunal has deducted the amount of

pension receivable by the appellant. Though it was

sought to be canvassed on behalf of the appellant relying

on the judgment of the Honourable Apex Court in the case

of Vimal Kanwar and others Vs. Kishore Dan and others ( (

2013) 7 SCC 476) that pension amount could not have

been deducted while determining the amount of

compensation towards future loss of income, it does not

appear to me that the Tribunal has committed any error in

deducting the said amount by observing that since the

11 FA NO.1050 OF 2010

appellant himself was getting the amount of pension, the

same was liable to be deducted while determining the

compensation under the head of future loss of income.

However, it appears to me that while determining the

compensation towards the future loss of income, the

Tribunal ought to have considered that the appellant had

11 more years of service at his credit and would have got

increments in the aforesaid period resulting in hike in his

pay and emoluments. It appears to me that the ends of

justice would be met if the potential loss of income to the

deceased is fixed at Rs.6,000/- per month. The annual

loss of income thus comes to Rs.72,000/- For the purpose

of multiplier, an appropriate date will be the date of

premature retirement of the appellant. On the date of

premature retirement, the appellant was aged about 33

years. Thus, the appropriate multiplier would be of 16.

By applying the said multiplier, the loss of income can be

determined to the tune of Rs.11,52,000/. I hold the

appellant entitled to the said amount.

9. Further, the Tribunal has awarded a meager

sum of Rs.5,000/- towards pain and sufferings. The

12 FA NO.1050 OF 2010

amount so awarded is inadequate and unjust. It is not in

dispute that in the alleged accident, the appellant suffered

injury to his right leg. His right leg was operated and a

screw was inserted in his right patela. It is further not in

dispute that the appellant was required to take a long

treatment for a period of three months and was required

to get himself hospitalized on 2/3 occasions. It is further

not in dispute that because of the accidental injuries, the

appellant has incurred 15 per cent permanent disability.

No further evidence is required to draw an inference that

the appellant will have to carry the disability to the

aforesaid extent throughout his life. It is further quite

evident that because of the permanent disability incurred

by the appellant, he may not be able to lead his future life

with same vigour and zeal. It further cannot be lost sight

of that the appellant may not be able to enjoy the

amenities of life as he could have enjoyed had he not met

with the accident. Admittedly, at the time of the

accident, the appellant was a young man of 29 years; for

the remaining life, he will suffer the trauma of not being

able to do his normal work. It is a matter of record that

the appellant has been prematurely retired for being

13 FA NO.1050 OF 2010

placed in permanent low medical category. As held by

the Honourable Apex Court, in the case of Suresh Vs. New

India Assurance Company Ltd. and another ( 2012 (10

SCALE 516), the compensation can be granted towards

permanent disability as well as loss of future earnings for

one head relates to the empowerment of persons capacity

and the other relates to the severity of pain and sufferings

and loss of enjoyment of life by the person himself. The

Honourable Apex Court in the case of Laxman Vs.

Divisional Manager, Oriental Insurance Company Ltd. and

another ( 2012 ACJ 191) has held thus:

" If the victim of an accident suffers permanent or

temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the

pain, suffering and trauma caused due to accident, loss of earnings and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."

In view of the law laid down by the Honourable Apex

Court and having regard to the peculiar facts involved in

the present case, as are discussed by me hereinabove, it

appears to me that a sum of Rs.1,50,000/- deserves to be

awarded to the appellant towards pain and sufferings and

14 FA NO.1050 OF 2010

loss of amenities in life.

10. Thus, the compensation needs to be enhanced

on two counts; first, towards loss of income and the other

towards pain and sufferings and loss of amenities in life.

As discussed hereinabove, the amount of compensation is

enhanced under the head of future loss of income from