Mehesh Rohidas Kedar vs Walmik Kisan Gaikwad And Another
2016 Latest Caselaw 6755 Bom

                                           1                             907 fa 1939.15.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                            
                              FIRST APPEAL NO. 1939 OF 2015




                                                   
            Mahesh s/o Rohidas Kedar,                       ...       Appellant
            Age: 26 years, Occ. Nil,




                                                  
            R/o Jai Malharnagar, Opp. MIDC
            Police Station, Ahmednagar,
            Dist. Ahmednagar.

                     Vs.




                                        
    1.      Walmik s/o Kisan Gaikwad,
                             
            Age: Major, Occ. Business,
            R/o Mahegaon, Tal. Rahuri,
            Dist. Ahmednagar.
                            
    2.    The Branch Manager,
          Bajaj Allianz General Insurance Co. Ltd.,
          GE Plaza, Airport Road, Yerwada,
          Pune 411 006.                             ...  Respondents
      


                                     ----
    Mr. V.S. Badakh, Advocate for the Appellant.
   



    Mr. S.G. Chapalgaonkar, Advocate for respondent no.2.
                                     ----

                                               CORAM : P.R. BORA, J.

DATE : 29-11-2016.

ORAL JUDGMENT :

1. The present appeal is filed against the judgment and

order passed by the Motor Accident Claims Tribunal at Ahmednagar

in Motor Accident Claim Petition No. 399 of 2007 decided on

03.02.2012.

2. The aforesaid claim petition was filed by the present

appellant seeking compensation on account of the injuries sustained

by him and permanent disablement incurred because of the said

2 907 fa 1939.15.odt

injuries in the vehicular accident happened on 15.04.2007, having

involvement of Ape rickshaw owned by the present respondent no.1

and insured with respondent no.2. The appellant had claimed

compensation of Rupees Six Lakhs claiming that he has lost the

100% earning capacity. It was the contention of the appellant that,

because of the injuries sustained by him in the alleged accident he

has incurred 65% permanent disablement. It was the further

contention of the appellant that, he was serving as a Chemist in a

private dairy and was earning around Rs.3,000/- per month. It was

the further contention of the appellant that, because of the

permanent disablement suffered by him he has lost the said job and

has become jobless thereafter.

3. The claim petition was resisted by the insurance

company on different grounds. The tribunal after having assessed

the evidence on record awarded the compensation of Rs.

4,84,478/- inclusive of N.F.L. compensation. According to the

appellant, the tribunal has not awarded the just and fair

compensation. He has, therefore, preferred the present appeal.

4. The learned counsel appearing for the appellant

submitted that, the tribunal ought to have considered that the

appellant has lost his earning capacity to the extent of 100% and

must have accordingly determined the amount of compensation.

The learned counsel further submitted that, towards pain and

3 907 fa 1939.15.odt

suffering also the tribunal has awarded a meager amount. The

learned counsel further submitted that, nothing has been awarded

by the tribunal towards the permanent disability incurred by the

present appellant. The learned counsel, therefore, prayed for

adequate enhancement in the amount of compensation as awarded

by the tribunal.

5. Shri S.C. Chapalgaonkar, the learned counsel appearing

for the respondent no.2-insurance company has supported the

impugned judgment and award. The learned counsel submitted

that, whatever evidence was adduced before the tribunal has been

properly appreciated by the tribunal and the compensation awarded

by the tribunal is just and proper and, as such, no interference is

required in the impugned judgment and award. The learned

counsel further submitted that, though, the appellant is now coming

out with a case that, he has been removed from the services,

before the tribunal no such evidence was placed on record neither

such evidence is available in the appeal. The learned counsel

submitted that, the employer was not examined by the appellant

and the letter of termination or discharge has also not been placed

on record. The learned counsel submitted that, since the tribunal

has awarded adequate compensation the appeal be dismissed.

6. After having considered the submissions advanced by

the learned counsel appearing for the respective parties and on

4 907 fa 1939.15.odt

perusal of the impugned judgment, it appears to me that, the

judgment needs interference so far as the compensation awarded

by the tribunal towards pain and suffering is concerned and for non-

award of the compensation under the head of permanent

disablement. In so far as the compensation awarded towards loss

of income is concerned, it does not appear to me that, any

interference is required in the amount of compensation so assessed

by the learned tribunal. It was rightly submitted by the Shri

Chapalgaonkar that, even otherwise considering the provisions of

Workmen's Compensation Act, in the case of loss of earning

capacity to the extent of 100% also the compensation is

determined at 60% of the total income. The tribunal has

considered all these aspects and has appropriately determined the

amount of compensation under the aforesaid head. However, the

compensation as awarded of Rs. 10,000/- towards pain and

suffering needs to be enhanced and adequate compensation

towards permanent disablement has to be awarded.

7. Admittedly, the appellant-claimant was 19 years old at

the time when he met with the accident. As has come on record the

left leg of the appellant has been amputated because of the

accidental injuries. The disablement as has been prescribed of 65%

is not in dispute. Considering all these aspects the adequate

amount of compensation under both the aforesaid heads needs to

be granted adequately. It cannot be lost sight of that, the appellant

5 907 fa 1939.15.odt

will have to lead his entire future life with the disability incurred by

him. Though, the loss which is caused to the appellant cannot be

computed in terms of money, considering the guidelines laid down

in this regard in the judgments of the Hon'ble Apex court, it

appears to me that, the appellant deserves to be granted a sum of

Rupees One Lakh as the compensation towards pain and suffering

and the compensation of Rs.10,000/- as awarded by the tribunal

towards pain and suffering needs to be enhanced to the aforesaid

extent.

8. Further, as has been held by the Hon'ble Apex Court in

the case of S. Manickam V. Metropolitan Transport Corp. Ltd.

reported in AIR 2013 SC 2629, compensation under the head of

'permanent disability' cannot be devied on the ground that

substantial amount had been awarded under head 'loss of earning'

and 'loss of earning capacity'. The Hon'ble Apex Court has

observed that, while determining the quantum of compensation, the

courts/tribunals have to take note of the suffering of the injured

person which would include his inability to lead a full life, his

incapacity to enjoy the normal amenities which he would have

enjoyed but for the injuries and his ability to earn as much as he

used to earn or could have earned. It is, thus, evident that

'permanent disability' and 'loss of earning capacity' are two different

heads of compensation and the compensation needs to be awarded

under both the heads. Having regard to the facts of the present

6 907 fa 1939.15.odt

case and more particularly that, at the young age of 20 years the

appellant had suffered amputation of his left leg and has thereby

incurred 65% permanent disability. I deem it appropriate to award

a sum of Rupees One Lakh to the appellant by way of compensation

under the head of 'permanent disability'.

9. For the reasons state above, I hold the appellant

entitled for the enhanced compensation to the tune of Rs.

1,90,000/- (Rupees One Lakh Ninety Thousand) in addition to the

compensation as awarded by the tribunal. The respondents shall

jointly and severally pay the enhanced amount of compensation to

the appellant with interest thereon @ 9% per annum from the date

of filing of the application till its realisation. The award shall be

accordingly modified. The appellant shall pay the deficit court fee if

any. Before preparation of the modified award it be ensured that

the deficit court fee is recovered from the appellant, if it is so

required. The appeal stands allowed in the aforesaid terms.

(P.R. BORA) JUDGE

mub