Yogesh Chandrakant Joshi vs Kavita Sanjay Veer And Others
2016 Latest Caselaw 5752 Bom

                                                 1                                  6 fa 679.16.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                                   
                               FIRST APPEAL NO. 679 OF 2016




                                                           
            Yogesh s/o. Chandrakant Joshi,
            Age: 40 years, Occ. Service,




                                                          
            R/o. Chapkhana Lane, Dhondipura,
            Beed, Tq. & Dist. Beed.                                ...       Appellant

                     Vs.




                                          
    1.      Kavita w/o. Sanjay Veer,
            Age: Major, Occ. Business,
                             
            R/o. H.No. 1-6-12, Behind
            Anand Hospital,
            Jalna Road, Beed.
                            
    2.      Vivek w/o. Raghunath Veer,
            Age: Major, Occ. Driver,
            R/o. As above.
      


    3.      TATA AIG Insurance Company Limited,
            Through Branch Office, 2-A, The Orion,
   



            IInd Floor, Kotirgoan, Road,
            Pune - 411 001.                        ...                       Respondents

                                      ----





    Mr. Deshmukh Mohit R., Advocate for the appellant.
    Mr. S.S. Patil, Advocate for the respondents.
                                      ----

                                                     CORAM : P.R. BORA, J.

DATE : 30-09-2016.

ORAL JUDGMENT :

1. Appellant has filed the present appeal seeking

enhancement in the amount of compensation awarded to him by

the Motor Accident Claims Tribunal at Beed in M.A.C.P. No. 252 of

2011 filed by him before the said tribunal decided on 14/09/2015.

2 6 fa 679.16.odt

2. The appellant was injured in a vehicular accident and

suffered injuries to his left leg as well as left hand and because of

the injuries so caused to him also incurred some sort of

disablement which has been certified to the extent of 15% by the

treating surgeon. Appellant is a government servant and was 36

years old on the date of accident. At the relevant period he was

drawing salary to the tune of Rs. 19,377/- per month. The

appellant had claimed the compensation of Rs. 10 Lakhs from the

driver, owner and insurer of the offending vehicle. In order to

substantiate the claim so raised by him. Appellant himself deposed

before the tribunal and has also examined Dr. Pramod Shinde, who

has issued a disability certificate certifying the permanent

disablement suffered by him. Appellant had also placed on record

the necessary medical bills evidencing the expenses incurred by

him on his treatment. The appellant had also examined an

employee of his office so as to bring on record that he was required

to take the leave for period of about two months in the period from

02/10/2010 to 30/11/2010. The Appellant had also examined one

Madhukar, as his witness to whom the appellant has allegedly

employed to drive his car which as stated by the appellant he was

required to purchase for attending his office. Respondents though

have filed written statements resisting the claim, no evidence was

adduced on behalf of any of the respondents. Considering the

evidence on record the learned tribunal has awarded total

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compensation of Rs. 1,23,696/- under different heads. Dissatisfied

by the amount of compensation so awarded by the tribunal the

appellant has filed the present appeal.

3. Mr. Deshmukh, the learned counsel appearing for the

appellant submitted that, the tribunal has failed in considering that,

the appellant was constrained to obtain leave in the period between

02/10/2010 till 30/11/2010 for the reason that he was to be

hospitalised in the relevant period and was advised to take full bed

rest during the said period. The learned counsel submitted that,

the said fact has been duly proved by the appellant by examining

an employee from his office namely Shivaji Sonawane. The learned

counsel further submitted that, the appellant also has brought on

record his monthly salary and has accordingly prayed for the

compensation under the head of actual loss of income suffered

because of the said leave but the tribunal has not awarded any

compensation under the said head. The learned counsel submitted

that, the appellant is entitled to be awarded a sum equal to his two

months salary so as to compensate the period of leave which he

was compelled to obtain.

4. The learned counsel further submitted that, it was the

specific contention of appellant before the tribunal that his office is

at the distance of about 15 kms from the place of his residence at

Beed. Learned counsel submitted that it was also brought on

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record by the appellant that the appellant has become incapable of

riding a motor cycle or drive any other vehicle and as such he was

required to purchase a car and was further required to employ a

driver on the said car. The learned counsel submitted that the

appellant has also examined a driver employed by him before the

tribunal and it has come in the evidence of the said driver that the

appellant is paying him monthly salary of Rs.5,000/-. Learned

counsel submitted that, while determining the amount of

compensation the tribunal has erred in not granting any amount

towards the said expenses which are inevitable having regard to the

disability incurred by the appellant.

5. The learned counsel further submitted that, the tribunal

has awarded inadequate amount towards the other heads and has

failed in considering the fact that the permanent disablement

incurred by the appellant will continue for rest of his life resulting in

depriving the appellant form enjoying amenities of life as a normal

human being.

6. The learned counsel has placed reliance on two

judgments of the Hon'ble Apex Court one in the case of S.

Manickam Vs. Metropolitan Transport Corp. Ltd. reported in

AIR 2013 SC P.2629 and another in the case of Subulaxmi Vs.

M.D., Tamil Nadu State Road Corporation and Anr. reported in

2012 AIR SC SCW P.5945. The learned counsel submitted that,

5 6 fa 679.16.odt

the apex court has distinguished that the permanent disability and

loss of earning capacity are the different heads of compensation

and the tribunals are required to consider the entitlement of the

claimant under both the heads. On all these counts the learned

counsel prayed for adequate enhancement in the amount of

compensation so awarded by the tribunal.

7. Mr. Swapnil Patil, learned counsel appearing for the

respondent no.3 i.e. insurance company has supported the

impugned judgment and award. The learned counsel submitted

that, the tribunal has rightly considered evidence on record and the

compensation awarded by the tribunal is just and adequate and

need no enhancement. The learned counsel submitted that, the

evidence on record show that the permanent disability incurred by

the present appellant has not resulted in causing any loss of income

to the appellant. Learned counsel submitted that, it has come on

record that neither the salary income of the appellant has been

decreased nor his chances of getting any promotion are marred by

the injuries and the permanent disability incurred by him.

8. Learned counsel further submitted that, the appellant in

his cross-examination has admitted that, it is mandatory for the

government employees to reside at the place of work. The learned

counsel submitted that, the appellant has further admitted that he

has not obtained the permission from his superior officer for not

6 6 fa 679.16.odt

residing at the work place but to reside at the district place at Beed.

Referring to the admissions so given by the appellant, the learned

counsel submitted that, there is no justification for the claim made

by the appellant towards the inevitable expenses for attending his

duties. The Learned counsel further submitted that, under all the

other heads also the tribunal has awarded reasonable sums, just

and fair in the circumstances of the case, and, as such, no

interference is required in the impugned judgment of award. The

learned counsel, therefore, prayed for dismissal of the appeal.

9. Learned counsel further submitted that, since the period

of leave was duly sanctioned by the office of the appellant and the

salary of the said period has also been paid to the appellant. The

appellant is not entitled to claim any amount towards the salary of

the said period.

10. I have carefully considered the submissions advanced

by the learned counsel appearing for the parties. I have perused

the impugned judgment and the evidence on record. I will prefer to

deal with the issues raised by the appellant as they were raised in

the same chronology.

11. The first ground on which the appellant has sought

enhancement in the amount of compensation is that the tribunal

has not awarded to him the salary of the period of two months in

which he was compelled to take leave because of the injuries

7 6 fa 679.16.odt

caused to him in the alleged accident. On perusal of the impugned

judgment, it is revealed that the tribunal has not accepted the said

request of the appellant observing that, the appellant has received

the salary of the said period from his employer and the said period

has been treated as medical leave of the appellant. The reason

which has been assigned by the tribunal for not awarding the

compensation under the said head apparently is unacceptable. Had

the appellant not met with an accident he perhaps would not have

availed the period of medical leave and the said leaves would have

remained at his credit to be exhausted in future in case of any such

contingency. In the circumstance, on the said count the

compensation under that head could not have been denied by the

tribunal. As has come on record the appellant was receiving

monthly salary to the tune of Rs. 19,377/-per month. The

appellant, thus, deserves to be awarded a sum, of Rs. 38,754/- by

way of the salary of the period of two months and the

compensation amount needs to be enhanced to that extent.

12. The second point urged by the appellant is in respect of

the inevitable expenses which have not been awarded by the

tribunal. It has come on record that, the appellant was required to

purchase a car and also required to employ a driver on the said car.

The said driver has been examined by the appellant and through

the evidence of said driver it has come on record that the appellant

is paying him a salary of Rs.5,000/- per month. In the cross-

8 6 fa 679.16.odt

examination the appellant has admitted that he is expected to

reside at the place of work and he has further admitted he has not

obtained any permission for not residing at the work place.

However, the question is whether the claim of the appellant in this

regard can be outrightly rejected?

13. Since the appellant is residing not at the work place but

at some other place, he as of right cannot claim the conveyance

allowance. However, considering the fact that the appellant has

now become incapable of riding a motor cycle or drive any other

vehicle it cannot be disputed that for every travel long or short, he

will have to take some assistance and he may not be able to

independently travel as a normal person. In the circumstances, it

appears to me that it would be unjust not to award any

compensation to the appellant towards the aforesaid aspect.

Though, it may not be possible to accept the request of the

appellant to award compensation under the said head by

considering the evidence that he has to pay salary of Rs. 5,000/- to

a driver employed by him, some reasonable sum needs to be

awarded so that the aforesaid aspect is taken care of. It appears to

me that if a sum of Rs. 1,00,000 is awarded to the appellant

towards the same that will meet the ends of justice.

14. Towards pain suffering the tribunal has awarded Rs.

25,000/- and on account of loss of amenities the tribunal has

9 6 fa 679.16.odt

awarded a sum of Rs. 15,000/-. The Tribunal has also awarded Rs.

10,000/- for loss of beauty and Rs. 15,000/- towards the future

medical expenses.

15. Having regard to the fact that, the appellant met with

an accident at a young age of 36 and because of the injuries caused

to him in the said accident has sustained such a nature of

permanent disablement that he has become incapable of driving

any vehicle and he may not be able to walk freely and travel

conveniently, the ig compensation as warded by the tribunal

apparently appears unjust and inadequate.

16. The Hon'ble Apex Court in the case of S. Manickam

cited (Supra) has laid down that, the adjudicating authority, while

determining the quantum of compensation, has to take note of the

sufferings of the injured person which would include his inability to

lead a full life, his incapacity to enjoy the normal amenities which

he would enjoy but for the injuries and his ability to earn has as

much as he used to earn or could have earned. The Hon'ble Apex

Court has further held that the compensation under the head

'permanent disability' cannot be devied on the ground that the

substantial amount had been fixed under the head 'loss of earning

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

observed that while computing compensation approach of the

tribunal or a court has to be broad based and sometimes it would

10 6 fa 679.16.odt

involve some guess work and there cannot be precise formula to

determine the quantum of compensation.

17. In another judgment in the case of Subulaxmi cited

(Supra) the Hon'ble Apex Court has observed that the

compensation can be granted towards permanent disability as well

as all future earnings, because one head relates impairment of

person's capacity and the other relates to the severe pain, suffering

and loss of enjoyment of life by the person himself. The Hon'ble

Apex Court has further noted that, the 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 earning and victims inability to lead

a normal life and enjoy amenities which he was enjoying but for the

disability caused due to the accident.

18. In view of the principles and the guidelines as laid down

by the Hon'ble Apex Court, it appears to me that the compensation

awarded to the appellant under the head of pain, suffering and for

loss of amenities in life is inadequate. Having regard to the facts

involved in the present case, elaborated by me herein-before, I

deem it appropriate to enhance the compensation under the

aforesaid heads to Rs. 1,50,000/- in aggregate. The appellant is,

thus, found entitled to the total compensation of Rs. 3,47,450/-

(Rupees Three Lakh Forty Seven Thousand Four Hundred and Fifty).

11 6 fa 679.16.odt

In the facts and circumstances of the case and from the evidence

on record, it appears to me that, this will be just and fair

compensation payable to the appellant. The appeal, thus, deserves

to be allowed to the aforesaid extent and the amount of

compensation needs to be enhanced to the aforesaid extent.

(P.R. BORA) JUDGE

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