Dilip Babanrao Sabde (Yelam) vs Jauddin Kanru Shaikh And Ors
2017 Latest Caselaw 1554 Bom

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                                                           139 FIRST APPEAL 402 OF 2000.odt


               THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        BENCH AT AURANGABAD.


                            FIRST APPEAL NO. 402 OF 2000

Dilip s/o Babanrao Sabde (Yelam)
Age 32 years, Occu. Agril. & Service,
R/o Jalgaon Yelamwadi,
Tq. Shrirampur, Dist. Ahmednagar.                      ... APPELLANT
                                                      (Original Claimant)

                   V E R S U S


1.         Shri. Jauddin Kankaru Shaikh,
           Age Major, Occu. Motor owner,
           R/o 2923, Chowk Mandi,
           Nashik, Dist. Nashik.

2.         Branch Manager,
           The New India Assurance Co. Ltd.,
           Abott Building, near Ashok Hotel,
           Zendi Gate, Ahmednagar.                     ... RESPONDENTS
                                                      (Original Opponents)

                                     ...
Mr. V. S. Bedre, Advocate for Appellant.
Mr. D. S. Kulkarni, Advocate for Respondent No.2.
                                    ...


                                           CORAM  : V. K. JADHAV, J.

                                           DATE     :  10th April, 2017.

ORAL JUDGMENT: 
 
.                  Being aggrieved by the judgment and award passed by

the learned Member of the Motor Accident Claims Tribunal,

139 FIRST APPEAL 402 OF 2000.odt

Ahmednagar dated 14th January, 2000 in MACP No.568 of 1992, the

original Claimant has preferred this appeal to the extent of quantum of

compensation.

2 Brief facts giving rise to the present appeal are as follows:

a) On 7th August, 1992, the Appellant / original

Claimant was driving his motorcycle on

Ahmednagar - Manmad road. On way near Rahuri

factory, one truck bearing registration No.MHX

7114 came from opposite direction and gave dash

to his motorcycle. In consequence of which, the

Appellant / Claimant has sustained the injuries on

his right leg, which resulted into permanent

disablement to the extent of 100%. The Appellant /

Claimant has approached to the Motor Accident

Claims Tribunal, Ahmednagar by filing MACP

No.568 of 1992 for grant of compensation under the

various heads. It has been contended in the claim

petition that the accident occurred on account of

rash and negligent driving on the part of the driver

139 FIRST APPEAL 402 OF 2000.odt

of the truck. The Appellant / Claimant is

agriculturist by occupation and also employed

privately. On account of permanent disablement to

the extent of 100% sustained by the Claimant, the

Claimant has lost his income from agriculture

source, transportation and private service. The

Claimant has also incurred huge medical expenses.

b) Respondent No.1 failed to appear and file written

statement. Therefore, the hearing of the claim

petition ordered to proceed ex-parte against him.

Respondent No.2 / Insurer has strongly resisted the

claim petition by filing the written statement. It has

been contended that the driver of the truck was

responsible for the accident and on the other hand,

it has been contended that the accident had taken

place on account of rash and negligent driving on

the part of the Claimant himself.

c) The Appellant / Claimant has adduced oral and

documentary evidence in support of his

contentions. Respondent / Insurer has not adduced

139 FIRST APPEAL 402 OF 2000.odt

any evidence. The learned Member of the Motor

Accident Claims Tribunal, Ahmednagar vide its

impugned judgment and award, partly allowed the

claim petition and thereby directed the

Respondents jointly and severally to pay the

compensation of Rs.1,55,500/- inclusive of no fault

liability to the Claimant alongwith interest at the rate

of 9% per annum from the date of application till

actual payment. Hence, this appeal preferred by

the original Claimant to the extent of quantum of

compensation.

3 The learned counsel for Appellant / original Claimant

submits that the Claimant was giving his vehicle tractor to the sugar

factory on hire basis for carrying the sugarcane from the field to the

sugar factory. Furthermore, the Claimant was also doing private

service and working as a driver on the vehicle of one Karbhari Yenge.

The Claimant was also personally cultivating his agricultural land

situated at village Yelamwadi. However, the learned Member of the

Tribunal has not considered the income of the Claimant from any of

the aforesaid sources and awarded the lump sum compensation of

139 FIRST APPEAL 402 OF 2000.odt

Rs.50,000/- on account of disablement sustained by the Claimant.

The learned counsel submits that so far as the income from the

agriculture source is concerned, the Claimant had engaged a

manager to look after the landed property on monthly payment of

Rs.1,500/-. However, the Tribunal has not considered the same. The

learned Member of the Tribunal has not awarded the compensation

towards loss of future income by applying the multiplier method.

4 The learned counsel for Respondent / Insurer submits that

the Claimant has not suffered from any permanent disablement. The

permanent disablement certificate Exhibit - 36 does not speak about

the permanent disablement sustained by the Claimant. Even Witness

Dr. Dilip Shirsath has admitted in his cross-examination that the

Claimant can walk without crutches or assistance. The learned

counsel submits that even tough the Claimant has examined Witness

Subhash Gambhire, Accountant of the sugar factory about the vehicle

owned and possessed by the Claimant, hired by the sugar factory and

produced extract of account regarding payments, there is no loss in

the said income since the Claimant has employed one driver for

carrying the sugarcane in the said tractor engaged by the sugar

factory and as such, there is no loss in the income. The learned

139 FIRST APPEAL 402 OF 2000.odt

counsel submits that there is no evidence about private employment

and the learned Member of the Tribunal has rightly observed that

there was no reason for the Claimant to work as a driver on the

vehicle of others. Thus, considering the nature of disablement and

the so-called loss in the agricultural income on account of lack of

personal and skilled supervision on the part of the Claimant, the

Tribunal has rightly awarded the lump sum compensation under the

head of permanent disablement. The learned Member of the Tribunal

has awarded just and reasonable compensation. No interference is

required.

5 On careful perusal of the evidence and the judgment and

award passed by the Tribunal, most particularly the evidence of

Witness Dr. Dilip Shirsath and the disablement certificate Exhibit - 36,

it appears that the said certificate Exhibit - 36 issued in From Comp.

'B'. Under clause (b) of the said certificate, wherein the permanent

disablement in respect of impairing of the power of joint knee and

lower limbs are considered and accordingly Witness Dr. Dilip Shirsath

has deposed in terms of the said certificate Exhibit - 36. He has

made it clear that on account of said permanent disablement

sustained by the Claimant, he is unable to drive the vehicle. On

139 FIRST APPEAL 402 OF 2000.odt

careful perusal of the said certificate Exhibit - 36, I find that the

Claimant has sustained (i) closed fracture shaft femur right side

middle 1/3rd, (ii) closed fracture shaft femur lower 1/3 rd left side, (iii)

Acromioclavicular dislocation left grade II with fracture lateral and

clavicle, (iv) closed fracture lower end tibia right, (v) head injury with

concussion, and (vi) C.L.W. 2"x2"x 2 mm right foot. It appears that

the Claimant is not in a position to cultivate his land personally. So far

as the observations of the Tribunal in respect of the so-called private

employment of the Claimant is concerned, I fully agree with the

observations made so. There was no reason for the Claimant to work

as a driver on the vehicles of other person when the Claimant himself

has adduced an evidence that for carrying the sugarcane to the sugar

factory by giving his own tractor to the factory on hire basis, he has

employed one driver on monthly salary. So far as income from the

source of giving the vehicle tractor on hire basis to the sugar factory is

concerned, the learned Member of the Tribunal has rightly held that

there is no loss in the said income on account of permanent

disablement sustained by the Claimant. However, the Tribunal has

not considered the loss of agricultural income on account of lack of

personal and skilled supervision on the part of the Claimant. The

139 FIRST APPEAL 402 OF 2000.odt

Claimant has also deposed before the Tribunal that he has engaged

one person on monthly salary of Rs.1,500/- for looking after the

agricultural land, which is situated at village Yelamwadi. In view of

this, the Tribunal ought to have considered the loss in the form of

salary being paid to the said person to look after the agricultural land.

In view of this, if loss of Rs.1,500/- per month is considered in the

agricultural income on account of lack of personal and skilled

supervision on the part of the Claimant, the Claimant is entitled for an

amount of Rs.2,88,000/- by applying the multiplier 16 in consonance

with his age at the time of accident. So far as other heads are

concerned, the Tribunal has awarded just and reasonable

compensation including the non-pecuniary heads. No interference is

required.

6 The learned counsel for the Respondent / Insurer submits

that though the accident had taken place in the year 1992, the

Tribunal has passed the award in the year 2000 and therefore, the

interest may be granted from the date of award and not from the date

of application. The learned counsel for the Appellant submits that as

a rule, the interest is required to be awarded from the date of

application. Considering the above submissions, the Claimant is

139 FIRST APPEAL 402 OF 2000.odt

entitled for the interest on the award as per the modification above at

the rate of 6% from the date of application till the judgment and award

passed by the Tribunal and at the rate of 9% from the judgment and

award passed by the Tribunal till realization of the entire amount.

7 In view of the above discussion, the break up of

compensation under the various heads, which can be broadly

categorized is as under:

     Sr.                    Particulars of the head                    Amount in
     No.                                                                Rupees
      1) Towards loss of future income

(as against Rs.50,000/- awarded by the Tribunal) Rs.2,88,000/-

2) Towards hospitalization and medical bills (as awarded by the Tribunal) Rs.53,000/-

3) Towards pains & sufferings and loss of amenities in life etc. (as awarded by the Tribunal) Rs.25,000/-

4) Towards conveyance charges (as awarded by the Tribunal) Rs.10,000/-

5) Towards loss of income for about eight months (as awarded by the Tribunal) Rs.16,000/-

      6) Towards damage to the motorcycle
         (as awarded by the Tribunal)                               Rs.1,500/-
                                                        Total = Rs.3,93,500/-



8                 The Appellant / Claimant is entitled for the total amount of

compensation as worked out hereinbefore. However, in the light of

the above discussion, the impugned judgment and award passed by

139 FIRST APPEAL 402 OF 2000.odt

the Tribunal requires modification. Hence, the following order:

O R D E R

I. The appeal is, hereby partly allowed with

proportionate costs.

II. The judgment and award passed by the learned

Member of the Motor Accident Claims Tribunal,

Ahmednagar dated 14th January, 2000 in MACP

No.568 of 1992, is hereby modified in the following

manner:

"The Opponent Nos.1 and 2 do jointly and severally pay compensation of Rs.3,93,500/- (Rupees Three Lacs Ninety- Three Thousand and Five-Hundred Only) inclusive of no-fault liability to the Claimant together with interest on the award as per the modification above at the rate of 6% from the date of application till the judgment and award passed by the Tribunal and at the rate of 9% from the judgment and award passed by the Tribunal till realization of the entire amount."

139 FIRST APPEAL 402 OF 2000.odt

III. Rest of the judgment and award stands confirmed.

IV. Award be drawn up as per the above modification.

V. Needless to say that if any amount is deposited and

paid to the Claimant as per the judgment and award

passed by the Tribunal, the same shall be the part

of the judgment and award as per the above

modification.

VII. The appeal is accordingly disposed of.

[ V. K. JADHAV, J. ] ndm