Shriram Mudgalrao Naike vs Mahantappa Kore And Ors
2017 Latest Caselaw 1873 Bom

                                  1                      FA 203.2002.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                      FIRST APPEAL NO. 203 OF 2002

             Shriram Mudgalrao Naike,
             age 25 yrs, Occ. Service,
             R/o Khori Galli, Latur. 
             Dist Latur.                         ..Appellant...
                                                 (orig claimant)
             VERSUS

     1.      Mahantappa Kore,
             age 35 yrs, Occ. Driver.     ...R No. 1 abated..

     2.      Mohd. Fakeersaheb s/o Mohd 
             Moinddin, age 45 yrs,   ...R No.2 dismissed.

     3.      United India Insurance Co. Ltd.,
             Chandra Nagar, Latur.            ...Respondents...

                                 ..
     Advocate for Appellant : Mr V G Kodale h/f V D Gunale 
      Advocate for Respondent 3 : Mr S G Chapalgaonkar 
                R No.1 abated, R. No.2 Dismissed.
                                ...
                   CORAM : V.K. JADHAV, J.

Dated: April 20, 2017 ...

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and Award

passed by the Member, motor Accident Claims Tribunal,

dated 29.10.2001, in MACP No.138/1998, the original

applicant-claimant has preferred this appeal to the

extent of quantum.

2 FA 203.2002.odt

2. The learned counsel for the appellant-original

claimants submits that, the appellant-claimant was

working as a Peon on monthly salary of Rs.1,200/- in

Jiwan Vikas Craft Teacher Institute, Latur. The

claimant has also examined witness Manohar Badame

to prove the contents of salary/experience certificate.

Thus said salary certificate is marked at exh.36.

Furthermore, the claimant was also working with one

Shivmurti Milk Agency, Latur. He was working in the

said dairy from 5.00 am to 8.00 am and thereafter

attending his job in the said Jiwan Vikas Craft Teacher

Institute. After the accident, he was removed from the

service by both the employers. Learned counsel

submits that the Tribunal has not considered the

income of the appellant-claimant for grant of

compensation under the head of loss of future income.

Learned counsel submits that the claimant has

produced on record the disablement certificate at exh.14

and the treating orthopedician doctor has recorded

percentage of disablement as 25%. The Tribunal has

not considered said disablement certificate and awarded

the lump-sum compensation by making departure from

3 FA 203.2002.odt

multiplier method. Learned counsel submits that, the

Tribunal has awarded very meager amount under the

non-pecuniary heads and also towards medical

expenses incurred by the claimant.

3. Learned counsel for respondent-insurer submits

that, the claimant has failed to prove his income from

the said milk dairy. Though the claimant was working

as a peon in the said Jiwan Vikas Craft Teacher

Institute, Latur, witness Manohar Badame has not

deposed before the Tribunal that because of the

disablement sustained by the claimant, he was removed

from the job. Learned counsel submits that even the

claimant has not deposed about the consequences of his

so called permanent disablement and as such, the

Tribunal has awarded the compensation for loss of past

income. The Tribunal has awarded the compensation of

Rs.20,000/- under pains and sufferings. The Tribunal

has awarded just and reasonable compensation under

non-pecuniary heads and even though the claimant has

taken treatment in the Government Hospital, awarded

the compensation towards medical expenses. In view of

4 FA 203.2002.odt

the same, no interference is required.

4. Learned counsel submits that the respondent-

insurer has raised a specific defence that the appellant

claimant was travelling as a gratuitous passenger in the

goods vehicle. However, the learned Member of the

Tribunal by relying upon the case of New India

Assurance Company Ltd., Vs. Satpal Singh and

Others reported in AIR 2000 Supreme Court, 235,

held the insurance company liable to pay the

compensation jointly and severally alongwith the owner

and in view of the ratio laid down in the said case, the

respondent-insurer has also paid the entire amount as

per the award passed by the Tribunal to the claimant.

Learned counsel submits that the ratio laid down in the

said case New India Assurance Company Ltd., Vs.

Satpal Singh and Others is subsequently held to be not

good in law and in view of the same, if any additional

compensation is awarded in this appeal, the respondent

owner is liable to pay the same.

5. On perusal of the record and proceeding and

5 FA 203.2002.odt

impugned judgment and award, it appears that the

claimant has not adduced evidence to the satisfaction of

the Tribunal about his earnings from milk dairy. So far

as his salaried income of the claimant is concerned, the

said witness Manohar Badame has only deposed that

the claimant was working as a Peon in his institute for

only one month. He has not stated before the Tribunal

that, his institute has removed the claimant on account

of the permanent disablement sustained by him. The

claimant has also not deposed as to consequences of his

disablement. It is not the case of the claimant that

because of the disablement sustained by him, he is not

able to do his work as peon or he is not able to do any

other work.

6. On perusal of said disablement certificate exh.14

which has been in form comp.'B', it appears that

treating Dr.Golhar has certified permanent physical

disability to the extent of 25% due to loss of bone

hammer toe and soft tissue as well as stiffness to toes.

Though, there is no loss of future income as such, the

Tribunal ought to have awarded certain amount for the

6 FA 203.2002.odt

injuries sustained by the claimant which resulted into

above permanent disablement. In view of the same, the

claimant is entitled for the compensation of Rs.25,000/-

under the head of permanent disablement. The

Tribunal has awarded just and reasonable

compensation under other heads.

7. So far as the submissions made by the learned

counsel for respondent-insurer are concerned, the

respondent-insurer has not preferred any appeal against

the judgment and award passed by the Tribunal

fastening the liability on the respondent-insurer to pay

the compensation jointly and severally alongwith

respondent-owner. Even though, this appeal was

admitted on 8.4.2002 and ratio laid down in the said

New India Assurance Company Ltd., Vs. Satpal Singh

and Others held to be not good in law by the Supreme

Court in New India Assurance Company Ltd., Vs.

Asha Rani and others reported in (2003) 2 Supreme

Court Cases 223, the respondent-insurer has not filed

any cross objection/appeal alongwith the condonation

of delay, if any. On the other hand, respondent-insurer

7 FA 203.2002.odt

has accepted the liability and paid the entire amount

under award to the claimant.

8. In view of the above, with the above modifications,

the appeal is disposed of. Hence, following order.

O R D E R

i. First Appeal is hereby partly allowed.

ii. The judgment and Award dated 29.10.2001 passed by the Member, Motor Accident Claims Tribunal, Latur in MACP No. 138/1998 is hereby modified in the following manner :-

a] The respondents do jointly and severally pay the claimant compensation of Rs.52,400/- (Rs. Fifty Two thousand four hundred only) (inclusive of 'No Fault Liability' amount of Rs.25,000/- which is already paid) with simple interest @ 9% p.a. thereon from the date of petition till the realization of the entire amount.

iii. Rest of the judgment and award stands confirmed.

iv. Award be drawn up as per the above modifications accordingly.

                                          8                       FA 203.2002.odt

           v.       Needless to say that, if, any amount is paid as 

per the judgment and award passed by the Tribunal, the same shall be the part of the above modified award.

vi. Appeal is accordingly disposed of.

sd/-

( V.K. JADHAV, J. ) ...

aaa/-