Shaikh Kamal Shaikh Bapuji vs Kailash Nanabhau Bhogawade & Ors
2017 Latest Caselaw 5901 Bom

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

                 FIRST APPEAL NO. 1439 OF 2007

Shaikh Kamal s/o Shaikh Bapuji,
age 42 years, occ. Driver,
R/o Lane No. 12, Sadat Nagar, 
Railway Station, Aurangabad,
District Aurangabad                              ... Appellant
                                                 Orig. Claimant

                VERSUS

1]   Kailash s/o Nanabhau Bhogawade,
     age major, occ. Driver,
     R/o Golegaon, Tq. Shirur,
     District Pune,

2]   Vitthal s/o Baban Hinge,
     age major, occ. Business, 
     R/o Khandale, Post Ranjangaon,
     Ganpati, Taluka Shirur,
     District Pune,

3]   National Insurance Co. Limited,
     through Divisional Manager,
     Hazari Chambers, Station Road, 
     Aurangabad, 
     District Aurangabad          ... Respondents

                       .....
Mr. S.G.Chapalgaonkar, advocate for the appellant
Mr. R.C.Bafna, advocate h/f
Mr. P.F.Bafna, advocate for respondent no.3
                       .....



                                  CORAM : K.L.WADANE, J.

                  RESERVED ON  : 10.08.2017
               PRONOUNCEMENT ON : 14.08.2017




::: Uploaded on - 14/08/2017                  ::: Downloaded on - 15/08/2017 02:42:09 :::
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J U D G M E N T  :

Being aggrieved by the judgment and award,

passed by the Motor Accident Claims Tribunal,

Aurangabad, in Motor Accident Claim Petition No.

233 of 2002, dated 19.4.2004, by which the claim

of the claimant/appellant was partly allowed, the

original claimant has preferred this appeal for

enhancement of compensation.

2. Brief facts of the case are as follows.

The parties are hereby referred by their

original status. The claimant was driver of tempo

bearing registration No. MH-20/A-5568 from Pune to

Aurangabad. At about 1.00 a.m. a truck bearing

registration No. MH-14/F-7805 driven by opponent

no.1 came with high speed from opposite side and

gave tremendous dash to the tempo, due to which

tempo turned turtle. The accident occurred due to

negligence of the truck driver opponent no.1 owned

by opponent no.2 and insured with opponent no.3.

In the accident, the claimant received fracture

injury to his leg. Therefore, he was taken to the

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hospital. After medical treatment the claimant

was discharged and the concerned doctor assessed

his permanent disability initially at 15 per cent

and after six months it is assessed to the extent

of 32 per cent. Hence, the claimant has claimed

total compensation of Rs. Four Lacs on all counts.

3. Opponent nos. 1 and 2 did not appear.

Opponent no.3 insurance company resisted the claim

on the ground that the truck driver was not

holding driving license and the owner and the

insurer of the tempo have not been joined as

necessary parties and thirdly the claimant himself

was negligent while driving the vehicle.

4. I have heard Mr. Chapalgaonkar, learned

counsel appearing for the claimant/appellant and

Mr. Bafna, learned counsel for respondent no.3

insurance company.

5. During the course of arguments, both the

learned counsel for the parties have restricted

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their arguments to the extent of quantum of

compensation only. Therefore, it is not necessary

to discuss the other evidence on record. Further

more, the learned counsel for the parties have not

argued about the percentage of negligence

determined by the learned Tribunal i.e. 80 per

cent of respondent no.1 and 20 per cent of the

claimant. So, only question remains about

examination of the pleadings and oral as well as

documentary evidence on record to know whether the

learned Tribunal has properly assessed the

compensation or not.

6. The details of compensation awarded by the

Tribunal are given in last para of the judgment.

1. Pain and suffering Rs.15,000/-

2. Expenses including of all Rs.15,000/-

3. Loss of 3 months earning Rs. 9,000/-

4. Compensation for loss of Rs.10,000/-

amenities of life

5. Loss of capacity to earn Rs.15,000/ in future

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7. From the evidence on record and

observations of the learned Tribunal, it appears

that in absence of specific evidence, the learned

Tribunal has fixed the monthly earning of the

claimant to the extent of 3,000/- per month.

Considering the date of accident, I am of the

opinion that such assessment of the monthly

earning is proper. The receipt issued by Dr. Kabra

is placed on record and from the said receipt it

appears that the medical expenses incurred by the

claimant are to the tune of Rs.15,000/-. So, the

compensation determined at Sr. Nos. 1 to 4, as

referred above, appears to be just and proper,

however, the compensation assessed by the learned

Tribunal on account of loss of earning capacity in

future is estimated to the extent of 15,000/-

only.

8. There is no dispute that at the time of

accident, the claimant was holding a valid driving

license, and therefore, his earning is considered

to the extent of 3,000/- per month. The learned

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Tribunal has refused to award the loss of future

earning of the claimant/appellant only because the

license of the claimant is renewed thereafter.

Even accepting that the claimant has renewed his

driving license, it does not mean that he has not

lost his earning capacity, since he has received

fracture injury to his leg and implants were fixed

in the leg. Subsequently after about one year,

those implants were removed. Considering the

nature of injury and percentage of disability i.e.

to the extent of 32 per cent, definitely working

capacity of the claimant is reduced to some

extent. With such disability the claimant will

not be able to drive the heavy vehicle

continuously. Therefore, his loss of future

earning has to be considered to the extent of

percentage of disability caused to the claimant.

Therefore, to that extent the amount of

compensation has to be calculated based upon the

reduction of working capacity to the extent of 32

per cent.

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9. The yearly income of the claimant is

considered to be 36,000/-, out of which 1/3 rd is to

be deducted for self-expenses. After such

deduction, it comes to 24,000/- per annum.

Applying 32 per cent functional disability, the

claimant/appellant will be entitled to the

compensation of 32 per cent of 24,000/-, which

comes to Rs. 7,680/-. At the time of accident the

claimant was aged about 42 years and there is no

dispute about the same. Looking to the age of the

claimant, it appears, the proper multiplier of 14

is applicable. Hence, Rs.7,680 x 14 comes to

Rs.1,07,520/- plus the proper compensation

determined by the Tribunal on account of pains and

sufferings, medical expenses, loss of salaries and

loss of amenities in the life is calculated to the

extent of 49,000/-. Hence, total comes to

Rs.1,56,520/-, out of which the claimant is

entitled to the extent of 80 per cent, which comes

to Rs.1,25,216/-, together with six per cent

interest per annum from the date of petition till

its realization.

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10. Hence, the following order.

(i) The appeal is partly allowed.

(ii) The opponents are jointly and severally liable to pay the compensation to the claimant to the extent of Rs.1,25,216/-, together with six per cent per annum interest from the date of petition till its realization.

(iii) The impugned award stands modified accordingly.

(iv) The appeal is disposed of with no order as to costs.

(K.L.WADANE, J.)

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