Icici Lombard General Insurance ... vs Vishal Madhukar Shimpi
2017 Latest Caselaw 6436 Bom

Sherla V.


                                                                                 fa.1187.2014_2.doc


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION

                                     FIRST APPEAL NO.1187 OF 2014

            ICICI Lombard General Insurance Company Ltd. ... Appellant

                     Vs.

            Vishal Madhukar Shimpi & anr.                           ... Respondents


            Mr.Nikhil Mehta i/b M/s.KMC legal Venture for the Appellant

            Mr.T.J. Mendon, for Respondent No.1


                                                CORAM: Mrs.MRIDULA BHATKAR, J.

DATED: AUGUST 22, 2017

ORAL JUDGMENT:

1. Admit.

2. As the issue involved is short, by consent of the parties,

Appeal is heard finally.

3. The First Appeal challenges judgment and award dated

21.2.2008 passed by the learned Member, Motor Accident Claims

Tribunal, Palghar in MACP No.174 of 2005, thereby partly allowing

the claim filed by the applicant, who was injured in the accident.

The Tribunal has awarded compensation of Rs.114343/- including

the amount of No Fault Liability alongwith 9% interest p.a. On the

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remaining amount of compensation i.e., excluding NFL amount

from the date of the petition i.e., 21.9.2005.

4. The applicant was travelling in an auto rickshaw on

28.4.2005 and one motor cycle while overtaking the vehicle,

dashed against the auto rickshaw and in the said accident, the

applicant fell on the road. He sustained severe injuries to his

elbow, back, hand and lost two maxillary teeth. At the time of the

accident, he was 23 years old and earning Rs.1500/- per month.

He spent medical expenses to the tune of Rs.40,000/- and had

sustained partial permanent disability to the extent of 28%. hence,

he filed the claim application for compensation against the

opponent owner of the motor cycle and the opponent No.2, the

insurance company, with whom the vehicle i.e., the motor cycle

was insured. The insurance company i.e., respondent No.2

appeared in the claim; filed written statement; opposed the case

on the basis of rash and negligent driving of the motor cyclist. The

claimant examined himself and also on the point of disability and

the injuries, one Dr.Jadhav, who confirmed partial permanent

disability had noticed to the tune of 28%. The trial Court

considered the evidence and the defence and fixed the notional

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income of Rs.3,000/- per month of the insured claim. The Tribunal

fixed the multiplier of 17 and granted compensation for loss of

earning capacity of Rs.61,200/-. It also granted Rs.5,000 for pain

and suffering, Rs.39143 for medical expenses. For loss of income,

the notional income was fixed at Rs.3,000/- p.m. and thus,

awarded compensation of Rs.114,343/-. The insurance company

challenged the amount of compensation on the ground that the

compensation awarded is excessive and hence, this appeal.

5. Learned Counsel for the appellant has submitted that the

main objection is that the trial Court has not stated anything about

the nature of job of the claimant and without giving any reasoning

in respect of job, especially the nature of the job, it has adopted

the multiplier at 17 and erroneously fixed the amount of

compensation for loss of earning, which is on a higher side. The

learned Counsel relied on the judgment of the Supreme Court in

the case of Raj Kumar vs. Ajay Kumar & anr. 1 and has submitted

that the trial Court has rightly applied the multiplier at 17 and has

supported the order passed by the learned Member.

1 (2011) 1 SCC 343

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6. Perused the judgment; the documents placed before the

Court by the learned Counsel for both sides. The issue is only in

respect of quantum, especially regarding applicability of multiplier.

In view of the specific facts of this case, the multiplier is adopted

with a view to quantify the income of the person in future so that

the possible loss of income can be covered up to certain extent by

applying a theory of multiplier.

7. In Raj Kumar vs. Ajay Kumar & anr. (supra), the Supreme

Court has laid down the three steps to ascertain the effect of

permanent disability on the actual earning capacity of the injured.

They can be summarised as follows:

i) The Tribunal has to ascertain what activities the

claimant could carry on in spite of the permanent disability

ii) To examine his profession, service or avocation and

nature of the same.

iii) To find out whether the claimant is totally disabled from

earning any kind of livelihood or is partially disabled from his

earning capacity or whether he is totally prevented and

restricted from discharging his previous activities and

functions.

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8. In the present case, the applicant/claimant has lost two

maxillary teeth. It appears that at that time, the applicant was a

student but there is no specific evidence declared by him and,

therefore, the trial Court has considered the notional income at

Rs.3,000/-. It is necessary to consider the effect of the injury. The

loss of death at the age of 23 years definitely amounts to

permanent injury. Though teeth can be substituted or implanted, it

is a permanent loss of a natural body part. So, it is a permanent

disability. The Dental doctor who had examined the claimant has

stated that it is a partial permanent disability to the extent of 28%

and it is rightly rejected by the Tribunal and held that it was partial

permanent disability to the extent of 10%. I do not want to disturb

that finding. However, while applying the multiplier, though there is

a set formula prescribed in Sarla Varma & Ors. vs. Delhi

Transport Corporation2, while deciding the amount of

compensation in the case of the injured and applying the multiplier,

the court has to follow the principles laid down in Raj Kumar vs.

Ajay Kumar & anr (supra). The loss of earning capacity depends

on the nature of job of the claimant. Loss of maxillary teeth is a

great loss for a model or an actor or an actress depending on the 2 (2009) 6 SCC 121

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profession. However, unless it is specifically brought on record, it

is difficult to assess how the loss of two maxillary teeth is going to

affect adversely the earning capacity of the claimant. Therefore, I

am not in agreement with the view taken by the Tribunal in respect

of adopting 17 as multiplier.

9. While hearing the arguments of the learned Counsel for both

sides, it was submitted that the claimant was unmarried and 23

years old and loss of 2 teeth has caused disfigurement of his face,

which is true. Apart from disfigurement, there is also discomfort

throughout to the claimant and that is to be measured in terms of

money and thus, under the head of discomfort and disfigurement, I

am of the view that the remaining amount which is reduced from

the head of multiplier can be adjusted and thus, there is no change

in the amount awarded by the Tribunal and thus, on the point of

quantum, the appeal fails.

10. The amount of Rs.25,000/- which was deposited at the time

of admission of the appeal, if any, to be transferred to the Motor

Accident Claims Tribunal and the same be allowed to be

withdrawn.

fa.1187.2014_2.doc

11. First Appeal is disposed of accordingly.

12. In view of the disposal of the First Appeal, Civil Application

No.3690 of 2008 does not survive and the same is disposed of

accordingly.

(MRIDULA BHATKAR, J.)