Jabbar Maliksab Bagwan vs The Maharashtra State Road ...
2017 Latest Caselaw 4092 Bom

                                         1                    FA NO.678/2002


       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                   FIRST APPEAL NO.678 OF 2002


           Jabbar s/o Maliksab Bagwan,
           Age 38 years, Occu. Business,
           (Now nil), R/o Ahmedpur,
           Tq. Ahmedpur, District Latur.
                                                ...APPELLANT
                                              (ORIG.CLAIMANTS)
                   VERSUS

  1.       The Maharashtra State Road
           Transport Corporation, through
           it's Divisional Controller,
           Latur, Taluka: Latur,
           District Latur.

  (2.      Rajendra Kishanrao,
           Age 45 years, Occu: Driver,
           R/o. Nwai, Taluka Bhalki,
           District: Bidar ( K.S.).)

  (Appeal dismissed against R.No.2 vide Registrar's order
  dated 24.2.2004.)
                                   ...RESPONDENTS
                                   (Orig.Respondents)
                             ...
  Mr. Fayaz K.Patel, Adv., h/f Mr. N.B.Patil ( Raiwadikar),
  Advocate for the appellant.
  Mrs. R.D. Reddy, Advocate, for respondent no.1.
                             ...
                   CORAM: P.R.BORA, J.

DATE :JULY 6th, 2017

***

2 FA NO.678/2002

ORAL JUDGMENT:

1. Present Appeal is filed against the judgment and

award passed by the Motor Accident Claims Tribunal at

Latur on 24th of December, 2001, in M.A.C.P.

No.557/1998.

2. The appellant had filed the aforesaid claim

petition claiming compensation on account of the injuries

caused to him in a vehicular accident happened on 22nd of

May, 1998, while he was travelling by a State Transport

Bus from Ahmedpur to Hyderabad. In the accident so

happened, the appellant received severe injuries to his

right hand. It was virtually crushed in the accident and

eventually, was required to be amputated. It was the

case of the appellant that he was carrying on the business

of selling fruits on a hand cart and used to earn around

Rs.100/- to Rs.150/- per day. It was the further

contention of the appellant that since in the alleged

accident he lost his right hand, he could not carry on the

said business and has, thus, lost his future earning

capacity. The appellant had, therefore, claimed

3 FA NO.678/2002

compensation of Rs.3,00,000/- ( Rs. three lakhs) from the

State Transport Corporation towards his future loss of

income, towards pain and suffering, loss of amenities and

towards the medical expenses. As per the case of the

appellant, he had incurred 80 per cent permanent

disability because of the injuries caused to him in the

alleged accident.

3. The claim petition was resisted by the S.T.

Corporation on various grounds. A plea of contributory

negligence was also taken by the S.T. Corporation. The

Tribunal, however, did not consider the said plea and held

the negligence of the driver of the S.T.Bus responsible for

occurrence of the alleged accident. The Tribunal,

however, determined the amount of compensation on

lumpsum basis and held the appellant entitled for the total

compensation of Rs.1,50,000/- ( Rs. one lakh, fifty

thousand) inclusive of No Fault Liability compensation.

Aggrieved thereby, the claimant had preferred the present

appeal seeking enhancement in the amount of

compensation as awarded by the Tribunal.

4 FA NO.678/2002

4. Learned Counsel appearing for the appellant

submitted that the Tribunal has completely ignored the

income as was being earned by the appellant before his

meeting with the accident. Learned Counsel submitted

that the Tribunal has also not considered that because of

amputation of his right hand, the appellant had become

incapable of carrying on business in future and thus has

totally lost his future earning capacity. Learned Counsel

submitted that in such circumstances, the Tribunal must

have allowed the claim in toto since the appellant had

claimed a very reasonable sum of compensation

amounting to Rs.3,00,000/- ( Rs. three lakh). Learned

Counsel submitted that the Tribunal has nowhere

discussed or provided any justification for awarding the

compensation of Rs.1,00,000/- towards future loss of

income of the appellant. Learned Counsel further

submitted that the Tribunal has also not adequately

awarded non pecuniary damages. Learned Counsel

submitted that the claim as was filed by the claimants

should have been awarded in full and he, therefore, prayed

for modification of the award to the said extent.

5 FA NO.678/2002

5. Smt. Reddi, learned Counsel appearing for the

respondent Corporation, supported the impugned

judgment. Learned Counsel submitted that the Tribunal

has rightly determined the amount of compensation and

no interference is required in the impugned judgment and

award.

6. I have carefully perused the impugned

judgment as well as the evidence on record. It is not in

dispute that the appellant suffered severe injuries to his

right hand and ultimately the right hand was required to

be amputated. Though there is no concrete evidence as

about the income of the appellant, the fact remains that it

is not in dispute that the appellant was carrying on the

business of selling fruits on hand cart. A reasonable

inference can be drawn that after the accident, the

appellant may not be able to carry on the business of

selling fruits on hand cart as efficiently as he was carrying

out before meeting with the accident. It is to be borne in

mind that it may not be possible for a small fruit vendor

to bring on record any documentary evidence as about his

income. In the circumstances, the only possible mode for

6 FA NO.678/2002

the Tribunal to assess the income of the appellant is by

doing some guess work. The Tribunal has, by adopting the

said mode, held the income of the appellant to the tune of

Rs.30/- to Rs.40/- per day. It does not appear to me that

the Tribunal has committed any error in doing so.

However, while awarding the compensation, the Tribunal

must have further considered that the appellant may not

be able to enjoy the amenities of life as a normal person

because of amputation of his right hand. It further cannot

be ignored that the pain and suffering which the appellant

undergone during the period of his treatment also needs to

be adequately compensated. It has also to be considered

that though the injury appears to be only to the right

hand, having regard to the nature of the business, the

appellant was carrying on, it may seriously affect his

earning capacity to a considerable extent.

7. Considering the aforesaid circumstances and

more particularly, the age of the appellant / claimant at

the time of happening of the accident, I deem it

appropriate to enhance the amount of compensation from

Rs.1,50,000/- ( Rs. one lakh fifty thousand) to

7 FA NO.678/2002

Rs.2,50,000/-( Rs. two lakh, fifty thousand). It appears

to me that this would be the just and fair compensation

payable to the appellant claimant for the injuries suffered

and the disablement incurred by him because of the

accidental injuries.

The First Appeal, therefore, stands allowed in the

aforesaid terms. The appellant will be entitled for the

enhanced amount of compensation along with interest at

the rate of nine per cent per annum from the date of

petition till its realization. Award be drawn accordingly.

(P.R.BORA) JUDGE ...

AGP/678-02fa