Subhash S/O Shriramsa Gulhana vs Rajendraprasad S/O Ramjit Yadav & ...
2017 Latest Caselaw 4511 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                            FIRST APPEAL NO.202 OF 2006



Subhash s/o Shiramsa Gulhane 
aged about 36 years, Occupation : Agriculturist 
and Stone Mine Owner, resident of Hiwra Bk. 
Tahsil Nandgaon Kh. District Amravati.                            ... Appellant. 

-vs-

1.  Rajendraprasad s/o Ramjit Yadav
     aged about 38 years, Occ. Motor truck 
     driver, r/o Kewra Kala, P. S. Kalatpur,  
     Dist. Pratapgarh (U.P) 

2.  S. C. Singh, aged about : now known,
     occupation: Motor Truck Operation Owner 
     of Motor Truck, resident of Thane. 

3.  Oriental Insurance Company,
     Through its Divisional Manager, 
     Division Office, Amravati, Badnera road, 
     Amravati, Tahsil and Dist. Amravati.                         ... Respondents. 
 

Shri A. S. Mardikar, Advocate for appellant. 
Ms M. M. Naik, Advocate for respondent No.3. 


                CORAM  :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JULY 14, 2017

Oral Judgment :

This appeal is preferred by the original claimant, being not

satisfied with the amount of compensation granted by the Motor Accident

Claims Tribunal, Amravati, vide its judgment and order dated 10/11/2005

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in Claim Petition No.26/1999, which was filed under Section 166 of the

Motor Vehicles Act, 1998 seeking compensation of Rs.10,00,000/-; whereas

the Tribunal has awarded compensation fo Rs.1,00,000/- only.

2. Brief facts of the appeal can be stated as follows :

On 14/10/1998 at about 16.15 hours, while appellant was

boarding in a jeep bearing No.MH-25/4174, in front of Mahalaxmi Saw Mill

on Badnera-Akola road, a truck bearing No.MCU/3512 came from backside

and knocked him. As a result, the appellant fell down and sustained injury.

He was admitted in General Hospital at Amravati where it was found that he

has sufferred the fracture to his right leg. It was revealed that he required

better treatment and hence he was admitted in private hospital as indoor

patient till 03/11/1998. Thereafter he was asked to take rest for six months.

The said injury resulted into 10% permanent disability and therefore he filed

claim petition case against the respondent Nos.1 to 3 herein who are the

driver, owner and Insurance Company respectively of the offending vehicle

truck.

3. According to the appellant, at the time of accident, he was 36

years of age and doing agriculture and earning Rs.10,000/- per month. He

was also about to start crushing stones business, from which he was

expecting at least Rs.10,000/- per month as net income. Having regard to

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his present income, the furture prospects and the medical expenses incurred

by him, totally he claimed compensation of Rs.10,00,000/- from respondent

Nos.1 to 3 jointly and severally.

4. This petition came to be resisted by respondent No.3, the

Insurance Company vide its written statement Exhibit-25 denying the factom

of accident and also the rash and negligent driving of the truck driver and

further also denying that in the said accident though appellant sufferred

permanent disability, and his income from agricultural produce and from

business sufferred. According to respondent No.3, the amount of

compensation claimed by the appellant was exorbitant and the petition

should be dismissed.

5. In support of his plea, the appellant examined himself and also

led the evidence of Dr Ganesh Narayan Pundkar. The appellant further

relied on the certified copy of the FIR Exhibit-43, spot panchanama Exhibit-

44 and 7/12 extract of the land.

6. In the light of above evidence and documents placed on record,

the learned Tribunal was pleased to hold that having regard to alleged

permanent disability of 10%, which was not proved by examining

Government doctor and which has also not resulted into any loss of income

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to the appellant, the compensation of Rs.1,00,000/- would be just and

reasonable.

7. Being aggrieved thereby, the submissions of learned counsel for

appellant is that the Tribunal should have taken into consideration the future

prospects of the appellant. It is submitted that appellant has sufficiently

brought on record the evidence to show that he was about to start the

business of crushing stone. Now on account of his disability, he is not in a

position to discharge his duties. He has also sufferred the pain, loss of estate

and mental agony due to the injury and these factors have not been taken

into consideration by the Tribunal, therefore the amount of compensation

awarded by the Tribunal being meagre and inadequate, the said amount

needs to be enhanced.

8. Per contra, learned counsel for respondent No.3 has supported the

judgment of the Tribunal by pointing out that the disability sufferred by the

appellant cannot be called as permanent in view of the admission given by Dr

Pundkar that there will be only little obstacle appellant in discharging his

routine activities, as the fracture was totally united. Thus according to

learned counsel for respondent No.3, the amount of compensation awareded

by the Tribunal being already on higher side, no interference is warranted in

the impugned judgment.

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9. In view of these rival submissions, advanced before me by learned

counsel for the parties, the only issue which arises for my determination is

whether the amount of compensation awarded by the Tribunal is just, legal

and correct or it calls for any interference ?

The factum of accident and involvement of truck driven by

respondent No.1, owned by respondent No.2 and insured with respondent

No.3 is not disputed. It is also sufficiently proved on record that the cause of

accident was rash and negligent driving of the truck and hence the FIR

Exhibit-43 came to be lodged against the truck driver. Spot panchanama

Exhibit-44 also goes to show that the cause of accident was the truck driven

by respondent No.1 giving dash to the appellant from backside while he was

boarding in the jeep. The insurance of the offending vehicle-the truck is also

no disputed and therefore the only issue, as stated above, for my

consideration is about the quantum of compensation.

10. Appellant has examined himself and deposed that in the accident,

he sufferred fracture injury to his right leg. He was required to be admitted

in the hospital for operation. Dr Pundkar joined the bone and inserted iron

rod and also done nailing. Dr Pundkar issued 10% permanent disability

Certificate to that effect.

11. Appellant also led the evidence of Dr Ganesh Narayanrao Pundkar

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in whose hospital he was admitted and who has issued the disability

certificate Exhibit-54 dated 02/02/2002. According to him, the appellant

has sufferred 10% permanent disability. However, in cross-examination

Dr Pundkar has categorically admitted that on 02/02/2002 when he

examined the appellant, his fracture was totally united. Further he has

admitted that on account of this disability, there will be only little obstacle in

the appellant's routine activities. Therefore it is clear that Dr Pundkar is not

stating that the appellant has sufferred any permanent disability as such so as

to preclude him from starting any business or doing the agricultural work.

and hence the finding given by the Tribunal needs no interference.

12. Even as regards the age of the appellant, though he has deposed

that he was doing agriculture, the 7/12 extract of the land bearing Gat No.34

which he has produced on record, shows that it was not in his name, but in

the name of one Shriram Kehavsa Gulhane. Appellant has failed to establish

his concern with the said person. As regards another 7/12 extract of another

land Gat No.25, it is found to be belonging to the joint family and as per the

admission of the appellant only 10 acres of land is in his possession which is

jirayat. Appellant has not produced on record any evidence to show his

income from agricultural produce. He has further stated that he wanted to

start business of stone crushing and for that purpose he had applied for a

loan. The loan of Rs.2,80,000/- was sanctioned to him by M.S.F.C. on

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13/11/1995, that is prior to three years of the accident. Moreover,

admittedly the appellant has not deposited the amount of Rs.1460/- towards

the sanction of loan as admitted by him. The sale deed of the land in which

he intended to start business of stone crushing stood in the name of

petitioner and his sister. There was no mention in that sale-deed that the

said land was to be converted for stone crushing business. Therefore there

was no evidence on this aspect also to show that appellant intended to start

stone crushing business and had future prospect of earning Rs.50,000/- per

month from the said business.

13. Moreover, if one considers the alleged disability which was only

likely to cause some inconvenience or hinderance, the appellant could have

started his business and thus no such evidence is produced on record to show

that as a result of this disability, he was totally precluded from starting the

business or earning from it.

14. The Tribunal has therefore rightly held that his income can be

considered only of Rs.3000/- per month. Having regard to 10% disability,

which is deposed to by Dr Pundkar, the appellant is entitled to compensation

of Rs.57,600/- and medical expenses of Rs.16,643.55 only of which the bills

were produced. Thus the Tribunal has added that amount along with other

heads and totally granted compenstion of Rs.1,00,000/- with 9% interest

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from the date of the petition till realization. The said amount of

compensation being just and also based on the evidence on record, the

impugned judgment and order of the Tribunal does not call for any

interference. Appeal therefore being without merit, stands dismissed with no

order as to costs.

JUDGE

Asmita