Bombay High Court
Kashinath Suresh Chaudhary vs Shivaji Vishnu Vitekar & Ors on 24 July, 2017
Bench: P.R. Bora
1 FA1603.2004.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
37 FIRST APPEAL NO. 1603 OF 2004
Kashinath Suresh Chaudhary
Aged : 23 years, Occu : Labour,
R/o. Fagne, Taluka & Dist. Dhule .. Appellant
(Ori. Claimant)
VERSUS
1. Shivaji Vishnu Vitekar (deleted vide Registrar
Aged : Adult, Occu : Driver, order dt.28.08.2008)
R/o. Nandur, Taluka : shrirampur,
Dist. Ahmednagar.
2. Aziz Baksha Sattar Baksh (appeal dismissed
Aged : Adult, Occu : Business, against Respondent
R/o. Imlipura, Khandwa, Tal. & No.2 vide registrar
Dist. Khandwa (M.P.) order 21.07.2009)
3. National Insurance Company Ltd.,
Notice to be served upon the
Branch Manager, Dhule Branch,
Dhule, Taluka & Dist. Dhule .. Respondents
(Ori. Opponent)
....
Advocate for Appellant : Shri. M.H. Patil
Advocate for Respondents No.3 : Shri. R.C. Bora h/f. Shri. P.P. Bafna
...
CORAM : P.R. BORA, J.
Dated: July 24, 2017
PER COURT :-
. The original claimant has filed the present appeal claiming
enhancement in the amount of compensation awarded to him by the
2 FA1603.2004.doc
Motor Accident Claims Tribunal at Dhule in Motor Accident Claim
Petition No.975/1999 decided on 17.03.2004.
2. The appellant, who is hereinafter referred to as claimant,
had filed the aforesaid petition claiming compensation on account of
injuries caused to him in a vehicular accident happened on 18.11.1998
having involvement of a truck bearing registration no.MP-12-B-1586 and
an auto rickshaw bearing registration no.MWD-1741.
3. It was the contention of the claimant that, while he was
travelling by the aforesaid auto rickshaw, it was dashed by the aforesaid
truck and in the accident so happened, he was severely inured. It was
further contention of the claimant that, the accident happened because
of the negligence on part of the driver of the truck. It was further
contention of the claimant that, because of injuries caused to him in the
alleged accident, he incurred 60% permanent disability. The claimant
had, therefore, claimed the compensation of Rs.Three Lakhs from the
owner and insurer of the offending truck.
4. Before the Tribunal, the claimant himself deposed to
substantiate his claim and also filed on record the disability certificate
and the other medical papers pertaining to the treatment taken by him
during the relevant period and the expenses incurred by him on his
treatment. The tribunal after having assessed the oral and documentary
evidence brought on record, held the claimant entitled for the
compensation of Rs.One Lakh jointly and severely from the owner and
insurer of the truck. Dissatisfied with the amount of compensation so
awarded the claimant has filed the present appeal seeking enhancement
in the amount of compensation.
3 FA1603.2004.doc
5. Shri. Mahesh Patil, learned Counsel appearing for the
claimant submitted that, the Tribunal has failed in appreciating that, the
claimant has incurred 60% permanent disability at his young age and it
would have adverse effect on his entire future career. The learned
Counsel submitted that, the tribunal has awarded a very meager sum by
way of compensation to the claimant. The learned Counsel submitted
that, the tribunal has not considered the aspect of the future loss of
income. The learned Counsel submitted that, the tribunal has also not
awarded just compensation for pains and suffering and for loss of
amenities in life. The learned Counsel submitted that, the claimant was a
wrestler and because of injuries caused to him, he was prevented from
making a career in wrestling. However, the said loss has not been
considered by the tribunal. The learned Counsel, therefore, prayed for
dismissal of the appeal.
6. Shri. Bora, the learned Counsel appearing for the
respondent- Insurance Company supported the impugned Judgment and
Award. The learned Counsel submitted that, the Tribunal has correctly
assessed the amount of compensation, which is just and fair in the facts
and circumstances of the case. The learned Counsel submitted that, no
case for enhancement is made out by the claimant. The learned Counsel,
therefore, prayed for dismissal of the appeal.
7. I have carefully considered the submissions advanced by the
learned Counsel for the claimant and the learned Counsel for the
respondent Insurance Company. I have perused the impugned Judgment,
the evidence on record and the other material placed on record.
8. On the date of accident, the claimant was admittedly a
school going boy and his age was around 16 years. Though the claimant
4 FA1603.2004.doc
is claiming to have incurred 60% permanent disability, on perusal of the
documents in this regard more particularly certificate issued by Dr. K.A.
Saindane, the Orthopedic Surgeon, the discharge summery of the
hospital of Dr. Nikhil Shah and certificate issued by Dr. Rajesh H. Oswal,
the Dental & Oral Surgeon as well as the disability certificate issued by
the General hospital, Dhule, it is revealed that, it is not the disablement
for the body as a whole, but was restricted to the particular organs.
Moreover, there is nothing on record to show as to in what way the
injuries caused to the claimant had resulted in causing loss in his earning
capacity. The record reveals that, the claimant had suffered fracture
maxilla, and fracture to mandible, fracture tibia fibula with dislocation of
the talus. These injuries are not likely to result in causing permanent
disability to the extent of 60%. Further though the claimant has claimed
that, he had sustained head injury and also sustained the internal injury
to his brain, the discharge card from the hospital of Dr. Nikhil Shah
demonstrates that, on the date of his discharge from the said hospital,
the claimant was not having any neurological deficit and he was fully
alert.
9. Though the appellant is claiming enhancement in the amount of
compensation as awarded by the tribunal on account of the permanent
disablement, no sufficient and cogent evidence is placed on record by the
appellant so as to enhance amount of compensation. Nothing is brought
on record by the appellant to prove his functional disability. Having
regard to the evidence on record, it appears to me that, the
compensation of Rs.60,000/- awarded by the tribunal towards the
permanent disablement is just and proper and no case for enhancement
is made out by the appellant.
5 FA1603.2004.doc
10. The record further shows that, the tribunal has awarded the
entire medical expenses of which the bills were produced on record by
the appellant. The appellant had placed on record the medical bills worth
Rs.37,762/-. The tribunal has awarded a sum of Rs.40,000/- towards the
medical expenses and for pain & suffering. It is thus evident that, after
deducting the medical expenses of Rs.37,762/-, a meager amount of
Rs.2238/- has been awarded by the tribunal towards the pain &
suffering. It is apparent that, the amount of compensation so awarded is
wholly unjust and inadequate. It cannot be disputed that, because of
injuries caused to the appellant, he would certainly face some difficulties
in enjoying the amenities of life and would not be able to enjoy the same
as a complete normal human being. I am, therefore, inclined to enhance
the amount of compensation under the said head and I quantify the said
amount to Rs.50,000/-. The appellant is thus held entitled for the
compensation of Rs.1,50,000/- in total. It is clarified that, the appellant
will be entitled for the interest on the enhanced amount of compensation
i.e. Rs.50,000/- at the rate of 9% per annum from the date of application
till its realization. Award be modified accordingly. Appeal stands allowed
to the aforesaid extent.
( P.R. BORA, J. )
ggp
