Pramod Prashram Pendharkar Akola vs Mah State Road Transport & 2 Others
2017 Latest Caselaw 1353 Bom

FA-396-05                                                                                    1/7


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

                            FIRST APPEAL NO.396 OF 2005


Pramod Prashram Pendharkar
aged about 18 years, Occ. Nil. 
R/o Mangrulpir, Dist. Akola                                     ... Appellant. 

-vs-

1.  Maharashtra State Road Transport
     Corporation, Bombay. 

2.  Divisional Control,
     M.S.R. T. C. Nagpur.  

3.  Dadarao Govindrao Kamble
     (Deleted)


Smt  P. M. Chandekar, Advocate for appellant. 
Shri S. C. Mehadia, Advocate for respondents. 



CORAM  : A.S.CHANDURKAR, J. 

Arguments heard on                      :  March 24, 2017. 
Judgment pronounced on         :  March 31, 2017.


Judgment : 

By this appeal filed under Section 173 of the Motor Vehicles Act,

1988 (for short, the said Act) the appellant seeks enhancement in the

amount of compensation as awarded by the Motor Accident Claims, Akola

by judgment dated 11/04/1997.

The appellant on 21/06/1994 when he was aged about ten years

FA-396-05 2/7

was travelling along with his mother in a bus owned by respondent No.1. He

was travelling from Washim to Mehkar. On account of rash and negligent

driving of the said bus it gave dash to a stationery truck as a result of which

the passengers in the bus received a severe jerk. The appellant's face dashed

against the front seat bar due to which he received injuries on his neck and

other parts of body. As a result of said injury the appellant faced difficulty in

speaking and also developed breathing trouble. He was required to

undertake medical treatment at various hospitals and suffered handicap to

the extent of 60-70%. On that basis a claim petition under Section 166 of

the said Act came to be filed claiming compensation of Rs.2,00,000/-.

2. The respondent Nos.1 and 2 opposed the claim on the ground that

the driver of the bus was not at fault and that the owner and driver of the

truck were not impleaded as party. After the evidence was recorded, the

Claims Tribunal held that the accident was caused on account of rash and

negligent driving of the bus. It accordingly granted compensation of

Rs.65,175/- to the appellant. Being aggrieved by the quantum of

compensation, the present appeal has been filed.

3. Smt P. M. Chandekar, learned counsel for the appellant submitted

that the Claims Tribunal erred in awarding compensation on a lower side.

She submitted that the disability of the appellant had been duly proved by

FA-396-05 3/7

producing certificate in that regard at Exhibit-32. The appellant had entered

the witness box but the learned Member of the Claims Tribunal noted that

his voice was not audible and therefore his evidence could not be recorded.

Though amounts spent for medical expenses were brought on record, the

compensation awarded is on a lower side. It was submitted that the future

prospects of the appellant were also hampered and hence the compensation

was liable to be enhanced. In support of her submissions, she placed reliance

upon decisions in Michael vs. Regional Manager, Oriental Insurance Co.

Ltd. And anr. (2013) 14 Supreme Court Cases 774 and V. Mekala vs. M.

Malathi and anr. 2014 ACJ 1441.

4. Shri S. C. Mehadia, learned counsel for respondent Nos.1 and 2

supported the impugned order. It was submitted that the Claims Tribunal

after considering the entire evidence on record awarded just and reasonable

compensation. The evidence on record indicated that the amounts spent

towards medical treatment were granted by the Claims Tribunal. It was

therefore submitted that in the light of evidence on record, the amount of

compensation did not require any enhancement.

5. I have heard the learned counsel for the parties at length and I

have perused the records of the case. The following point arise for

determination :

FA-396-05 4/7

" Whether the amount of compensation as granted by the Claims

Tribunal deserves to be enhanced ? "

6. The Claims Tribunal while deciding the claim petition has

recorded a finding that the accident was caused due to the rash and

negligent driving of the bus owned by the respondent. It further held that it

was not a case of contributory negligence and accordingly saddled the

liability only on respondent Nos.1 and 2. These findings are not under

challenge. The only aspect that requires consideration is with regard to the

quantum of compensation.

7. The appellant's mother examined herself at Exhibit-21. She

deposed that after the accident, the appellant was admitted at Shankar

Hospital for a period of one week. Thereafter on the advice of Dr Kherde,

the appellant was taken to K.E.M. Hospital, Mumbai for his operation. The

appellant was thereafter admitted at K.E.M. Hospital for a period of sixteen

days during which period he was operated. He was then referred to Tata

Memorial Hospital where he was admitted for three days. He was again

operated there after which he was readmitted at K.E.M. Hospital. Documents

in that regard including certificate issued by the concerned hospital were

placed on record at Exhibits-27, 27, 29 and 30(1)(2)(9). The disability

certificate issued by the Civil Hospital, Yavatmal was placed on record at

FA-396-05 5/7

Exhibit-32. At the instance of respondent no.2 the appellant was referred to

the Medical Board. Though the appellant's mother was cross-examined,

nothing has been elicited in her deposition so as to disbelieve her version.

The medical papers indicate the treatment undertaken by the appellant.

8. Though it is true that for the purposes of proving the disability

certificate the doctor who had examined the patient is competent to depose

about said certificate, the facts of the present case are such that the appellant

himself had sought to depose before the Claims Tribunal. The Claims

Tribunal as per Exhibit-43 found that the appellant was not in a position to

speak in an audible manner as a result of the injuries suffered in the accident

and was facing great difficulty while giving his name and other details. As

per the disability certificate at Exhibit-32 the Medical Board has opined that

the appellant was permanently handicapped to the extent 60-70%.

Considering the entire material on record in the form of various medical

papers indicating operations being conducted on the appellant with further

observations of the learned Member of the Claims Tribunal that the appellant

was not in a position to speak, these aspects can be taken into consideration

while determining the amount of compensation. Thus even if the disability

certificate at Exhibit-32 is kept aside, there is sufficient other material on

record to indicate the appellant's disability on account of he not being in a

position to speak as a result of aforesaid accident.

FA-396-05 6/7

9. In so far as determining the amount of compensation, the Claims

Tribunal has awarded a total sum of Rs.65, 175/- which considering the

evidence on record appears to be on a lower side. As a result of the aforesaid

accident that took place on 21/06/1994 even after a period of three years the

appellant was not in a position to speak. He was aged about ten years when

the accident took place and though he was school going at that time, his

mother has deposed that he was required to leave his education.

The judgment in V. Mekala (supra) relates to a claim made by a

sixteen year student who had suffered 70% disability. In said case there was

evidence on record to indicate that she had secured first rank in 10 th standard

and on that basis monthly notional income of Rs.10,000/- was taken into

consideration. In absence of any such evidence the in the present case, the

ratio of said decision cannot be made application to the facts of the present

case. In Michael (supra), the Honourable Supreme Court considered the

aspect of grant of compensation where the claimant was aged about eight

years when the accident took place. The claimant therein had suffered about

16% disability due to which one of his limbs was shortened and his

movements were also restricted. In those facts after observing that it would

be impossible to make a precise assessment of the pain and suffering of the

claimant, compensation of Rs.4,00,000/- came to be awarded. In the present

case the disability suffered is with regard to loss of voice. The appellant was

FA-396-05 7/7

aged ten years when the accident took place. In the light of the aforesaid

decision I am inclined to award similar compensation to the appellant in the

present case. An amount of Rs.2,80,000/- is granted towards permanent

disability and on account of pain and suffering. Rs.20,000/- is granted for

medical expenses, conveyance and nourishing food. An amount of

Rs.1,00,000/- is granted towards loss of amenities. Though the Claims

Tribunal has awarded interest @12% per annum, the amount of

compensation is liable to be paid with 9% interest per annum. The point as

framed stands answered accordingly.

10. As a result of aforesaid discussion, the following order is passed :

(i) The judgment dated 11/04/1997 in MACP No.148/1996 is partly modified. It is held that the appellant is entitled for total compensation of Rs.4,00,000/- with interest @9% per annum from 27/09/1994 till realization.

(ii) The amounts already received by the appellant shall be taken into consideration. The enhanced amount is payable after deducting the appropriate court fee on the amount of compensation.

(iii) This payment of enhanced compensation be made within period of four months from today.

(iv) The first appeal is allowed in aforesaid terms with no order as to costs.

JUDGE

Asmita