Bombay High Court
Saiyyad Arif S/O Saiyyed ... vs The New India Assurance Company ... on 3 November, 2017
Bench: S.B. Shukre
J-fa313.06.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.313 OF 2006
Saiyyad Arif s/o. Saiyyed Gyasoddin,
Aged about 23 years,
Profession : Nil, R/o. At Post - Manbha,
Tq. Karanja Lad, District - Washim. : APPELLANT
...VERSUS...
1. The New India Assurance Company Ltd.,
through its Divisional Manager,
Old Cotton Market Rd., Akola,
Tq. & District Akola.
2. Sau. Anuradha Rajesh Sharma,
Aged Adult,
Occupation : Owner of
Tata Indica Car No.MH-27/H-2376,
R/o. Moti Nagar, Amravati,
District : Amravati.
(P.S. Fresurpura)
3. Jagdish s/o. Subhashchandra Sharma,
Aged 29 years,
Occupation : Driver
of Tata Indica Car No.MH-27/H-2376,
R/o. Moti Nagar, Amravati,
Tq. & Distt. Amravati.
(P.S. Fresurpura Amravati) : RESPONDENTS
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Shri J.B. Kasat, Advocate for the Appellant.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
rd
DATE : 3
NOVEMBER, 2017.
ORAL JUDGMENT :
1. By this appeal, the appellant has questioned the legality and
correctness of the judgment and order dated 27.12.2005, rendered in
Motor Accident Claim Petition No.233/2003, by the Chairman, Motor
Accident Claims Tribunal, Akola on the ground of compensation granted
being inadequate.
2. The accident in the present case occurred on National High-
way No.6, at about 5.00 p.m., near Panjabi Dhaba, situated on the road
between Murtizapur and Akola, within the limits of Murtizapur, District
Akola. At that time, the appellant was crossing the road for going
towards Dhaba when Tata Indica car bearing registration No.MH-27-H-
2376 driven by respondent No.3, owned by respondent No.2 and insured
with respondent No.1 suddenly appeared and gave a dash to the
appellant. The appellant sustained serious injuries including head injury.
He was admitted to L.D. General Hospital, Murtizapur for initial
treatment and later on was taken to District General Hospital, Akola.
The appellant had to be hospitalized for a period of about 2 months and
after his discharge also, he could not completely recovered from the
injuries suffered by him. Those injuries were in the nature of loss of
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memory. In the opinion of the doctor, there was no possibility of
improvement in the memory function of the appellant and, therefore, he
issued a permanent disability certificate showing that his disability was of
20%.
3. At the time of the accident, the appellant was working as a
cleaner on the truck and because he had suffered permanent disability,
he was not able to perform his job properly. He, therefore, filed a claim
petition under Section 166 of the Motor Vehicles Act for grant of
compensation. It was resisted by the respondent by filing written
statement. On merits, the Tribunal found that the respondents were
liable to pay jointly and severally compensation of Rs.90,067/- with
interest at the rate of 7.50% p.a from the date of petition till actual
realization to the appellant and accordingly it passed the impugned
judgment and order. Not being satisfied with the same, the appellant is
before this Court in the present appeal.
4. I have heard Shri J.B. Kasat, learned counsel for the
appellant. None appears for the respondents though duly served on
merits. I have gone through the record of the case including the
judgment and order.
5. Now, the only point which arises for my determination is :
Whether the compensation awarded by the Tribunal is
just and proper ?
J-fa313.06.odt 4/7
6. Learned counsel for the appellant submits that the Tribunal
has not taken into consideration the future prospects and has also not
considered the permanent disability suffered by the appellant while
computing final amount of compensation. He submits that there is
evidence available on record showing that the appellant had suffered
permanent disability to the extent of 20% which disability affected his
functioning as a cleaner and, therefore, proportionate amount of
compensation on account of loss of earnings ought to have been granted
by the Tribunal.
7. It is seen from the impugned judgment and order that the
Tribunal has not considered loss of earnings of the appellant nor has
considered addition of future prospects to the income of the appellant.
In the present case, evidence of PW 3 Dr. Manoj Jain shows that there is
no possibility of any improvement in the memory function of the
appellant. It is not in dispute that at the time of accident, the appellant
was working as a cleaner on the truck. This fact having been established
on record. No one would doubt that job of the cleaner demands
undertaking of rigorous movements as well as assisting the truck driver
in navigation and maintenance of the truck. This would require memory
function to be intact in order. If there is any impairment in this function,
it would naturally have adverse impact upon the performance of duty as
a cleaner. In the case of Sandeep Khanuja vs. Atul Dande and
J-fa313.06.odt 5/7
another, reported in 2017(4) Mh.L.J. 1, the Hon'ble Apex Court has
held that it is important to assess as to whether or not permanent
disability would have any adverse impact on the earning capacity of the
injured. In the present case, I have found that given the nature of job
being performed by the appellant, loss of memory function would
certainly have adversely effect on his performing work as a cleaner and it
would result in proportionate loss of his earning capacity. Therefore, I
am of the view that loss of earning capacity in proportion to the
disability suffered by the appellant in the present case ought to have been
considered by the Tribunal. The Tribunal having not considered it, has
committed a serious error of law and fact, which error now would have
to be corrected by this Court. Similarly, future prospects are also
required to be considered while determining the final amount of
compensation, but in the present case that has also not been considered
by the Tribunal and as such even this error would have to be taken care
of by this Court.
8. The evidence of PW 3 Dr. Manoj Jain discloses that this
appellant suffered permanent disability to the extent of 20%. So, to this
extent, the loss of earning capacity of the appellant could be assessed. In
the case of National Insurance Company Limited vs. Pranay Sethi
and others, passed in Special Leave Petition (Civil) No.25590 of 2014,
decided on 31st October, 2017, the Hon'ble Apex Court has held while
J-fa313.06.odt 6/7
determining the income, future prospects must be added as per the
guidelines laid down in that case. The future prospects having not been
taken into account by the Tribunal, now they would have to be
considered and added to the income of the appellant. The age of the
appellant at the time of accident was 22 years and that he fell in the
category of self employed person. Therefore, 40 % of the income
determined would have to be added on account of future prospects. The
appropriate multiplier having regard to the age of the appellant would be
of '18' in the present case. Thus, calculated the amount of compensation
payable in a just and fair manner to the appellant would be as under :
(A) Annual Income Rs.18,000/-
(+) 40% future prospects Rs. 7,200/-
-----------------
Rs.25,200/-
Multiplier : as per Judgment of
Sarla Verma (Smt.) and others vs. X 18
Delhi Transport Corporation and another,
reported in (2009) 6 SCC 121 would have
to be '18'. ------------------
Total amount Rs.4,53,600/-
=======
(B) 20% of Rs.4,53,600/-
matching to functional disability Rs.90,720/-
of 20%
TOTAL : (A) + (B) = Rs.5,44,320/-
9. In addition to the above norms, the appellant would also be
entitled to receive medical expenses of Rs.61,057/-, actual economic loss
for a period of 2 months for hospitalization totaling to Rs.3,000/- and
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Rs.25,000/- towards pain, suffering and mental agony. So, the final
amount of compensation payable to the appellant would be of
Rs.5,44,320/-, which shall be inclusive of the amount on account of no
fault liability and shall carry interest at the rate of 7 ½ % p.a. from the
date of petition till actual realization, which shall be payable to the
appellant jointly and severally by the respondents.
10. The impugned judgment and order stand modified in the
above terms.
11. The appeal is allowed accordingly.
12. The parties to bear their own costs.
JUDGE
okMksns
