Bombay High Court
Santosh Nandlal Agrawal vs Bhimrao Ramrao Thakur And 5 Ors on 14 November, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.678 OF 2006
Santosh s/o. Nandlal Agrawal,
a/a 38 years, Occ.: presently nil,
Murtizapur, Tq. Murtizapur,
Distt. Akola. : APPELLANT
...VERSUS...
1. Bhimrao Ramrao Thakur,
Adult, Occ.- Truck Driver,
R/o. 17, Byaran Bazar, Raipur (M.P.)
2. M/s. Maharashtra Bricksm,
(Truck owner No.31-W/3448),
R/o. 57, Indra Chowk, Kamthi Road,
Nagpur, Tq. & Distt. Nagpur.
3. United India Insurance Co. Ltd.,
Nagpur, Through its Divisional Manager,
Divisional Officer, Rajasthan Bhavan,
Old Cotton Market, Akola,
Tq. & Distt. Akola.
4. Bhimrao s/o. Narayan Ramteke,
a/a. 44 years, Occ.- Driver,
R/o. Gitti Khadan,
Behind Old Police Chowky,
Near house of Pandurang Gaydhane,
Nagpur.
5. Gulab Khan s/o. Mauj Khan,
since deceased through his
Legal heirs by name Faruque Khan
s/o. Gulab Khan, adult,
R/o. Gitti Khadan, Near Badi Masjid,
Rajeev Gandhi Nagar, Nagpur,
Tq. And Distt. Nagpur.
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6. National Insurance Co. Ltd.,
Nagpur, through Divisional Manager,
Divisional Office, Opp. Open Air Theatre,
M.G. Road, Akola,
Tq. And Distt. Akola. : RESPONDENTS
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Shri C.A. Joshi, Advocate for the Appellant.
Shri S.N. Dhanagare, Advocate for the Respondent No.6.
None for Respondent Nos.1 to 5.
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CORAM : S.B. SHUKRE, J.
th
DATE : 14
NOVEMBER, 2017.
ORAL JUDGMENT :
1. This appeal questions legality and correctness of the
judgment and order dated 24.4.2006, delivered by the Chairman, Motor
Accident Claims Tribunal, Akola in Motor Accident Claim Petition
No.253/2002 insofar as quantum of compensation is concerned.
2. This is a injury claim filed under Section 166 of the Motor
Vehicles Act by the appellant against the respondents. The accident in
this case occurred on 13.1.2002 and at that time the appellant was aged
about 34 years and earning income of Rs.52,000/- to Rs.53,000/-
annually from his business of book agency, insurance agency and allied
businesses. He was then resident of Murtizapur, District Akola and had
come to Nagpur. On the fateful day, he hired an auto-rickshaw bearing
registration No.MH-31-AP/1811 for proceeding to railway station
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Nagpur. When the auto-rickshaw came near G.P.O. square, one truck
bearing registration No.MH-31-W/3448 came across and dashed against
the auto-rickshaw. In this accident, the appellant suffered serious
injuries to his head, chest, abdomen and left leg including fracture to the
bone of left leg. He was admitted to the hospital on the same day and
received treatment as an indoor patient till 28.1.2002. According to him,
the accident occurred mainly because of the rash and negligent driving of
the driver of the offending truck and also to some extent because of the
rashness shown by the driver of the auto-rickshaw. At that time, the
offending truck was driven and owned by and insured with the
respondent Nos.1 to 3 respectively and the auto-rickshaw was driven and
owned by and insured with respondent Nos.4,5 and 6 respectively.
3. In the claim petition, all the respondents were duly served
with the notice. However, they remained absent except respondent No.3
and respondent No.6, the two insurance companies, who resisted the
claim petition by filing their respective written statements. They blamed
driver of the other vehicle for the accident. On merits of the case, the
Tribunal found that the drivers of both the vehicles were negligent and
responsible for causing of the accident and apportioned their composite
negligence in the proportion of 60% to 40% for the offending truck and
offending auto-rickshaw respectively. The Tribunal quantified the
compensation payable in this proportion jointly and severally by the
driver, owner and insurer of the respective vehicles to the appellant to be
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at Rs.1,56,700/- inclusive of claim under Section 140 of the Motor
Vehicles Act, 1988 together with interest at the rate of 7.5% p.a. from the
date of petition till actual realization, by the impugned judgment and
order. Not being satisfied with the same, the appellant-original claimant
is before this Court in the present appeal.
4. I have heard Shri C.A. Joshi, learned counsel for the
appellant and Shri S.N. Dhanagare, learned counsel for the respondent
No.6. Nobody appears for respondent Nos.1 to 5. I have also gone
through the record of the case including the impugned 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 ?
6. In the present case, the only challenge made by the appellant
is about the quantum of compensation. Learned counsel for the
appellant submits that the compensation awarded by the Tribunal is
inadequate for the reason that the Tribunal has not awarded any
compensation under the head of loss of future earning capacity and has
awarded meager compensation under the heads of loss of amenities of
life, pain and agony etc. According to him, there is evidence to show that
the earning capacity of the appellant has been reduced after the accident
and such reduction is matching with the percentage of disability
permanently suffered by him.
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7. Learned counsel for respondent No.6 supports the impugned
judgment and order submitting that all finer aspects of the case have
been appropriately considered by the Tribunal leaving no scope for
making any interference with the impugned judgment and order.
8. About suffering of the permanent disability to the extent of
10% by the appellant, I must say that evidence of PW 3 Dr. Ranjeet Patil
is clear and trustworthy. There is nothing in his evidence to enable this
Court to discard his version regarding suffering of permanent disability
by the appellant to the extent of 10%. He has asserted in his evidence
that this appellant suffered 10% of permanent disability and in the
cross-examination taken on behalf of the insurance companies, one can
see, this has not been disputed in any manner by the insurance company.
Therefore, it can be safely taken that the appellant in the present case
suffered permanent disability to the extent of 10%.
9. Now, the question would be, whether such permanent
disability did have or did not have any adverse impact on his earning
capacity. Here also, the evidence of PW 1, the appellant himself would
provide the answer. He has categorically stated in his evidence that his
earning capacity was affected after suffering of the permanent disability.
Of course, this has been sought to be disputed by the insurance company.
But, one can very well say on the basis of common experience that a
person who carries on the agency business and also sundry businesses
like the appellant, would face certain difficulties in carrying on his such
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businesses with same efficiency as he did prior to the accident. For
efficiently carrying on such businesses, the person is required to walk
from one place to another, approach different persons for selling of his
products and is also required to contact personally or on phone the other
traders from whom he would be procuring his raw material. Therefore,
some decline in the earning capacity in such a case is bound to be there,
which reduction, may not be experienced by a salaried person, who
performs his job while sitting in a chair during office hours. In the case
of Sandeep Khanuja vs. Atul Dande and another, reported in 2017 (4)
Mh.L.J 1, it is held that a person who is required to carry out free
movement of his limb in order to perform his job or carry on his business
may not be able to match the earning in comparison with the one who is
healthy and bodily abled and, therefore, there would be an adverse
impact on his earning capacity. It is also held that this may not be so in
case of a person who is supposed to do sitting work. These observations
of the Hon'ble Apex Court, in my humble opinion, squarely apply to the
facts of the instant case. Therefore, I find that the suffering of the
permanent disability in the present case by the appellant has impaired to
some extent his earning capacity.
10. The question that falls for consideration now is, to what
extent future earning capacity of the appellant has been affected because
of the permanent disability suffered by him ? The permanent disability
of the appellant is of 10% and considering the nature of businesses
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carried on by the appellant, I am of the view that decline in his capacity
to carry on his businesses with same vigor and efficiency would be
matching with the percentage of his permanent disability. So, 10% loss
in future earning capacity can be safely taken to be established by the
appellant in the present case, which I do so.
11. The evidence of PW 6 Sunil Agrawal shows that the appellant
was earning annually Rs.52,000/- to Rs.53,000/-. This annual income
has also been accepted by the Tribunal. The lowest of it is of Rs.52,000/-
which when converted into monthly income, comes to Rs.4,330/-. So,
loss of future earning capacity could be quantified to be at Rs.83,136/-
(being 10% of Rs.4330/-, Rs.433/- X 12=5,196 X 16= 83,136) using '16'
multiplier.
12. In addition to above amount, the appellant would also be
entitled to receive some higher compensation under the heads of pain,
suffering and agony etc. and loss of amenities of life which could be
reasonably quantified to be at Rs.50,000/ - and Rs.25,000/- respectively.
The appellant would also be entitled to receive compensation under the
heads of medicare and hospitalization conveyance, loss of earning during
treatment period, which have been already granted by the Tribunal to be
at Rs.1,02,965/-, Rs. 3,375/- and Rs.17,000/- respectively and rightly so.
Thus, calculated, the appellant would be entitled to receive total
compensation in the following manner :
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Loss of earning capacity Rs. 83,136/-
Medicare and hospitalization expenses Rs.1,02,965/-
Conveyance expenses Rs. 3,375/-
Loss of earning during interregnum Rs. 17,000/-
Add : for Special diet Rs. 3,360/-
Towards pain, suffering and agony Rs. 50,000/-
Towards loss of amenities of life Rs. 25,000/-
-------------------
Rs.2,84,836/-
=======
Thus, the appellant would be entitled to receive
compensation of Rs.2,84,836/- in total.
13. This compensation would be payable along with interest at
the rate of 7.5% p.a. from the date of petition till realization and in the
same proportion by driver, owner and insurer of the two vehicles as has
been fixed by the Tribunal jointly and severally in between themselves.
The point is answered accordingly.
14. The appeal is partly allowed.
15. The impugned judgment and order stand modified in the
above terms.
16. The appeal is disposed of in above terms.
JUDGE
okMksns
