National Insurance Company Ltd. ... vs Rajesh Sundarlal Amge And Another
2017 Latest Caselaw 8743 Bom

                                            1                           Jud.FA 1207.16.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH : NAGPUR

                              First Appeal No. 1207/2016



APPELLANT:-                             National Insurance Company Ltd., having
On R.A.                                 its Regional Office at Mangalam Arcade, 2 nd
                                        Floor, Dharampeth Extension, North Bazar
                                        Road, Nagpur and having its Branch office
                                        at, Wardhaman Nagar, Nagpur through its
                                        Regional Manager, Nagpur (Origional
                                        Defendant No.2.)

                                        VERSUS

RESPONDENT:-               1.           Rajesh Sundarlal Amge,
On. R.A.                                aged about 37 years,
                                        R/o. Plot No. 37, Ujjwal Layout, Juni Toli,
                                        Near Raza Town, Kamptee Road, Naka No.2,
                                        Mhasala Nagpur (Original Claimant)

                           2.           Sardar Kashmiri Singh Multani,
                                        aged about major,
                                        R/o. Guru Teg Bahadur Nagar, Nari Road,
                                        Nagpur (Original Defendant No.2).



Mr. Shashikant Borkar, Advocate for appellant.
Mr. V. R. Thote, Advocate for respondent No.1.
_____________________________________________________________________________________

                                 CORAM : S. B. SHUKRE, J.

                                 DATE      : 15.11.2017.
Oral Judgment :

            Heard.

2. This appeal questions legality and correctness of the

judgment dated 13th March, 2015 rendered in Motor Accident Claims

Petition No. 628/2006 on a short point. The ground of challenge is that

2 Jud.FA 1207.16.odt

the Tribunal has not calculated loss of future earnings on the basis of

actual and functional disability and has wrongly presumed that the

percentage of permanent disability is the same percentage as that of

functional disability.

3. The law now is settled. In Sandeep Khanuja Vs. Atula

Dande & anr. 2017(3) SCC 351 and Rekha Jain Vs. National

Insurance Co. Ltd. & anr. 2013(8) SCC 389, Hon'ble Supreme

Court has held that in order to determine compensation under the

head of loss of future earnings, it is the functional disability and its

percentage which matters and not really the percentage of permanent

disability simpliciter and therefore, the Tribunal must apply its mind to

this aspect in order to arrive at the amount of compensation in a just

and fair manner. On perusal of the impugned judgment and order, it is

manifestly seen that this fundamental aspect of law has not been

considered by the Tribunal. Both the rival parties also could not show to

me from the impugned judgment and order that this important facet of

petitioner's case has been properly considered by the Tribunal. Such

being the situation, this appeal would have to be allowed and

remanded back to the Tribunal for its decision afresh upon

consideration of the basic aspect of fact and law involved in the matter.

4.         In the circumstances, the appeal is allowed.                         Impugned

judgment and order are hereby set aside.                      The claim petition is





                                         3                        Jud.FA 1207.16.odt

remitted back to the Tribunal for a decision afresh from the stage of the

arguments.

5. The appellant and the respondent No. 1 shall appear before

the Tribunal on 15th December, 2017. Fresh notice shall be issued to

the respondent No. 2, the owner of the offending vehicle.

6. The claim petition shall be decided within one month after

appearance or service of notice upon the respondent No. 2, the owner

of the offending vehicle which ever is earlier.

7. The respondent No. 1 in the present appeal who is the

claimant has withdrawn so far amount of Rs. 05,00,000/-. This

withdrawal shall be subject to the final decision of the claim petition.

Rest of the amount deposited in this Court by the appellant shall be

transferred to the Tribunal and it shall be held in deposit by the

Tribunal till final disposal of the claim petition. No costs.

JUDGE Gohane