Bombay High Court
Sk. Rasul S/O Sk. Munir vs Rajendraprasad S/O ... on 20 November, 2017
Bench: S.B. Shukre
J-fa715.06.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.715 OF 2006
Sk. Rasul s/o. Sk. Munir,
a/a 60 years,
Occ. : Nil,
R/o. Solashe Plots, Akot File,
Akola, Tq. And Distt. Akola. : APPELLANT
...VERSUS...
1. Rajendraprasad s/o. Raghvirprasad
@ Reghuvirsharan Agrawal,
R/o. Shravgi Plots, Akola,
Tq. And Distt. Akola.
2. National Insurance Company Ltd.,
through Branch Manager,
Akola, Mahatma Gandhi Road,
Akola, Tq. & Distt. Akola.
3. The State of Maharashtra,
through Collector, Akola,
Tq. And Distt. Akola. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri C.A. Joshi, Advocate for the Appellant.
None for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : S.B. SHUKRE, J.
th
DATE : 20
NOVEMBER, 2017.
ORAL JUDGMENT :
1. This appeal questions legality and correctness of the
J-fa715.06.odt 2/6
judgment and order dated 20th December, 2005, rendered in Motor
Accident Claim Petition No.38/2001, by the Motor Accident Claims
Tribunal, Akola on the point of inadequacy of compensation granted by
the Tribunal.
2. The appellant worked as a cleaner in the year 2000 for the
truck bearing registration No.MBI-7539, owned by and insured with
respondent Nos.1 and 2. On 17th December, 2000, he had boarded the
truck as its cleaner and when the truck reached at a spot near Anchar-
Wadi Fata, near Jalna, the truck driver Mohd. Shakil Khan, lost control
over it and the result was the truck suddenly left the road and turned
turtle. The driver died on the spot of the injuries sustained by him. The
appellant suffered fractures to his left shoulder joint and elbow joint.
Initially, he was treated at District Hospital, Akola and then shifted to the
hospital of Dr. Ghuge, Akola. He incurred considerable expenses for his
medical treatment. He was diagnosed to have suffered permanent
disability of his left hand to the extent of 10%. He claimed that at the
time of accident he was 50 years of old and earning salary of Rs.3,000/-
per month. In order to get compensation for the loss that he suffered, he
filed a petition under Section 166 of the Motor Vehicles Act claiming
compensation from the owner and the insured i.e. respondent Nos.1 and
2 of the offending truck. It was contested on merit by both the
respondents. The Tribunal partly allowed the petition and granted
compensation of Rs.25,000/- inclusive of no fault liability amount with
J-fa715.06.odt 3/6
interest at the rate of 6% p.a. from the date of petition till realization and
this compensation amount was made payable jointly and severally by
both the respondents.
3. Not being satisfied with the same, the appellant is before this
Court in the present appeal.
4. I have heard Shri C.A. Joshi, learned counsel for the
appellant. Nobody appears on behalf of the respondents though duly
served on merits. I have 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 granted by the Tribunal is
just and proper ?
6. Shri C.A. Joshi, learned counsel for the appellant submits
that the compensation granted by the Tribunal is grossly inadequate and
that the monthly income of the deceased in the present case ought to
have been taken to be at Rs.3,000/- per month. He also submits that the
Tribunal did not grant adequate compensation under non-pecuniary
heads of pain and suffering and loss of amenities.
7. On going through the evidence of the appellant, who
examined himself as PW 1, I find that the monthly income of the
appellant could be safely taken to be at Rs.3,000/-. No circumstance
whatsoever has been brought on record during the course of his cross-
examination to enable me to express doubt about genuineness of the
J-fa715.06.odt 4/6
assertion made by the appellant in his examination-in-chief that he was
drawing salary of Rs.3,000/- per month. It is also noticed that the
respondent No.2 did not question this assertion of the appellant in any
manner when it cross-examined the appellant. Of course, the respondent
No.1 disputed the deposition of the appellant on the point of salary. But,
the respondent No.1 admittedly being the employer, could have
supported his defence by producing on record, the salary certificate or
the acknowledgments that he obtained from the appellant after payment
of wages to him on monthly or daily basis. The employer i.e. respondent
No.1 did not produce any such document on record. In these
circumstances, the evidence of appellant on the point of salary can be
accepted and a reasonable conclusion can be made that his salary in the
year 2000 was of Rs.3,000/- per month which I do so.
8. As regards the age of the appellant, I find that the conclusion
reached by the Tribunal that he was 70 years of age at the relevant time
is supported by the evidence available on record and, therefore, I uphold
this finding of the Tribunal. For the age of 70, appropriate multiplier is
of '5' and it will have to be applied in the present case.
9. There is a disability certificate proved in evidence by the
appellant, which has also been accepted by the Tribunal. The Tribunal
has found that because of the injuries suffered by the appellant in the
present accident, the appellant sustained 10% disability of permanent
nature and rightly so. This finding now has attained finality as no appeal
J-fa715.06.odt 5/6
has been preferred against it by any of the respondents. So, I am of the
view that now the loss of future earnings of the appellant would have to
be calculated by considering 10% permanent disability of the appellant.
This 10% permanent disability arises from the proportionate inability of
the left hand of the appellant to make its movement. The appellant was
working as a cleaner at the relevant time and for performing job of a
cleaner, complete efficiency of both forearms is required and if their
efficiency has been reduced, such reduction would have a direct bearing
upon the ability to earn the income. Therefore, in the present case, given
the nature of job performed by the appellant, 10% permanent disability
would have to be found to be also his functional disability in equal
measure and so, the loss of future earnings of the appellant would have
to be calculated on the basis of his suffering of 10% functional disability.
10. So far as the aspect of future prospects is concerned,
considering the age of the appellant, nothing would be due to him on this
count. However, some reasonable amount of compensation under
non-pecuniary heads of pain and suffering and loss of amenities would
be due and it should be of Rs.25,000/- each or Rs.50,000/- in total by a
reasonable estimate, apart from medical expenses.
11. In the circumstances, I am of the view that the appellant is
entitled to receive, from both the respondents jointly and severally,
enhanced compensation calculated in the following manner :
J-fa715.06.odt 6/6
Yearly income (Rs.3,000/- X 12 = 36,000/-)
Total income (Rs.36,000 X '5" as multiplier=Rs.1,80,000/-)
(A) Future loss of earning (10% of Rs.1,80,000/-) Rs. 18,000/-
on account of 10% functional disability.
(B) Add : (expenses paid to doctor R.Khan) Rs. 6,000/-
(expenses for medicines) Rs. 4,000/-
(for pain and sufferings) Rs. 25,000/-
(for loss of amenities) Rs. 25,000/-
-------------------
T O T A L (A +B) : Rs. 78,000/-
=======
12. In view of above, it is declared that the appellant is entitled
to receive total compensation of Rs.78,000/- which is inclusive of no
fault liability amount, payable to him jointly and severally by respondent
Nos.1 and 2 along with interest at the rate of 6% p.a. from the date of
petition till actual realization.
13. Appeal is allowed partly.
14. The impugned judgment and order stand modified in the
above terms.
15. Parties to bear their own costs.
JUDGE
okMksns
