Shanky @ Sulabh Gopal Agrawal vs Narendrasingh S/O Kartarsingh ...
2017 Latest Caselaw 6977 Bom

                                              1




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                       NAGPUR BENCH : NAGPUR



First Appeal No. 577 of 2011 

Appellant              :          Shanky alias Sulabh Gopal Agrawal, aged about 

                                  23 years, Occ: Student, resident of Balaghat, MP

                                        versus

Respondents            :          1)  Narendrasingh s/o Kartarsingh, aged about

40 years, Occ: Business, resident of Plot No.

17, Raipur Road, Bilaspur

2) Jagdishkumar s/o Ramkisan Rajput, aged

about 38 years, Occ: Truck Driver, resident of

Gurudev Bahadur Nagar, Nari Ring road, House

No. 0.125, Teka Naka, Nagpur

3) The concerned Officer, National Insurance

Company, D.O. III, Nagpur

Shri Makrand Rajkondawar, Advocate for appellant

Respondents no. 1 and 2 served

Ms S. P. Deshpande, Advocate for respondent no. 3

Coram : S. B. Shukre, J

Dated : 11th September 2017

Oral Judgment

1. This is an appeal preferred against the judgment and order

dated 23rd March 2010 passed by the Member, Motor Accident Claims

Tribunal, Nagpur in MACP No. 536 of 1995. By the impugned judgment

and order, the Claims Tribunal partly allowed the claim petition of the

appellant filed under Section 166 of the Motor Vehicles Act.

2. The claim was raised by the appellant for indemnifying the

loss suffered by him in an accident which occurred at about 02.00 pm on

12.11.1994 on Nagpur- Raipur Highway. At that time, the appellant was

aged about 6 years and was standing by the side of the road near village

Marodi shivar. The offending vehicle was bearing registration No. MP-

26-D/1145 owned by respondent no. 1, driven by respondent no. 2 and

insured with respondent no. 3. It was contended by the appellant that the

offending vehicle was driven rashly and negligently by respondent no. 2

and that was the reason that the driver lost control over it and hit the

appellant standing by the side of the road. In this accident, the appellant

sustained grievous injury and he was required to be hospitalised for about

forty days. Ultimately, the appellant lost his left arm below the elbow and

was required to spend huge amount for implanting the artificial hand.

The claim petition was filed to get compensation of Rs. 65,95,758/-.

However, the claim was partly allowed and amount of Rs. 13,00,000/-

together interest @ 7.5% from 21.2.2008 (the date on which the

appellant tendered his affidavit in lieu of examination-in-chief) till

realization of the amount was granted. Not being satisfied with the same,

the appellant is before this Court in the present appeal.

3. I have heard Shri Makrand Rajkondawar, learned counsel for

the appellant and Ms S. P. Deshpande, learned counsel for respondent no.

3. None appears for respondents no. 1 and 2, though duly served. I have

gone through the impugned judgment and award and also record of the

case. Now, the following points arise for my determination :

(1) Whether the compensation granted by the Tribunal is just

and proper ?

(2) Whether the rate of interest and the period for which the

interest has been granted, are properly considered by the Tribunal ?

4. Sofar as the question of quantum of compensation is

concerned, learned counsel for the appellant could not show to me by

pointing out relevant evidence that the quantum of compensation so

determined by the Tribunal is unjust and improper. The Tribunal has

granted an amount of Rs. 30,000/- for treatment and medicine; Rs.

20,000/- for special diet and attendance charges; Rs. 25,000/- for pain

and suffering; Rs. 25,000/- towards travelling expenses and Rs.

10,00,000/- for fixation of artificial hand. The Tribunal has also granted

compensation of Rs. 1,50,000/- for deformity suffered by the appellant

and Rs. 50,000/- for loss of amenities in life. Thus, the Tribunal has

granted an amount of Rs. 13,00,000/- including no fault liability

compensation to the appellant. These amounts having been determined

by the Tribunal on the basis of evidence available on record, I do not see

any reason to interfere with the same. In fact, learned counsel for the

appellant also does not press much on this aspect of the case.

5. The main grievance of the appellant is on the application of

rate of interest and grant of interest for the period which, in the opinion

of learned counsel for the appellant, could have been much different. He

submits that during the period when the accident occurred i.e. the year

1995, the prevailing rates of interest were much higher, something in the

range of 9-10% per annum. If one goes through the facts of the case, one

would find that the Tribunal itself took six years' time to frame the isues.

The respondent Insurance Company also took its own time to file Written

Statement in the year 1997 and for a substantial period of time, there

being no Presiding Officer appointed, the Tribunal itself was vacant. He

submits that if these facts are taken into consideration, no blame can be

attached to the appellant alone for delay in disposal of the claim petition.

According to Ms Deshpande, learned counsel for respondent no. 3, the

roznama maintained in the claim petition shows that several adjournment

applications were filed by the appellant and they were also granted by the

Tribunal and even the list of witnesses was filed by the claimant on

29.9.2008.. Therefore, according to her, for the major part of delay, it is

the appellant who was at fault and such being the case, nothing wrong

could be found in granting of interest by the Tribunal not from the date of

petition but from the date of affidavit in lieu of examination-in-chief

(21.2.2008) filed by the appellant.

6. I would have accepted the contentions of learned counsel for

respondent no. 3 had it been a case of the appellant having his lion's share

in the adjournments and respondent no. 3 as well as the Tribunal having

negligible share in delaying the disposal of claim petition. The roznama

clearly shows that the Tribunal itself took a little less than six years of

time for framing of the issues. The roznama further shows that

respondent no. 3 also took little more than one year to file its Written

Statement. The Tribunal was also vacant for several months together as

no Presiding Officer was appointed to preside over the Tribunal. These

facts clearly indicate that the appellant's share was not overwhelmingly

high, but the share of the Tribunal as well as respondent no. 3 also

cannot be said to be negligible in belated disposal of the claim petition.

This appears to be the case wherein every stake-holder has contributed to

the delay in disposal of the claim petition, one way or the other and,

therefore, it would be just and proper to award interest on the amount of

award from the date of petition till realization.

7. Sofar as the rate of interest is concerned, I find by taking

judicial note, that during the period from 1994 till 2002-2003, the rates of

interest on deposits were quite high, ranging from 8-10% and after 2003-

2004 till 2010, these rates declined to 7-8% per annum. Therefore, I am

of the view that on an average, interest rate of 8% could be appropriately

applied to the compensation amount determined by the Tribunal in the

instant case. Both the points are answered accordingly.

8. In the result, this appeal is partly allowed and following order

is passed :

(1) The compensation amount of Rs. 13,00,000/- determined by

the Tribunal is confirmed.

(2) The amount of compensation of Rs. 13,00,000/- shall be

inclusive of no fault liability compensation and shall carry interest @ 8%

per annum from the date of petition i.e. 12.6.1995 till realization of the

entire claim.

(3) The excess amount of the compensation to be calculated as

per the order of this Court shall be deposited in this Court by respondent

no. 3 within three months from the date of order failing which the

appellant shall be at liberty to execute the decree of this Court.

(4) The deficit court fees, if any on the enhanced compensation,

shall be paid by the appellant within one month from the date of order.

        (5)     Parties to bear their own costs.



                                                     S. B. SHUKRE, J




Joshi