Bharat Kondiram Gavali vs Adinath Tukaram Solat And Another
2017 Latest Caselaw 6979 Bom

                                                               1                                             3169.2016FA.doc


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                          BENCH AT AURANGABAD.

                                FIRST APPEAL NO.3169 OF 2016 


 Bharat S/o. Kondiram Gavali
 Age : 40 years, Occu : Business, Now Nil, 
 R/o. Sapnai, Tq. Kallam, Dist. Osmanabad                                                      .. APPELLANT 
                                                                                               (Orig. claimant) 
             VERSUS

 1.          Adinath S/o Tukaram Solat
             Age : Major, Occu : Business, 
             R/o Miri, Tq. Pathardi, 
             Dist. Ahmednagar 
             (Owner of Indica Car No. MH-16-AT-2744)     

 2.          The Oriental Insurance Co. Ltd., Mumbai, 
             Through : The Branch Manager, 
             The Oriental Insurance Co. Ltd., 
             Marwad Galli, Osmanabad. 
             (Insurer of Indica Car No. MH-16-AT-2744)
                                                                                            .. RESPONDENTS
                                                         ...

             Advocate for Appellant       :  Shri. Dhananjay Mane h/f. 
                                              Shri. Bharat Pankaj A.     
             Advocate for Respondent No.1 :  Shri. R.S. Kasar
             Advocate for Respondent No.2 :  Shri. A.G. Kanade     
                                    ... 
  
                                                                    CORAM :  P.R. BORA, J.

                                                                    RESERVED ON       :               21.07.2017
                                                                    PRONOUNCED ON :                   11.09.2017


 JUDGMENT :

1. The appellant - original claimant has filed the present

appeal seeking enhancement in the amount of compensation as has

2 3169.2016FA.doc

been awarded by the Motor Accident Claims Tribunal at Osmanabad

(hereinafter referred to as the 'Tribunal') in Motor Accident Claim

Petition No.23/2013 decided on 10.10.2014.

2. The appellant had filed the aforesaid claim petition

claiming compensation on account of the injuries caused to him in a

vehicular accident happened on 22.10.2012, having involvement of a

motorcycle bearing registration no.MH-13-H-3572 and a car bearing

registration no.MH-16-AT-2744 (hereinafter referred to as the

'offending car'). It was the case of the appellant that, on 22.10.2012

when he was proceeding on his motorcycle from Sapnai to Yermala,

offending car coming from the opposite direction gave him a dash

and in the accident so happened he was severely injured. It was the

further contention of the appellant that, because of the injuries

caused to him in the alleged accident, he incurred 48% permanent

disability. It was his further contention that, though physical

disability was to the extent of 48%, he lost his total earning capacity.

The appellant had alleged that, the alleged accident happened

because of the rash and negligent driving of the car driver. The

appellant has, therefore, claimed the compensation of

Rs.15,00,000/- jointly and severally from the owner and insurer of

the offending car. For the purposes of court fee, the appellant had

3 3169.2016FA.doc

restricted his claim to Rs.10,00,000/-. Respondent no.1 is the

registered owner of the offending car and the same was insured with

respondent no.2 Insurance Company.

3. In order to substantiate the claim so raised by him, the

appellant himself deposed before the Tribunal and also examined

Dr. Anand Kulkarni as his witness. The appellant had also placed on

record the relevant police papers pertaining to the accident in

question, the disability certificate in his favour and the documents

pertaining to the treatment taken by him at Jagdale Mama Hospital

and at the Viraj Institute at Barshi. The appellant had also placed on

record all relevant medical bills.

4. Both the respondents, though had resisted the claim on

various grounds through their respective written-statements, did not

adduce any oral or documentary evidence.

5. The learned Tribunal, after having assessed the oral and

documentary evidence brought before it, held the claimant entitled

for the total compensation of Rs.7,43,000/- jointly and severely from

the respondents with interest thereon at the rate of 7% per annum

from the date of petition till realization. According to the appellant,

4 3169.2016FA.doc

the compensation as has been awarded by the Tribunal is unjust and

inadequate. The claimant has, therefore, preferred the present

appeal seeking enhancement in the amount of compensation

awarded by the Tribunal.

6. Shri Mane, learned Counsel appearing for the appellant

submitted that, the Tribunal has failed in appreciating that, the

appellant had lost his total earning capacity because of the

permanent disablement incurred by him as a result of the injuries

caused to him in the alleged accident. The learned Counsel submitted

that, though the physical disability as has been incurred by the

appellant is quantified to the extent of 48%, while determining the

amount of compensation, what was to be considered by the Tribunal

was the loss in earning capacity of the appellant. The learned Counsel

submitted that, without considering the evidence on record, the

learned Tribunal on the basis of the physical disablement has

assessed the future loss of income of the appellant. The learned

Counsel further submitted that, the Tribunal has also erred in not

awarding the adequate compensation towards hospital and medicine

bills. The learned Counsel submitted that, the appellant had placed

on record all relevant medicine bills worth around Rs.5,00,000/-, but

without assigning any reason, the Tribunal has awarded only a sum

5 3169.2016FA.doc

of Rs.2,43,000/- towards the hospitalization and medication. The

learned Counsel further submitted that, the compensation as has

been awarded by the Tribunal towards conveyance, diet & attendant

charges is unjust and inadequate. The learned Counsel submitted

that, towards the pain and agony and for loss of the enjoyment of

amenities of life also the Tribunal has awarded meager compensation

which in no case can be said to be just and adequate. The learned

Counsel further submitted that, though sufficient evidence was

adduced as about the future medical expenses, the Tribunal without

assigning any reason has not awarded the entire said amount and

instead has granted the compensation only to the tune of

Rs.50,000/-. The learned Counsel in the aforesaid circumstances

prayed for enhancement in the amount of compensation and to

modify the award accordingly.

7. The learned Counsel for respondent no.1 and respondent no.2

have supported the impugned Judgment and award. The learned

Counsel submitted that, the amount of compensation as has been

awarded by the Tribunal is fair, just and adequate. The learned

Counsel submitted that, no such case is made out by the appellant for

enhancement in the amount of compensation. The learned Counsel,

therefore, prayed for dismissal of the appeal.

6 3169.2016FA.doc

8. I have carefully considered the submissions advanced by

the learned Counsel appearing for the respective parties.

9. As has come on record, the appellant was carrying on the

business of selling sweets. More particularly, the sweet known as

'pedha'. On the date of accident the age of the appellant was 38

years. As was pleaded in the petition, at the relevant time the

appellant was earning approximately Rs.9,000/- per month.

10. As deposed by Dr. Anand Kulkarni (PW No.2) the

appellant had sustained the following injuries :

                 (i)             Head injury with right eye CLW

                 (ii)            Blunt trauma to right shoulder with fracture, right 
                                 cavical and right scapula 

                 (iii)           Grade   I   compound   fracture,   lower   third-middle  

third, right humerus with one butterfly fragment with fracture medial condyle, right humerus with redial nerve palsy

(iv) Grade II to compound fracture lower third -

middle third right femur,

(v) Blunt trauma to right foot with fracture sharp third metatarsal and

(vi) Displaced sub trochanteric fracture right femur

(vii) Blunt trauma chest.

7 3169.2016FA.doc

11. The physical disability incurred by the appellant because

of the accidental injuries was also assessed by Dr. Anand Kulkarni

(PW No.2). During the course of his evidence before the Court, the

disability certificate issued by him was duly proved and was marked

Exh.36. As certified by Dr. Kulkarni the appellant had incurred 48%

permanent disability. Dr. Kulkarni also deposed about the estimate of

the future medical expenses. As noted earlier, it is the case of the

appellant that, the percentage of his physical disablement may be to

the extent of 48%, loss in his earning capacity is 100%.

12. In view of the evidence on record and the grounds raised

by the appellant, it has to be first examined 'whether the

compensation as awarded by the learned Tribunal towards future loss

of income can be held to be just and adequate or needs to be

enhanced as prayed by the appellant'. As was deposed by the

claimant, he was carrying on the business of selling sweets. It was

the case of the claimant before the Tribunal that, he used to prepare

the sweets at his home and used to sell the said sweet at Yedeshwari

temple at Yermala. It was his further contention that, from the said

business he used to earn around Rs.9,000/- per month. It was his

further contention that, after having met with the accident and after

8 3169.2016FA.doc

having incurred the permanent disablement to the extent of 48%, he

has become incapable of carrying on his business and is thus

subjected to suffer loss to the extent of 100% in his earning capacity.

13. Perusal of the impugned judgment shows that, Tribunal

has assessed the amount of compensation under the head of future

loss explicitly relying upon the physical disability certificate. The

Tribunal has held the income of the appellant to the tune of

Rs.4500/- per month as net income for the purpose of determining

the amount of compensation and 48% of the same is made payable to

the appellant jointly and severally from the owner and insurer of the

offending car.

14. After having considered the evidence on record, more

particularly the facts as deposed by the appellant in his testimony

before Court and the facts which have come on record through the

evidence of PW No.2 Anand Kulkarni as about the injuries caused to

the claimant and the permanent disablement incurred by him

because of the said injuries, it appears to me that, the learned

Tribunal has committed an error in assessing loss in earning capacity

of the appellant at par with the percentage of the disability. From the

evidence on record and the nature of injuries caused to the appellant,

9 3169.2016FA.doc

a reasonable inference can be drawn that, henceforth the appellant

may not be able to carry on his business of selling sweets at

Yedeshwari temple at Yermala. Even for preparation of sweets he will

have to take assistance of somebody and he alone may not be able to

do the said work. It appears to me that, the loss caused in his

earning capacity has to be assessed to the extent of 75% and

accordingly the amount of compensation needs to be determined.

Insofar as the income as has been assessed by the Tribunal, there

seems no reason to cause any interference. The Tribunal has held the

net annual income of the appellant to the tune of Rs.54,000/-. The

future loss of income, which the appellant is likely to suffer, would be

thus 75% of the said amount, which comes to Rs.40,500/-. The

Tribunal has rightly applied the multiplier of 15. By applying the said

multiplier, the amount of future loss comes to Rs.6,07,500/-. I hold

the appellant entitled for the said amount.

15. The compensation, as has been awarded by the Tribunal,

towards hospitalization, medical bills etc., for diet and attendant

expenses and for conveyance appears just and proper. No case is

made out for enhancement in the compensation awarded under the

said heads.

10 3169.2016FA.doc

16. The compensation awarded by the Tribunal towards

future treatment, however, needs some enhancement. The Tribunal

has awarded sum of Rs.50,000/- towards the future treatment. In his

evidence before the Court PW No.2 Dr. Anand Kulkarni has

specifically deposed that, the appellant has been advised to undergo

further operation for removal of implant and bone grafting for un-

united fractures of right humerus and the said operations may cost

Rs.70,000/- to Rs.1,00,000/-. In view of the aforesaid evidence, the

Tribunal must have awarded the compensation at least of Rs.70,000/-

and not less than that. I, therefore, enhance the amount of

compensation towards the future medical expenses by Rs.20,000/-.

17. Similarly, the Tribunal has awarded the compensation of

Rs.15,000/- towards pain and agony and Rs.10,000/- towards loss of

enjoyment of life. The compensation so awarded by the Tribunal

under the aforesaid heads is apparently unjust and inadequate.

Having regard to the guidelines laid down by the Hon'ble Apex Court

in series of Judgments, I deem it appropriate to award the

consolidated compensation of Rs.1,25,000/- jointly under both the

said heads. The appellant is thus found entitled for the total

compensation of Rs.10,80,000/-. In the facts and circumstances of

the case, it appears to me that, this would be just and fair

11 3169.2016FA.doc

compensation payable to the appellant. Hence the following order.

ORDER

1. The appellant is held entitled to the total compensation

of Rs.10,80,000/- (Rs.Ten Lakhs Eighty Thousand Only) inclusive of

NFL compensation with interest thereon at the rate of 9% per annum

from the date of filing of the petition till its realization jointly and

severally from respondent nos.1 & 2.

2. The impugned Award be modified accordingly.

3. Deficit court fee, if any, be recovered from the appellant

before preparation of the modified Award.

4. The appeal stands partly allowed in the aforesaid terms.

5. Pending civil application, if any, stands disposed of.

(P.R. BORA, J.)

ggp