Shekhar Balaji Meshram vs J. Ramchandra Rajayya And Anor
2017 Latest Caselaw 7338 Bom

 FA 1360.08.odt                               1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                      FIRST APPEAL NO.1360 OF 2008


 Shekhar s/o Balaji Meshram,
 Aged 30 years,
 R/o. Vidya Nagar,
 Nagpur.                                           ..               APPELLANT


                               .. VERSUS ..


 1]     J. Ramchandra s/o Rajayya,
        Aged Major, R/o. 9/51,
        Narsampeth, Warangal District,
        Andhra Pradesh.

 2]     United India Insurance Company,
        M.G. Road, Pochanna Maidan,
        Warangal, through its Divisional
        Manager, Medical Chowk, Nagpur...                      RESPONDENTS



                               ..........
 Shri Asghar Hussain, Advocate for Appellant,
 Shri M.M. Kalar, Advocate for Respondent No.2,
 None for Respondent No.1 though duly served.
                               ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : SEPTEMBER 20, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and award dated 12.9.2006 passed by the Motor Accident

Claims Tribunal, Nagpur in Claim Petition No.526/2002. By

the said judgment and award, tribunal awarded

compensation of Rs.1,06,800/- with interest at the rate of

7.5% per annum from 12.8.2002 till realization under section

166 of the Motor Vehicles Act on account of injuries suffered

by claimant.

2] For the sake of convenience, appellant shall be

referred in his original status as petitioner as he was

referred before the tribunal.

3] The facts giving rise to the appeal may be stated

in nutshell as under :

(i) On 20.3.2001, petitioner was proceeding

from Nagpur to Umrer on his motorcycle. At around 12.30 in

the noon, Truck No. ACE-1719 gave a dash to motorcycle of

petitioner from behind. Petitioner fell down and suffered

injuries. Initially he was hospitalized at Indira Gandhi Medical

College and Hospital, Nagpur from 20.3.2001 to 19.5.2001

and again on 1.9.2001 to 22.9.2001.

(ii) According to petitioner, he suffered 40%

permanent disability in accident. On medical examination,

fractures of shaft femur (right), both bone of right arm and

right humerus were detected. He was running tuition

classes and earning Rs.3,000/- per month. It was submitted

that amount of Rs.25,000/- was spent on the treatment.

4] Respondent no.1-owner of the truck was duly

served with summons. He did not appear and petition

proceeded ex-parte against him

5] Respondent no.2-insurer resisted the petition vide

written statement (Exh.18). Factum of ownership and

insurance was not in dispute. Insurance company denied

involvement of insured vehicle in accident. Alternatively,

it was submitted that it being the case of involvement of two

vehicles, liability, if any, be apportioned equally.

6] On rival pleadings of the parties, tribunal framed

issues at Exh.19. Petitioner examined himself and PW-2 Dr.

Kimmatkar in support of his claim. Reliance was also placed

on police and medical papers. Respondent no.2-insurance

company did not adduce any evidence. Considering the oral

and documentary evidence, tribunal assessed permanent

disability to the extent of 15%, Rs.2,000/- per month as

monthly income and assessed total compensation to the

tune of Rs.1,06,800/- as stated above. Being aggrieved and

having found the compensation inadequate, claimant has

challenged the impugned judgment and award in this

appeal.

7] Heard Shri Asghar Hussain, learned counsel for

appellant-petitioner and Shri M.M. Kalar, learned counsel for

respondent no.2. None for respondent No.1 though duly

served.

8] Learned counsel for appellant-petitioner submits

that evidence of petitioner regarding his monthly earning

has remained unshattered in the cross-examination and

tribunal was not justified in reducing monthly income from

Rs.3,000/- to Rs.2,000/-. It is submitted that petitioner was

indoor patient for more than 80 days and meager amount of

Rs.2,400/- has been awarded towards conveyance and

special diet. Learned counsel submits that there is evidence

of medical officer clearly showing 40% disability and without

considering the evidence of an expert in proper perspective,

court reduced the permanent disability to the extent of 15%.

Learned counsel has placed on record calculations giving

head-wise particulars and submits that claimant would be

entitled to an amount of Rs.3,62,000/- towards

compensation with 9% interest thereon from 12.8.2002.

In support of calculations, learned counsel placed reliance

on :

(i) Nagarajappa .vs. Divisional Manager, Oriental Insurance Company Limited [2011 ACJ 1434]

(ii) Rudra .vs. Divisional Manager, National Insurance Company Limited and another [2011 ACJ 1699).

(iii) B. Kothandapani .vs. Tamil Nadu State Transport Corporation Limited [2011 ACJ 1971]

(iv) Ramachandrappa .vs. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 ACJ 2436]

(v) Subulaxmi .vs. Managing Director, Tamil Nadu State Transport Corporation and another, [2012 ACJ 2863]

(vi) Sandeep Khanuja .vs. Atul Dande and another, ACJ 2017.

9] Per contra, learned counsel for respondent no.2

submits that claimant has not produced any document to

show that he was earning Rs.3,000/- per month at the

relevant time. It is submitted that evidence regarding

previous job and the earning therefrom is also not brought

on record. According to learned counsel, in the absence of

cogent evidence, tribunal was justified in considering

income of Rs.2,000/- per month. Regarding reliefs under

various other heads, it is submitted that claimant could not

prove functional disability and in the absence of evidence to

indicate that earning capacity of claimant has been

adversely affected due to injuries received in accident,

tribunal rightly assessed disability to the extent of 15% and

awarded just, reasonable and proper compensation. It is

submitted that in no case, judgment and award can be said

to be perverse, illegal or against the evidence on record and

appeal being devoid of merits needs to be dismissed.

10] Based on the rival pleadings and submissions,

following points arise for determination in the instant

appeal :

(i) Whether petitioner could prove that his monthly earning was Rs.3,000/-.?

(ii) Whether claimant could establish that he suffered 40% permanent disability as stated. ?

(iii) Whether compensation awarded by tribunal is just, fair and reasonable.?

(iv) Whether impugned judgment and award calls for interference in this appeal.?

The findings to point nos.(i), (ii) and (iv) are in the negative

and to point no.(iii) in the affirmative for the reasons to

follow :

11] At the outset, it is to be stated here that so far as

occurrence of accident due to rash and negligent of Truck

No.ACE-1719 is concerned, there is no serious dispute. FIR

(Exh.28), spot panchanama (Exh.29) and Form AA (Exh.30)

clearly indicate that driver of said truck was responsible for

accident. It is admitted that at the relevant time offending

truck was insured with respondent no.2. Respondent no.1

being owner and respondent no.2 being insurer is thus liable

to pay compensation to claimant.

12] The crux of dispute lies in the determination of

quantum of compensation and extent of disability suffered

by claimant. From discharge card (Exh.25), it is evident that

petitioner was indoor patient from 20.3.2001 to 19.5.2001.

Another discharged card (Exh.26) shows that he was indoor

patient from 1.9.2001 to 26.9.2001. On both the occasions

he was in-patient at the Government Hospital.

13] Petitioner examined PW-2 Dr. Kimmatkar on the

point of permanent disability. Dr. Kimmatkar was attached

to I.G.M.C, Hospital, Nagpur as a Medical Officer. He stated

that on 25.2.2002 he examined petitioner and opined that

he suffered 40% permanent disability due to restriction of

movement of leg and hand. It is stated by doctor that there

was also decrease in muscle power. Considering multiple

fractures, Dr. Kimmatkar opined that there is loss of muscle

power and restriction in movement of leg and hand of

petitioner. Dr. Kimmatkar has admitted in cross-examination

that disability up to 40% is mild disability. He also admits

that all fractures were united and petitioner can walk

without stick. According to Dr. Kimmatkar there was slight

difficulty in shoulder and elbow joint. From the evidence of

Dr. Kimmatkar, it is apparent that disability was partial

permanent disability and not against the whole body.

Though claimant stated in evidence that his right leg was

shortened by one inch causing limping effect, Dr. Kimmatkar

could not state positively regarding shortening of leg.

Considering the evidence of medical officer, tribunal

considered permanent disability to the extent of 15%. No

error or fault can be found with the said finding recorded by

the tribunal.

14] So far as monthly income of petitioner is

concerned, admittedly there is no documentary evidence.

Petitioner stated in evidence that at the relevant time he

was taking tuition classes and earning Rs.3,000/- per month.

It is pertinent to note that before accident, as stated by

petitioner, he was serving in a Chemical Factory and getting

salary of Rs.2,500/- per month. He stated that he was

serving in Ordnance Factory and earning Rs.2,700/- per

month. No documentary evidence of his previous services

is forthcoming and in this background tribunal considered

monthly income of claimant at the time of accident in 2001

as Rs.2,000/-.

15] In the above premise, this court does not find any

scope to interfere with the impugned judgment and award

as compensation awarded is found just, fair and reasonable.

Appeal, therefore, deserves to be dismissed. Hence, the

following order :

ORDER

(i) First Appeal No.1360/2008 stands dismissed.

 (ii)           No order to costs.


                                     (Kum. Indira Jain, J.)
 Gulande, PA