Yedunath Maruti Naikde @ Naik vs Sanjeev Hemant Mody And Anr
2021 Latest Caselaw 17431 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                APPELLATE SIDE CIVIL JURISDICTION

                    FIRST APPEAL NO.1019 OF 2015

Yedunath Maruti Naikde @ Naik                        ...Appellant
          vs.
Sanjeev Hemant Mody and Another                      ...Respondents

Mr. T.J. Mendon, for the Appellant
Ms. Poonam Mittal, for Respondent No. 2.

                        CORAM :     N.J. JAMADAR, J.
                    RESERVED ON :   11th OCTOBER, 2021
                    PRONOUNCED ON : 15th DECEMBER, 2021

                                  -------------
JUDGMENT :

1. This appeal is directed against the judgment and award

dated 12th October, 2007 passed by the learned Member, MACT,

Mumbai (Tribunal) in MACP No. 288 of 1996 whereby the claim of

the appellant came to be partly allowed by awarding compensation

of Rs. 3 lakhs inclusive of compensation awarded under section

140 of the Motor Vehicle Act, 1988 (MV Act, 1988), along with

interest at the rate of 7% p.a. from 1 st January, 2006 rill

realization.

2. The background facts leading to this appeal can be stated, in

brief, as under:-

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a]       The appellant/applicant was working as a 'Loader' (Hamal)

with Ruby Tempo Transport Services. On 11th May, 1995 the

applicant, along with two more loaders, was traveling in a tempo

bearing No. MH-04-C-1498, loaded with powder. The said tempo

was owned by opponent No. 1 and insured with opponent No. 2-

insurer. The tempo was proceeding towards Goregaon. Asif was at

the wheel of the said tempo. The applicant and other two loaders

were sitting in the cabin. The driver drove the vehicle in an

extremely rash and negligent manner, despite caution by the

applicant and other loaders. Eventually, on Western Express High

Way near Vikhroli Link road, Jogeshwari (E), the driver rammed

the tempo into another stationary tempo bearing No. MXU-4139,

from behind. The said stationary tempo was loaded with acid. The

impact was such that the acid from the said tempo spilled over the

applicant, and the applicant sustained severe burn injuries,

resulting in loss of 100% vision in the right eye and 90% vision in

the left eye. Accident was reported to police and crime was

registered against the driver of the offending tempo.

b] The applicant suffered 47% overall disability. Due to loss of

vision in both the eyes, the applicant, however, suffered 100%

functional disability. The applicant claimed that he was drawing

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monthly salary of Rs. 1,050/- and was also paid daily allowance

(bhatta) of Rs. 25/-. The applicant thus approached the Tribunal

with a claim of Rs. 4 lakhs, under section 166 of MV Act, 1988.

c] The opponent No. 1 did not appear despite service of notice.

Hence, the application proceeded ex parte against opponent No. 1.

Opponent No. 2 insurer resisted the application by fling written

statement. In addition to the denial of the mode and manner of

accident, the negligence attributed to the driver of the offending

vehicle, the age, occupation and income of the applicant and the

injuries sustained in the accident, a defence of the breach of

conditions of insurance was taken on the count that the driver of

the vehicle was not having an effective driving license at the time

of the accident.

d] The learned Member, Tribunal, after appraisal of the

evidence of the applicant Yadunath Naikade (PW.1) and documents

tendered for his perusal was persuaded to allow the application

holding, inter alia, that the accident occurred due to negligence on

the part of the driver of the offending vehicle in which the

applicant was travelling as a loader and the opponent No. 2 failed

to lead evidence and establish that there was breach of conditions

of insurance. The Tribunal recorded a fnding that the applicant

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had sustained 100% loss of vision in the right eye and 90% loss of

vision in the left eye. Opining that the applicant thus suffered

100% functional disability, the learned Member awarded

compensation under the following heads:

a) Pain and suffering                               - 75,000/-
b) Medical bills                                    -   5,000/-
c) Special diet and conveyance                      -   5,000/-
d) Loss of eye sight of right eye 100%
and loss of eye sight of left eye 90%               - 1,00,000/-
e) Loss of income                                   - 1,00,000/-
f) Shortening of life due to injuries               -   15,000/-
                     Total:                         - 3,00,000/-

3. As regards the interest on the aforesaid amount, the learned

Member was of the view that since the opponent No. 2 came to be

impleaded as a party-opponent in the year 2002 and the notice

could be served on the opponent No. 2 on 8 th September, 2006,

only, it was proper to award interest at the rate of 7% p.a from 1 st

January, 2006.

4. Being aggrieved by and dis-satisfed with the quantum of

compensation as well as the award of interest from 1 st January,

2006, instead of date of the application, the applicant has

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preferred this appeal.

5. I have heard Mr. T.J. Mendon, learned counsel for the

appellant and Ms. Poonam Mittal, learned counsel for Respondent

No. 2 at length. With the assistance of the learned counsel for the

parties, I have also perused the material on record, including the

deposition of the applicant Yadunath Naikade (PW.1) and the

documents tendered for the perusal of the Tribunal.

6. Mr. Mendon, the learned counsel for the appellant submitted

that the learned Member of the Tribunal failed to assess the

compensation in accordance with well recognized principles of

determination of compensation in personal injury claims. The

compensation ought to have been awarded under various

pecuniary and non-pecuniary heads of damages. Secondly, the

Tribunal was in error in scaling down the income of the applicant,

from Rs. 1,050/- p.m along with daily allowance of Rs. 25/-, to Rs.

900/- p.m., on the premise that there was no proof in respect of

the said claim. Thirdly, the Tribunal ought to have determined

compensation taking into account future prospects especially in

view of the fact that the applicant was only 20 years of age. In the

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backdrop of the age of the applicant, the Tribunal ought to have

determined loss of earnings on account of 100% functional

disability by applying appropriate multiplier. Lastly, there was no

justifable reason not to award interest from the date of the

application, urged Mr. Mendon.

7. Per contra, the learned counsel for respondent No. 2 insurer

would urge that the claim of the applicant that he had suffered

100% functional disability cannot be said to have been proved. In

the absence thereof, according to Ms. Mittal, learned counsel for

respondent No. 2, even the compensation awarded under the

impugned award is on a higher side. Inviting the attention of the

Court to the manner in which the applicant fared in the cross

examination, an endevour was made to draw home the point that

100% functional disability has not at all been proved. In the

circumstances of the case, since delay in proceeding with the

application was squarely attributable to the applicant, the

Tribunal was justifed in awarding interest from 1st January, 2006,

submitted Ms. Mittal.

8. The aforesaid submissions now fall for consideration.

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9.       To      begin   with   the   determination   of   the   amount       of

compensation is governed by the test of "just compensation". In an

injury claim, the quantum of compensation can be said to be just

if, to the extent possible, it restores the claimant to the position

before he sustained injury, in full and adequate measure. The

determination of compensation, however, cannot be an exercise

influenced by subjectivity and guesswork. Thus, the heads under

which compensation is to be awarded in a case of personal injury

claim, are required to be adhered to. This assumes signifcance for

the reason that the claimant deserves compensation not only for

the physical injury but also the resultant inability to lead life to

the fullest and enjoy the usual amenities and pleasures of life.

Award of compensation under the recognized heads of pecuniary

and non-pecuniary damages minimizes the element of subjectivity

and also ensures that the claimant gets 'just compensation' in

contradistinction to either a meager amount or a bonanza.

10. In the case of R.D. Hattangadi vs. Pest Control (India) Pvt.

Ltd and Others1 the broad categories of the heads under which

the compensation is payable to the victim of vehicular accident

1 1995 ACJ 366.

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were enunciated as under:

                 Broadly speaking while fxing an amount of

compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of proft up to the date of trial; (iii) other material loss. So far non- pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

11. In the case of Raj Kumar vs. Ajay Kumar and Another 2 the

Supreme Court further elucidated the heads under which

compensation is payable and the necessity of determination of

compensation depending upon the nature of the disability. The

observations in paragraph 5 are instructive and hence extracted

below:

5] The heads under which compensation is awarded in personal injury cases are the following :

Pecuniary damages (Special Damages) :

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure;

2 2011 ACJ 1.

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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specifc medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)

(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much diffculty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specifc medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages

- items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some diffculty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.

12. In the case at hand, as indicated above, the learned Member

of the Tribunal did not adhere to the aforesaid mandate in the

matter of determination of the compensation under the well

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recognized heads. Instead the compensation was awarded on a

generalized premise. Had the Tribunal kept the aforesaid

prescription in view, it would have arrived at a just decision as

regards the just compensation.

13. The Tribunal proceeded on the premise that the claimant

suffered 100% functional disability. This assessment of the

Tribunal appears to be impeccable. Though an endevour was

made on behalf of the respondent to draw home the point that the

conclusion arrived at by the Tribunal that the applicant suffered

100% functional disability is not borne out by record, yet, the

context of the matter cannot be lost sight of. The applicant was

working as a Loader. There is evidence to indicate that the

applicant suffered 100% loss of vision in the right eye and 90%

loss of vision in the left eye. The loss of vision in both eyes, in the

backdrop of the nature of the avocation of the applicant, can only

lead to 100% functional disability. It is true that Dr. Shah who had

issued the certifcate (Exhibit 17) was not examined by the

applicant. However, the Tribunal on the basis of almost un

controverted material that the applicant suffered 100% loss of

vision in the right eye and 90% in the left eye, arrived at a

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justifable conclusion that the applicant suffered 100% functional

disability. I do not fnd any reason to take a different view of the

matter.

14. This propels me to the pivotal question of determination of

loss of future earnings on account of permanent disability as that

constitutes the principal head of the pecuniary damages. The

learned Member of the Tribunal was persuaded not to believe the

claim of the applicant that the was drawing a monthly salary of

Rs. 1,050/- plus Rs. 25/- daily allowance(bhatta), in the absence

of evidence in respect of the said claim. Nonetheless as the

applicant was then 20 year old boy, with capacity to work, the

income of the applicant was assessed as Rs. 900/- p.m.

15. Indeed the applicant could not place on record the

documents to substantiate the said claim. However, the Tribunal

lost sight of the nature of the jurisdiction exercised under section

166 of the M.V.Act, 1988. Indisputably, the applicant suffered

accident while working as a loader. In the backdrop of the nature

of avocation, it was too harsh on the part of the Tribunal to expect

the applicant to substantiate the said claim by placing documents

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of unimpeachable value. While assessing the claim of a claimant,

who claimed to have been engaged in menial work in an

unorganized sector, and also come from poor strata of the society,

it may not be appropriate to appreciate the claim of such claimant

with initial distrust. In any event, in the backdrop of the nature of

avocation, a salary of Rs. 1,050/- p.m which the applicant claimed

to draw, at the given point of time, was neither unreasonable nor

inconceivable. Refusal to take into account claim of the applicant

that he was also getting daily allowance of Rs. 25/-, in my view,

was also not proper. Even if it is assumed that applicant worked

for minimum 20 days in a month, excluding holidays and absence,

monthly income of the applicant would be Rs.1,550/- a little over

Rs.50/- per day. I am, therefore, persuaded to assess monthly

income of the applicant at Rs. 1,550/-.

16. Mr. Mendon was justifed in advancing a submission that the

Tribunal ought to have taken into account future prospects while

awarding compensation under the head of loss of future earnings.

The controversy is set at rest by a three Judge Bench judgment of

Supreme Court in the case of Jagdish vs. Mohan and Others 3. The

3 2018 ACJ 1011

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Supreme Court after adverting to the constitution Bench judgment

in the case of National Insurance Company Limited vs. Pranay

Sethi and Others4 added 40% of the established income of the

claimant, in an injury claim. The observations in paragraphs 10

and 11 of the judgment in the case of Jagdish (supra) are

instructive and hence extracted below:

10] In the judgment of the Constitution Bench in Pranay Sethi, 2017 ACJ 2700 (SC), this Court has held that the beneft of future prospects should not be confned only to those who have a permanent job and would extend to self- employed individuals. In the case of a self-employed person, an addition of 40 per cent of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs. 2400/- towards loss of future prospects.

11] In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete Civil Appeal No. 7750 of 2012, decided on 1 November 2012 deprivation of the ability to earn. Nothing - at least in the facts of this case - can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.

4 2017 ACJ 2700

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17. The applicant was 20 years old. Hence, on the aforesaid

touchstone, a sum of Rs. 620/- per month is required to be added

towards the loss of future prospects. Thus, computed the

multiplicand would be (1,550 + 620 = 2,170 x 12) Rs. 26,040/-.

Since the applicant was 20 years old, the appropriate multiplier

would be '18'. Therefore, towards the loss of future income, the

applicant would be entitled to a sum of Rs. 4,68,720/-.

18. In addition, under the head of pecuniary damages, it may be

just and proper to award Rs. 25,000/- towards expenses relating

to treatment, hospitalization, medicines, transportation,

nourishing food and miscellaneous expenditure.

19. The Tribunal awarded Rs. 75,000/- towards pain and

suffering. As the applicant lost vision of both eyes, that too on

account of acid spilled over the applicant, award of Rs. 75,000/-

towards pain and suffering appears to be justifable. Indisputably,

on account of loss of vision, the applicant lost many amenities and

joys of life. A sum of Rs. 25,000/- towards loss of amenities of life

may be reasonable and conservative. Towards loss of expectation

of life also, it may be appropriate to award Rs. 25,000/-.

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20. Resultantly, the applicant is entitled to a sum of Rs.

6,18,720/-.

21. Mr. Mendon, learned counsel for the applicant would urge

that the Tribunal committed an error in not awarding interest

from the date of application. Reliance was placed on the judgment

of the Supreme Court in the case of Dr (Mrs) K.R. Tandon vs. Om

Prakash and Another5 wherein, in the facts of the said case, the

Supreme Court observed that there was no justifcation not to

award interest from the date of the application.

22. Section 171 of the M.V. Act, 1988, provides that where any

Claims Tribunal allows a claim for compensation made under the

said Act, such Tribunal may direct that in addition to the amount

of compensation simple interest shall also be paid at such rate

and from such date not earlier than the date of making the claim

as it may specify in this behalf. The Tribunal is vested with the

discretion as regards the rate of interest as well as the date from

which the compensation shall carry interest. However, such date

shall not precede the date of application.

5   1999 ACJ 1299

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23. In the case at hand, the Tribunal awarded interest from 1 st

January, 2006 for the reason that respondent No. 2 insurer came

to be impleaded as party respondent to the application by way of

amendment in the year 2002 and the notice of the application was

served on the respondent on 8th September, 2006. The learned

Member of the Tribunal was justifed in not awarding interest from

the date of the application. However, it could not have advanced

the date to 1st January, 2006. The proper course would have been

to award interest from the date of impleadment of respondent No.

2/insurer as a party opponent to the application. It would,

therefore, be expedient to direct that the aforesaid amount shall

carry interest at the rate of 7% p.a. from 1 st January, 2002 instead

of 1st January, 2006.

24. For the foregoing reasons, the appeal deserves to be

allowed. Hence, the following order:

ORDER

1] The appeal stands allowed.

2] The impugned award stands modifed as under:

(i)      The respondents No. 1 and 2, opponent party and insurer,


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shall jointly and severally pay the sum of Rs. 6,18,720/- (Rupees

Six Lakh Eighteen Thousand Seven Hundred Twenty only)

inclusive of compensation under section 140 of the M.V. Act, 1988,

along with interest at the rate of 7% p.a. from 1 st January, 2002

till realization of the said amount.

3] The amount already deposited by respondents or either of

them, in terms of the impugned award, shall be deducted from the

aforesaid amount.

4] The applicant shall pay defcit Court fees, if any, before the

Tribunal.

5] In the circumstances, the parties shall bear their respective

costs.

6]       Award be drawn accordingly.



                                          (N.J. JAMADAR, J.)




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