Bombay High Court
Shivshanker Sakharam Pawar vs M.S.R.T.C., Thr Its District ... on 17 March, 2021
Bench: Anil S. Kilor
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2025 OF 2018
Shivshanker S/o Sakharam Pawar,
Age-65 years, Occu:Advocate,
R/o-Lokmanya Nagar, Parbhani
...APPELLANT
(Orig. Claimant)
VERSUS
Maharashtra State Road Transport
Corporation,
Through its District Controller,
Office at Gangakhed Road,
Parbhani.
...RESPONDENT
(Orig. Respondent)
...
Mr.P.C. Mayure Advocate for Appellant.
Mr.A.D. Wange Advocate for Respondent.
...
CORAM: ANIL S. KILOR, J.
DATE : 17th MARCH, 2021
ORAL JUDGMENT :
1. The present appeal is filed by the claimant for
enhancement of compensation granted by the Motor Accident
Claims Tribunal, Parbhani in M.A.C. Petition No. 420 of 2016 vide
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Judgment dated 26th April 2018, to the tune of Rs.1,70,000/-
(including no-fault liability amount of Rs.25,000/-) along with
interest at the rate of 7% p.a. from the date of petition till
realization of the entire compensation amount.
2. I have heard learned respective counsel for the
parties.
3. The brief facts of the present case are that, the
claimant who is an advocate by profession, was travelling on
15th February 2016, to attend a funeral of his relative at village
Kapadsinghi, in a State Transport bus bearing No. MH-20-D-
9852. When the said bus was crossing a broken bridge near
Kapadsinghi, it gave unexpected jerk and due to which the
claimant sustained severe injuries. The claimant was, therefore,
required to shift to primary health center, Kapadsinghi. But
looking to the nature of injuries, he was referred to Parbhani in
the hospital of Dr. Navandar, who treated him during the period
from 15th February 2016 to 21st February 2016 for injuries to L1
vertebrae compression fracture without neurodeficit and
continuous pain. The doctor has certified the disability to the
extent of 40%, caused due to said accident. However, the
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claimant claimed the compensation on the ground that he is not
able to now practice as an advocate and therefore, there is
100% loss of earning capacity.
4. The learned Tribunal after considering the oral as well
as documentary evidence on record, granted an amount of
Rs.1,70,000/- including no-fault liability towards compensation
along with interest.
5. The learned counsel appearing for the appellant
submits that the learned Tribunal has committed error in not
considering that the appellant used to attend court cases in
various courts and he was a standing counsel for M.S.R.T.C.,
United Insurance Company and Zila Parishad, Parbhani and now
because of disability he is not able to travel outside Parbhani and
attend the court cases in other cities, which he used to do prior
to the accident.
6. It is further submitted that the fact that M.S.R.T.C. is
not engaging him in any matters because of his disability, is
sufficient to show that the claimant has lost his 100% earning
capacity after the accident.
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7. Per contra, learned counsel for the respondent -
M.S.R.T.C. submits that the compensation granted by the
learned Tribunal is just and fair and the said amount was granted
by the Tribunal after considering the case of the claimant about
his disability to earn due to the impact of the accident.
8. He submits that the learned Tribunal has considered
the evidence produced on record, showing that the appellant is
still attending the cases in various courts outside Parbhani and
the appellant is not living a restricted life as he has alleged in the
claim petition.
9. Learned counsel for respondent further states that,
whether to engage a lawyer in a case or not is a prerogative of
the client and if the M.S.R.T.C. is not engaging the appellant in
the matters of M.S.R.T.C. after his accident, that does not mean
that the appellant - claimant has suffered 100% disability to
earn. By arguing so, he prays for dismissal of the appeal.
10. To consider rival contentions of the parties, I have
gone through the record and proceedings of the Tribunal, the
depositions and the Judgment.
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11. It is a well settled law that physical disability and loss
of earning capacity due to impact of physical disability are two
distinct and separate things and therefore, even though in this
matter the doctor has certified that the appellant has suffered
40% physical disability, that does not mean that the appellant
has lost earning capacity to the extent of 40%.
12. In the case of Syed Sadiq and others vs.
Divisional Manager, United India Insurance Company
Limited1, the Supreme Court has categorically observed the
difference between the physical disability and capacity to earn in
following words:
"6. This Court in Mohan Soni v. Ram Avtar Tomar, (2012) 2
SCC 267, has elaborately discussed upon the factors which
determine the loss of income of the claimant more
objectively. The relevant paragraph reads as under: (SCC
pp. 271-272, para 11)
"11. In a more recent decision in Raj Kumar v. Ajay
Kumar, (2011) 1 SCC 343 this Court considered in great
detail the correlation between the physical disability
suffered in an accident and the loss of earning capacity
resulting from it. In paras 10, 11 and 13 of the
1 (2014) 2 S.C.C. 735
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judgment in Raj Kumar, this Court made the following
observations: (SCC pp. 349-50)
"10. Where the claimant suffers a permanent
disability as a result of injuries, the assessment of
compensation under the head of loss of future
earnings would depend upon the effect and impact
of such permanent disability on his earning
capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as
the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of
economic loss,s that is, the percentage of loss of
earning capacity, rising from a permanent disability
will be different from the percentage of permanent
disability. Some Tribunals wrongly assume that in
all cases, a particular extent (percentage) of loss
of earning capacity to the extent (percentage) of
permanent disability will result in award of either
too low or too high a compensation."
13. On a above referred touchstone, I revert back to the
facts of the present case. There is no dispute that the claimant is
a practicing advocate and looking at the injuries he suffered in
the accident, he can continue his profession as an advocate. The
record shows that even after accident he is continuing with his
profession and attending the court cases outside Parbhani. The
learned Tribunal has observed and quoted various cases in which
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the claimant appeared as an advocate and conducted the cases
outside Parbhani.
14. The instances which are recorded by the Tribunal all
are of the period after the date of accident. Thus, from the
record and looking to the profession of the appellant - claimant,
it is difficult to accept the case of the appellant that he is not
able to continue with his practice. In the circumstances, the said
contention of the appellant is rejected.
15. Next contention raised by the appellant is that the
M.S.R.T.C. has stopped engaging the appellant to conduct its
cases after the accident which sufficiently shows that the
appellant has lost the earning capacity. The said contention also
cannot be accepted, as it is a prerogative of the client whether to
engage a particular lawyer or not and only because the
M.S.R.T.C. is not engaging the appellant as a lawyer to conduct
its cases, cannot be the basis to arrive at a conclusion that the
appellant has lost his capacity to earn, to the extent of 100%.
16. In that view of the matter, I do not find any merit in
the present matter. Hence I pass following order:
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ORDER
(I) The Appeal is dismissed.
(II) No order as to costs.
[ANIL S. KILOR, J.]
asb/MAR21
