Bombay High Court
Gajanan Maroti Panpate vs Mulla Dadapir Dadasaheb Musalman ... on 29 November, 2021
Bench: V.M. Deshpande
1 FA351.04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 351 OF 2004
APPELLANT : Gajanan S/o Maroti Panpate,
Aged about 41 years, Occu. Nil,
R/o Kashiram Patil's House,
Wadegaon, Tq. Balapur, Dist. Akola.
VERSUS
RESPONDENTS : [1.Mulla Dadapir Dadasaheb Musalman,
Aged about 51 years, Occu. Driver,
R/o Chagalamarri, Tq. Aalaguda,
Dist. Kurnool (A.P.)]
(Appeal is dismissed ag. him as per
Court's order dated 09.02.2021)
2. G. Sivanagappa S/o G. Nagaiah,
Aged adult, Occu. Truck owner,
R/o House No. 7/45, Sivalayam Street,
Chagalammari, Tq. Aalagudda,
Dist. Kurnool (A.P.)
3. United India Insurance Co. Ltd.,
Branch Office at 21/72, Dwarka Tower,
Cuddapah (A.P.) 516 001, through its
Branch Manager.
------------------------------------------------------------------------------------------------------
Mr. Mayank Gupta, Advocate h/f Mrs. P. M. Chandekar, Advocate
for the appellant.
Appeal dismissed against respondent no.1
None for respondent no.2.
Mr. M. M. Kalar, Advocate for respondent no.3.
-----------------------------------------------------------------------------------------------------
CORAM : V. M. DESHPANDE, J.
DATE : NOVEMBER 29, 2021.
2 FA351.04.odt
ORAL JUDGMENT
1. The present appeal, which is filed under Section 173 of
the Motor Vehicle Act, 1988, is directed against the judgment and
award passed by the learned Member, Motor Accident Claims
Tribunal, Akola, dated 09.12.2003 in Motor Accident Claim Petition
(MACP) No. 129/1997, since the appellant who got himself injured
in an accident, was aggrieved and dissatisfied with the quantum that
was determined by the learned Member of the Tribunal as
compensation.
2. Heard Mr. Mayank Gupta, learned counsel holding for
Mrs. Padma Chandekar, learned counsel for the appellant. Nobody
appears for respondent no.2, the owner of the offending vehicle
truck. Mr. M. M. Kalar, learned counsel appears for respondent no.3
- United India Insurance Co. Ltd. Appeal against respondent no.1 -
driver of the offending truck, is already dismissed by the Court's
order dated 09.02.2021.
3. The appellant was pillion rider of a motorcycle bearing
registration No. MH-30/C-2324, which was driven by one
3 FA351.04.odt
Purushottam Rahane when they were going on 27.01.1997 from
Wadgaon to Patur at a spot, which is known as Bharat Gadi
Karkhana, a truck bearing registration No. AP-04/T-0484 came from
opposite direction i.e. from Patur to Wadgaon and gave dash to the
motorcycle resulting into various injuries suffered by the appellant/
claimant. Initially, he was referred to the District Hospital, Akola.
He was an indoor patient in the said hospital from 27.01.1997 to
10.03.1997. Thereafter, he was admitted in a private hospital of Dr.
Mahendra Tamhane at Akola on 10.03.1997. The appellant was
there as an indoor patient from 10.03.1997 till 17.03.1997. During
this period a surgery on his right hand was performed and skin
grafting treatment was also done.
4. According to the appellant, at the time of the accident,
he was aged about 34 years and he was a Driver on a tractor of one
Manohar Jairam Rahane of Wadgaon and he was earning Rs.2,000/-
per month towards his salary.
5. With the aforesaid basic pleadings, the appellant had
filed the claim petition under Section 166 of the Motor Vehicles Act,
4 FA351.04.odt
1988, which was registered as M.A.C.P. No. 129/1997. The said
petition was contested mainly by respondent no.3 - Insurance
Company. The appellant entered into the witness box. He proved
various documents including the Discharge Certificate and
Handicapped Certificate. He also examined his employer Manohar
Rahane to prove his salary. Nobody entered into the witness box on
behalf of respondent no.3 - Insurance Company.
6. After appreciating the pleadings, documents and
evidence brought on record, the learned Member of the Tribunal
partly allowed the claim petition and found that the appellant is
entitled to receive Rs.70,000/- inclusive of N.F.L. amount and thus,
directed the Insurance Company to pay Rs.45,000/- along with
future interest at the rate of 9% per annum from the date of petition
till its actual realization.
7. The Tribunal on rival pleadings framed various issues.
Issue Nos.1, 2 and 3 show that the driver of the truck was rash and
negligent while driving the truck. A finding was also recorded in
favour of the appellant that due to said rash and negligent driving,
5 FA351.04.odt
the accident occurred and the appellant received injuries and
therefore, he is entitled for compensation.
8. Neither the owner of the offending truck nor the
Insurance Company challenged those findings recorded by the
Tribunal by filing separate appeal or by filing any cross-objection in
the present appeal. Resultantly, those findings have attained finality.
In view of the aforesaid, the only point that falls for my consideration
is as under :
1] Whether the learned Member of the Motor
Accident Claims Tribunal has granted right and
adequate compensation to the appellant ?
2] What order ?
9. According to the appellant, he was working as a Driver
on a tractor owned by his employer Manohar Rahane (PW2). It was
his case that as a driver, he used to get Rs.2,000/- per month by way
of salary. In my view, learned Member of the Tribunal was right in
recording a finding that the appellant could not prove his case that
he was a Driver in absence of driving license on record.
6 FA351.04.odt
10. Be that as it may. At the time of accident, the appellant
was aged about 34 years. So obviously for earning livelihood, he
must be working. According to him, he used to be in employment of
PW2 Manohar Rahane. During his evidence, PW3 Manohar Rahane
affirmed the fact that the appellant was in his employment.
According to the appellant, he was drawing Rs.2,000/- per month by
way of salary. The learned Member of the Tribunal, it appears, has
not accepted the said case of the appellant in absence of any
documentary evidence. It is rather difficult to have documentary
proof in such type of case. Suffice to say, the employer PW2
Manohar stepped into the witness box and he asserted on oath that
the appellant was in his employment and he was paying Rs.2,000/-
per month as salary. Nothing could be brought on record to destroy
his testimony. In that view of the matter, in my view, the appellant
has proved that he was in the employment of his employer and he
used to draw Rs.2,000/- per month by way of salary.
11. Exhibits 32, 33 and 34 are the discharge certificates.
Exh.41 is the Handicapped Certificate issued by the Medical Officer,
7 FA351.04.odt
Government Hospital, Akola, which shows that due to the injuries
suffered by the appellant in that accident, he attracted permanent
disability to the extent of 25%. Therefore, in absence of anything
contrary to the said, there is no difficulty to accept the said
documentary proof. Even the learned Member of the Tribunal has
considered the disability as 25%.
12. The appellant has filed his School Leaving Certificate
(Exh.35). Perusal of the said shows that his date of birth is
13.02.1963, meaning thereby at the time of occurrence of the
accident, the appellant was aged about 34 years. In my view, the
learned Member of the Tribunal has erred in not applying the
multiplier. Now, the law on this aspect is not in res integra in view of
the authoritative pronouncement of the Hon'ble Apex Court in
Sandeep Khanuja .vs. Atul Dande, reported in 2017(4) Mh.L.J. 1. The
Hon'ble Apex Court in paragraphs 12 and 13 of the said report, has
observed as under :-
"12. We may observe at the outset that it is now a
settled principle, repeatedly stated and restated time
and again by this Court, that in awarding
compensation the multiplier method is logically sound
and legally well established. This method, known as
8 FA351.04.odt
'principle of multiplier', has been evolved to quantify
the loss of income as a result of death or permanent
disability suffered in an accident. Recognition to this
principle was given for the first time in the year 1966
in the case of Municipal Corporation of Delhi v.
Subhagwanti & Ors. (1966) 3 SCR 649. Again, in
Madhya Pradesh State Road Transport Corporation,
Bairagarh, Bhopal v. Sudhakar & Ors. (1977) 3 SCC 64,
the Court referred to an English decision while
emphasising the import of this principle in the
following manner:
"4. A method of assessing damages, usually
followed in England, as appears from Mallet v.
McMonagle (1969) ACJ 312 (HL, England), is to
calculate the net pecuniary loss upon an annual
basis and to "arrive at the total award by
multiplying the figure assessed as the amount of
the annual 'dependency' by a number of 'year's
purchase' that is the number of years the benefit
was expected to last, taking into consideration the
imponderable factors in fixing either the multiplier
or the multiplicand..."
13. While applying the multiplier method, future
prospects on advancement in life and career are taken
into consideration. In a proceeding under Section
166 of the Act relating to death of the victim,
multiplier method is applied after taking into
consideration the loss of income to the family of the
deceased that resulted due to the said demise. Thus,
the multiplier method involves the ascertainment of the
loss of dependency or the multiplicand having regard
to the circumstances of the case and capitalising the
multiplicand by an appropriate multiplier. The choice
of the multiplier is determined by the age of the
deceased or that of the claimant, as the case may be. In
injury cases, the description of the nature of injury and
the permanent disablement are the relevant factors and
9 FA351.04.odt
it has to be seen as to what would be the impact of
such injury/disablement on the earning capacity of the
injured. This Court, in the case of U.P. State Road
Transport Corporation & Ors. v. Trilok Chandra & Ors.
(1996) 4 SCC 362 justified the application of multiplier
method in the following manner:
"13. It was rightly clarified that there should be
no departure from the multiplier method on the
ground that Section 110-B, Motor Vehicles Act,
1939 (corresponding to the present provision of
Section 168, Motor Vehicles Act, 1988) envisaged
payment of 'just' compensation since the
multiplier method is the accepted method for
determining and ensuring payment of just
compensation and is expected to bring uniformity
and certainty of the awards made all over the
country."
The multiplier system is, thus, based on the
doctrine of equity, equality and necessity. A departure
therefrom is to be done only in rare and exceptional
cases."
13. In view of Sarla Verma and others .vs. Delhi Transport
Corporation, reported in AIR 2009 SC 3104, looking to the age of the
appellant, the multiplier which can be pressed into service in this
case will be 16.
14. The learned Tribunal has also not granted any amount
under the head "future prospects". The law is well crystalized on this
issue. Since, the appellant was employed, looking to his age, in view
10 FA351.04.odt
of the law laid down by the Hon'ble Apex Court in National
Insurance Co. Ltd. .vs. Pranay Sethi, reported in (2017) 16 SCC 680,
he will be entitled for 40% towards future prospects.
15. In that view of the matter the appellant will be entitled
to get compensation as under :-
Annual Income of the appellant
(Rs.2,000/- pm x 12 months = 24,000/-)
Thus, compensation towards 25% disability
will be (24,000/- x 25/100) ... Rs. 6,000/-
(+) Add :40% future prospects ... Rs. 2,400/-
(Rs.6,000/- x 40%) -----------------
Total ... Rs. 8,400/-
-----------------
Multiplier 16 (Rs.8,400/- x 16) ... Rs.1,34,400/-
(+) Add : Towards future pain and loss ... Rs. 25,000/-
------------------
Total ... Rs.1,59,400/-
(-) Less : Already received by the appellant
towards future pain and loss ... Rs. 35,000/-
-------------------
Appellant entitled to receive ... Rs.1,24,400/-
-------------------
Hence, I pass the following order :
ORDER
1. The First Appeal is allowed.
11 FA351.04.odt
2. The judgment and order passed by the learned Member,
Motor Accident Claims Tribunal, Akola in M.A.C.P. No.
129/1997, dated 09.12.2003 is hereby quashed and set
aside to the extent it is prejudicial to the interest of the
appellant.
3. The appellant will be entitled to receive Rs.1,24,400/-
together with interest @ 9% per annum from the date of
filing of the petition till its actual realization.
4. Learned counsel for respondent no.3 - Insurance
Company submitted that the Insurance Company will
deposit the enhanced amount of compensation in this
Court within a period of twelve weeks from today.
5. On deposit of the amount by the Insurance Company, the
appellant will be entitled to withdraw the same.
6. The appeal is disposed of in the aforesaid terms. No
order as to costs.
JUDGE
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:01.12.2021
16:48
