Seema Laxman Waghmare vs M Jalpathrao And Ors
2022 Latest Caselaw 1136 Bom

                                                                  FA-50 and 101-2007.odt




             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                               FIRST APPEAL NO. 50 OF 2007

 Ku. Seema D/o Laxman Waghmare
 Age: 14 yrs. Occu: Education,
 U/G of real father Laxman s/o Sambhaji Waghmare
 R/o Nanda, Tq. Bhokar, Dist. Nanded         ... Appellant
                                             [Ori. Claimant]
       Versus

 1.       M. Jalpathrao
          Age: Major, Occ: Business,
          R/o H.N.11-24-10, Shatavahanaputra,
          Desai Peth Road, Warangal,
          Andhra Pradesh (A.P.)

 2.       The Oriental Insurance Co. Ltd.,
          The Divisional Office, Post Box No.18,
          Girmalpeta, Warangal,
          Andhra Pradesh (A.P.)

 3.       The Oriental Insurance Co. Ltd.
          Through its Branch Office, at Nanded             ... Respondents

                                         WITH
                           FIRST APPEAL NO. 101 OF 2007
 Rajabai W/o Laxman Waghmare
 Age: 35 yrs. Occu: Labour,
 R/o. Nanda, Tq. Bhokar Dist. Nanded                       ... Appellant
                                                           [Ori. Claimant]
          Versus

 1.       M. Jalpathrao
          Age: Major, Occ: Business,
          R/o H.N.11-24-10, Shatavahanaputra,
          Desai Peth Road, Warangal,
          Andhra Pradesh (A.P.)


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 2.       The Oriental Insurance Co. Ltd.,
          The Divisional Office, Post Box No.18,
          Girmalpeta, Warangal,
          Andhra Pradesh (A.P.)

 3.       The Oriental Insurance Co. Ltd.
          Through its Branch Office,
          at Nanded                                           ... Respondents

                                 ....
 Mr. S. G. Nandedkar, Advocate for appellants
 Mr. M. K. Goyanka, Advocate for respondent Nos. 2 and 3
                                 ....

                                       CORAM : R. G. AVACHAT, J.

RESERVED ON : 29th NOVEMBER, 2021 PRONOUNCED ON : 01st FEBRUARY, 2022

J U D G M E N T :-

. Both these appeals are being decided by this common

judgment, since they are arising from judgments and awards passed

in Motor Accident Claim Petitions (Petitions) arising from one and

the same accident.

2. First Appeal No. 50 of 2007 has been preferred for

enhancement of compensation granted by the Tribunal in M.A.C.P.

No.493 of 2000, granting compensation of Rs.40,000/- (Rupees

Fourty Thousand) with interest at the rate 6% per annum, while the

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First Appeal No. 101 of 2007 has been preferred against the

judgment and award, dismissing the M.A.C.P. No.387 of 2000. Both

the petitions were filed for compensation on account of injuries and

disability suffered in vehicular accident.

3. The facts giving rise to the present appeals are as under:

One Laxman Waghmare, along with his wife - Rajabai

and three minor children (Ravi, Seema and Avinash), had boarded a

truck bearing registration No.AEO-2555 for village Nanda from

Bhokar on 02.05.2000. It is the case of the appellants herein that

they were carrying one quintal Jawar and one quintal Wheat. The

truck driver charged them Rs.75/- towards fare for carrying them

along with their goods. The truck met with the accident on the way.

As a result thereof, minor son Ravi died. Seema and Rajabai suffered

multiple injuries. Seema, through her father Laxman, the next friend

of Seema, and Rajabai, preferred two separate claim petitions for

compensation.

The Tribunal dismissed the claim petition of Rajabai.

Seema was granted compensation of Rs.40,000/-.

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4. The Tribunal held the respondent - Insurance Company

to have no liability to pay any compensation, since the truck was a

goods carriage. The claimants were travelling therein as

unauthorised passengers. The policy of insurance did not cover risk

of such persons. It, however, directed the Insurance Company to

satisfy the award passed in M.A.C.P. No.493 of 2000 and then

recover the amount from the truck owner. It appears that the

respondent - Insurance Company has accepted the award, since it

has neither preferred any appeal nor filed cross objection.

5. Heard.

Learned Advocate for the appellants would submit that

there is on record injury certificates and disability certificates as well.

The appellant Seema was indoor patient for more than four days. A

very meager compensation has been awarded to her. According to

the learned Advocate, Rajabai ought to have been granted some

compensation, since she too suffered injuries.

6. Learned Advocate for the respondent - Insurance

Company would, on the other hand, urged for dismissal of the

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appeals. He reiterated the reasons given by the Tribunal in support

of the impugned awards.

7. Considered the submissions advanced. Perused the

pleadings and evidence as well. So far as regards claim of appellant

Seema is concerned, her injury certificate (Exh.35) indicates she

suffered following injuries.

          (i)     Abrasion              -       10 x 2 cm
                  (at left forearm)
          (ii)    Abrasion              -       4 x 4 cm
                  (at right elblow)
          (iii) CLW                     -       1 x ½ x ¼ cm
                (on right index)
          (iv) Abrasion                 -       1 x ½ cm
               (on right shoulder)
          (v)     Contusion             -       5 x 5 cm
                  (above left ear)

Her discharge card has also been placed on record. It

suggests that she took treatment in surgery and burn ward. Exh-38

indicates her to have suffered 21% of disability of following nature:-

"10% burn with CLW (R) index finger with contusion left temporal region of head with abrasion (L) forearm with Abrasion (L) elbow joint (21% Twenty One Percent)."

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8. Considering the nature of injuries suffered by the

appellant Seema, this Court finds grant of Rs.40,000/- (inclusive of

NFL), to be inadequate. This Court, therefore, proposes to enhance

the same by Rs.25,000/-, to be paid on account of pain and

sufferings, attendance special diet, etc.

While in case of claim of Rajabai is concerned, the

Tribunal has observed thus:

"The injury certificate speaks that she has sustained solitary injury i.e. abrasion over left knee joint having size 3 x 3 cm. There is no evidence that, the petitioner has sustained any grievous injury. There is no medical evidence that petitioner has sustained permanent disability. The form comp-B show 6% disability but does not speak if disability is permanent in nature. There is no evidence that, physical efficiency or capacity has been reduced or otherwise. I, thereby do not agree that the petitioner must have lost the medical bills because of such solitary injury. The injury sustained by the petitioner is not permanent disability. The petitioner has sustained only abrasion of 3 x 3 cm. For which, I think the petitioner is not entitled for any compensation."

9. The aforesaid reasoning given by the Tribunal for

dismissal of the claim petition is unreasonable. The Tribunal itself

came to the conclusion that the appellant Rajabai had suffered

abrasion over her left knee joint. The same suggests her to have

pain, suffering and discomfort as well. On that count, the Tribunal

ought to have granted a sum of Rs.10,000/-.

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10. With this, both the appeals partly succeed in terms of

following order:

ORDER

(i) Both the appeals are partly allowed.

(ii) The amount of compensation granted by the Motor Accident Claims Tribunal, Nanded, vide judgment and order dated 02.09.2006, in M.A.C.P. No.493 of 2000, is enhanced from Rs.40,000/- to Rs.65,000/-. Rest of the terms of the impugned award to stand unaltered.

(iii) The judgment and order dated 02.09.2006, passed by the Motor Accident Claims Tribunal, Nanded, dismissing the claim petition i.e. M.A.C.P. No.387 of 2000, is hereby set aside. The said petition is partly allowed, granting the claimant - Rajabai, compensation of Rs.10,000/-, to be paid by the respondent No.1 - truck owner with interest at the rate 6% per annum from the date of petition to the date of actual payment.

(iv) The claim petition is dismissed against the respondent -

Insurance Company. The Insurance Company is however directed to first satisfy the award and recover the amount from the owner of the truck in execution proceedings.

[ R. G. AVACHAT, J. ] SMS

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