Bombay High Court
Tata A.I.G Insurance Co. Ltd., Thr ... vs Prashant Vitthal Thorat And Anr on 22 February, 2022
Bench: R. G. Avachat
FA-1430-2019.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1430 OF 2019
Tata A.I.G. Insurance Company Ltd.,
Through its Manager/Authorized Signatory,
Mondha Naka, Near Kotak Mahindra Bank,
II Floor, Jalna Road, Aurangabad ... Appellant
(Orig. Resp.No.2)
Versus
1. Prashant Vitthal Thorat
Age: 37 years, Occu. Labour Work,
R/o. Hiware Korda, Tal. Parner,
Dist. Ahmednagar
2. Amit Gopaldasji Khandelwal
Age: 42 years, Occu. Transport,
R/o. 155, Transport Nagar, Indor,
Madhya Pradesh ... Respondents
....
Mr. S. S. Dargad, Advocate h/f Mr. S. G. Chapalgaonkar, Advocate for
appellant
Mr. A. C. Darandale, Advocate for respondent No.1
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 20th DECEMBER, 2021
PRONOUNCED ON : 22nd FEBRUARY, 2022
J U D G M E N T :-
. This is an Insurance Company's appeal taking exception
to the quantum of compensation awarded by the Motor Accident
Claims Tribunal, Ahmednagar (Tribunal), in Motor Accident Claim
Petition (M.A.C.P.) No. 505 of 2016 on account of injuries and
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permanent disability suffered in vehicular accident. Under the
impugned judgment and award, the respondent No.1 (claimant) was
awarded compensation of Rs.9,80,000/- with interest @ 9% p.a. on
account of 40% of permanent disability.
2. The facts giving rise to the present appeal are as follows:
The claimant along with his relations, was travelling
from Nashik to Pune via Shirdi in a car bearing No. MH-12-CD-4265.
While the car was passing by Rahata town, a truck bearing No.MP-
09-HF-7096 coming from opposite side, dashed against the car. As a
result, the claimant suffered multiple injuries. He was rushed to
Saibaba Hospital, Shirdi. He was indoor patient there from
26.05.2014 to 11.06.2014. He was shifted to Sancheti Hospital,
Pune, for better treatment. The truck driver was charge-sheeted for
being responsible to the accident.
3. The Tribunal, on appreciation of the evidence in the
case, granted compensation under various heads.
4. Heard.
The learned Advocate for the appellant - Insurance
Company would submit that exorbitant compensation has been
awarded. There was no concrete evidence about monthly income of
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the claimant. There was also no evidence as regards loss of earning
capacity. In injury claim, no compensation on the ground of loss of
future prospects could be awarded. It is granted in case of death
claim or 100% loss of earning capacity. The learned Advocate,
therefore, urged for allowing the appeal with reduction in the
amount of compensation.
5. The learned Advocate for the claimant would, on the
other hand, submit that in the facts and circumstances of the case,
the amount of compensation granted by the Tribunal is on lower
side. He urged for enhancement of compensation. According to him,
just and reasonable compensation should have been granted. It was
the duty of the Tribunal to grant just compensation even if found
that the compensation awarded is not just and reasonable. The
appellant Court has every jurisdiction to enhance the same if it is
there being no appeal or cross objection preferred by the claimant
for enhancement. The learned Advocate has relied on the judgment
of this Court in the case of Divisional Manager, Oriental Insurance
Company Limited Vs. Santoshkumar Parmanand Akhar (Kapur) and
others , - First Appeal No.655 of 2010 (Nagpur Bench), decided on
09.12.2021.
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6. Considered the submissions advanced. Perused the
evidence relied on. Gone through the citations placed on record.
The factum of accident is not in dispute. The finding that
the accident took place due to rash and negligent of driving by the
driver of the truck is also undisputed. The question is only of
quantum of compensation awarded. The disability certificate
(Exh.30) suggests the claimant to have suffered 40% of disability of
the following nature.
On clinical and radio-logical examination, patient has :
"(1) Left humerus # (fracture) malunitis with implant in
place. Patient has difficult in lifting hand high and
shoulder and elbow movement restriction. (15% fifteen).
(2) Right 3rd PP Hand Molunite # (fracture) with weak grip
(10% ten).
(3) Facial multiple bones # (fracture) with implant in place.
Patient has difficult in chew and open of mouth (15%
fifteen).
Total permanent disability of 40% (forty) percent only.
7. It has been admitted in the evidence of Dr. Sunil.
Admittedly, Dr. Sunil had not attended the claimant. The disability
certificate has been issued after going through the medical papers
and clinical examination.
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Dr. Sunil has admitted that some fractured injuries
sustained by the claimant were united and some were in the process
to unite. The un-united fractures are likely to be united. He did not
assess loss of earning capacity.
8. It was the case of the claimant that he was working on
daily wages. He, however, did not give concrete evidence about rate
of daily wages. The Tribunal, therefore, considered his monthly
income at Rs.6,500/-. The accident took place in May - 2014.
9. The details of compensation awarded by the Tribunal are
as under:
(i) On account of loss of earning capacity Rs. 4,99,000/-
( Per month income Rs. 6,500/-
40% thereof comes to Rs. 2,600/-
Annual comes to Rs. 31,200/-
Applying multiplier of 16, it comes to Rs. 4,99,200/-
rounded upto Rs. 4,99,000/-)
(ii) On account of medical expenses Rs. 1,26,000/-
(iii) Transportation, special diet etc. Rs. 30,000/-
(iv) Pain and sufferings Rs. 75,000/-
(v) Future prospects Rs. 2,50,000/-
10. It is reiterated that there is, in fact, no evidence of loss of
earning capacity. Considering the nature of injuries and evidence in
the case, this Court does not propose to interfere with the quantum
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of compensation awarded on account of medical expenditure, pain
and sufferings, diet and transportation etc. In spite of there being no
loss of earning capacity, the Tribunal granted a sum of Rs.4,99,000/-.
Considering the nature of the injuries suffered by the claimant, I do
not propose to interfere with this quantum as well. In view of this
Court, the Tribunal ought not to have granted Rs.2,50,000/- towards
future prospects when there was no concrete evidence about income
of the deceased and loss of earning capacity as well. In the facts and
circumstances of the case, grant of Rs. 2,50,000/- is found to be
unreasonable. To that extent, interference is warranted. Although the
Court may have power to enhance compensation to make it just and
reasonable even though the claimant had not filed appeal or cross
objection in that regard, it is found that the amount of compensation
awarded by the Tribunal is exorbitant to the extent of Rs.2,50,000/-.
11. In the result, the appeal succeeds. The same is allowed
in terms of following order:
ORDER
(i) The award dated 29.11.2018, passed by the Member,
Motor Accident Claims Tribunal, Ahmednagar in
Motor Accident Claim Petition No. 505 of 2016 is
hereby modified reducing the amount of
compensation from Rs.9,80,000/- to Rs. 7,30,000/-.
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(ii) Clause (3) of the impugned award, directing for
keeping the amount of compensation in fixed deposit
for (5) five years, is withdrawn.
(iii) The amount of compensation in deposit with this
Court, be paid to the claimant in terms of the
modified award along with interest accrued thereon.
(iv) The balance amount be returned to the appellant -
Insurance Company with interest accrued thereon.
[ R. G. AVACHAT, J. ]
SMS
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