Bombay High Court
Gokuldas Tulsiram Panchal vs P.Raju Anjaiah And Ors on 6 December, 2023
2023:BHC-AUG:25475
1 fa1184.2012 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1184 OF 2012
WITH
CA/8271/2019
Gokuldas s/o Tulshiram Panchal
Age; 42 years, Occu; Business,
R/o; Biloli. At present resident of
Mahaveernagar, Nanded, ...APPELLANT
Tq. and Dist. Nanded. (Orig. Claimant)
VERSUS
1. P. Raju s/o Anjaiah
Age; Major, Occ; Business,
R/o; Vani Nagar, Mandal Jagtial,
Dist. Karimnagar (A.P.)
2. National Insurance Co. Ltd.
Through it's Divisional Manager,
Divisional Office,
Near Municipal Office,
Darimnagar (A.P.)
3. National Insurance Co. Ltd.,
through it's Divisional Manager,
Divisional Office, ...RESPONDENTS
Nanded, Dist. Nanded. (Orig. Respdts.)
...
Advocate for Petitioner : Mr. Krishna P. Rodge h/f Mr. P.C. Rodge
Respondent Nos. 1 & 2 are served
Advocate for Respondent No. 3 : Mr. S.R. Bodade
...
CORAM : KISHORE C. SANT, J.
Date of Reservation : 16.10.2023
Date of Pronouncement : 06.12.2023
2 fa1184.2012 judgment
JUDGMENT :
1. Heard the parties. Taken up for final disposal at the
stage of admission.
2. This appeal is by the Original Claimant for
enhancement in compensation granted by the learned Member,
MACT, Nanded in MACP No. 668 of 2004 dated 28.02.2012. The
learned Member has partly allowed the petition directing
respondent Nos. 1 to 3 to pay jointly and severally Rs.
5,03,206/- compensation to the appellant with interest @ 6.5%
p.a. from the date of filing of the Original Petition.
3. The respondents are the original respondents in the
claim petition. This Court had called for the record and
proceedings and the same is perused.
4. The facts in short are that the Claimant is a
businessman. On 03.11.2003 while he was proceeding on Hero
Honda Motorcycle to Naigaon, he met with an accident with one
truck bearing No. AP-25/T-3747, which came from back side in
high speed. The driver was driving vehicle in rash and negligent
manner. In the said accident the claimant received injuries as
the motorcycle came under the truck and burnt due to dash.
3 fa1184.2012 judgment
Appellant received injuries to his right thigh, right leg, chest and
also caused right femur fracture injury as well as right tibia
fibula fracture injury and fracture injury to T// vertebra. The
claimant was required to spend 80,000/- on medical bills,
20,000/- on diat. He sustained loss to the motorcycle to the
tune of Rs. 35,000/-. The petitioner became permanently
disabled and suffered economic loss to the extent of Rs.
10,000/- p.m. It is the case of the claimant that he was
business man and earning Rs. 10,000/- p.m.
5. The appellant in suppot of his claim relied upon the
documents like FIR, spot panchanama, MLC report and medical
documents as well as documents in respect of insurance policy.
The defence of the insurance company is mainly that there was
no rash and negligent act of the part of truck driver alleging that
the claimant himself was driving motorcycle in rash and
negligent manner. It was further defence that it is a case of
contributory negligence. There is no proof of injuries and
disability.
6. The learned Member considered evidence and
accepted the case of the appellant about the income. The
learned Member observed that the claimant has not established
4 fa1184.2012 judgment
his income. He could not show the income tax details and
professional tax details. Though his case was that he runs a
medical store, however, no shop Act license etc. is produced on
record. The certificate showing that the claimant runs farmacy
business and it cannot be taken as proof of income The learned
Member has notionally taken the income to be of Rs. 4,500/-
p.m.. The learned Member considered disability to the extent of
45% and yearly loss of Rs. 24,300/-. Looking to the age of the
injured/claimant the multiplier of '15' was made applicable.
Towards medical bills etc. total amount is taken to be Rs.
1,38,706/- as proved and passed an award.
7. The learned Advocate Mr. Rodge, for the Claimant
submitted that the disability was to the extent of 70%. The
learned Member has wrongly taken the same to be only 45%.
His income ought to have been considered as 10,000/- p.m. He
has produced on record the proof to show that he runs medical
shop. No future prospects were considered. The bills ought to
have been considered and to be accepted as it is. The learned
Member has wrongly deducted 20% of amount from the bills.
He then submitted that the learned Member ought to have
allowed the claim as it.
5 fa1184.2012 judgment
8. Mr. Bodade, the learned Advocate for the respondents
vehemently opposed the petition stating that the learned
Member has rightly passed an award. The claimant has not
produced any proof of income, therefore he is not entitled to any
enhancement. There is no sufficient proof about the income &
disability affecting the earning capacity of the claimant. A
private Doctor who treated the claimant in the hospital, has not
been examined. The disability certificate cannot be said to be
the proof without examination of the Doctor. The driving license
is not produced on record. He submits that no pay and recovery
order also can made in such case. No account extract is
produced on record. If the claimant has a business, he ought to
have produce on record the extracts of profit and loss account.
He prayed for dismissal of the appeal.
9. Mr. Rodge, the learned Advocate in rebuttal submits
that the insurance company has taken the grounds which are
not sought to be canvassed before this Court were not set out in
defence before the reference Court. This Court finds that the
fact of accident is not at all disputed. The question would be
only about to the extent of disability and the notional income of
the claimant. In support of his case the Claimant has examined
himself. He deposed that he happened to be a businessman and
6 fa1184.2012 judgment
running a business. Because of the injuries, he was required to
close down his shop. There is loss of future income. He
produced medical papers on record. The copies of police
papers. M.L.C., discharge card and medical bills and surgical
bills.
10. From the cross-examination, it is seen that the
respondent has not taken anything to shatter the evidence of
the appellant in the chief-examination. Only suggestions were
given that the certificates and the bills are false and are not
correct. There is OPD form of the Government Hospital. There
is no Outward number on the certificate. He could not state the
name of the medical officer. It is also taken in the cross-
examination that the claimant has not produced any material
on record to show his income.
11. From the evidence and the cross-examination, it is
seen that though it is claimed by the claimant that his income
was Rs.10,000/- p.m., the fact remains that there is nothing on
record to show the proof of income. He has not produced any
document as such the extract of profit and loss account, from
which he maintained his shop etc. About notional disability,
this Court finds that there is no sufficient evidence on record to
7 fa1184.2012 judgment
show the extent of disability. It was necessary to examine the
Medical Officer to prove the extent of disability.
12. Coming to the submission of learned Advocate for
Respondent No. 3 Mr. Bodade. He rightly placed reliance on the
judgment reported in 2008 STPL 12995 in the case of Rajesh
Kumar @ Raju Vs. Yudhvir Singh and Anr. He submitted that it
was necessary for the claimant to examine an expert to prove
extent of disability and the injuries caused. So far as the
income is concerned, in absence of any evidence the learned
Member has notionally taken the income to be of Rs. 4500/-.
13. Further reliance of Mr. Bodade is on the judgment in
the case of 2018 (4) ALL M.R. 494 (SC) ICICI Lombard General
Insurance Company Ltd., v Ajay Kumar Mohanty & Anr. is
rightly applicable. The Hon'ble Apex Court in the aforesaid case
held that the income was considered solely on the basis of oral
testimony of the claimant, the same is therefore not accepted by
the Hon'ble Apex Court. So far as the judgment relied upon by
the learned Advocate Mr.Rodge is concerned in 2020 SCC
Online SC 752 in the case of Pappu Deo Yadav Vs. Naresh
Kumar and Others, this Court finds that in that case there was
evidence on record about the income. His further reliance is on
8 fa1184.2012 judgment
the judgment reported in 2022 SCC Online 1701 in the case of
Mohd. Sabeer alias Shabir Hussain vs. Regional Manager, U.P.
State Road Transport Corporation. There is no doubt about the
proportion and the ratio, however, in the present case in
absence of sufficient evidence the arguments of Mr. Rodge
cannot be accepted.
14. After considering all the judgments only factor to the
extent can be considered is about the future prospectus. This
Court finds that on the date of accident the age of the claimant
was 42 years and 30% addition ought to have been added
towards future prospectus. The Member Court has taken yearly
loss of Rs. 24,300/-, if 30% is added, the same would come to
Rs. 31,590/ x 15 which comes to Rs. 4,73,895/-. The amount
of compensation ought to have been Rs. 4,73,895/- instead of
Rs. 3,64,500/-. The difference comes to Rs. 1,09,395/-. Thus,
the award needs to be modified only to that extent. In view of
the same, First Appeal is partly allowed. Hence following order :
ORDER
a) The Claimant shall be entitled to receive
Rs. 1,09,395/- (Rs. One Lakh, Nine Thousand Three
Hundred and Ninety Five) in addition to
compensation already granted by the learned
Member, MACT, Nanded.
9 fa1184.2012 judgment
b) The respondent shall pay said amount along
with interest @ 6.5% p.a. from the date of filing of
the Claim Petition.
c) In view of disposal of main appeal, civil
applications if any, are disposed off.
d) Award be drawn up accordingly.
( KISHORE C. SANT )
JUDGE
mahajansb/
