Bombay High Court
Hdfc Ergo General Insurance Co. Ltd vs Deepaksing @ Lakhansing Surjitsing @ ... on 29 November, 2023
2023:BHC-AUG:24972
(1) fa234.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 234 of 2016
HDFC ERGO General Insurance Co. Ltd. .. Appellant
Office of Ramon House, H.T. Parekh Marg, [original
169, Backbay Reclamation, Res.No.2]
Mumbai - 400 020.
Through its Divisional Manager/
Authorized Signatory,
Adalat Road, Aurangabad.
Versus
1. Deepaksing @ Lakhansing Surjitsing @ .. Respondents
Mukundasing Panjabi, [Res.No.1 -
Age.36 years, Occ. Driver, Original
At present R/o. Balaka Shantinagar, claimant &
Haridpur Barasat, Calcutta. Res.No.2 -
Ori. Res.
2. Samsuddin Usman Shaikh No.1]
Age.Major, Occ. Business,
R/o. Plot No.152, Ward 11/A,
Gandhidham,
Gujarat State.
Mr.Mohit R. Deshmukh, Advocate for the appellant.
Mr.S.T.Kazi h/f. Mr.G.A.Nagori, Advocate for respondent
No.1.
None for respondent No.2.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 09.10.2023
PRONOUNCED ON : 29.11.2023
::: Uploaded on - 29/11/2023 ::: Downloaded on - 28/02/2024 06:46:29 :::
(2) fa234.16
J U D G M E N T :
-
01. This appeal is filed by the insurance company
challenging judgment and award passed by the learned
Member, Motor Accident Claims Tribunal, Jalgaon dated
29.08.2015 in MACP No. 88 of 2012. The learned Member by
the impugned judgment and order has awarded
Rs.16,84,800/- towards compensation, Rs.30,000/- towards
medical treatment and diet and Rs.50,000/- for artificial
leg. Thus, total amount awarded is Rs.17,64,800/-.
02. Respondent No.1 is the claimant, who suffered
injury in an accident and lost his leg. He, therefore,
had lodged a claim.
03. The facts in short are that the claimant/injured
was working as a truck driver. On 07.10.2010 he was
proceeding in a truck bearing No.WB-23-BO-753 from Dhule
to Jalgaon, from opposite side a trailor bearing No.GJ-
12-W-5823 gave dash to his truck. The case was of head on
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collision. In the said accident, the injured received
injury to his left leg. His left leg is required to be
amputated from knee. It is case of the claimant that the
driver of the trailor was responsible for the accident.
Said trailor was insured by the present appellant/
insurance company. Due to the injury the claimant lost
100% earning capacity. His age was 33 years at the time
of accident. It is his further case that he was earning
Rs.11,500/- per month including Bhatta. He also claimed
Rs.3 lakhs for artificial leg. He was required to spend
Rs.30,000/- for medical treatment and dressing. He was
under treatment for 15 days.
04. Before the Tribunal, respondent No.1/owner of
the vehicle did not appear. The claim was resisted only
by the present appellant/original respondent No.2.
05. On assessing the evidence, documents on record
and police papers, the learned Member of the Tribunal
held that the accident took place because of negligence
(4) fa234.16
on the part of driver of the trailor. The age of the
claimant was 33 years at the time of the accident and
therefore multiplier of 16 is applied. The defence of
the insurance company that there was contributory
negligence was not accepted. Even the Doctor who treated
the claimant was examined. There is a certificate issued
by the Civil Hospital on record showing that the
disability of the claimant is to the extent of 75%. It
is further considered that the Doctor has specifically
deposed that the claimant would not be in a position to
do the work that he was doing prior to the accident.
06. Present appeal is preferred on the ground that
there was contributory negligence and about quantum of
compensation.
07. The learned Advocate for the appellant Mr.
Deshmukh vehemently argued that it is clear from the
panchanama and other documents that it was a head on
collusion accident that took place at the center of the
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road. Both the vehicles suffered damage from front side.
This clearly shows that it is a case of contributory
negligence. About quantum of compensation, he submits
that the learned Member has wrongly arrived at a
conclusion that the income of the claimant was
Rs.1,40,400/- per year. It is wrongly held that the
claimant was resident of Howrah, State of West Bengal.
His earning could not have been taken as Rs.4000/- in the
year 2012. He, thus, submits that the learned Member of
the Tribunal has wrongly held the claimant to be entitled
to receive compensation. In the alternative he submits
that the learned Tribunal has not properly considered the
quantum of compensation and has granted excessive amount.
Learned Advocate Mr. Deshmukh submits that Bhatta paid to
driver cannot be considered as income from salary. As per
the pleading, therefore, the salary needs to be taken
only as Rs.7000/-. There is no evidence of expenses
towards artificial leg and pain and suffering. The Court
has wrongly taken the loss of earning capacity to the
extent of 100%. In support of his submission, the learned
(6) fa234.16
Advocate for the appellant relied upon judgment in the
case of New India Assurance Co. Ltd. Vs. N. Senjilaxmi
wd/o. Late K. Natrajan and ors. reported in 2013(1)
Mh.L.J.778.
08. Mrs. Kazi, learned Advocate for respondent No.1
submits that there were three vehicles involved in the
accident. From the papers, it is seen that the cleaner
of the third vehicle bearing No. GJ-2-Z-0654 lodged FIR
with the police station. The said cleaner was eye witness
to the incident. From the panchanama, she submits that
it is seen that there was heavy damage received to the
vehicle which was driven by the claimant. Looking to the
panchanama, she submits that the Truck bearing No. GJ-12-
W-5823 was overtaking other vehicle when the claimant was
coming from the opposite direction. Therefore, it cannot
be said to be a case of contributory negligence. She
relied upon judgment in the case of Sidram Vs. Divisional
Manager, United India Insurance Co. Ltd. Reported in
(2023)3 SCC 439. She submits that in this case in-fact
(7) fa234.16
the learned Member ought to have granted compensation
towards pain and sufferings. However, same is not
granted. Since the claimant has lost one leg now he
cannot do the job of driver.
09. On the point of contributory negligence, this
Court has seen Exh.24 - spot panchanama. From the spot
panchanama, it is seen that three vehicles were involved
in the accident. Panchanama records that it was observed
that it was the trailor which gave dash to the truck
driven by the claimant. The finding, therefore, recorded
by the learned Member does not appear to be perverse or
incorrect. The FIR lodged by the cleaner of the third
vehicle, namely, Peladji Sardarji Thakur at Exh.22 also
shows that the trailor bearing No. GJ-12-W-5823 was ahead
of his vehicle, which gave dash to the truck of the
claimant. In the accident the claimant got trapped in
the steering in the cabin of his truck. He had received
injury to his leg and he was shouting for help.
(8) fa234.16
10. Looking to the above material, this Court finds
that the learned Tribunal has rightly appreciated the
evidence and recorded conclusion that it was the driver
of trailor, who was responsible for the accident and
there was no case of contributory negligence. So far as
quantum is concerned, this Court finds that the learned
Member has considered that the salary of Rs.7000/- was
being paid to the claimant. He was also receiving
Rs.150/- per day towards Bhatta. Though there is no
documentary evidence of the salary, the learned Tribunal
has considered his income as Rs.7000/- per month and
Bhatta @ Rs.100/- per day. It is further recorded that
the claimant must be getting Bhatta for 15 to 20 days in
a month and has thus taken monthly income of Rs.9000/-.
This Court finds that looking to the age, the multiplier
of 16 is rightly applied considering loss of income of
75%. This Court does not find any reason to interfere
with the said finding and reasoning.
11. In the judgment in the case of N.Senjilaxmi
(9) fa234.16
(Supra), this Court at Nagpur Bench had held that when
there is collision of two trucks and no additional
premium was paid towards the risk of the owner and/or
driver of the vehicle. In that view, it was held that
the insurance company was not liable to pay the
compensation. The learned Tribunal in that case had
recorded conclusion that both the vehicles were equally
responsible to the accident and said finding was not
disturbed. The learned Tribunal had further held that by
taking earning of the claimant as Rs.3000/-, 1/3rd of the
said amount was deducted towards personal expenses. In
the said case the accident had taken place on 25.12.1989.
Considering that the learned Tribunal had considered
income of Rs.3000/- per month in 1989. This Court finds
that in the present case the learned Tribunal has taken
income to be Rs.9000/- per month and the same cannot be
said to be exorbitant, considering the date of accident
which is 07.10.2010. Though now it is well settled that
future prospects are required to be considered the same
is not granted by the learned Tribunal.
( 10 ) fa234.16
12. In the case of Sidram (Supra), the Hon'ble Apex
Court has considered as to what is "just compensation".
The Hon'ble Apex Court considered that once it is proved
that the victim/injured has been employed at some
venture, the necessary corollary is that he would be
earning an income. On future prospects it is observed
that now it is well settled position that in case of
permanent disablement incurred as a result of motor
accident, the claimant can seek apart from compensation
for future loss of income, amounts for future prospects
as well. Thus, it is held that even in the case of
permanent disablement, the Tribunal needs to consider the
loss of future earning capacity. The Hon'ble Apex Court
has also considered that the damages are required to be
paid for pain and sufferings as a consequence of injury.
13. Considering the above judgments, this Court
finds that the learned Tribunal has rightly granted just
compensation. As already observed, this Court does not
( 11 ) fa234.16
find any perversity in the findings recorded by the
learned Member of the Tribunal on the aspect of
negligence of the vehicle. This Court finds that no
interference is called for even in the order awarding
compensation. There is no merit in the appeal. The
appeal, therefore, deserves to be dismissed. Hence,
following order :-
ORDER
(i) The First Appeal stands dismissed with no
order as to costs.
[KISHORE C. SANT,J.]
snk/2023/NOV23/fa234.16
