Bombay High Court

Sk Samad Sk Jamma Akola vs Dayannand Baban Detke And Others on 1 March, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:2527


                                                1                     FA1387.08

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              : NAGPUR BENCH : NAGPUR.

                              FIRST APPEAL NO. 1387 OF 2008

          APPELLANT       :      Sk. Samad S/o Sk. Jamma,
                                 Aged about 41 years, Occu. Nil,
                                 R/o Shioni- Shivar, Tq. & Dist. Akola.

                                          VERSUS

          RESPONDENTS :          1]    Dayanand Baban Detke,
                                       Aged 25 years, Occu. Owner,
                                       R/o at Post Kujawale Podi Jurothe,
                                       Dist. Satara.
                                       (Dismissed as Registrar (J)'s order
                                       dated 02.02.2010)

                                 2]    Vajeer Bahulal Jakate,
                                       Aged Major, Occu. - Truck Driver,
                                       R/o Sheigonda, Tq. & Dist. Ahmednagar.

                                 3]    National Insurance Co. Ltd.,
                                       Satara Branch office,
                                       172, Pavainaka, Ravivarpeth,
                                       Satara, Tq. & Dist. Satara,
                                       through its Divisional Manager,
                                       Akola, Opposite Open Theater,
                                       M. G. Road, Akola.

                                 4]    Parveen Lacchiram Jindal,
                                       Aged Adult, Occu. Businessman (bus owner)
                                       R/o At & Post Yesta, Tq. Karanja,
                                       Dist. Washim.
                                       (Dismissed vide Court's Order dtd.01.4.2010)

                                 5]    United India Insurance Co. Ltd.,
                                       through Branch Manager, Akola.
                                                  2                         FA1387.08

---------------------------------------------------------------------------------------------
       Mr. A. D. Gabhane, Advocate for the appellant
       Mr. S. G. Kasbekar, Advocate for the respondent no.3
       Mrs. Anita Mategaonkar, Advocate for respondent no.5
----------------------------------------------------------------------------------------------
                             CORAM : G. A. SANAP, J.
                     Judgment Reserved on : October 13, 2023.
                     Judgment Pronounced on : March 01, 2024


JUDGMENT

1. In this appeal, filed under Section 173 of the Motor Vehicle Act,

1988 (hereinafter referred to as "the M.V.Act" for short), challenge is to the

judgment and order dated 03.11.2003 passed by the learned Member of the

Motor Accident Claims Tribunal, Akola, whereby the claim for compensation

on account of injuries sustained by the appellant in a motor vehicle accident

was partly allowed.

2. Background facts :-

The respondent no.1 is the owner of the offending truck bearing

registration No. MHL-7077. Respondent no.2, at the time of the accident, was

driving the said truck. Respondent no.3 is the insurer of the offending truck.

Respondent no.4 is the owner of luxury bus bearing registration No.

MH-30/B-8177. Respondent no.5 is the insurer of the luxury bus. The

appellant, at the time of the accident, was driving the bus. It is stated that on

3 FA1387.08

18.04.1998, he was coming from Pune to Yavatmal. In the midnight hours on

19.4.1998, near village Pravara-sangam, he stopped the bus near Air Filtering

Center. The offending truck, all of a sudden came in front of the bus. The

driver of the offending truck, after seeing the vehicles coming from opposite

direction, stopped the truck. After some time, all of a sudden, he took left turn

to proceed to Pune. In the process, an angle of the said truck hit on right eye of

the appellant resulting in causing injury to his eye. The driver side portion of

the offending truck as well as bus was damaged. According to the appellant,

the accident occurred due to rash and negligent driving of the offending truck.

The crime was registered against the driver of the offending truck.

3. According to the appellant, on account of the injuries sustained to

right eye, he lost complete vision of the right eye. He is not able to drive the

vehicle. He has suffered permanent disability. It has resulted into loss of his

earning. According to him, at the relevant time, his monthly salary was

Rs.3,000/- and he was getting Rs.150/- towards bhatta on the day of duty. In

short, it is the contention of the appellant that his monthly income was

Rs.4,000/-. On account of permanent loss of working capacity, he has been

facing difficulties in his life. He is unable to maintain his family, which consists

of four children, wife and mother. He, therefore, claimed compensation of

Rs.5,00,000/-. According to him, respondent nos.1 to 3 are jointly and 4 FA1387.08

severally liable to pay compensation. He further contended that if he is held

responsible for the accident, then respondent nos.4 and 5 would be liable to

pay the share of the compensation.

4. The respondent nos.1 and 3 opposed the claim. According to

them, there was no negligence on the part of the driver of the offending truck.

According to them, the appellant was solely responsible for the accident.

Respondent no.1 - owner of the offending truck contended that the offending

vehicle was ensured with respondent no.3 Insurance Company. The

respondent no.3 would, therefore, be liable to pay compensation. Respondent

no.3 Insurance Company contended that the appellant was responsible for the

accident and therefore, respondent no.3 insurance company would not be

liable to pay compensation.

5. Respondent no.4 did not file written statement. Respondent no.5

contended that the driver of the offending truck was responsible for the

accident. Respondent no.5, therefore, is not liable to pay compensation. The

respondents denied the income etc. of the appellant. They have also denied the

averments with regard to the permanent disability suffered by the appellant.

6. The appellant examined himself as sole witness in support of his 5 FA1387.08

claim. He relied upon number of documents including Disability Certificate

(Exh.45). The other respondents did not examine any witness. Learned

Member of the Tribunal, awarded lumpsump compensation of Rs.2,25,000/-

to the appellant and fastened 50% liability on respondent nos.1 to 3 and

fastened 50% liablity on respondent nos.4 and 5. Being aggrieved by the

inadequate compensation, the appellant has come before this Court.

7. I have heard Mr. A. D. Gabhane, learned advocate for the

appellant, Mr. S. G. Kasbekar, learned advocate for respondent no.3 and Mrs.

Anita Mategaonkar, learned advocate for respondent no.5. Perused the record

and proceedings.

6. In the facts and circumstances, following points fall for my

determination :-

i] Whether the compensation awarded on account of injuries i.e. permanent loss of vision of right eye of the appellant, a driver, is just, proper and reasonable ?

ii] What order ?

7. Learned advocate for the appellant submitted that without any

evidence by the respondents in rebuttal, learned Member has discarded the

evidence of the appellant as to his income and bhatta. Learned advocate

submitted that the appellant being a driver, was doing skilled work and 6 FA1387.08

therefore, he was paid Rs.3,000/- per month and bhatta of Rs.150/- per day on

the day of duty. Learned advocate submitted that there is no reason to discard

and disbelieve this version of the appellant. Learned advocate submitted that

no material has been elicited in his cross-examination to discard and disbelieve

this evidence. Learned advocate for the appellant further submitted that the

owner of the bus has not come forward and denied the evidence in respect of

salary paid to the appellant by him. Learned advocate submitted that even

considering his skilled job as driver, learned Member of the Tribunal ought to

have considered his notional income of Rs.4,000/- per month. Learned

advocate submitted that evidence of the appellant that he was earning

Rs.4,000/- per month deserves acceptance. Learned advocate further

submitted that the appellant has lost complete vision of his right eye. He is not

entitled to get driving licence. He is also unable to drive the vehicle. Learned

advocate submitted that the permanent disability is 40%, but the functional

disability is 100%. Learned advocate submitted that considering the 100%

functional disability, appropriate compensation ought to have been awarded.

Learned advocate submitted that in view of the decision in Sarla Varma (Smt.)

and others .vs. Delhi Transport Corporation and another , reported at (2009) 6

SCC 121, the multiplier of 15 was required to be applied and in view of the

decision in National Insurance Co. Ltd. .vs. Pranay Sethi and others, reported

at (2017) 16 SCC 680, the appellant would be entitled to get some 7 FA1387.08

compensation under the head "loss of future prospects". In order to seek

support to his submissions, learned advocate has relied upon a decision of the

Hon'ble Apex Court in Sarnam Singh .vs. Shriram General Insurance Co. Ltd.

and others, reported at 2013 LiveLaw (SC) 498.

8. Learned advocate for respondent no.3 submitted that the driver of

the bus was solely responsible for the accident and therefore, the liability

fastened on respondent no.3 was not proper. Learned advocate for respondent

no.5 submitted that the driver of the offending truck was solely responsible for

the accident and therefore, the Tribunal was not right in fastening the liability

to pay 50% compensation on respondent no.5. Learned advocate submitted

that the driver of the offending truck was prosecuted on account of his rash

and negligent driving. Learned advocate for respondent no.5 submitted that

learned Member of the Tribunal has failed to properly appreciate the evidence.

Learned advocate submitted that therefore, respondent no.5 is liable to be

exonerated from the liability saddled upon it by the learned Member of the

Tribunal.

9. It is necessary to state at the outset that this appeal has been filed

by the appellant-claimant being aggrieved by the judgment and award passed

by the Tribunal. It is his grievance that the compensation awarded by the 8 FA1387.08

Tribunal is not just, proper and reasonable. It is undisputed that the

respondents have not challenged the impugned judgment and award by filing

separate appeal or cross-objection in this appeal. It, therefore, shows that the

respondents have accepted the decision rendered by the Tribunal. Learned

Member of the Tribunal has held that the driver of the offending truck was

rash and negligent. Learned Member of the Tribunal observed that the driver

of the bus was negligent in driving the bus after seeing the offending truck on

road. It is undisputed that a criminal case was filed against the driver of the

offending truck. Learned Member of the Tribunal observed that there was

contributory negligence on the part of the driver of the offending truck as well

as driver of the bus. Learned Member of the Tribunal, therefore, directed

respondent nos.1 to 3 to pay 50% compensation jointly and severally and

respondent nos.4 and 5 to pay 50% compensation jointly and severally. The

evidence on record is sufficient to prove the accident. Similarly, the impugned

judgment and award is not assailed by the respondents. It has, therefore,

attained finality as far as the respondents are concerned. In this appeal, the

grievance made by the appellant as to inadequacy of compensation is required

to be addressed.

10. First and foremost, it is necessary to consider the percentage of

permanent disability and percentage of functional disability. On the basis of 9 FA1387.08

Disability Certificate (Exh.45), permanent disability suffered by the appellant

is 40%. This 40% disability is on account of loss of complete vision of right

eye. The appellant was a Driver. He was holding valid driving licence. At the

relevant time, he was driving luxury bus. The work of a driver is of skilled

nature. A skilled worker cannot be compared with an unskilled worker. It is a

common knowledge that a skilled worker is always paid higher salary as

compared to the unskilled worker. The job of a driver, apart from being a

skilled job, is required to satisfy certain physical parameters for the purpose of

obtaining driving licence as well as for the purpose of renewal of the same.

The vision of both the eyes of a driver must be of a particular standard for

obtaining driving licence. If a person has problem with his vision, then he

cannot get driving licence. The physical injury or disability suffered by two

different persons is bound to affect them differently. In this case, the appellant

has deposed that after this accident, on account of loss of complete vision of his

right eye, he is not able to drive the vehicle. The physical disability suffered by

him has permanently affected his work as a driver.

11. The Hon'ble Apex Court while deciding somewhat similar issue

in Sarnam Singh (supra), has held that in the cases of motor accident claims,

physical disability caused due to an accident must be judged with reference to

the nature of the work being done by the injured for assessing award of 10 FA1387.08

compensation. It is observed that same injury suffered by two different

persons may affect them in different ways. It is observed that loss of leg by a

farmer or a rikshaw puller may affect them in different ways. Loss of leg by a

farmer or a rikshaw puller may be end of the road as far as his earning capacity

is concerned. It is further observed that whereas, in case of the persons

engaged in some kind of desk work in office, loss of leg may have lesser effect.

The Hon'ble Apex Court has held that even though percentage of permanent

disability is on lower side, the functional disability in such case could be 100%.

It is held that it depends on the nature of injury on case to case basis. It is

further held that permanent disability affects the functional disability of the

claimant. In Sarnam Singh (supra), right lower limb of the claimant was

amputated. He was, therefore, not able to do the job which he was earlier

doing. The Hon'ble Apex Court observed that such injury causes 100%

functional disability.

12. The appellant, in his evidence, has deposed about the effects of

permanent disability on his overall life. He has stated that he is not able to

drive the vehicle. It needs to be stated that as per the Rules framed under the

M.V. Act, he is not entitled to apply for renewal of his licence in view of

permanent loss of the vision of his right eye. He has stated that on account of

this 100% functional disability, he has been facing number of difficulties. In 11 FA1387.08

this case, though permanent disability is 40%, the said disability has resulted

into 100% functional disability. The 100% functional disability suffered by the

appellant would debar him from obtaining driving licence or obtaining renewal

of his driving licence. He would not be able to do the job of a driver in future.

As such, in my view, for the purpose of quantifying compensation, the

functional disability has to be taken as 100%.

13. The question is whether learned Member of the Tribunal has

appropriately appreciated the evidence of the appellant as to his salary and

bhatta? On going through the evidence on record and particularly the

evidence of the appellant, I am satisfied that learned Member has failed to

appreciate the evidence of the appellant properly. Learned Member of the

Tribunal, without recording cogent reasons, has held that his monthly salary

was Rs.1,500/- and not Rs.3,000/-. Learned Member has not recorded the

reasons for rejecting the evidence of the appellant on this count. It needs to be

stated that employment of the appellant as a driver on luxury bus was not

denied. Similarly, the owner of the bus i.e. respondent no.5 has not denied this

fact. It is to be noted that the workers in an unorganized sector are not issued

the salary slip. They may not, therefore, possess the documentary evidence to

that effect. In such a situation, the Court has to consider the nature of

occupation and the salary paid to a person for doing such occupation. It needs 12 FA1387.08

to be stated that if the occupation involves skill, then the salary is bound to be

on higher side as compared to the salary paid to an unskilled worker. The job

of a driver involves skill. The job of a driver requires physical fitness. The

appellant was employed as a driver on a luxury bus. There is cut-throat

competition in luxury bus business. Every owner of luxury bus is, therefore,

bound to employ an expert driver to serve his purpose.

14. I have perused the cross-examination of the appellant conducted

by the learned advocate for the rival parties. On going through the cross-

examination, it is seen that no admission has been elicited to discard the

evidence of the appellant on the point of his occupation and his salary, in toto.

Therefore, in this case, for the purpose of quantifying the compensation, his

monthly salary of Rs.3,000/- is required to be taken into consideration. At the

relevant time, the age of the appellant was 36 years and therefore, multiplier of

15 would be applicable in this case. Similarly, he would be entitled to get 40%

towards future prospects. The entitlement of the appellant to get

compensation by considering his notional income as Rs. 3,000/- per month,

can be stated in tabulated form. It is as follows :

                       Particulars                                   Amount
                                                                     granted
Annual Income of the appellant                        Rs.36,000/-
(Rs.3,000/- per month x 12 months)
Age of the appellant                                   36 years
                                               13                     FA1387.08

Addition on account of Future Prospects (40%)          Rs.14,400/-
Loss of earning per annum (Rs.36000/- + 14,400/-)      Rs.50,400/-

Total entitlement towards loss of earning                                  7,56,000/-
                                  (Rs.50,400/- x 15)
Addition on account of Treatment, medicines,                         Rs.    25,000/-
Journey, Nourishment
Addition on account of No fault Liability                            Rs.    25,000/-
Addition towards Loss of suffering                                   Rs.    25,000/-
Addition towards Loss of amenities                                   Rs.    15,000/-
                                            TOTAL :-                 Rs. 8,46,000/-



                                       ORDER

1. The First Appeal is allowed with proportionate costs.

2. The judgment and order dated 03.11.2003, passed by learned

Member, Motor Accident Claims Tribunal, Akola in M.A.C.P. No. 302/1999,

is modified.

3. Appellant - Sk. Samad S/o Sk. Jamma is entitled to receive

Rs.8,46,000/- (inclusive of Rs.2,25,000/- awarded by the Tribunal) towards

compensation from the respondents.

4. Respondent nos.1 to 3 are held jointly and severally liable to pay

50% compensation and respondent no.4 and 5 are held jointly and severally

liable to pay remaining 50% compensation.

5. The amount of compensation must be deposited within four

months from the date of the judgment with the Motor Accident Claims