Bombay High Court
Raju Shankar Gavali vs K. Murugeson Kandasami And Another on 6 May, 2024
2024:BHC-AUG:9644
1 FA NO.128 of 2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.128 OF 2016
Raju Shankar Gavali,
age 38 years, Occ. Nil,
R/o Diwanmala, Tq. & Dist. Dhule Appellant.
(orig claimant)
Versus
1. K.Murugeson Kandasami,
R/o 2/285, Onakkalkadu
Olaekka, Chinnapur,
Sankagiri,Tq. Sankagiri,
Dist. Salem 637301.
Tamilnadu State.
2. Royal Sundaram Alliance Insurance,
Company Ltd., 8/H-1, Mangalam Building,
4, Rodas, Salem 636009.
(Tamilnadu State) Respondents.
...
Mr. M.H. Patil, advocate for appellant.
Mr. A.S.Deshpande, advocate for respondent no.2
Respondent No.1 - Served.
...
CORAM : S. G. CHAPALGAONKAR, J.
...
Reserved on : 18th April, 2024.
Pronounced on :06th May, 2024.
...
JUDGMENT :
-
1. The appellant/original claimant filed this appeal
under section 173 of the Motor Vehicles Act, impugning
judgment and award dated 11.6.2015 passed by the M.A.C.T.,
Dhule in MACP No.428 of 2013, seeking enhancement of the
compensation.
2. Mr. Patil, learned advocate appearing for the
appellant submits that the claimant suffered injuries on
account of motor vehicular accident dated 28.11.2010 due to
rash and negligent driving of the insured truck. The claimant
was admitted to Civil Hospital, at Dhule. Thereafter, he was
treated at Astha Hospital under supervision of Dr. Nikhil
Shaha. He is operated for head injury, however, could not
recover and sustained permanent disability to the extent of
40%. Certificate of disability is placed at exhibit 28. The
treating Doctor Mr. Nikhil Shaha is examined before the
Tribunal. He admitted that movement of the claimant was
reduced and he was slow in response. Despite sufficient
material on record, the Tribunal failed to assess just
compensation towards future loss of earning. The claimant
was working as a watchman and earning Rs.5,000/- p.m. Now
he is unable to do the said work however, Tribunal granted
lumpsum compensation of Rs.60,000/- towards permanent
disability and Rs.20,000/- towards pain and suffering. He
would therefore submit that this is a fit case for re-assessment
of the compensation and passe enhanced award.
3. Mr. Deshpande, learned advocate appearing for
the respondent no.2 supports the award. He submits that
although disability certificate is placed on record at Exhibit-28,
author of the said certificate i.e. Civil Surgeon, Dhule is not
examined before the Tribunal. Dr. Shaha admitted that there is
no neuro deficit after treatment to the claimant. Hence no
reason can be made out to assume permanent disablement and
loss of earning to claimant. He would therefore justify the
award.
4. Having considered submissions advanced and after
going through the record and proceeding received from the
Tribunal, it can be gathered that there is no dispute as regards
to the accident and consequential injuries suffered by the
claimant. Only dispute that arises for consideration in this
appeal is as to assessment of the compensation. It is submitted
on behalf of the claimant that compensation needs to be
assessed based on the future loss of earning, whereas learned
advocate appearing for the insurer opposed such assessment.
Perusal of the certificate Exhibit-28 shows that, it is issued
under the signature of Civil Surgeon, General Hospital, Dhule
with counter signature of the Medical Officer. It states that
patient is unable to do strenuous work and there are episodes
of pain and swelling. Unfortunately, certificate do not suggest
neurological disorder. Although, non-examination of author of
disability certificate is not fatal, when it is issued by
Government authority but in this case from contents of
certificate on record, no definite inference can be drawn
regarding exact nature of disability though it is assessed to the
extent of 40%.
5. The claimant relied upon the evidence of treating
doctor Dr. Shaha. His evidence shows that the claimant was
admitted to his hospital from 28.11.2010 till 3.12.2010. He
states that the claimant was admitted with 'left fronto parietal
extra dural hematoma' with middle shape. He states that on
19.1.2015 when he examined the claimant, he found that
claimant was slow to respond and became forgetful and unable
to do work. In cross-examination, he admits that he had not
taken any test to ascertain that the claimant became forgetful
and at the time of discharge from hospital, condition of
claimant was good. He also admits that no neuro deficit during
examination was found. On appreciation of the evidence, the
inference can be drawn that claimant had suffered head injury
and, after operation, his response is slow. To ascertain actual
loss of earnings, claimant could have brought further evidence.
The evidence available on record nowhere depicts that the
claimant has lost his working capacity commensurate to the
percentage of disablement as stated in the certificate issued by
the Civil Surgeon. However, at least 20% loss of future earning
can be gathered from overall survey of the evidence.
Therefore, compensation needs to be re-assessed accordingly.
6. The claimant relied upon the evidence of Mr. Sunil
Jain at Exhibit 38, who runs business of agricultural
equipment's and alleges that claimant was working as
watchman at his godown. He states that he used to pay
Rs.5,000/- p.m. and now the claimant is unable to work.
Therefore, he is not on job. Cross-examination of said witness
suggests that there is no documentary evidence regarding
employment or payment of salary. Although, he admits that he
used to obtain written vouchers with signature of the claimant
on payment slip, he did not produce any such evidence.
Evidence of this witness does not inspire confidence. However,
since claimant was a labour, his income can be notionally
considered as Rs.4,000/- p.m. in absence of the reliable
evidence. Considering the age of the claimant, addition of
40% can be made towards future prospects. The multiplier of
'16' can be applied to the age of the claimant. The
compensation awarded by the Tribunal i.e. Rs.20,000/-
towards pain and sufferings needs to be maintained. Further
claimant is entitled for Rs.30,000/- towards permanent
disablement. The compensation towards loss of income during
treatment period as assessed by the Tribunal and hospital bills
of Rs.50,000/- need not be disturbed. Hence, the award
passed by the Tribunal can be modified as under :-
Sr. No. Heads Amount
1. Monthly income of the deceased Rs.48,000/-
Rs.4,000 x 12 =
2. Addition of 40% towards future prospects 19,200/-
(Rs.48,000 X 40/100) =
3. Annual income comes to Rs.48,000 + 19,200 Rs.67,200/-
=
4. 20% permanent disability. Rs.13,440/-
Annual loss of earning
5. Multiplier of '16' (Rs.13,440 x 16) Rs.2,15,040/-
6. Tribunal awarded :- Rs.20,000/-
Pain and sufferings
7. Permanent disablement Rs.30,000/-
8. Loss of income during treatment period Rs.05,000/-
as awarded by the tribunal
9. Hospital Bills and Medical Bill receipts Rs.58,000/-
Rs.40,000 + 18,000/- Assessed by Tribunal
Total Compensation Rs.3,28,040/-
(Rs. Three Lakh Twenty Eight Thousand & Forty only)
7. In view of the aforesaid findings and assessment,
the award passed by the Tribunal needs to be modified. In the
result, following order is passed.
ORDER
i. First appeal is partly allowed.
ii. The award passed by the Motor Accident Claims
Tribunal, Dhule dated 11.6.2015 in MACP
no.428 of 2013 is modified as under :-
a] The respondents do pay Rs.3,28,040/- (Rs.
Three Lakh Twenty Eight Thousand & forty
only) to the claimant alongwith interest @ 7.5%
p.a. from the date of the claim petition till
realization of the amount.
b] The amount of compensation deposited/released
in terms of the Award passed by the Tribunal
shall be appropriated.
c]. Modified award be drawn up after payment of
deficit court fees, if any.
iii. On deposit of the compensation amount, it be
released to the claimant.
iv. First appeal is accordingly disposed off. Pending
civil application, if any, also stands disposed off.
( S. G. CHAPALGAONKAR )
JUDGE
...
aaa/- (f).
