Bombay High Court
Prashant Sukhdev Kale vs Shaikh Shabir S/O Shaikh Ahmed And Ors on 13 September, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:21593-DB
First Appeal No.2500/2021
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2500 OF 2021 WITH
CIVIL APPLICATION NO.13834 OF 2023
Prashant s/o Sukhdev Kale,
Age 37 years, Occ. Nil,
R/o Omkar Nagar, Kedgaon,
At Post Tq. Dist. Ahmednagar ... APPELLANT
(Orig. Claimant)
VERSUS
1. Shaikh Shabir s/o Shaikh Ahmed
Age 45 years, Occ. Driver,
R/o Vishwakarma Colony, Verul,
Tq. Khultabad, Dist. Aurangabad
Mob. 9421686829
2. Rangnath s/o Govindrao Mali,
Age major, Occ. Business (Owner)
R/o Plot No.85, N-1, Hari Niwas, CIDCO,
Aurangabad
3. The New India Assurance Co. Ltd.,
through its Branch Manager,
Branch office at Adalat Road,
Aurangabad ... RESPONDENTS
(Orig. Respondents)
.......
Mr. S.B. Rajebhosale, Advocate for appellant
Mr. Punit S. Mehta, Advocate for respondent No.1
Mr. R.N. Chavan, Advocate for respondent No.2
Mr. S.V. Kulkarni, Advocate for respondent No.3
(Applicant in X-Objection No.116/2023
.......
WITH
CROSS OBJECTION NO.116 OF 2023 IN
FIRST APPEAL NO.2500 OF 2021
First Appeal No.2500/2021
:: 2 ::
The New India Assurance Company Ltd.,
through its Branch Manager/
Authorized Signatory,
Mahesh Auto Compound,
Adalat Road, Aurangabad,
Tq. & Dist. Aurangabad ... CROSS OBJECTIONER
(Orig. Respondent No.3)
VERSUS
1. Prashant s/o Sukhdev Kale,
Age 37 years, Occ. Nil,
R/o Omkar Nagar, Kedgaon,
Tq. Dist. Ahmednagar
2. Shaikh Shabir s/o Shaikh Ahmed
Age 45 years, Occ. Driver,
R/o Vishwakarma Colony, Verul,
Tq. Khultabad, Dist. Aurangabad
3. Rangnath s/o Govindrao Mali,
Age major, Occ. Business (Owner)
R/o Plot No.85, N-1, Hari Niwas, CIDCO,
Aurangabad, Tq. & Dist. Aurangabad
... RESPONDENTS
(No.1 Orig.Claimant, No.2 & 3
Orig. Respdts. No.1 & 2)
.......
Mr. S.V. Kulkarni, Advocate for Cross Objectioner
Mr. S.B. Rajebhosale, Advocate for respondent No.1
Mr. Punit S. Mehta, Advocate for respondent No.2
Mr. R.N. Chavan, Advocate for respondent No.3
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 13th August, 2024.
Date of pronouncing judgment : 13th September, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
:: 3 ::
This is an appeal under Section 173 of the Motor
Vehicles Act. The appellant herein was the original petitioner/
claimant in Motor Accident Claim Petition (MACP),
No.497/2016. He met with accident involving motor vehicle
and thereby suffered permanent disability. He, therefore,
preferred the MACP before the Motor Accident Claims Tribunal
(MACT), Aurangabad. The learned Member, MACT,
Aurangabad, vide judgment and award dated 22/3/2021,
directed the respondents No.1 to 3 herein (original
respondents No.1 to 3) to jointly and severally pay the
appellant/ claimant a sum of Rs.77,43,696/- with interest @
9% p.a. thereon from the date of petition to the date of its
realisation. A sum of Rs.17,43,696/- was directed to be kept in
fixed deposit for three years in any of the Nationalised Bank of
the appellant's choice.
2. Being aggrieved and not satisfied with the quantum
of compensation awarded by the learned Member, the present
appeal has been preferred for enhancement of compensation.
3. The respondent No.3 Insurance Company has
preferred Cross-Objection in this appeal on the following two
grounds:-
:: 4 ::
(I) Contributory negligence, and
(II) The appellant/ claimant to have received a salary for a
period of four years immediately after he met with the accident
and the same amount has also been awarded by the Tribunal.
That much amount i.e. Rs.17,07,650/- was sought to be
reduced from the amount of compensation awarded by the
Tribunal.
4. The facts giving rise to the present appeal are as
follows :-
The appellant had been serving with a Company,
"Exide", a known manufacturer of batteries. He was serving as
Senior Accounts Officer with a monthly pay of Rs.36,550/-. On
9/11/2015 by 5.55 p.m., the claimant was on his way back
home on his motorbike bearing Registration No.MH-16/AB-
6285 after his duty hours were over. While he was passing by
Vit Bhatti (Brick Kiln) on Kedgaon Bypass-Kalyan Road, one
Innova Car bearing Registration No.MH-24-F-3540 came in
high speed from opposite side. The car was being driven by
respondent No.1 in a rash and negligent manner. It lost its
track and knocked down the appellant. The appellant thereby
:: 5 ::
suffered multiple injuries and paraplegia as well. The car
belonged to the respondent No.2. Admittedly, the car had an
insurance cover granted by the respondent No.3 Insurance
Company.
5. The learned Member of the Tribunal held the
respondent No.1 to be exclusively responsible to the accident
and resultant injuries suffered by the appellant and granted the
compensation as stated above. The details thereof (split up)
will be referred to at appropriate stage.
6. Heard. The respondents No.1 and 2 remained
absent in spite of service of notice of this appeal. Both, the
appellant and Number Three respondent - Insurance
Company filed written notes of arguments. The appellant filed
an application (Civil Application No.13834/2023) for additional
evidence. The additional evidence proposed to be adduced is
in the nature of medical bills worth Rs.23,73,467/-. As stated
above, the respondent Insurance Company has come with a
defence of contributory negligence and the claimant to have
received four years salary from his employer and equal
amount of compensation for that period from the Insurance
Company as well. That much amount i.e. Rs.17,07,650/- was,
:: 6 ::
therefore, sought to be reduced from the amount of
compensation awarded by the Tribunal.
7. Perused the written submissions. Learned
Advocate for the appellant has placed on record detailed notes
of arguments along with a host of citations. According to him,
the appellant suffered 80% of disability. The functional
disability was, however, 100%. According to learned Advocate,
the Tribunal erred in awarding compensation considering the
loss of future earning to be at 80% of his total income.
According to the learned Advocate, the Tribunal ought not to
have observed the appellant would be able to do a sitting job.
Had the appellant been granted compensation considering him
to have suffered 100% of functional disability, he would have
been entitled for addition of 50% therein towards future
prospects. Moreover, a very meagre amount has been
awarded on the count of non-pecuniary compensation. No
compensation has been awarded under various heads.
According to learned Advocate, the appellant has now become
wheel chair bound person. He is required to sleep on air-
inflated or water bed. Physiotherapy Sessions are required
throughout his life. Nothing has been awarded on account of
loss of amenities in life. The appellant is unable to enjoy
:: 7 ::
sexual pleasure. Accompanied to him, the appellant is
required around Rs.60 Lakhs for future medical expenditure.
The appellant is required to undergo operation for removal of
implants. He, therefore, urged for enhancement of amount of
compensation to a great extent.
8. Learned Advocate for the Insurance Company, as
stated above, adverted our attention to the crime scene
panchanama to indicate it to be a head on collision. He would
submit that, it was a case of contributory negligence. The
appellant was equally responsible for his sufferings as a result
of the accident. He availed double benefit of four years salary.
The learned Advocate, therefore, urged for allowing the Cross-
Objection.
9. In reply to the Cross-Objection, the learned
Advocate for the appellant submitted in writing that a crime has
been registered against the driver of the offending vehicle.
The crime scene panchanama would indicate the car lost its
track and went to its wrong side before it knocked down the
appellant. The car driver did not step into the witness box. So
far as regards availment of salary for first four years next after
the accident is concerned, he would submit that, the appellant
:: 8 ::
is entitled for one month Earned Leave every year. He has lost
the benefit thereof for remainder of his service. Whatever was
granted by the employer Company was towards the same and
may also be considered as ex-gratia payment. The same,
therefore, could not be deducted from the appellant's
entitlement of compensation under various heads.
10. Considered the written submissions. Perused the
evidence on record and the authorities relied on. Following
points arise for determination.
(1) Whether it was a case of contributory negligence ?
(2) Whether the appellant proved to have suffered 100%
of functional disability ?
(3) Whether the appellant proved to have not been
granted compensation under various heads and
therefore entitled for enhancement as urged for ?
(4) What order ?
11. As to Point No.1 : Admittedly the accident between
the motorbike ridden by the appellant and the Innova Car
driven by the respondent No.1 occurred on 9/11/2015 by little
past 6.00 p.m. at Kedgaon Kalyan By-pass Road. The
:: 9 ::
appellant testified on oath, wherein he gave details as to how
the accident took place. The driver of the offending vehicle did
not examine himself on oath. On due investigation, the charge
sheet has been filed against him for being responsible to the
accident and resultant injuries. The crime scene panchanama
(Exh.61) indicate the Innova Car to have had not kept left side
of the road while proceeding along Kalyan Kedgaon Bypass. It
also indicates the car left its track and went to somewhat
wrong side and dashed against the motorbike ridden by the
appellant. There being no other evidence to indicate the
appellant to have slightly been responsible or a contributory to
the accident, we find the Tribunal's finding holding the driver of
the offending vehicle to be exclusively responsible to the
accident calls for no interference. Point No.1 is thus answered
accordingly.
12. As to Point No.2 to 4 :- The appellant tendered in
evidence various documents in the nature of hospital and
medical bills. Admittedly, he was indoor patient for about 8
months at various hospitals. The respondent Insurance
Company admitted the disability certificate (Exh.196) issued by
the Medical Board headed by the Committee of Civil Surgeon,
Ahmednagar indicating the appellant/ claimant to have
:: 10 ::
suffered post traumatic paraplegia and suffered 77% of
physical disability. The Disability certificate shows :-
Disability Affected part Diagnosis
of Body
Physical Bil. L/L Post traumatic
Impairment paraplegia
The above condition is Permanent, non-progressive, not likely
to improve.
While the appellant tendered in evidence another
certificate issued by Dr. Jaiswal. The appellant examined him
as his witness. Admittedly, he was not a treating doctor. The
certificate issued by him indicates the appellant to have
suffered 80% of disability. The Tribunal has considered the
said certificate. The respondent Insurance Company has not
traversed the same before us. Both the disability certificates
indicate the petitioner to have suffered following injuries :
"Fracture shaft femur and fracture radius ulna right side
with fracture dorsal vertebrae fourth and fifth with
paraplegia with acute renal artery thrombosis."
13. The appellant placed on record document
indicating his employer to have terminated him from service.
:: 11 ::
The aforesaid injuries coupled with the fact that the petitioner
suffered paraplegia lead us to infer the appellant to have
suffered 100% of functional disability. True, he may move a bit
with sitting in a wheel chair. It would, therefore, be anybody's
guess who would employ him and at what salary.
14. The appellant placed on record the income tax
return for the Assessment Year 2015-2016 (Exh.89). His
annual income was Rs.4,18,200/-. A sum of Rs.10,628/- was
paid towards income tax. That much amount has been
deducted therefrom besides a sum of Rs.2500/- towards
Professional Tax. The annual income of the petitioner was
considered at Rs.4,05,072/-. As the petitioner was in the age
group of 31-32, relying on the judgment of the Apex Court in
case of Sarla Verma & Ors.Vs. Delhi Transport Corp. & Anr.
[AIR 2009 SC 3104], a multiplier of 16 was applied. Applying
the same, his income was arrived at Rs.64,81,152/-.
Considering the appellant to have suffered 80% of functional
disability and treating it to be his future loss of earning, he was
awarded 80% of the said amount, which came to
Rs.51,84,921/-. The appellant candidly admitted before the
Tribunal to have received Rs.3 Lakhs towards mediclaim. That
much amount was also deducted from the amount of
:: 12 ::
compensation. Thereafter the amount of compensation under
that head was calculated at Rs.48,84,921/-. The
compensation granted under other heads and detailed in
paragraph No.42 of its judgment is as under :
42. In the circumstances, the claimant is entitled for total
compensation amount as follows :
Rs.48,84,921 Towards future loss of earning.
Rs.01,00,000/- Towards Pain & sufferings, attendance
charges, diet charges, loss of amenities, etc.
Rs.17,927/- Towards medicine purchase bill.
Rs.4,200/- + Rs.9,530/- + Rs.10,000/- Hospital Bills
Rs.05,54,654/- + Rs.13,050/- Towards KEM Hospital Bill,
Pune
Rs.11,60,000/- + Rs.15,380/- + Rs.48,000/- + Rs.100/- +
Rs.1,078/- Towards MRI Brain, etc.
Rs.2,78,800/- Towards loss of Salary Income of claimant for
nearabout 8 months during the hospitalization period.
Rs.6,46,056/- Towards Hospital & Medical Bills as admitted by
Insurance Company vide Exh.197 to Exh.209
===========
Rs.77,43,696/-
15. In our view, when the appellant has suffered
multiple injuries and afflicted by paraplegia, it is a case of
100% functional disability. The Tribunal ought to have granted
him the compensation considering it to be a case of loss of
:: 13 ::
100% functional disability. We, therefore, recalculate the
compensation under the head of loss of future income and
earning capacity as under :
16. In view of the directions of the Constitution Bench
of the Apex Court in case of National Insurance Company
Limited Vs. Pranay Sethi [AIR 2017 SC 5157], 50% of
annual income of the appellant is added towards future
prospects since he was in permanent employment. Thus, the
amount of compensation on account of loss of future earning
would be as under :
Rs.4,05,072/- + 50% = 2,02,536 = Rs.6,07,608/-
X Multiplier 16 = Rs.97,21,728/-
He has been granted Rs.2,78,800/- towards loss of salary
income for a period of 8 months of hospitalization. The same
would be considered as compensation on account of loss of
leave. We do not propose to make any interference with the
said quantum of compensation. On account of hospital and
medical bills, a total sum of Rs.18,70,614/- has been granted
(duly proved/ admitted by the respondent Insurance
Company).
:: 14 ::
17. True, under the head of loss of income the
appellant has been awarded compensation for the period
commencing from the date of the accident. Whereas he has
admittedly received a salary for a period of four years next
after the date of the accident. The said quantum gets covered
under the head of loss of future income. As such, ostensibly
the appellant has received compensation twice for a period of
four years. We take it as an ex-gratia payment made by the
employer. We also do not propose to make any deduction on
that count since we are not granting the appellant any amount
towards medical bills placed on record as additional evidence.
The learned Advocate for the appellant before the Tribunal had
proved the hospital and medical bills. Here he did not urge for
permission to lead additional oral evidence in proof of the bills.
The bills are not for small amount. The bills placed on record
as additional evidence are worth Rs.23,73,467/-. We,
therefore, do not propose to grant any compensation on
account of those bills though we were inclined to grant the
appellant a lumpsum amount towards future medical
treatment.
18. The appellant examined P.W.11 Sumedh Kedare in
proof of future medical expenditure. He would be required to
:: 15 ::
spend a sum of Fifty to Sixty Lakhs towards future medical
expenditure. No details thereof have been given. We,
therefore, propose to award him a lumpsum of Rs.30 Lakhs
towards future medical expenditure including Physiotherapy
charges, undergoing operation for removal of implant etc.
Under the head pain and suffering, attendant charges, diet
charges, loss of amenities etc., a very meagre sum of Rs.1
Lakh has been awarded by the Tribunal. On account of pain
and suffering and loss of amenities in life, we propose to grant
the appellant a sum of Rs.15 Lakhs. The appellant has relied
on the judgment of the Apex Court in case of Sidram Vs.
Divisional Manager, United India Insurance Co. Ltd. [ 2022
(16) SCALE 452 ]. It was case wherein the injured had
suffered 45% of disability in the nature of paraplegia. In
paragraph no.32 of its judgment, it has been observed thus :
"32. This Court has emphasised time and again
that "just compensation" should include all
elements that would go to place the victim in as
near a position as she or he was in, before the
occurrence of the accident. Whilst no amount of
money or other material compensation can erase
the trauma, pain and suffering that a victim
undergoes after a serious accident, (or replace the
loss of a loved one), monetary compensation is the
manner known to law, whereby society assures
some measure of restitution to those who survive,
and the victims who have to face their lives."
:: 16 ::
19. It then referred to the Apex Court judgment in case
of R.D. Hattangadi V. Pest Control (India) (P) Ltd. [ AIR
1995 SC 755] and reproduced paragraph 9 thereof as under :
"9. Broadly speaking while fixing the amount of
compensation payable to a victim of an accident,
the damages have to be assessed separately as
pecuniary damages and special damages. Pecuniary
damages are those which the victim has actually
incurred and which are capable of being calculated
in terms of money; whereas non-pecuniary
damages are those which are incapable of being
assessed by arithmetical calculations. In order to
appreciate two concepts pecuniary damages may
include expenses incurred by the claimant: (i)
medical attendance; (ii) loss of earning of profit up
to the date of trial; (iii) other material loss. So far as
non- pecuniary damages are concerned, they may
include: (i) damages for mental and physical shock,
pain and suffering, already suffered or likely to be
suffered in the future; (ii) damages to compensate
for the loss of amenities of life which may include
a variety of matters i.e. on account of injury the
claimant may not be able to walk, run or sit; (iii)
damages for loss of expectation of life i.e. on
account of injury the normal longevity of the
person concerned is shortened; (iv) inconvenience,
hardship, discomfort, disappointment, frustration
and mental stress in life."
20. The appellant has also placed on record a copy of
the judgment in case of R.D. Hattangadi (supra), wherein the
compensation has been awarded for Physiotherapy, bedsore
dressing charges, wheel-chair, Fowler's bed etc. It was a
judgment delivered way back in 1995. With the passage of
:: 17 ::
time, the charges thereof must have been increased. We,
therefore, propose to grant the appellant a sum of Rs.1 Lakh
towards wheel-chair. He would be required to be attended at
least by one person. On that count, a total sum of Rs.10
Lakhs is proposed to be awarded. We are not inclined to grant
any compensation on account of travelling expenses already
incurred and likely to incur. The appellant being permanent
resident of Ahmednagar, preferred to file the claim petition
before the Tribunal at Aurangabad. Although the
compensation has been claimed under various heads, we are
not inclined to grant the same since a lumpsum amount of
Rs.30 Lakhs has been awarded towards future medical
expenses, besides under other heads referred to hereinabove.
Thus the total compensation comes to Rs.1,53,21,728/-
(Rs.97,21,728 + 30 Lakhs + 15 Lakhs + 1 Lakh + 10 Lakhs.)
We round it of to Rs.1,55,00,000/- (Rupees One Crore Fifty
Five Lakhs only). The additional amount while making the
figure round off is considered towards miscellaneous expenses
which the appellant may be required to incur.
21. For all the aforesaid reasons, the appeal partly
succeeds. The Cross-Objection fails. Both the appeal and the
:: 18 ::
cross-objection, therefore, stand disposed of in terms of the
following order :
ORDER
(i) The First Appeal is partly allowed.
(ii) The amount of compensation awarded by the Tribunal is
enhanced from Rs.77,43,696/- (Rupees Seventy Seven Lakhs
Forty Three Thousand Six Hundred Ninety Six) to
Rs.1,55,00,000/- (Rupees One Crore Fifty Five Lakhs only).
The amount of enhanced compensation i.e. Rs.77,56,304/-
(Rupees Seventy Seven Lakhs Fifty Six Thousand Three
Hundred and Four) shall carry interest @ 7% p.a. from the
date of claim petition i.e. 22/8/2016 to the date of payment.
(iii) The Cross-Objection stands dismissed.
(iv) Civil Application No.13834/2023 stands disposed of.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
