Bombay High Court
Pandurang Rangrao More vs Siddiki Ismail Kamaloddin And Anr on 2 April, 2025
2025:BHC-AUG:9666
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.4775 OF 2017
Pandurang s/o. Rangrao More,
Age : 40 years, Occu : Agriculture & Business,
R/o. Khasgi, Tq. Omerga,
A/p. Mahado Galli, Omerga,
Tq. Omerga, Dist. Osmanabad ... Appellant
Versus
1. Siddiki Ismail Kamaloddin,
Age : Major, Occu : Business,
R/o. Guntoji, Tq. Omerga,
Dist. Osmanabad
(Owner of Rickshaw No. MH-25-M-1409)
2. United Indian Insurance Company Ltd.,
Latur, Through The Divisional Manager,
IIIrd Floor, Shivaji Chowk above access bank,
Kings Corner, Osmanabad ... Defendants
.....
Shri. Gaurav L. Deshpande, Advocate for the Appellant
Shri. Sushant B. Chaudhari, Advocate for Respondent No.1
Shri. Atul B. Gatne, Advocate for Respondent No.2
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 19.03.2025
PRONOUNCED ON : 02.04.2025
JUDGMENT :
-
1. The Claimant has filed this First Appeal under Section 173
of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'M.V.
Act'), being not satisfied by the Judgment and Order / Award dated
19.07.2017 passed by the learned Motor Accident Claims Tribunal
(hereinafter referred to as the 'Tribunal'), Omerga in Motor Accident
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Claim Petition No.10/2014, partly allowing the Claim Petition and
directing Opponent Nos.1 and 2 to jointly and severally pay Rs.74,300/-
(Rs. Seventy Four Thousand Three Hundred) including NFL to him
towards compensation with interest @ 8% per annum from the date of
Application till realization.
2. The Appellant is the Claimant / Orig. Petitioner before the learned
Tribunal. He filed the said Petition under Section 166 of the M.V. Act
contending that he was the agriculturist and doing allied business and
earning Rs.5,000/- (Rs. Five Thousand) per month. On 21.12.2013
around 06:30 a.m. when he was walking on the road heading towards
Gunjoti, one Auto Rickshaw bearing No.MH-25-M-1409 belonging to
Opponent No.1 came from the opposite direction in high speed and in
rash and negligent manner and gave dash to him. Due to the said
accident, he suffered injuries and was hospitalized. He was medically
treated. Due to the said accidental injury, he suffered disability. As the
said Auto Rickshaw was owned by Opponent No.1 and insured with
Opponent No.2 - Insurance Company, he claimed compensation of
Rs.2,00,000/- (Rs. Two Lakh) from them with interest @ 12% per
annum.
3. The aforesaid Claim Petition was contested by both the
Opponents. Opponent Nos.1 and 2 filed their Written-statements at
Exhs.20 and Exh.39, respectively. They denied that the motor vehicular
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accident took place due to involvement and rash and negligent driving
of the said Auto Rickshaw. They denied the entitlement of the Appellant
for the compensation.
4. The learned Tribunal framed the following issues at Exh.23.
"I S S U E S
1. Whether the petitioner proves that he sustained
injuries resulting into permanent disablement in the
Motor Vehicular Accident due to rash and negligent
driving of the driver of the motor vehicle namely
Rickshaw No. MH-25/M-1409?
2. Whether the petitioner is entitled to claim
compensation? If yes, what shall be the quantum ?
3. Who is liable to pay compensation ?
4. What order and award ?"
5. In support of the Claim Petition, the Appellant examined
himself as PW1 at Exh.26 and brought on record the police papers
comprising FIR at Exh.27, Spot Panchanama at Exh.28, Medical
Papers at Exhs.30, 31 and 34, medical bills at Exhs.35, 36 and 37
and copy of the Registration Certificate of the said Auto Rickshaw
at Exh.32. The Appellant also examined the Doctor as PW2 at
Exh.43, in whose hospital the Appellant was admitted. In his
evidence, the Form Comp 'B' was brought on record at Exh.44.
6. The Opponents did not examine any witness.
7. The learned Tribunal, after hearing both the sides and
considering the evidence available on record, passed the
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impugned Judgment and Award.
8. It is submitted by the learned Advocate for the Appellant
that this Appeal is preferred only on the point of quantum. The
Claim Petition under the Motor Vehicles Act are the summery
proceedings and has to be decided on preponderance of
probability. The Doctor was examined in support of the injuries
suffered by the Appellant. Merely because there was no technical
assessment of the disability, the Appellant should not suffer.
Meager compensation under the head 'disability compensation' is
awarded. Due to the disability, the Appellant could not work with
full strength in the agricultural operations. There was
responsibility on the Appellant of his family. The evidence of the
Appellant was not countered. The moffusil pleadings are to be
considered liberally. Even the future loss due to the disability has
not been granted. Under such circumstances, the Appeal needs to
be allowed and the Appellant be granted compensation amounting
to Rs.3,60,000/- (Rs. Three Lakh Sixty Thousand).
9. It is submitted by the learned Advocate for Opponent No.2 /
Insurance Company that there was no base in support of the
submissions made by the learned Advocate for the Appellant.
There is no dispute in respect of the accident. The Award was
satisfied by the Insurance Company. The controversy was in
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respect of disability compensation. In absence of medical evidence
showing functional disability due to the accident, the contention
of inadequate compensation was not sustainable. The Appellant
failed to establish the physical disability which would affect the
future income. The Appellant failed to establish his age, his
income and functional disability. There was no proof of loss of
income. In view of the cross-examination of the doctor examined
by the Appellant, no case is made out for compensation towards
disability. There was no certificate in the nature of Form Comp 'B'
issued by the Civil Surgeon to establish the disability of the
Appellant. The learned Tribunal has rightly assessed the evidence
available on record and awarded proper and just compensation
and hence, the Appeal be dismissed. In support of his
submissions, he relied on the Judgment in Raj Kumar vs. Ajay
Kumar and Another (2011) 1 SCC 343.
10. Heard both the sides. Perused the evidence available
on record. The above referred Judgment cited by the learned
Advocate for the Insurance Company is in respect of principles
relating to compensation in injury cases. In the said Judgment, it
is observed as under:
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"Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
head of loss of future earnings, would depend upon the effect
and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. What requires to be
assessed by the Tribunal is the effect of the permanent disability
on the earning capacity of the injured; and after assessing the
loss of earning capacity in terms of percentage of the income, it
has to be quantified in terns of money, to arrive at the future
loss of earnings (by applying the standard multiplier method
used to determine loss of dependency). The Tribunal has to
first decide whether there is any permanent disability and if so
the extent of such permanent disability. This means that the
tribunal should consider and decide with reference on the
evidence: (i) whether the disablement is permanent or
temporary; (ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial disablement,
(iii) if the disablement percentage is expressed with reference
to any specific limb, then the effect of such disablement of the
limb on the functioning of the entire body, that is the
permanent disability suffered by the person. If the Tribunal
concludes that there is permanent disability then it will proceed
to ascertain its extent. After the Tribunal ascertains the actual
extent of permanent disability of the claimant based on the
medical evidence, it has to determine whether such permanent
disability has affected or will affect his earning capacity.
Ascertainment of the effect of the permanent disability on the
actual earning capacity involves three steps. The Tribunal has to
first ascertain what activities the claimant could carry on in
spite of the permanent disability and what he could not do as a
result of the permanent ability. The second step is to ascertain
his avocation, profession and nature of work before the
accident, as also his age. The third step is to find out whether
(i) the claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent disability,
the claimant could still effectively carry on the activities and
functions, which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his previous
activities and functions, but could carry on some other or lesser
scale of activities and functions so that he continues to earn or
can continue to earn his livelihood. When compensation is
awarded by treating the loss of future earning capacity as 100%
(or even anything more than 50%), the need to award
compensation separately under the head of loss of amenities or
loss of expectation of life may disappear and as a result, only a
token or nominal amount may have to be awarded under that
head"
11. In the case on hand, there is no dispute in respect of the
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Motor Vehicular Accident by the use of above referred Auto Rickshaw
owned by Opponent No.1 and insured with Opponent No.2, respectively,
at the relevant time. There is also no dispute in respect of medical
treatment by the Appellant for the injuries suffered in the motor
vehicular accident. The only controversy is in respect of disability
compensation. According to the treating Doctor, who was examined as
PW No.2 in the Claim Petition, the Appellant was treated as the Indoor
Patient from 21.12.2013 till 25.12.2013. The Appellant had suffered the
fracture in his left leg. On 12.10.2014 the Appellant came to him for
permanent disability certificate and after examining the Appellant, he
issued the Certificate of 40% permanent disability. The further evidence
of the Doctor in the cross-examination show that the disability certificate
is issued according to the disability of the body part. At the time of
issuing disability certificate, in all 9 (nine) tests are to be undertaken.
Each test has the base as 10%. It was to be mentioned as to what was
the percentage of disability in each test. It was not mentioned as to
what tests were done and what was its base before issuing the disability
certificate at Exh.44. Due to the operation, the Appellant was cured and
it was successful. Suggestion is given that, due to the injuries there was
no effect on the day to day work of the Appellant.
12. The above evidence of the Medical Officer falls short of
establishing the functional disability of the Appellant. Though according
to the medical evidence, the Applicant got 40% disability, there is no
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evidence at all to show that the said disability had materially affected
the Appellant's working capacity and consequently his income.
Considering the evidence available on record, particularly the medical
evidence, in the light of the principles referred in the above Judgment,
no fault can be found with the impugned Judgment and Order / Award
wherein it is observed that, the Appellant was not entitled for
compensation for loss of future income. Though, according to the
treating Doctor the disability was 40%, there is no evidence to show the
functional disability of the Appellant i.e. the effect of his 40% disability
on his earning capacity. In the light of the evidence available on record,
no fault can be found with the compensation awarded by the learned
Tribunal. Eventually, the Appeal fails and the following order is passed.
ORDER
(i) The First Appeal is dismissed.
(ii) The Record and Proceedings be sent back to the learned Tribunal.
( NEERAJ P. DHOTE, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 02/04/2025 17:44:47
