Bombay High Court
Hirabai Jaysing Shelke vs Suvarna Shivaji Dhawale And Anr on 9 April, 2025
2025:BHC-AUG:10660
1 APEAL513.2017R.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO. 513 OF 2017
Hirabai Jaysing Shelke,
Age : 52 years, Occu: Labour,
R/o. Labourer, Belapur (Kd.),
Tq. Shrirampur, Dist. Ahmednagar. ...Appellant
Versus
1. Suvarna Shivaji Dhawale,
Age : 55 years, Occu. Business,
R/o. Deolali Pravara, Taklimiya Road,
Tq. Rahuri, Dist. Ahmednagar.
2. Branch Manager,
The New India Assurance Company Ltd.
i) Office at Parag Plaza, Dr. Chatphale Marg,
Shivaji Cross Road, Shrirampur,
ii) Gurunanak Building above Wasan Auto
Mumbai Naka, Ta. & Dist. Nashik. ...Respondents
......
Mr. Vinayak S. Bedre - Advocate for the Appellant
Mr. M. M. Ambhore - Advocate for Respondent No. 1
......
CORAM : NEERAJ P. DHOTE, J.
DATE OF RESERVING THE JUDGMENT : 01.04.2025
DATE OF PRONOUNCING THE JUDGMENT : 09.04.2025
JUDGMENT :
-
1. This Appeal, under Section 173 of the Motor Vehicles Act,
1988 (for short "the M.V. Act") is filed by the Original Claimant being
not satisfied with the compensation awarded by the learned Member,
Motor Accident Claims Tribunal, Shrirampur (hereinafter referred to as
SG Punde
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"the Tribunal") in Claim Petition No. 161 of 2014, by Judgment and
Award dated 12.07.2016.
2. The facts, giving rise to the present Appeal, are as under : -
(a) The Appellant is the resident of Belapur (Kd.),
Tal. Shrirampur, Dist. Ahmednagar. She was an agricultural
labour. On 03.08.2014, when the Appellant with her
sister-in-law was returning to her village by walking on the
Ahmednagar to Manmad road, within the jurisdiction of
Dehere village, the Motorcycle bearing No.MH-17/BB-7276
came from Ahmednagar side in a rash and negligent manner
and gave dash to the Appellant. Due to the said accident, the
Appellant suffered severe injuries and was hospitalized. She
was treated. She suffered total disability. The accident was
reported to the M.I.D.C. Police Station, Ahmednagar and
Crime No.I-157/2014 came to be registered against the
Driver of the said Motorcycle for the offence punishable
under Sections 304(A), 279, 337, 338, 427 of the Indian
Penal Code and under Section 184 of the M.V. Act. Due to
the said accident, the Appellant had to spend a huge amount.
Due to the disability, she was unable to earn her livelihood.
(b) The Appellant preferred the Claim Petition under Section
166 of the M.V. Act for compensation to the extent of
Rs.12,00,000/- [Rupees Twelve Lakh] with interest @ 18%
per annum against the registered Owner of the Motorcycle
and the Insurance Company of the said Motorcycle. The
Claim Petition was contested by the Respondent No. 2 -
SG Punde
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Insurance Company by filing Written Statement at Exh.24.
The contentions raised in the Claim Petition were denied.
The Appellant filed Evidence Affidavit at Exh.22. She was
cross-examined.The Appellant examined the treating Doctor
at Exh.28. The Police papers, medical papers, Form-B and
medical bills were brought on record in the evidence by the
Appellant. No evidence was adduced by the Respondents.
By the impugned Judgment and Award, the total
compensation of Rs.14,83,720/- [Rupees Fourteen Lakh
Eighty Three Thousand Seven Hundred and Twenty] with
9% interest per annum from the date of Claim Petition till its
realization against the Respondents is awarded.
3. Heard the learned Advocate for the Appellant and the
learned Advocate for Respondent No. 2 / Insurance Company. None for
Respondent No. 1. Perused the evidence available on record.
4. It is submitted by the learned Advocate for the Appellant
that, the Appeal is field only on the ground of quantum. The learned
Tribunal considered the notional income of the Appellant @ Rs. 5000/-
[Rupees Five Thousand] per month. It should have been Rs.6,000/-
[Rupees Six Thousand] per month. Due to the disability, the Appellant
had to spend for continuous assistance for her daily ordinary pursuits and,
therefore, Rs.10,000/- [Rupees Ten Thousand] per month ought to have
been awarded on that count. The total compensation ought to have been
Rs.20,00,000/- [Rupees Twenty Lakh]. The Appeal be allowed and the
SG Punde
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compensation be enhanced.
5. It is submitted by the learned Advocate for Respondent
No. 2 / Insurance Company that, the notional income of Rs. 5000/-
[Rupees Five Thousand] considered by the learned Reference Court, is
just and proper. The Insurance Company has satisfied the Award, which
is just and fair. There is no necessity to enhance the compensation and the
Appeal be dismissed.
6. As regards the first submission in respect of the notional
income of the Appellant is concerned, the cross-examination of the
Appellant shows that she was residing with her husband, son, four
daughters, daughter-in-law and two grand children. She was uneducated.
The motor vehicular accident took place in August - 2014. Considering
these aspects and in absence of proof of income, the monthly notional
income of Rs. 5000/- was rightly considered by the learned Tribunal.
7. As regards the disability compensation is concerned, the
Appellant, in her cross-examination, admitted that there is no mention in
her Application about the part of body where she has suffered the
disability and what was the nature of her disability. The evidence of
Witness No. 2, who examined the Appellant clinically, certified her to be
100% disabled with the following findings : -
SG Punde
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(i) Compression fracture D-1,
(ii) Compression fracture D-2,
(iii) Supra condylar fracture right humerus with paraparesis.
7.1. According to the Doctor, the patient was bedridden and her
working capacity was affected 100% and she was not in a position to
perform her daily ordinary pursuits. The Petitioner lost her power in her
legs due to the fracture to her vertebral column. The Petitioner cannot
stand. The Disability Certificate at Exh.29 was brought on record. In the
cross-examination, the Doctor admitted that he had not brought the X-ray
plate with him and he has not mentioned in the Disability Certificate that
the working capacity of the Petitioner was 100% affected. Suggestion
was given that the Disability Certificate was issued by mentioning excess
disability.
8. The record shows that the Appellant filed her Evidence
Affidavit at Exh. 22 before the learned Tribunal, which was sworn in
before the Superintendent of the District and Additional Sessions Court,
Shrirampur. There is no dispute that the Appellant faced the
cross-examination before the learned Tribunal. There is nothing to show
that the Appellant was carried before the learned Tribunal with the help
of any assistance. If this was the position, the above referred evidence
that the Appellant was 100% disabled and bedridden, does not appear to
be well-founded. The learned Tribunal awarded Rs.1,00,000/- [Rupees
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One Lakh] for pain and sufferings, Rs.25,000/- [Rupees Twenty Five
Thousand] for special diet, Rs.25,000/- [Rupees Twenty Five Thousand]
for travelling expenses and Rs.2,00,000/- [Rupees Two Lakh] for
attendant charges and also granted medical bills worth Rs.4,73,721/-
[Rupees Four Lakh Seventy Three Thousand Seven Hundred and Twenty
One]. Considering the future requirement, by applying the multiplier of
11, the loss of future income is quantified at Rs. 6,60,000/- [Rupees Six
Lakh Sixty Thousand] considering the above referred monthly notional
income of the Appellant. The amount of simple interest granted by the
learned Tribunal @ 9% p.a. on the amount of compensation appears on
the higher side, however, the opposite side i.e. Respondent Nos. 1 and 2
are not in Appeal. Therefore, there is no question of interference with the
same.
9. In the light of the above discussion, no interference is called
for in the impugned Judgment and Award. Hence, the following order :-
ORDER
[i] The Appeal is dismissed.
[ii] Record & Proceedings be sent back to concerned Court.
[NEERAJ P. DHOTE]
JUDGE
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 09/04/2025 16:18:07
SG Punde
