The New India Assurance Co. Ltd., Branch ... vs 1) Shri. Dadasaheb Dinkar Bodke
2025 Latest Caselaw 3149 Bom

Bombay High Court

The New India Assurance Co. Ltd., Branch ... vs 1) Shri. Dadasaheb Dinkar Bodke on 11 March, 2025

 2025:BHC-AS:12762
HEMANT
CHANDERSEN
SHIV                                                                           -FA-1327-2012.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.03.19                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
16:33:23 +0530
                                         CIVIL APPELLATE JURISDICTION

                                            FIRST APPEAL NO. 1327 OF 2012
                                                       WITH
                                        CROSS OBJECTION (ST) NO. 10663 OF 2014
                                                         IN
                                            FIRST APPEAL NO. 1327 OF 2012

                      The New India Assurance Co. Ltd.,
                      Branch Karad, Dist.Satara.
                      Through Mumbai Regional Officer-I,
                      New India Bhavan, 2nd Floor, 34/38,
                      Bank Street, Fort, Mumbai-400023.
                                                                                  ..Appellant
                                            v/s
                      1.Shree.Dadasaheb Dinkar Bodke
                      Age-29 yrs, Occu.Service,
                      R/o.Katarkhatav, Tal.Khatav,
                      Dist.Satara

                      2.Shri.Balasheb Anandrao Phalke
                      Age.Adult, Occu.Business,
                      R/o.Pulachi Shiroli,Tal.Hatkanangale
                      Dist.Kolhapur.

                      3.Shri.Janardan Chandar Patil
                      Age.Adult, Occu.Truck Owner,
                      R/o.Pulachi Shiroli,Tal.Hatkanangale
                      Dist.Kolhapur.                                              ..Respondents

                      Mr.Devendranath S. Joshi, for the Appellant.
                      Mr. Sharad T. Bhosale i/b Mr. Dilip Bodke, for the Respondent No.1.
                      Mr.Shivraj Jagdale i/b Mr. Vijay Killedar, for the Respondent Nos. 2
                      and 3.

                                                 CORAM : SHYAM C. CHANDAK, J.

                                                  DATED : 11th MARCH, 2025.


                      Rekha Patil                                                                    1/12


                             ::: Uploaded on - 19/03/2025               ::: Downloaded on - 22/03/2025 06:48:37 :::
                                                         -FA-1327-2012.doc

JUDGMENT:

-

. Present Appeal is directed against the Judgment and Order

dated 28.01.2011, in Motor Accident Claim Petition No. 97 of 2006,

passed by the learned Member, Motor Accident Claims Tribunal,

Karad, District Satara ("the Tribunal") thereby said claim filed under

Section 166 of the Motor Vehicles Act, 1988 ("the Act") has been

partly allowed and, the appellant/Original Opponent No.2 and

respondent Nos.2 & 3/Original Opponent Nos. 1 and 3 have been

directed to jointly and severally pay the respondent No.1/claimant a

compensation of Rs.12,21,720/- alongwith interest at the rate of 7%

p.a. from the date of filing of the said claim till the realization of the

said amount.

1.1) The Cross-Objection is filed by the claimant for enhancement

of the compensation amount.

2) Heard Mr. Joshi, the learned Advocate for the appellant, Mr.

Bhosale, the learned Advocate for the claimant and Mr.Jagdale, the

learned Advocate instructed by Mr. Killedar, for respondent Nos.2

and 3. Perused the record.

3) Record indicates that Appeal was admitted on 12.12.2012.

4) Facts in briefs are that, on 29.05.2006, at about 07:30 p.m., the

respondent N0.1 was driving a milk tanker bearing No. MH-12-AV

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8046 ("the tanker") on Pune-Banglore National Highway, within the

limits of village Varade. Suddenly a truck bearing No. MH-09/A-

6661 ("truck") came from wrong side and driven in a rash and

negligent manner, to avoid toll tax. As a result, the truck dashed

against the tanker and caused the accident. The claimant sustained

injuries to his both legs. He was medically treated at Krishna

Hospital, Karad. However, the accidental injuries caused him

permanent disabilities. At the time of accident, the claimant was aged

29 years, he was working as a driver and, getting monthly salary of

Rs.5,800/-. However, he cannot work and earn as before due to said

disability. As averred, the respondent No.3 had sold that truck to

respondent No.2, during the policy period. The truck was insured

with the appellant at the time of the accident. Therefore, the claimant

filed the said claim and prayed to award compensation of

Rs.14,41,220/- under the admissible heads.

5) The appellant and respondent No.2 resisted the claim filing

Written Statements at Exhs.12 and 15, respectively. The claim

proceeded ex-parte as against the respondent No.3.

5.1) The appellant and the respondent No.2 have not admitted and

specifically denied each and every material allegations, averments

and submissions made against them in the claim. They denied that

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

Respondent No.2 contended that in fact, the claimant was driving his

tanker from south to north direction and, in an attempt to overtake

another truck, the claimant lost his control and met with an accident.

The respondent No.2 contended that he was not liable to pay the

compensation as the truck was insured in the name of respondent

No.3. In the alternative, the appellant contended that, the accident

occurred due to contributory negligence on the part of the driver of

the tanker.

6) To prove the claim, the claimant adduced his evidence on

affidavit (Exh.28). He examined CW-2 Dr.Satyajeet Mahadar, to

prove the disability and CW3 Mr. Vijay Shrikrishna Joshi, Manager

of M/s.A. M. Transport, to prove the occupation and income.

Besides, the claimant has relied upon the medical bills (Exh.29.), FIR

(Exh.31), spot panchanama (Exh.32), insurance policy of the truck

(Exh.33), accident report/Form Comp.AA (Exh.34), Final Report

Form (Exh.35), Injury certificate (Exh.36), Injury-cum-temporary

Disability Certificate issued by Krishna Hospital (Exh.37), Discharge

Certificate issued by Krishna Hospital (Exh. 38) and Disability

Certificate (Exh. 46).

7) The evidence of the claimant is that at the time of accident, he

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was driving his tanker from Bhilwadi to Pune, on Banglore-Pune

national Highway, which was a one way. He had passed Taswade

Toll. At about 07:30, when his tanker reached within the vicinity of

mouje Varade, suddenly, the offending truck came from a wrong

side; driven in a rash and negligent manner, to avoid the Toll tax. As

a result, the truck dashed to the tanker on it's driver side. The

aforesaid evidence is supported with the FIR, spot panchanama and

the Final Report. Nothing has come in the cross-examination of

claimant to disbelieve his version as to the manner and cause of the

accident. The appellant and other respondents have not adduced an

evidence in rebuttal. Therefore, I am in agreement with the finding

recorded by the Tribunal that the accident occurred due to rash and

negligent driving of the truck.

8) The evidence of the claimant, injury certificate and the

discharge card referred above clearly established that, the claimant

had suffered following injuries in the accident and, the same were

treated with surgery :-

"Grade II compound fracture, D-3, proximal 1/3 rd- middle 1/3rd right tibia/fibula with Grade III compound fracture, left tibia/fibula, with feeble dorsalis pedis left leg. Right foot fracture 2, 3 and 4th toe."

9) The claimant's evidence that he had incurred total Rs.1,11,720/-

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on his medical treatment is in consonance with the medical bills

(Exh.29). There is nothing on record to raise any suspicion about the

said bills. Considering the nature of the injuries suffered by claimant

and that the fractures were fixed doing surgery, the said expenditures

were reasonable. As such, the award of Rs.1,11,720/- for the 'medical

expenses' is justifiable.

10) The Tribunal awarded Rs.15,000/- towards 'special diet' and

'travelling expenses'. The discharge card produced on record shows

that the claimant was inpatient from dated 29.05.2006 to

23.06.2006. The injuries being grievous must have taken long time

to heal and required frequent visits to the treating doctor/s.

Therefore, I am of the considered view that the award of Rs.15,000/-

under the head 'special diet' and 'travelling expenses' is on lower side

and, I deem appropriate to award total Rs.25,000/- for 'special diet'

and 'travelling expenses'. No attendant charges have been awarded

by the Tribunal. Looking at the financial condition of the claimant,

his family member must have attended him for the needful during

the recovery period. Therefore, and having regard to the fractures

sustained by the claimant, he deserves to get Rs.15,000/- towards

'attendant charges'.

11) As regards the occupation and income, the evidence of claimant

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is that at the time of the accident he was working as the driver on the

milk tanker thereby he was getting monthly salary of Rs.2,200/- plus

monthly bhatta of Rs.3,600/-. Thus, his gross monthly income was

Rs.5,800/-. This evidence is supported by CW3-Mr. Vijay Joshi,

Manager of M/s.A. M. Transport, who deposed that the claimant was

employed with the said transport company/firm and earning as

above. Said oral evidence is also supported by the salary certificate

(Exh.52).

11.1) However, in the cross-examination CW3 admitted that the

bhatta was depending upon the actual working days. He cannot tell

what exact bhatta was paid in every month. He has issued the salary

certificate for only one month i.e., May 2007. In view of the this

evidence, the Tribunal held that the average monthly salary income

i.e, salary plus bhatta was Rs.5,000/-.

12) Mr. Joshi, the learned Advocate for appellant submitted that

the said monthly income has been held on a higher side. However,

according to Mr. Bhosale, the learned Advocate for claimant, the said

income has been held on lower side.

12.1) There is no dispute that the claimant was driving a heavy

vehicle and, it was a skilled work. While holding the monthly income

of the claimant as Rs.5,000/-, the Tribunal did not consider the

-FA-1327-2012.doc

minimum wages and bhatta payable to such drivers at the time of

accident. Mr. Bhosale submitted that the claimant was married at the

time of the incident. As such, it is clear that the claimant was

shouldering his family responsibilities. This fact is sufficient to infer

that his income was more than Rs.5,000/-. Therefore, and

considering the evidence as a whole, I hold that the net monthly

income of the claimant was Rs.5,400/- and yearly Rs.64,800/-.

13) As noted above and deposed by CW-2 Dr.Satyajeet Mahadar,

both the legs of the claimant were fractured. CW2 deposed that, the

left leg has become short by ½ inch due to the injuries. Said leg

cannot bend at knee level. Therefore, CW2 opined that the claimant

cannot drive, climb and stand on the left leg. In view thereof, CW2

deposed that the claimant has suffered 50% disability. This entire

evidence is not shattered in the cross-examination. On the contrary,

in the cross-examination of CW2 it has come that the said disability

is with reference to the left leg. Thus, it has been clearly established

that the claimant cannot work as a driver and he has lost his 100%

future income/earning capacity on account of the accidental injuries.

13.1) In accordance with the decision in National Insurance Co. Ltd.

vs. Pranay Sethi and others.1, some amount shall be added to the net

annual income of the claimant towards his future prospects. The

1. (2017)4 ACJ 2700 (SC).

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claimant was aged 29 years at the time of the accident. However, he

was not in a regular employment. Hence, the addition towards his

future prospects should be 40% of his yearly income of Rs.64,800/-.

On such addition, the actual yearly income of claimant comes to

Rs.90,720/- (64800 + 25920). The applicable multiplier is '17' and

applying this multiplier to the actual yearly income i.e., the

multiplicand of Rs.90,720/- the actual loss of the future income

comes to Rs.15,42,240/-.

14) It is trite that in such injury claims, a reasonable compensation

should be awarded towards 'pain and suffering'. The Tribunal has

awarded total Rs.5,000/-. However, looking at the fractures, it is

probable that the claimant was experiencing pain for a considerable

time. The loss of job must have added to that. The said injuries

prevented the claimant from enjoying his life right from very young

age. However, no compensation has been awarded under the head

'loss of amenities and enjoyment of life'. Therefore, in my considered

view the claimant deserves to receive total Rs.1,00,000/- under both

the said heads.

15) The Tribunal has awarded Rs.10,000/- for the future surgery.

The claimant was present before this Court. Mr.Bhosale, on

instructions, stated that although doctor had suggested to remove the

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implant from the left leg, the claimant could not have the future

surgery for want of money. He submitted that, at present, said

surgery would require the claimant to incur Rs.75,000/-. Now, the

claimant is aged 48 years. Post future surgery, he would need some

special diet. He should also undertake some transport charges and

need an attendant for few days on account of that surgery. Hence,

and looking at the present inflation rate, said amount of Rs.75,000/-

appears reasonable for 'the future surgery/medical'. Mr. Bhosale

conceded the submission by Mr. Joshi that no interest be awarded on

the said amount of Rs.75,000/- as it is estimated for the present.

16) The appellant has already deposited the compensation amount

awarded by the Tribunal. Therefore, the claimant is entitled to

receive only the enhanced compensation as under :-

          Total compensation amount         :     Rs.18,68,960/-
          Minus the compensation amount :       - Rs.12,21,720/-
          awarded by the Tribunal and paid.       ---------------
                                   Balance :    = Rs. 6,47,240/-


17)       The claimant is entitled for some interest on the compensation

amount excluding the amount awarded for the future surgery. The

rate of such interest is required to suit the rate of interest, prevailing

at the time of the accident. There is no straitjacket formula for

awarding an interest at a particular rate. Hence, and having regard to

Rekha Patil

-FA-1327-2012.doc

the facts and circumstances of the case, the interest rate @ 7.5% p.a.

would be just and proper.

18) The truck was insured with the Appellant. The respondent No.2

was driving the truck and respondent No.3 was owner of the truck.

19) In view of the above discussion, the Appeal is liable to be

dismissed and the cross-Objection deserves to be partly allowed.

Hence, following Order:-

(a) First Appeal is dismissed with proportionate costs.

(a-1) The Cross-Objection (ST) No.10663 of 2014 is partly allowed.

(b) The impugned Judgment and Order dated 28.01.2011, in M.A.C.P. No.97 of 2006, passed by the Motor Accident Claims Tribunal, at Karad is modified.

(c) Appellant and respondent Nos.2 and 3 shall jointly and severally pay the compensation of Rs.17,93,960/- (inclusive of NFL amount) together with interest thereon at the rate of 7.5 % per annum from the date of the Claim Petition till realisation of the amount.

(c-1) Appellant and respondent Nos.2 and 3 shall jointly and severally pay the compensation of Rs.75,000/- towards the future surgery.

(d) Appellant and Respondent Nos.2 and 3 are directed to comply with this Judgment and Order within a period of four months from today, by depositing the amount in the Tribunal.

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(d-1) On deposit of the amount the Tribunal shall immediately inform about the deposit to the claimant.

(f) The claimant is permitted to withdraw the deposited amount from the Tribunal within a period of eight weeks from the date of the deposit, subject to payment of deficit Court fees, if any.

(g) The amount deposited in the Tribunal shall not be invested for a period of eight weeks from the date of deposit. In the event the amount is not withdrawn within a period of eight weeks from the date of deposit, the same shall be invested by passing appropriate directions by the Tribunal.

(h) Appellant and respondent Nos.2 and 3 will be entitled to adjustment of the amount against the already paid under the impugned Award.

(SHYAM C. CHANDAK, J.)

Rekha Patil