Bombay High Court
Abdul Rauf Ghiyasuddin Koor vs Mohamed Ayaz Haji Isak And Anr on 6 May, 2025
2025:BHC-AS:21962
Manoj 9-FA-2100-2005.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.2100 OF 2005
Shri. Abdul Rauf Ghiyasuddinn Koor
R/at : Room No.1, Karijabi Chawl,
Lal Taki Kasaiwada, Kurla, Mumbai ...Appellant
Vs.
1. Shri. Mohamed Ayaz Haji Isak,
Sector No.10, Building No.14,
R. No.146, 1st floor, Vashi, New Bombay.
Second address for service
Shri Mohamed Ayaz Haji Isak,
56/3 Majid Haji Sultan Building,
Qureshi Nagar, Kurla (E), Mumbai
2. The New India Assurance co. Ltd.
Kalina D.O.166, Maha Auto Show
Room Bldg., C.S.T. Road, Kalina,
Santacruz (East), Mumbai- 98. ...Respondents
Ms. Ketki M. Gokhale i/by Mr. A. M. Gokhale, for the Appellant.
Mr. D. S. Joshi, for the Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 5th MAY, 2025
PRONOUNCED ON : 6th MAY, 2025
JUDGMENT:
-
. Present Appeal filed by the Original Claimant under
Section 173 of the Motor Vehicles Act, 1998 ("the Act") arises from the
Judgment and Award dated 06/07/2005, in Motor Accident Claim
Manoj 9-FA-2100-2005.doc
Petition No.3807 of 1997 ("claim"), passed by the Motor Accident
Claims Tribunal, Mumbai ("Tribunal") thereby said claim Petition
filed under Section 166 of the Act was partly allowed and the
Respondents were held jointly and severally liable to pay the claimatn
a sum of Rs.4,96,000/- as compensation alongwith interest at the
rate of 6% per annum from the date of registration of the claim till
realization of said amount.
2) Record indicates that, the Appeal was admitted on
29/11/2005. Service to Respondent No.1 was dispensed with. The
learned Advocate for the parties state that Respondent No.2 has no
statutory defence against Respondent No.1. The Appellant has lost his
left hand and left leg to the accident. Necessary compilation of
documents is submitted by the learned Advocate for the Appellant.
Therefore, the Appeal may be taken up for hearing.
3) Hence, heard Ms. Gokhale, the learned Advocate for the
Appellant and Mr. Joshi, the learned Advocate for Respondent No.2.
Perused the record.
4) Facts in brief are that, the Appellant was working as a
motor cleaner on the offending motor tempo bearing No.MCY-179
("tempo") on a monthly salary of Rs.1,500/- plus daily allowance of
Rs.30, totalling to Rs.1,800/-. On 24/10/1995, at about 5:15 p.m., the
tempo was proceeding from Nashik to Mumbai by Mumbai-Agra
Manoj 9-FA-2100-2005.doc
Highway. The Appellant was travelling in the tempo as cleaner. At
that time, the cleaner side of the tempo struck against the rear side of
a lorry, which was parked to the side of the road. It was averred that
the said accident occurred due to rash and negligent driving of the
driver of the tempo. As a result, the Appellant sustained grievous
injuries. His left hand got separated from the body. The Appellant
took medical treatment at Sion Hospital at Mumbai and Shushrusha
Hospital at Dadar for a considerable time. However, the injury to his
left leg led to its amputation above the knee level. The Appellant,
therefore, prayed to award a compensation of Rs.25,00,000/- with
interest at the rate of 12% per annum.
5) Despite the notice, Respondent No.1 did not file an
appearance, hence, the claim proceeded ex-parte against him.
Respondent No.2 resisted the claim by filing the written statement
(Exh.5). Respondent No.2 denied that the accident occurred due to
rash and negligent driving of the tempo; that, the Appellant was
working as the cleaner and earning Rs.1,800/- per month; and that,
the Appellant sustained the disability as above. Lastly, Respondent
No.2 submitted that the claim be dismissed with costs.
6) In view of the pleadings, the Tribunal framed the issues.
To prove the claim, the Appellant adduced his evidence on oath
(Exh.7). He also examined PW2-Mohamed Ayaz (Exh.23) and PW3-
Manoj 9-FA-2100-2005.doc
Ghiyasuddin Koor (Exh.25), who are his employer and father
respectively. Respondent No.2 did not adduce any evidence in the
rebuttal.
7) On the point of the accident, the evidence of the Appellant
is that on the relevant date, at time and place he was travelling as a
cleaner in the tempo. The accident occurred due to rash and negligent
driving of the tempo. This evidence has been supported with the
F.I.R. (Exh.15) and the Spot Panchnama (Exh.16). Nothing has come
in the cross-examination of the Appellant to disbelieve the aforesaid
oral and documentary evidence.
7.1) The F.I.R. and the Spot Panchnama clearly indicate that,
the lorry was parked on kaccha road by the side of the tar road. The
tempo was unloaded. After giving dash to the rear portion of the lorry,
the tempo crossed around 30 feet distance and then halted on the
western side kaccha road. The Panchnama shows that the road was
20 fit wide on which the accident occurred. However, the driver of
tempo failed to avoid the accident by safely passing over the
stationary lorry, using the remaining portion of the road. The said
facts clearly demonstrate that the driver of the tempo did not keep a
proper look out at the road. Consequently, the tempo dashed the
lorry. Therefore, I am in unison with the finding of Tribunal that the
accident occurred due to rash and negligent driving of the tempo.
Manoj 9-FA-2100-2005.doc
8) The evidence of the Appellant is that, due to the impact of
the accident, his left hand was separated from below the shoulder and
his left leg was also fractured and hanging. This evidence is supported
with the Injury Certificate (Exh.8). Hence, I accept the injuries. The
injuries described therein are as follows :-
(a) Crush injury to left middle third thigh with distal limb
hanging by a skin tag and crushed bone.
(b) Traumatic left above elbow amputation at the upper
third-middle third junction of left arm.
(c) 5 cm degloving wound over the dorsum of right hand
tendon deep over the 2nd and 3rd Metacarpals with
extensor tendon of index finger right cut into fracture
dislocation of middle phalanx of index finger.
9) The Appellant's evidence is that he has suffered 40 % to
60% disability due to amputation of the two limbs. This is supported
with the Disability Certificate dated 05/01/1999, issued by the Civil
Surgeon, Raigad-Alibaug and the Disability Certificate dated
17/12/1995, issued by All India Institute of Physical Medicine and
Rehabilitation Mumbai. Both the Disability Certificates have not been
exhibited in the evidence. However, the said certificates were
considered by the Tribunal being issued by the appropriate authority.
Manoj 9-FA-2100-2005.doc
The Disability Certificates clearly indicate that the Appellant has
suffered more than 50% permanent partial disability due to the
amputations.
10) The evidence of the Appellant is that he was inpatient for
3 days in Sion Hospital, and from 28/10/1995 to 11/12/1997, he was
inpatient and medically treated at Shushrusha Hospital, Dadar.
Further he was admitted in Handicapped Hospital, at Haji Ali for
about 15 days. He undergone various medical tests during that period.
To support this evidence, the Appellant has relied on the medical
papers, hospitals bills, pharmacy bills and payment receipts Exhs.8, 9
colly., 10, 11 colly., 12 colly., 13 colly. and 14 colly., which show that
the Appellant incurred total Rs.25,361/-. However, assuming that the
Appellant could not preserved all the bills, the Tribunal awarded him
Rs.30,000/- under the head 'medical treatment', which I deem
justifiable.
11) Evidence of the Appellant is that he was working as a
cleaner thereby he was getting monthly income of Rs.1,500/- +
Rs.30/- per day as bhatta/allowance, totalling to Rs.2,400/-. There is
nothing to disbelieve this evidence. Therefore, the Tribunal held that
the Appellant was working and earning as above including bhatta.
However, the Tribunal held that the allowance is paid to such drivers
and cleaners to enable them to meet their extra expenses as they are
Manoj 9-FA-2100-2005.doc
required to stay away from their family, moving from place to place.
Therefore, the Tribunal declined to consider the allowance of Rs.30
per day as the income and restricted the loss of the earning capacity
to Rs.1,500/- per month, only. The claimant was aged 28 years.
Therefore, the Tribunal awarded Rs.3,24,000/- towards the loss of
the future income/income capacity (1500 x 12 x 18).
12) Ms. Gokhale, the learned Advocate for the Appellant
submitted that the allowance of Rs.30 per day was inseparable part of
monthly salary of Rs.1,500/-. Yet, the Tribunal unnecessarily declined
to consider it as the income, which is erroneous. Mr. Joshi, the
learned Advocate for Respondent No.2 opposed the said submission.
13) The evidence of AW2-Mohammad Ayas is that, at the
relevant time the claimant was working as a cleaner on the vehicle
No. MCY-197. He was paying him the salary of Rs.1,500/- per month
and daily allowance of Rs.30. To support this evidence AW2, referred
the employment-cum-income certificate (Exh.24). This evidence did
not meet any challenge in the cross-examination. The certificate does
not state/indicate that the daily allowance of Rs.30 was payable only
when the claimant was on duty as the cleaner and not otherwise. On
the contrary, in the cross-examination of AW2 on behalf of the
insurer, it came that the daily allowance of Rs.30 was paid to the
claimant irrespective of whether he was on duty or not. Thus, it was
Manoj 9-FA-2100-2005.doc
apparent that the monthly income of the claimant was Rs.2,400/-.
Yet, the Tribunal deducted the monthly allowance of Rs.900/- from
it, which is erroneous. Hence, I hold that the Appellant was getting
income of Rs.2,400/- per month, which was yearly Rs.28,800/-.
14) The Appellant was aged 28 years but he was not in the
permanent employment. Therefore, in accordance with the decision
in National Insurance Co. Ltd. Vs. Pranay Sethi and Others1 and Sarla
Verma and others Vs. Delhi Transport Corporation and another2, 40%
of the proved net annual income should be added towards the future
prospects. On such addition, the actual yearly income would be
Rs.40,320/-. The Applicable multiplier is '17'. There has been 100%
loss of the future income on account of the disability. Therefore, the
Appellant is entitled to get Rs.6,85,440/- (Rs.40,320/- x 17) towards
the loss of the future income/income capacity.
15) Under the other heads the Tribunal awarded the
compensation as under :-
Pain and suffering : Rs.40,000/-
Loss of comfort and : Rs.50,000/-
amenities in life
Loss of income during : Rs.12,000/-
period of treatment
Attendant charges : Rs.15,000/-
1. 2017 ACJ 2700 (SC)
2. 2009 ACJ 1298 (SC)
Manoj 9-FA-2100-2005.doc
Conveyance : Rs.15,000/-
Special diet : Rs.15,000/-
16) Ms.Gokhale, the learned Advocate submitted that
considering the Appellant has suffered amputation of two limbs at a
very young age, the nature of the injuries, the medical treatment it
required and that the Appellant shall tolerate the disability
throughout his long life, he deserves to get the compensation under
the other heads as under :-
Sr. Head Amount
No.
1 Towards future medical expenses (including 10,00,000/-
expenses for artificial limbs and its maintenance)
2 Attendant charges (3000*12*30 years) 10,80,000/-
3 Pain and suffering 10,00,000/-
4 Loss of amenities 5,00,000/-
5 Loss of marriage prospects 3,00,000/-
6 Loss of life expectancy 2,00,000/-
7 Special diet and conveyance 75,000/-
17) However, no evidence is adduced by the Appellant to show
that after discharge from Handicapped Hospital at Haji Ali, he was
ever hospitalised for some medical complaint and continuously he
had been taking some medical treatment from certain medical
practitioner. Even bills of further medical treatment were not
produced. However, it is probable that, intermittently, the Appellant
Manoj 9-FA-2100-2005.doc
may be having some medical problems like pain, swelling etc. due to
the disability. Therefore, he may be visiting some medical practitioner
to treat the same. Therefore, the I deem it appropriate to award him
Rs.1,50,000/- for the 'future medical expenses'.
18) In so far as artificial limbs are concerned, the evidence of
the Appellant does not mention that any expert doctor/medical
practitioner opined that he can use the articles limbs and it can fit on
his body. The evidence of AW3 is that an artificial leg was given to the
Appellant, but it was of no use. Therefore, I find it difficult to accept
that the Appellant requires Rs.10,00,000/- under for 'artificial limbs'.
19) Undoubtedly, since the accident the Appellant has been in
need of an attendant to do and manage his day-to-day activities and
various others, but he was not able to hire a paid attendant due to
poor financial condition. As such, it is safe to presume that the
Appellant's family members must be attending him and providing all
the support that he needed every day. The family members must be
providing that support and assistance gratuitously, but compromising
with their work and earning. Therefore, the award of Rs.15,000/- as
'attendant charges' is on the lower side and considering that the
Appellant would need the attendant services for long time, he
deserves to receive Rs.3,00,000/- for the same.
20) The accidental injuries and the amputation must have
Manoj 9-FA-2100-2005.doc
caused the Appellant to undergo great pain and suffering. He has
been deprived of the enjoyment of his entire life. However, very
meager amounts have been awarded under these heads by the
Tribunal. The Appellant has also lost his marriage prospects. Yet, no
compensation has been conceived for the same. Ms. Gokhale
submitted that looking at the evidence as a whole and the date of the
accident, the Appellant deserves to get total Rs.15,00,000/- under the
head 'pain and suffering' and 'loss of amenities and enjoyment of the
life'. To accept this submission she cited the decision in the case of
K.S. Murlidhar Vs. R. Subbulakshmi & Anr.3, wherein the Hon'ble
Supreme Court awarded Rs.15,00,000/- towards 'pain and suffering'
on account of the 90% permanent disability suffered by the claimant
in the accident that occurred on 22/08/2008.
20.1) In the case in hand the Appellant has suffered 40% to 60%
permanent partial disability. The accident occurred on 24/10/1995.
Therefore, and looking at the loss of the two limbs, in my considered
view, the Appellant deserves to get Rs.4,00,000/- towards the 'pain
and suffering', Rs.2,00,000/- for the 'loss of amenities and enjoyment
of the life' and Rs.2,00,000/- towards the loss of 'marriage prospects'.
The Appellant must be under constant physical and mental stress due
to the amputations. As such, there is possibility of the 'loss of
3. 2009 ACJ 1298 (SC)
Manoj 9-FA-2100-2005.doc
expectancy of the life'. Hence, the Appellant deserves to receive
Rs.1,00,000/- under this head. As submitted by Ms. Gokhale, the
learned Advocate the Appellant is entitled to get Rs.75,000/- towards
'Special diet and Conveyance'.
21) Upshot of the above discussion is that, despite there was
sufficient evidence, the Tribunal failed to quantify and award 'just
compensation'. Said infirmity, warranted an interference with the
impugned Judgment and Award to enhance the compensation and
modify the award, accordingly. As a result, the Appeal deserves to be
partly allowed with proportionate costs.
22) Hence, following Order is passed :-
(i) First Appeal is partly allowed with proportionate
costs.
(ii) The impugned Judgment and Award dated
06/07/2005, in Motor Accident Claim Petition No.3807
of 1997, passed by the Motor Accident Claims Tribunal,
Mumbai, is modified.
(iii) Respondent Nos.1 and 2 shall jointly and severally
pay the compensation of Rs.19,90,440/- (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.
(iv) The Respondent Nos.1 and 2 are directed to comply
with this Judgment and Order within a period of four
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months from today, by depositing the amount in the
Tribunal.
(v) On deposit of the amount the Tribunal shall
immediately inform about the deposit to Appellant.
(vi) The deposited amount shall be paid and invested,
subject to payment of a deficit Court fee, if any.
(viii) Respondent No.2-Insurance Company will be
entitled to the adjustment of the amount against the
already paid under the impugned Award.
(SHYAM C. CHANDAK, J.)
PREETI
HEERO
JAYANI
