Bombay High Court

Vinayak Bapu Ghehgade (Died) Thr Lrs. ... vs Shivaji Sadashiv Bandal And Anr on 8 May, 2025

2025:BHC-AUG:13615
                                                                          fa-733-2024.odt
                                                     (1)


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                    FIRST APPEAL NO.733 OF 2024

                 1)    Vinayak s/o Bapu Ghegade ..... Died
                       Through L.Rs.

                 1A)   Pushpa wd/o Vinayak Ghegade
                       Age: 60 years, Occu. Agril.,

                 1B)   Kranti w/o Sandip Thete,
                       Age: 40 years, Occu. Agril.

                 1C)   Kirti w/o Kalpesh Thorat
                       Age: 38 years, Occu. Agril.

                 1D)   Priti w/o Ganesh Thorat
                       Age: 36 years, Occu. Agril.

                 1E)   Akshay s/o Vinayak Ghegade
                       Age: 34 years, Occu. Agril.,

                       All R/o Village Math,
                       Tq. Shrigonda, Dist. Ahmednagar.               ..Appellant

                       VERSUS

                 1)    Shivaji s/o Sadashiv Bandal
                       Age : 47 years, Occu. Business,
                       R/o. Karde, Taluka Shirur,
                       District - Pune.

                 2)    Manager,
                       Iffco Tokio General Insurance
                       Co. Ltd., Branch Office Kapil Tower,
                       A-301, 45 Ambedkar Road,
                       Naer R.T.O. Office Pune - 411001.            ..Respondents
                                                   ...
                 Mr. D.R. Jaybhar, Advocate for Appellant.
                 Mr. S.S. Rathi, Advocate for Respondent No.2.
                                                   ...
                                               CORAM : S.G. CHAPALGAONKAR, J.

                                       RESERVED ON : APRIL 23, 2025
                                   PRONOUNCED ON : MAY 08, 2025
                                                                fa-733-2024.odt
                                    (2)


JUDGMENT :

1. The appellant/original claimant aggrieved by quantum of

compensation awarded by Tribunal at Ahmednagar, in Motor Accident

Claim Petition No.517 of 2008, vide judgment and award dated

22.02.2012, filed this appeal under Section 173 of Motor Vehicles Act

seeks enhancement of compensation.

The claimant instituted a claim under Section 166 of Motor

Vehicles Act seeking compensation of Rs.14,00,000/- contending that

on 22.05.2008, while he was proceeding on motorcycle, a tractor

bearing Registration No. MH-12-EB-2204 came from opposite

direction and collided against his motorcycle. In result, claimant

sustained serious injuries on his head, face, right hand, right leg, right

eye. He was shifted to hospital and treated as indoor patient from

22.05.2008 to 05.06.2008. During this period, he was operated on

his right leg and right eye.

2. At the time of accident, claimant was in service with

MSRTC as driver and earning salary of Rs.6,000/- per month.

However, since he suffered permanent disablement of 25%, he was

discharged from service being incapable to perform his duty as driver.

The claimant further contends that he was cultivating his agricultural

land and generating income, which has been stopped due to physical

incapability. The respondents i.e. owner and insurer of tractor refuted

the claim raising multiple defenses. The Tribunal after evaluation of fa-733-2024.odt

evidence and hearing the parties, passed an award, granting

compensation of Rs.7,15,644/- with accrued interest @ 7.5% p.a. in

favor of claimant.

3. Aggrieved claimant filed present appeal seeking further

enhancement of compensation.

4. Mr. Jaybhar, learned advocate appearing for appellant

vehemently submits that the Tribunal was under obligation to pass an

award of just compensation in terms of Section 168 of Motor Vehicles

Act. He would submit that claimant has been discharged from service

since he was medically unfit to continue job as driver. As such, he

suffered 100% loss of earning capacity. However, the Tribunal

erroneously assumed meager 25% loss of earning commensurate to

percentage of permanent disablement, which is inconsistent with

method of assessment of compensation in injury cases. He would

further submit that claimant was aged about 46 years at the time of

accident. He was permanent employee of MSRTC. hence, 30%

addition ought to have been made towards loss of future prospects.

According to him, paltry sum is awarded towards non-pecuniary

heads. In support of his contentions, he relies upon the judgments of

Hon'ble Supreme Court of India in cases of Jakir Hussein Vs. Sabir

and Ors1, Sarnam Singh Vs. Shriram General Insurance Co. Ltd and

Others2, Sidram Vs. Divisional Manager, United India Insurance Co.

1 AIR 2015 SC (Supp) 446 2 AIR 2023 SC 3601 fa-733-2024.odt

Ltd and Another3, Mona Baghel and Ors Vs. Sajjan Singh Yadav and

Ors4 and Ramla and Ors Vs. National Insurance Company Limited and

Ors5.

5. Per contra, Mr. S.S. Rathi, learned advocate appearing for

respondent no.2/insurance company would submit that there is no

scope for grant of enhanced compensation as claimed in this appeal.

According to him, claimant pleaded his salary as Rs.6,000/- per

month at the time of accident. However, the Tribunal assumed same

@ Rs.10,000/- per month on the basis of last drawn salary at the time

of discharge of claimant from service in the year 2010. According to

Mr. Rathi, claimant had suffered fracture to his leg; however, during

cross-examination, he admitted that he can walk without crutches or

support. Therefore, Tribunal could not have assumed loss of

agricultural income. Claimant can continue to supervise farming as

before without any difficulty. Further, looking to nature of disability,

claimant can continue his earning by way of alternate employment.

Mr. Rathi would point out that claimant has not canceled his driving

license and same was still in force on the date of cross-examination,

therefore, this is not fit case where compensation can be worked out

by assuming 100% loss of earning to the claimant. He would

therefore justify the award as passed by the Tribunal and urge to

dismiss the appeal.

3 AIR Online 2022 SC 890 4 AIR Online 2022 SC 872 5 AIR 2019 SC 404 fa-733-2024.odt

6. Having considered the submissions advanced, limited

issue as to justness of compensation in facts and circumstances

present case is raised in this appeal. Admittedly, claimant suffered

injury in motor vehicular accident dated 22.05.2008. The major

injury was fracture to right leg, which was operated and nailing was

done. He had pains and stiffness in right leg. According to claimant,

he cannot walk long distance. During cross-examination, he admitted

that he can walk without support. However, fact remains that as per

copy of service book placed on record, claimant has been discharged

from services with effect from 06.02.2010 for the reason of

incapability to perform his job. In light of aforesaid admitted facts,

observations of Supreme Court in case of Raj Kumar Vs. Ajay Kumar

and Another6 in paragraph nos.12 and 13 are relevant which reads

thus :

"12. Therefore, 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 to 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.

6 (2011) 1 SCC 343 fa-733-2024.odt

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But 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.

13. 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 disability (this is also relevant for awarding compensation under the head of loss of amenities of life). 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."

7. Applying the aforesaid exposition of law, in the facts of

present case, it can be observed that although claimant has suffered

permanent disablement of 25% completely lost his earning out of

employment as driver with MSRTC due to discharge from service.

8. In case of Sarnam Singh (Supra), claimant, who was

employed as gunman in a hotel, suffered amputation of his right leg

in road accident. Looking to his incapability to work as gunman, he fa-733-2024.odt

was removed from service. In this background, the question as to loss

of earning capacity was before Supreme Court. The medical

practitioner had quantified the permanent disablement at 85%.

Taking the same as loss of earning, the Tribunal had passed the

award. However, the High Court in appeal reduced the compensation

taking notional loss of earning @ 80%. In this background, the

Hon'ble Supreme Court observed that any physical disability resulting

from an accident has to be judged with reference to the nature of the

work being performed by the person who suffered disability. The same

injury suffered by two different persons may affect them in different

ways. Loss of leg by a farmer or a rickshaw puller may be end of the

road as far as his earning capacity is concerned. Whereas, in case of

the persons engaged in some kind of desk work in office, loss of leg

may have lesser effect.

9. In yet another case of Jakir Hussein (Supra), claimant, who

was working as driver suffered 55% permanent disablement. The

Hon'ble Supreme Court observed that since he became incapable of

performing his duty as driver, loss of earning has to be assessed as

100%. It is therefore trite that while determining the just

compensation, the Courts are required to see that the injured victim

of accident is compensated to the extent possible, fully and

adequately restore the claimant to the position prior to the accident.

The object of awarding damages is to make good the loss suffered as a fa-733-2024.odt

result of wrong done as far as money can do so, in a fair, reasonable

and equitable manner. The court or tribunal shall have to assess the

damages objectively and exclude from consideration any speculation

or fancy, though some conjecture with reference to the nature of

disability and its consequences, is inevitable. A person is not only to

be compensated for the physical injury, but also for the loss which he

suffered as a result of such injury. This means that he is to be

compensated for his inability to lead a full life, his inability to enjoy

those normal amenities which he would have enjoyed but for the

injuries, and his inability to earn as much as he used to earn or could

have earned.

10. In present case, claimant is entitled to be compensated

for 100% loss of earning suffered by him as a result of accident at the

same time it cannot be disputed that the claimant has suffered injury

of fracture to his leg and nothing more. True, that it incapacitated

him to pursue job as a driver, but that itself would not be a hurdle for

him to either supervise his agricultural land or even engage in

suitable employment to generate income. The Claimant has pleaded

his income as Rs.6,000/- per month in claim petition. However he

produced copy of his service book and salary certificate depicting

salary at the time of his discharge from service in year 2010. That

shows his salary was approximately Rs.10,000/- per month.

Therefore, taking pleadings in the claim petition as it is and applying fa-733-2024.odt

principles of assessment of compensation this Court finds it

appropriate to consider loss of earning to the claimant @ Rs.10,000/-

per month.

11. The claimant was aged about 46 years at the time of

accident. Therefore, multiplier of 13 would be applicable. An

addition of 25% is admissible towards future prospects. Since the

claimant can continue to supervise his agricultural land, this Court

holds that he is not entitled for compensation for loss of supervision

charges as considered by the Tribunal. Similarly, since compensation

is worked out applying multiplier method, independent compensation

for loss of salary for the period of one year of leave need not granted.

However, claimant would be entitled for compensation towards pains

and sufferings, special diet, transportation expenses, attendant

charges as awarded by Tribunal. In result, the compensation can be

worked out as under :

 Sr                        Heads                       Amount (Rs.)
 No.
  1.   Annual Loss of Earning Rs. 10,000 x 12          Rs.1,20,000/-
  2.   Addition of 25 % towards future prospects       Rs. 1,50,000/-
              Rs. 1,20,000 + Rs. 30,000=

3. Future Loss of Earning after applying Rs. 19,50,000/-

multiplier of '13' Rs. 1,50,000 x 13 =

4. Pains and Suffering Rs. 10,000/-

5. Special Diet Rs. 10,000/-

6. Transportation Expenses Rs. 5000/-

fa-733-2024.odt

7. Attendant Charges Rs. 4500/-

8. Total Rs. 19,79,500/-

12. In result, first appeal is partly allowed.

13. The Appellant/claimant is held entitled for total

compensation of Rs. 19,79,500/- along with interest @ 6 % p.a. from

the date of filing of claim petition till realization of amount from