Ambajogai, District - Beed v. 1. 2. Ramchandra Manikrao Phad, Age : Major, Occu. : owner of the vehicle
Case Details
{1} J 1024-FA-525-2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 525 OF 2010 Vishwajeet Amrutrao Kusale Age : 23 years, Occu. : service, R/o. : Ambajogai, District - Beed … APPELLANT (Ori. claimant) VERSUS 1. 2. Ramchandra Manikrao Phad, Age : Major, Occu. : owner of the vehicle, R/o. : Kanherwadi, Tq. Parli (Vaijnath), Dist. Beed, Oriental Insurance Company Ltd., Opposite Bus Stand, Gandhi Nagar, Latur, Thr it’s Branch Manager … RESPONDENTS (original respondents) … Mr.S.S. Dargad h/f. Mr.S.G. Chapalgaonkar – Advocate for Appellant Mr. A.A. Raka h/f. Mr. S.W. Munde – Adv. for Respondent No.1 Mr. A.R. Puranik h/f. Mr. A.S. Deshpande – Advocate for Respondent No.2 …. CORAM : S.G. DIGE, J. DATE : 12th October, 2022 JUDGMENT : . By this appeal appellant – original claimant is seeking enhancement of the compensation. Pooja K. {2} J 1024-FA-525-2010 2.
Legal Reasoning
Brief facts of the case are as under :- On 2nd November, 2006 the claimant was travelling as a pillion rider on the motorcycle bearing registration No. MH-12-AG-1110. The ofending vehicle i.e. Ape-rickshaw bearing registration No. MH-44-4144 gave dash to the motorcycle. Due to said dash claimant has sustained serious injuries, he was treated at Swami Ramanand Teerth Medical College and Hospital, Ambajogai. Thereafter he was referred to Sancheti Hospital, Pune. The claimant sustained permanent injury to the extent of 30% disability due to the said accident. The Claimant was skilled worker and having technical qualifcation, he has lost his earning capacity on account of the permanent disability. 3. The claimant had fled Claim Petition for getting compensation before the Member, Motor Accident Claims Tribunal, Ambajogai (for short ‘the Tribunal’). The Tribunal has awarded compensation of Rs.3,90,834/- along-with interest @7.5.% p.a. Against the said judgment and order this appeal for enhancement. 4.
Legal Reasoning
It is contention of learned Counsel for appellant that, Pooja K. {3} J 1024-FA-525-2010 the claimant has got operated for six times at Sancheti Hospital, Pune. Due to the said accident claimant has lost his total working capacity. In the evidence of the doctor, it has come on record that, claimant is unable to do any heavy work and he cannot sit for longer time. It proves that, the claimant has sufered 100% disability. 5. Learned Counsel for appellant further submits that, the claimant was earning Rs.5,000/- p.m. but the Tribunal has considered it Rs.3,000/- p.m. which is at lower side. At the time of accident claimant was 21 years old. Due to permanent disability he has lost his amenities in the life. The proper multiplier is not applied by the Tribunal. The Future prospects are not awarded by the Tribunal. Hence, requested to allow the appeal. 6. It is contention of learned Counsel for respondent No.2 that, 30% permanent disability considered by the Tribunal is proper. There is no 100% permanent disability to the claimant, hence, claimant is not entitle for future prospects. The Tribunal has awarded rate of interest @ 7.5% p.a. it should be 6% p.a. Pooja K. {4} J 1024-FA-525-2010 7. I have heard both the learned Counsel. Perused the judgment and order passed by the Tribunal. 8. Issues involved in this appeal are monthly income of the claimant considered by the Tribunal is on lower side. Claimant has sufered 100% functional disability. Future prospects are not awarded and compensation awarded under the head of non pecuniary damages are on lower side. 9. Firstly, I deal with the issue of income of the claimant. The Tribunal has considered income of the claimant at Rs.3,000/- p.m. To prove the income of claimant, the claimant has examined Mahadeo Narwade at Exh.33. This witness has stated that, he does the business of fabrication and claimant was working in his shop as skilled labourer. He was giving Rs.3,000/- p.m. salary to the claimant. The Tribunal has considered salary of Rs.3,000/- p.m. of the claimant. I do not fnd any infrmity in it as witness has stated that, he was giving salary of Rs.3,000/- p.m. The Tribunal has not awarded future prospects to the claimant. The Hon’ble Apex Court in the case of Jagdish Vs. Mohan, Pooja K. {5} J 1024-FA-525-2010 Civil Appeal No. 2217 of 2018 arising out of SLP (c) No. 7739 of 2017 decided on 6th March, 2018 has held that, the beneft of future prospects should not be confned only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. At the time of accident claimant was 21 years old hence, he is entitled for future prospects as observed by Hon’ble Apex Court. 10. Admittedly, the proper multiplier is not applied by the Tribunal. At the time of accident, the claimant was 21 years old. In view of the judgment of the Hon’ble Apex Court in the case of Sarla Verma (smt) and Others Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121, proper multiplier is 18. 11. It is contention of the learned counsel for the appellant that the doctor has given 30% permanent disability certifcate to the claimant but actually claimant has sufered 100% functional disability. The claimant was skilled worker Pooja K. {6} J 1024-FA-525-2010 and was doing fabrication job. After the accident, he can not squat and sit properly. He can not do heavy work. He was operated for six times, but this fact is not considered by the Tribunal. To prove the disability, the claimant Vishwajeet Kusale at Exhibit-17-C has stated that due to accidental injuries, he can not perform any work. He has got permanent disability. He has lost his job. He got operated for the injuries sustained in the accident. The treatment is continued. The evidence of claimant is supported by the evidence of PW-2 Dr. Burande at Exhibit-28. This witness has stated that after accident he treated claimant and then referred to higher Centre for further treatment. He issued disability certifcate Exhibit-29. After examining him, he found following injuries :- “Grade three compound fracture shaft fumer, fumer rt. middle third with compound fracture with proximible tibia and fbula rt. side communiated.” 12. This witness further stated that the patient is unable to do heavy work like shifting heavy weight, sitting for long time, he can not squat or sit as a normal person. Nothing is elicited in cross-examination of this witness. Pooja K. {7} J 1024-FA-525-2010 13. PW-4 Dr. Chetan Pradhan at Exhibit-42-C has stated that the claimant was admitted in Sancheti Hospital Pune from 03.11.2006 to 18.11.2006. For second time, he was admitted from 21.12.2006 to 23.12.2006, third time, he was admitted from 08.03.2007 to 18.03.2007, fourth time he was admitted from 07.04.2007 to 13.04.2007. The claimant was operated for six times during period given above. The claimant was lastly operated on 25th March, 2009. 14. From the evidence of the claimant and medical experts, it appears that due to accidental injuries, the claimant was admitted on several times to treat the injuries as the injuries were not fully recovered. The claimant was got operated for six times. Though the doctor has given 30% permanent disability to the claimant but evidence on record shows that the claimant has sufered 100% functional disability as it has come in the evidence of doctor that the claimant is unable to do heavy work like shifting heavy weight, sitting for long time. The claimant can not squat or sit as a normal person. The claimant was skilled worker. If he is unable to do any work or squat for longer Pooja K. {8} J 1024-FA-525-2010 time, in my view, he has sufered 100% disability, but the Tribunal has not considered this fact. Hence I am considering 100% functional disability caused to the claimant due to the accidental injuries. The claimant was got operated for six times at Sancheti Hospital at Pune and he was resident of Ambejogai, hence I am considering Rs.50,000/- for transportation and Rs.50,000/- for pains, suferings and Rs.50,000/- for loss of amenities. The claimant has taken treatment on several occasions by admitting in hospital hence I am considering Rs.50,000/- for special diet. 15.
Decision
In view of the above calculations appellants are entitle for following compensation :- Sr. No. Heads Amount 1. 2. 3. 4. 5. 6. 7. Monthly Income Rs.3,000/- Annual income 40% Future Prospects Multiplier of 18 (as against 17) Rs.3,000 x 12 = Rs.36,000/- Rs.36,000/+Rs.14,40 0/- = Rs.50,400/- Rs.50,400/- x 18 = Rs.9,07,200/- Medical Expenses as granted by the Tribunal Rs.1,52,234/- Transportation Rs.50,000/- Pains and Suferings Rs.50,000/- Pooja K. {9} J 1024-FA-525-2010 8. 9. 10. Loss of Amenities in Life Rs.50,000/- Special Diet Rs.50,000/- Compensation granted by the Tribunal Rs.3,90,000/- 11. Total Compensation Rs.12,59,434/- Appellants are entitled Rs.8,69,434/- 16. The Tribunal has awarded amount of Rs.3,90,000/-, if it deducts from amount of Rs.12,59,434/-, it comes to Rs.8,69,434/- and appellants are entitle for this amount along-with @6% interest thereon. In view of the above, I pass the following order :- ORDER (a) Appeal is allowed. (b) Appellants are entitle for enhanced amount of Rs.8,69,434/- along-with @ 6% interest thereon from the date of fling of Claim Petition till its realisation. (c) Respondents shall deposit the enhanced amount within fve (05) weeks before this Court. (d) Appellants are permitted to withdraw deposited amount along-with accrued interest thereon. (e) Appeal is disposed of, accordingly. [S.G. DIGE, J.] Pooja K.