High Court
Legal Reasoning
{1} FA 349.24 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 349 OF 2024Narayan Arjun Chaudhari,Age 48 years, Occ. Nil,R/o. Shirpur, Tal. Shirpur, Dist. Dhule... Appellant.Versus1.Shri Anil Vishwas Patil (Driver)(the name of respondent No.1 is deletedas per order below Exh.1 dated 10.08.2017)2.Ramesh Jaising Girase,Age Adult, Occ. Owner,R/o. Shiv Krupa Association Kansad,Tal. Chauryashi, Dist. Surat (Gujrat)3.The Regional Manager,H.D.F.C. ERGO General Insurance Co. Ltd,4th Floor, Idea City Mall, KapurbavadiJunction, Majiwda Naka, Thane 400 607.. Respondents.Mr. P.C. Mayure, Advocate for appellant,Respondent No.1 is deletedRespondent No.2 served through paper publicationMr. M.R. Deshmukh, Advocate for respondent No.3. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 24TH MARCH, 2025.PRONOUNCED ON : 9th APRIL, 2025. JUDGMENT :-1.The appellants/original claimants impugn the judgment and
Legal Reasoning
{2} FA 349.24 R.odtaward dated 10.10.2023 passed by Motor Accidents Claim Tribunal,Dhule in M.A.C.P. No. 192 of 2013 and seek enhancement ofcompensation by present appeal filed under Section 173 of the MotorVehicles Act.2.Respondent/claimant instituted M.A.C.P. No. 192 of 2013claiming compensation of Rs. 40 Lakhs towards the accidental injuriessuffered by him in motor vehicular accident . It is contention of theclaimant that on 11.11.2012 while he was traveling from Surat towardsShirpur in a Luxury Bus bearing registration No. GJ-05/AZ 2655, thedriver of bus was driving in a rash and negligent manner and gaveforcible dash to a truck. Claimant suffered multiple injuries in saidaccident. While he was hospitalized, his right hand was required to beamputated from shoulder. According to claimant, he was running a clothshop, so also, cultivating agricultural land and was generating income ofRs. 25,000/- p,m. He lost his earning capacity, so also, suffered nonpecuniary damages.3.The claim was contested by insurer of the bus by filingwritten statement on multiple counts. Issues were framed. The claimantrelied upon his own evidence and examined in all four witnesses in hisendeavour to prove nature of permanent disablement, loss of earning,medical expenses and cost of artificial limb etc.4.The Tribunal, on evaluation of evidence, partly allowed theclaim and passed an award of Rs. 15,25,124/-.5.Mr. Mayure, learned advocate appearing for appellant {3} FA 349.24 R.odtvehemently submits that claimant suffered 86% disablement as a resultof amputation of his right hand from shoulder. He was aged about 38years and running a cloth business apart from cultivation of agriculturalland. The Tribunal erroneously worked out compensation based onnotional income of Rs. 8,000/- p.m. when voluminous evidence in theform of income tax returns depicting actual income of deceased wasplaced on record. He further submits that inadequate compensation isawarded towards non pecuniary heads and future medical expenditure,particularly, towards fixing and maintaining artificial limb.6.Per contra, Mr. Deshmukh, learned advocate for respondentssubmits that the claimant continued his business even after accident.Initially, for two years, there was some fall in income, however, later on,that has been gradually increased. Therefore, there was no loss of futureearning to the claimant. The Tribunal has rightly assessed such lossnotionally @ Rs. 8,000/- p.m. and awarded compensation. Mr.Deshmukh further submits that Tribunal has considered each and everypossible head for grant of compensation under pecuniary heads andpassed just and proper award, which requires no interference in thisappeal.7.Having considered submissions advanced, and on perusal ofthe record and proceeding, undisputedly, claimant suffered amputation ofhis right hand from shoulder as a result of accident. The only issue thatis posed in this appeal is, as to assessment of just compensation. TheSupreme Court of India in the case of Rajkumar vs. Ajaykumar reportedin (2011)1 SCC 343, observed in para. 13 as under :-“13.We may now summarise the principles discussed above : {4} FA 349.24 R.odt(i) All injuries (or permanent disabilities arising from injuries),do not result in loss of earning capacity.(ii) The percentage of permanent disability with reference to thewhole body of a person, cannot be assumed to be thepercentage of loss of earning capacity. To put it differently, thepercentage of loss of earning capacity is not the same as thepercentage of permanent disability (except in a few cases,where the Tribunal on the basis of evidence, concludes thatpercentage of loss of earning capacity is the same as percentageof permanent disability).(iii) The doctor who treated an injured-claimant or whoexamined him subsequently to assess the extent of hispermanent disability can give evidence only in regard the extentof permanent disability. The loss of earning capacity issomething that will have to be assessed by the Tribunal withreference to the evidence in entirety.(iv) The same permanent disability may result in differentpercentages of loss of earning capacity in different persons,depending upon the nature of profession, occupation or job,age, education and other factors.”8.Similarly, in recent judgment, Supreme Court in the case ofSidhram Vs. Divisional Manager, United India Insurance Co.Ltd, (2023) 3SCC 439 has laid down certain guidelines for assessment ofcompensation in case of injury claim arising out of motor vehicleaccident, which reads thus :-“10.Where the claimant suffers a permanent disability as a resultof injuries, the assessment of compensation under the head of lossof future earnings would depend upon the effect and impact of suchpermanent disability on his earning capacity. The Tribunal shouldnot mechanically apply the percentage of permanent disability asthe percentage of economic loss or loss of earning capacity. In mostof the cases, the percentage of economic loss, that is,the percentage of loss of earning capacity, arising from apermanent disability will be different from the percentage ofpermanent disability. Some Tribunals wrongly assume that in all {5} FA 349.24 R.odtcases, a particular extent (percentage) of permanent disabilitywould result in a corresponding loss of earning capacity, andconsequently, if the evidence produced show 45% as the permanentdisability, will hold that there is 45% loss of future earningcapacity. In most of the cases, equating the extent (percentage) ofloss of earning capacity to the extent (percentage) of permanentdisability will result in award of either too low or too high acompensation.”9.In the light of aforesaid exposition of law, it is necessary todelve into the evidence on record to find out the actual impact ofpermanent disablement on the earning of the claimant. The claimantdeposed that he was running a cloth shop since before date of accident.He has explained his job profile in conduct of business which includes :(I)procuring goods for sale from cloth markets at various places forwhich travelling is required (ii) displaying clothes to customers (iii)cutting the required quantity (iv) cleaning and maintaining of shop (vi)travelling on motorcycle to visit banks, customers etc.The claimant explained that because of loss of his right hand, he haspermanently lost his working capacity and now dependent on others torun his business.10.The claimant has placed on record income tax returns for theyear 2010-11 till 2017-18. Income tax return for the year in whichaccident occurred i.e. for 2012-13 shows his income as Rs. 3,03,961/-. Inthat year, claimant suffered accident on 11.11.2012. Naturally his incomewould for the period till November, 2012 from March, 2012. Thereafter,immediately in next year of the accident, his income was reduced toRs.1,17,508/-. It is true that later-on, from 2015-16 and 2017-18, thereis rise in the income. However, fact remains that claimant has sufferedloss of earning as a result of accident. {6} FA 349.24 R.odt11.This court finds that if claimant has lost his right hand, theTribunal ought to have considered loss of earning atleast @ 50% on thebasis of earning before the accident. Therefore, the income tax return forthe year 2012-13 for Rs. 3,03,591/- could have been taken as basis andloss of earning could have been considered to the extent of 50% . Suchloss will continue for entire life of the claimant. This Court, therefore,holds that claimant suffered loss of earning to the tune of Rs. 1,50,000/-per annum as a result of accident.12.Claimant has brought on record evidence to show that herequired artificial limb for correction of his disability. The quotation is atExhibit 46 which has been proved through evidence of PW-5 vendor.There was no reason to discard aforesaid evidence. This Court, therefore,holds that claimant is entitled for Rs. 4,10,897/- towards cost of artificiallimb and its maintenance for entire life.13.So far as non-pecuniary losses are concerned, claimant isentitled for loss of compensation independently under head of permanentdisablement which is now recognized as independent head, as approvedby Supreme Court of India in the case of S. Manickam Vs. MetropolitanTransport Corporation Limited (2013) 12 SCC 603.14.The claimant was aged about 38 years when he lost his righthand from shoulder. Therefore, this Court finds that compensation of Rs.2 Lakhs needs to be awarded towards permanent disablement. TheTribunal has awarded only Rs. 25,000/- towards pain and suffering,which needs to be enhanced to Rs. 1 Lakh. Similarly, compensationtowards mental agony, frustration and loss of expectation of life needs to
Decision
{7} FA 349.24 R.odtbe granted to the extent of Rs. 1 Lakh. In the result, this Court holds thatclaimant is entitled for compensation as stipulated in the tabular form asunder :-Sr.No.Particulars Amount1.Annual income Rs. 1,50,000/-2.Addition of 40% towards futureprospects.1,50,000+60,000 = Rs. 2,10,000/-3. Apply Multiplier of ‘15’2,10,000 x 15= Rs.31,50,000/-4.Estimated loss of Future Earning dueto P.D.C.@ 50% Rs.15,75,000/-4.Cost of Artificial limb Rs. 4,10,897/-5.Compensation towards permanent disablement Rs. 2,00,000/-6.Compensation for pains, sufferingand attendant charges. Rs. 1,00,000/-7.Compensation towards Mental Agony,frustration and loss of expectation oflife Rs. 1,00,000/-Total Rs. 23,85,897/-15.In the result, appeal is partly allowed with proportionatecost. Claimant is entitled for compensation of Rs.23,85,897/- (Rupeestwenty three Lakh eighty five thousand eight hundred ninety seven)inclusive of NFL amount. Respondent Nos. 2 and 3 do pay compensationof Rs. 23,85,897/- to the claimant alongwith interest @ 7% p.a. from thedate of accident claim petition till realization of amount. Rest of theaward passed by the Tribunal shall mutatis mutandis apply to themodified award. Compensation paid/deposited as per the award of theTribunal, shall be appropriated. Modified award be drawn accordingly,on payment of deficit court fees, if any.[S.G. CHAPALGAONKAR, J] grt/-