High Court

Legal Reasoning

{1} fa2043-18.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.2043 OF 2018Prabhakar Shamrao Kolte APPELLANTAge – 35 years, Occ – Labour, At Present NilR/o Kumbhephal, Taluka & District – AurangabadChetna Nagar, Harsool, District – AurangabadVERSUS1.Divisional Controller, RESPONDENTSMaharashtra Road Transport Corporation Opposite Employment Office, Aurangabad, District – Aurangabad2.Vishnu Eknath Susar DELETED.......Mr. Mohit R. Deshmukh, Advocate for the appellantMr. Anand D. Wange, Advocate for respondent No.1Respondent No.1 deleted....... [CORAM : NITIN B. SURYAWANSHI, J.] RESERVED ON : 11 th JULY, 2024 PRONOUNCED ON : 24 th JULY, 2024 JUDGMENT :1.By this appeal, filed under section 173 of the MotorVehicles Act, original claimant seeks enhancement ofcompensation awarded by Motor Accident Claims Tribunal,Aurangabad in MACP No. 252 of 2017. {2} fa2043-18.doc2.Claimant filed the claim petition contending that on 26thDecember, 2016, at about 8.00 p.m. he was going towards hishouse at Harsool, on Motorcycle bearing No. MJL 8365 with hisfriend Sunil More on Phulambri – Aurangabad road. When hereached near gate of Stepping Stone School, respondent No.2 –Driver of State Transport Bus who was driving ST Bus bearing No.MH-14/BT4006, gave dash to him. In the accident, claimantsuffered grievous injuries to his right hand and leg. He wasadmitted in Government Hospital, Aurangabad and thereafter inMGM Hospital, as indoor patient from 17th January, 2017 to 1stFebruary, 2017 and from 15th February, 2017 to 16th February,2017. Claimant was 34 yeas old at the time of accident and wasa mason by profession and he was earning Rs.10,000/- permonth. Due to the accident, he was not in a position to domasonry work. He, therefore, claimed Rs.12 lakh compensation.3.Respondent No. 1- Maharashtra State Road TransportCorporation and respondent No.2 – Driver, filed their writtenstatements and opposed the claim. They claimed that driver ofthe State Transport Bus is well trained and he is not responsiblefor the accident.4.The Tribunal, after recording evidence and hearing theparties, awarded compensation of Rs.8 lakh to claimant, along {3} fa2043-18.docwith 9% interest p.a. The claimant is aggrieved by the quantumof compensation.5.Heard learned advocate for claimant, learned advocate forMSRTC, perused the record and written notes of arguments filedby the claimant along with citations.6.Learned advocate for claimant has assailed the quantum ofcompensation awarded by the Tribunal by relying on followingjudgments :I.“Syed Sadiq and Others V/s Divisional Manager,United India Insurance Company Ltd” (2014) 2 SCC735ii.“Sarnam Singh V/s Shriram General InsuranceCompany Limited and Others” (2023) 8 SCC 193iii.“Mohd. Sabeer Alias Shabir Hussain V/s RegionalManager, UP State Road Transport Corporatin” 2022SCC OnLIne SC 1701iv.“Parminder Singh V/s New India Assurance CompanyLimited and Others” (2019) 7 SCC 2177.Learned advocate for respondent No.1 supported theimpugned judgment and award.8.The accident is not disputed by respondents. FIR lodgedagainst Driver of ST Bus is placed on record. Claimant has {4} fa2043-18.docexamined himself in support of the claim. Perusal of cross-examination of claimant shows that nothing is elucidated fromhim, which is detrimental to his claim. Only a suggestion wasgiven to him that he was not getting income of Rs.10,000/- permonth. There is not even a suggestion that he was not doingmasonry work. In view of the evidence of the claimant, it cansafely be held that, at the time of accident, claimant was doingmasonry work. The Tribunal has erroneously observed thatclaimant has failed to file cogent evidence to show that he wasmason by profession and was earning Rs.10,000/- per month.The Tribunal has proceeded to assess notional income ofclaimant at Rs.4,500/- per month, without assigning cogentreasons. Considering the date of accident in the year 2016 andthe place of residence of claimant in city like Aurangabad,notional income of claimant ought to have been considered atRs.6,500/- per month.9.Medical documents, in the form of discharge cards(Exhibits-26 and 27), medical Bills (Exhibit-29) and disabilitycertificate (Exhibit-33) issued by Government Hospital areadmitted by the MSRTC. Leg of claimant is amputated aboveknee, therefore, disability certificate certifying 85% permanentdisability is issued by the Government Hospital. For thetreatment, the claimant has incurred expenditure of Rs.46,173/- {5} fa2043-18.docThe Tribunal has accepted that the claimant was 34 yearsold at the time of accident and hence, applied multiplier of 16,however, failed to grant compensation under the head futureprospects. Considering the fact that claimant’s leg is amputated,and that the has suffered 85% permanent disability, the loss ofworking capacity needs to be assessed, keeping in mind theseaspects. The claimant, being mason, and the said work requirescontinuous movement of legs, therefore, amputation of one leghas seriously affected work of claimant. Hence, the Tribunalought to have awarded adequate compensation for loss of workand earning capacity and also ought to have awardedcompensation for fixation of artificial limb and its maintenance. 10.In “Mohd. Sabeer alias Shabir Hussain” (supra), theApex Court has held :“13.The appellant has suffered an amputation of the lower rightlimb, a fracture in the medial wall of the bilateral orbit, crush injuryright leg, fracture tibia right leg, exposed vessels and other injuries.As per the disability certificate, the Appellant has suffered 70%disability, however the High Court has held that the Appellant hasonly suffered 35% loss in future earnings due to the disability. 14.To assess the quantum of compensation to be awarded, thisCourt has to assess whether the permanent disability caused has anyadverse effect on the earning capacity of the Appellant, as held bythis Court n the case of Sandeep Khanuja V. Atun Dande (2017) 3SCC 351. The relevant paragraph of the judgment is quoted {6} fa2043-18.dochereunder:-“The crucial factor which has to be taken intoconsideration thus is to assess whether the permanentdisability has any adverse effect on the earning capacityof the injured. We feel that the conclusion of the MACT onthe application of aforesaid test is erroneous. A verymyopic view is taken by the MACT in taking the view that75% permanent disability suffered by the appellant wouldnot impact the earning capacity of the appellant. TheMACT thought that since the appellant is a charteredaccountant he is supposed to do sitting work andtherefore his working capacity is not impaired ….. Aperson who is engaged and cannot freely move to attendto his duties may not be able to match the earning incomparison with the one who is healthy and bodily able.Movements of the appellant have been restricted to alarge extent and that too at a young age.”11.In “Sayed Sadiq and Others” (supra), a vegetablevendor of 24 years lost his left upper arm and right leg in anaccident. In these facts, his functional disability was estimated at85% for determining loss of income. It is also held thatvegetables vendor cannot be expected to produce documents toprove his monthly income. Considering the present state ofeconomy and rising prices in agricultural products, vegetablevendor was held capable of earning Rs.6,500/- per month. Sincehe was 24 years of age and had suffered 85% functionaldisability, he was entitled for 50% increment in future prospects. {7} fa2043-18.doc12.In “Parminder Singh” (supra), the Apex Courtsummarized the principles of determining compensation on thebasis of functional disability.13.In the light of aforestated ratio, and considering the facts ofthe present case, claimant is entitled for following compensation.Sr.No.ParticularsTotal in Rs.1Annual income of claimant (6500 + 40% future prospectsX 12) = 9100 X 121,09,2002Annual income Rs.109,200/- - 85% disability = 92820928203Pecuniary loss of 85% functional disability = (annualincome X multiplier of 16) = 92820 X 16 =14851204Compensation towards Pain and sufferings 1,00,0005Loss of amenities 1,00,000/-6Loss of disability and disfigurement 1,00,000/-7Compensation for fixation of artificial limb and itsmaintenance 5,00,000/-8Total compensation 22,85,1209- Compensation granted by Tribunal8,00,00010Enhanced compensation =14,85,120 14.Hence, the following order:ORDERA.First Appeal is partly allowed with proportionate costs. B.Impugned order dated 27th February, 2018 passed bylearned Member, Motor Accident Claims Tribunal, {8} fa2043-18.docAurangabad in MACP No. 252 of 2017 is modified andcompensation of Rs.22,85,120/- is awarded. Thus claimantis entitled to enhanced compensation of Rs.14,85,120/-with 7% interest p.a. from the date of petition i.e. 10thApril, 2017 till realization of the entire payment. [NITIN B. SURYAWANSHI]JUDGE drp/fa2043-18.doc