High Court
Legal Reasoning
1 fa1184.2012 judgment IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1184 OF 2012WITH CA/8271/2019Gokuldas s/o Tulshiram PanchalAge; 42 years, Occu; Business,R/o; Biloli. At present resident of Mahaveernagar, Nanded,Tq. and Dist. Nanded....APPELLANT (Orig. Claimant) VERSUS1.P. Raju s/o AnjaiahAge; Major, Occ; Business,R/o; Vani Nagar, Mandal Jagtial,Dist. Karimnagar (A.P.)2.National Insurance Co. Ltd.Through it’s Divisional Manager,Divisional Office,Near Municipal Office,Darimnagar (A.P.)3.National Insurance Co. Ltd.,through it’s Divisional Manager,Divisional Office,Nanded, Dist. Nanded....RESPONDENTS (Orig. Respdts.)...Advocate for Petitioner : Mr. Krishna P. Rodge h/f Mr. P.C. Rodge Respondent Nos. 1 & 2 are servedAdvocate for Respondent No. 3 : Mr. S.R. Bodade... CORAM : KISHORE C. SANT, J. Date of Reservation : 16.10.2023 Date of Pronouncement : 06.12.2023 2 fa1184.2012 judgment JUDGMENT : 1.Heard the parties. Taken up for final disposal at thestage of admission.2.This appeal is by the Original Claimant forenhancement in compensation granted by the learned Member,MACT, Nanded in MACP No. 668 of 2004 dated 28.02.2012. Thelearned Member has partly allowed the petition directingrespondent Nos. 1 to 3 to pay jointly and severally Rs.5,03,206/- compensation to the appellant with interest @ 6.5%p.a. from the date of filing of the Original Petition.3.The respondents are the original respondents in theclaim petition. This Court had called for the record andproceedings and the same is perused.4.The facts in short are that the Claimant is abusinessman. On 03.11.2003 while he was proceeding on HeroHonda Motorcycle to Naigaon, he met with an accident with onetruck bearing No. AP-25/T-3747, which came from back side inhigh speed. The driver was driving vehicle in rash and negligentmanner. In the said accident the claimant received injuries asthe motorcycle came under the truck and burnt due to dash. 3 fa1184.2012 judgment Appellant received injuries to his right thigh, right leg, chest andalso caused right femur fracture injury as well as right tibiafibula fracture injury and fracture injury to T// vertebra. Theclaimant was required to spend 80,000/- on medical bills,20,000/- on diat. He sustained loss to the motorcycle to thetune of Rs. 35,000/-. The petitioner became permanentlydisabled and suffered economic loss to the extent of Rs.10,000/- p.m. It is the case of the claimant that he wasbusiness man and earning Rs. 10,000/- p.m. 5.The appellant in suppot of his claim relied upon thedocuments like FIR, spot panchanama, MLC report and medicaldocuments as well as documents in respect of insurance policy.The defence of the insurance company is mainly that there wasno rash and negligent act of the part of truck driver alleging thatthe claimant himself was driving motorcycle in rash andnegligent manner. It was further defence that it is a case ofcontributory negligence. There is no proof of injuries anddisability.6.The learned Member considered evidence andaccepted the case of the appellant about the income. Thelearned Member observed that the claimant has not established
Legal Reasoning
4 fa1184.2012 judgment his income. He could not show the income tax details andprofessional tax details. Though his case was that he runs amedical store, however, no shop Act license etc. is produced onrecord. The certificate showing that the claimant runs farmacybusiness and it cannot be taken as proof of income The learnedMember has notionally taken the income to be of Rs. 4,500/-p.m.. The learned Member considered disability to the extent of45% and yearly loss of Rs. 24,300/-. Looking to the age of theinjured/claimant the multiplier of ‘15’ was made applicable.Towards medical bills etc. total amount is taken to be Rs.1,38,706/- as proved and passed an award.7.The learned Advocate Mr. Rodge, for the Claimantsubmitted that the disability was to the extent of 70%. Thelearned Member has wrongly taken the same to be only 45%.His income ought to have been considered as 10,000/- p.m. Hehas produced on record the proof to show that he runs medicalshop. No future prospects were considered. The bills ought tohave been considered and to be accepted as it is. The learnedMember has wrongly deducted 20% of amount from the bills.He then submitted that the learned Member ought to haveallowed the claim as it. 5 fa1184.2012 judgment 8.Mr. Bodade, the learned Advocate for the respondentsvehemently opposed the petition stating that the learnedMember has rightly passed an award. The claimant has notproduced any proof of income, therefore he is not entitled to anyenhancement. There is no sufficient proof about the income &disability affecting the earning capacity of the claimant. Aprivate Doctor who treated the claimant in the hospital, has notbeen examined. The disability certificate cannot be said to bethe proof without examination of the Doctor. The driving licenseis not produced on record. He submits that no pay and recoveryorder also can made in such case. No account extract isproduced on record. If the claimant has a business, he ought tohave produce on record the extracts of profit and loss account.He prayed for dismissal of the appeal.9.Mr. Rodge, the learned Advocate in rebuttal submitsthat the insurance company has taken the grounds which arenot sought to be canvassed before this Court were not set out indefence before the reference Court. This Court finds that thefact of accident is not at all disputed. The question would beonly about to the extent of disability and the notional income ofthe claimant. In support of his case the Claimant has examinedhimself. He deposed that he happened to be a businessman and 6 fa1184.2012 judgment running a business. Because of the injuries, he was required toclose down his shop. There is loss of future income. Heproduced medical papers on record. The copies of policepapers. M.L.C., discharge card and medical bills and surgicalbills.10.From the cross-examination, it is seen that therespondent has not taken anything to shatter the evidence ofthe appellant in the chief-examination. Only suggestions weregiven that the certificates and the bills are false and are notcorrect. There is OPD form of the Government Hospital. Thereis no Outward number on the certificate. He could not state thename of the medical officer. It is also taken in the cross-examination that the claimant has not produced any materialon record to show his income.11.From the evidence and the cross-examination, it isseen that though it is claimed by the claimant that his incomewas Rs.10,000/- p.m., the fact remains that there is nothing onrecord to show the proof of income. He has not produced anydocument as such the extract of profit and loss account, fromwhich he maintained his shop etc. About notional disability,this Court finds that there is no sufficient evidence on record to 7 fa1184.2012 judgment show the extent of disability. It was necessary to examine theMedical Officer to prove the extent of disability.12.Coming to the submission of learned Advocate forRespondent No. 3 Mr. Bodade. He rightly placed reliance on thejudgment reported in 2008 STPL 12995 in the case of RajeshKumar @ Raju Vs. Yudhvir Singh and Anr. He submitted that itwas necessary for the claimant to examine an expert to proveextent of disability and the injuries caused. So far as theincome is concerned, in absence of any evidence the learnedMember has notionally taken the income to be of Rs. 4500/-.13.Further reliance of Mr. Bodade is on the judgment inthe case of 2018 (4) ALL M.R. 494 (SC) ICICI Lombard GeneralInsurance Company Ltd., v Ajay Kumar Mohanty & Anr. isrightly applicable. The Hon’ble Apex Court in the aforesaid caseheld that the income was considered solely on the basis of oraltestimony of the claimant, the same is therefore not accepted bythe Hon’ble Apex Court. So far as the judgment relied upon bythe learned Advocate Mr.Rodge is concerned in 2020 SCCOnline SC 752 in the case of Pappu Deo Yadav Vs. NareshKumar and Others, this Court finds that in that case there wasevidence on record about the income. His further reliance is on 8 fa1184.2012 judgment the judgment reported in 2022 SCC Online 1701 in the case ofMohd. Sabeer alias Shabir Hussain vs. Regional Manager, U.P.State Road Transport Corporation. There is no doubt about theproportion and the ratio, however, in the present case inabsence of sufficient evidence the arguments of Mr. Rodgecannot be accepted. 14.After considering all the judgments only factor to theextent can be considered is about the future prospectus. ThisCourt finds that on the date of accident the age of the claimantwas 42 years and 30% addition ought to have been addedtowards future prospectus. The Member Court has taken yearlyloss of Rs. 24,300/-, if 30% is added, the same would come toRs. 31,590/ x 15 which comes to Rs. 4,73,895/-. The amountof compensation ought to have been Rs. 4,73,895/- instead ofRs. 3,64,500/-. The difference comes to Rs. 1,09,395/-. Thus,the award needs to be modified only to that extent. In view ofthe same, First Appeal is partly allowed. Hence following order :ORDERa)The Claimant shall be entitled to receiveRs. 1,09,395/- (Rs. One Lakh, Nine Thousand ThreeHundred and Ninety Five) in addition tocompensation already granted by the learnedMember, MACT, Nanded.
Decision
9 fa1184.2012 judgment b)The respondent shall pay said amount alongwith interest @ 6.5% p.a. from the date of filing ofthe Claim Petition.c)In view of disposal of main appeal, civilapplications if any, are disposed off.d)Award be drawn up accordingly. ( KISHORE C. SANT ) JUDGEmahajansb/