31 Years, Occ. Mason prior to Accident as on today Nil, R/o. Chalburga, Tq v. Angad S/o Babarao Birajdar, Age : Major, Occu. Owner and Driver, of car bearing
Case Details
(1) Judgment F.A. 1880-2021 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1880 OF 2021 Rajendra S/o Bhaskar Salunke, Age : 31 Years, Occ. Mason prior to Accident as on today Nil, R/o. Chalburga, Tq. Ausa, District Latur. Versus Angad S/o Babarao Birajdar, Age : Major, Occu. Owner and Driver, of car bearing No. MH-24/AF-0134 R/o. Saburi Niwas, Ram Nagar, Near Arya Samaj Mandir, Ausa Road, Latur. The New India Assurance Company Ltd, Through its Branch Manager, Near Ashwini Hospital, Ausa Road, Latur. …. 1. 2. ..Appellant ..Respondents Mr. Ram S. Shinde, Advocate for the Appellant Mr. S.R. Bodade, Advocate for Respondent No.2. Respondent No.1 served. ... CORAM : VINAY JOSHI, J. : 16.02.2022. Closed for Judgment on Judgment pronounced on : 24.02.2022. JUDGMENT: Heard. 2. Admit. 1 of 7 (2) Judgment F.A. 1880-2021
Legal Reasoning
By consent of both the learned counsel heard fnally. The appellant who is claimant before the tribunal has 3. 4. questioned the correctness of impugned Judgment and order passed by the learned Member, Motor Accident Claim Tribunal, Latur in M.A.C.P. No. 212 of 2019, dated 12.08.2020. Precisely, the appellant has challenged the quantum of compensation assessed by the tribunal. 5. The appellant/claimant and one Balu Pawar were proceeding to Chalburga from Nilanga by motorcycle. Appellant was riding pillion. When their motorcycle reached on Lamjana- Nilanga Road near Tambarwadi Pati, at the relevant time, ofending vehicle namely car bearing registration No. MH-24/AF-0134 came from opposite direction and gave forceful dash to the motorcycle, resulting into severe bodily injuries to the appellant (Claimant). In the said accident, claimant sustained 15% permanent disability. The tribunal has assessed total compensation of Rs. 1,54,292/-. Since the insurer has not challenged the impugned Judgment, it is not necessary to dwell upon the defences taken by the insurer, in its written statement, except the assessment of compensation. 2 of 7 (3) Judgment F.A. 1880-2021 6. The matter revolves around the only question of assessment of compensation. It is the claimant’s case that at the relevant time he was working as a mason and was earning Rs. 600/- per day. The claimant has neither furnished details about his masonry work nor adduced any evidence in support of said case. The tribunal has noticed that the claimant’s vocation was mentioned in spot panchnama as well as in charge sheet as an agriculturist. In absence of any evidence about masonry work, the tribunal held the claimant’s notional agricultural income to the tune of Rs. 6,000/- per month. 7. The claimant’s learned counsel would submit that the tribunal erred in holding notional income by discarding the case of masonry work. True, there can be hardly documentary evidence about masonry work, however, claimant has neither detailed about his work nor any oral evidence is led to that efect. On the other hand, police paper discloses that he was doing agricultural work. Having regard to the said fact, the tribunal is well justifed in holding claimants agricultural notional income to the tune of Rs. 6,000/- per month. 3 of 7 (4) Judgment F.A. 1880-2021 8. The learned counsel for the claimant has submitted that the tribunal has erred in holding loss of earning capacity to the extent of 7.5% only. According to him, the tribunal ought to have held that there was 50% loss of earning capacity, moreover, it is argued that 40% has to be added towards loss of future prospects. Basically, it is an injury claim. The equation of calculating loss of earning capacity varies from case to case, largely depending upon the nature of disability and its impact on the earning capacity. 9. The claimant has examined (P.W.2) Dr. Shashikant Bhalchandra Kukale, who was treating doctor. It has come in his evidence that the claimant has sustained open commuted fracture of tibia fbula. He has done interlocking nailing for union of bones. Doctor has assessed 15% permanent disability. During the cross- examination, it has come that the percentage of disability was assessed limb-wise. He admits that the patient can do manual work to some extent. Disability certifcate in Form COMP ‘B’ ( Exh. 25) has been produced in support of said contention. It is to be noted that the disability assessed was not a functional disability but it was a mere limb-wise disability. The claimant admitted that he can climb the stairs and use to walk without support. Thus, it is not a 4 of 7 (5) Judgment F.A. 1880-2021 case of total loss of earning capacity. The Hon’ble Supreme Court in case of Rajkumar Vs. Ajay Kumar 2011 (1) SCC 343 ruled that percentage of disability and loss of earning capacity are two distinct features. It depends upon the nature of work of the claimant. It has come on record that claimant was 35 years of age. The injury was limb-wise and therefore there would be loss of earning capacity to the extent of 10% only. Considering the notional income of claimant to the extent of Rs. 72,000/- and by use of multiplier of 16 it comes to the tune of Rs. 11,52,000/-. Since there was only 10% loss of earning capacity, the loss under said count would be Rs. 1,36,800/-. Though claimant has sought for loss of future prospects, however, considering the nature of limited limb- wise disability and its impact, it is not a case to make addition on said count. Besides that the claimant is reasonably entitled for Rs. 29,000/- towards hospital bills and Rs. 33,892/- towards medical bills which are on record. Future medical expenses are claimed. However, no evidence is led regarding its requirement. Since there was a fracture and nailing was done, certainly it requires removal of implants and thus Rs.10,000/- can be awarded towards future medical expenses. 5 of 7 (6) Judgment F.A. 1880-2021 10. The claimant’s learned counsel, by placing reliance on the decision of Pappu Deo Yadav Versus Naresh Kumar and Others 2020 SCC OnLine SC 752 has submitted that, under diferent conventional heads the claimant is entitled for compensation. Having regard to the dictum led by the Hon’ble Supreme Court in said case, the claimant is entitled for Rs. 5000/- towards pain and sufering, Rs. 30000/- towards special diet, attendant and conveyance charges and Rs. 10,000/- towards loss of amenities. Thus, the total entitlement would be as below :- Sr. No. Particulars Amount (Rs.) Loss of future income 1,36,800/- 01. 02. 03. 04. 05. 06. Hospital Bills Medical Bills Future Medical Expenses pain and sufering Special conveyance charges diet, attendant and 07. Loss of amenities of life Total entitlement Rounded up 29,000/- 33,892/- 10000/- 5000/- 30000/- 10000/- 2,54,692/- 2,54,700/- 11. The claimant’s learned counsel has submitted that interest shall be awarded at the rate of 9% per annum. However, 6 of 7 (7) Judgment F.A. 1880-2021 considering the current rate of interest in Banking sector, interest at the rate of 7% per annum would be appropriate. In view of above the appeal deserves to be partly allowed. The impugned Judgment and order is modifed to that extent, by holding that the claimant is entitled for total compensation of Rs. 2,54,700/- (Rupees Two Lakhs Fifty Four thousand and Seven hundred)(inclusive of NFL) along with future interest at the rate of 7% per annum from the date of petition till entire realization of amount. Both respondents should jointly and severally pay said amount to claimants. The claimants are entitled for withdrawal of entire amount. [ VINAY JOSHI, J. ] ysk/Judgment F.A. 1880-2021 7 of 7