Civil Application No. 3642 of 2019 · Bombaybench High Court · 2024
Case Details
( 1 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.4495 OF 2023Cholamandalam M. S. General Insurance Co. ...Appellant (Orig. Respondents)Versus1. Jakir Shabbir Pathan2. K. Sudhakar Reddy...Respondents. (Orig. Respondents).WITHFIRST APPEAL (ST). NO.34079 OF 2018WITHCIVIL APPLICATION NO.3642 OF 2019Jakir s/o Shabbir Pathan...AppellantVersusCholomandalam M. S. General Insurance Co. And Ors. ...RespondentsMr. Abhijit G. Choudhari for Appellant. Mr. Pramod C. Mayure for Respondent No.1.CORAM : KISHORE C. SANT, J. DATE: 12th SEPTEMBER 2024 PC :-1. Heard the learned Counsel for the parties.2.Though the parties were referred to the National Lok Adalat byan order dated 7th December 2023, and also further by an orderdated 13th February 2024, however, no settlement could be arrivedD. A. Ethape, P.A.
Legal Reasoning
( 2 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024at between the parties. The matter is, therefore, taken up for finaldecision with consent of the parties and as the record andproceedings is received. 3.First Appeal No.4495 of 2023 arises out of the Judgment andAward passed by the learned Member, Motor Accident ClaimsTribunal (M.A.C.T.), Kopargaon, Dist. Ahmednagar in M.A.C.P. No. 67of 2013 dated 26th October 2016. By way of impugned Judgmentand Award, the learned Member has directed the InsuranceCompany and the owner of the vehicle, to pay to theRespondent/Claimant an amount of Rs.28,37,500/- alongwithinterest at the rate of Rs.7% p.a. from the date of Application. First Appeal No.34079 of 2018 is filed by original claimant forenhancement of compensation. 4.The Appellant - Insurance Company is the original RespondentNo.2 in the claim petition. Respondent No.1 is the Original Claimant.Respondent No.2 is the owner of the vehicle. 5.Facts in short are that, the Respondent No.1 i.e. Claimant hasfiled a claim petition for injuries. He received an injury whichD. A. Ethape, P.A. ( 3 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024resulting in permanent disability due to an accident took place on8th June 2012, while the claimant was proceeding from Savalivihir toZagade fata road, Tq. Rahata, on his motorcycle alongwith hisfriend. One luxury bus bearing No.AP-16-TU-6288 was coming fromthe opposite direction in rash and negligent manner and gave dashto the motorcycle. The bus driver of the said bus lost the control ofthe vehicle and, therefore, the accident is took place. The appellantwas immediately shifted to the hospital at Shirdi and from there, hewas again shifted from hospital at Nashik. He was required to beadmitted from 9th June, 2012 to 27th September, 2012, andthereafter, from 29th October, 2012 to 7th November, 2012.Thereafter, again he was required to be admitted in the hospitalfrom 15th April, 2013 to 1st May, 2013. The appellant still requirestreatment because of the injuries received by him. The injuries arecompound fracture of femur right leg alongwith fracture of righttibia and fibula, due to accident he lost bone segment. It is thecase of the appellant that, he was working as a driver. Because ofthe accident now he cannot drive a vehicle and thus, this resultedinto his loss of job because of the said disability of permanentD. A. Ethape, P.A. ( 4 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024nature. The respondent/owner did not appear inspite of service. Theclaim petition therefore, proceeded ex-parte against him.6.The Appellant - Insurance Company resisted the claim. Theinsurance company denied involvement of the bus. It is denied thatthe accident took place because of negligence of the bus driver. It isalleged that it was the applicant rider of the vehicle, who wasnegligent in driving the motorcycle. The rider was also notpossessing valid and effective license. There was a breach ofconditions of the policy and thus, the company is not liable to makeany payment of compensation. 7.The learned Tribunal held that the claimant has proved that heacquired disability to the extent of 75%. The claimant wasreceiving an amount of Rs.4,000/- per month as a salary towardsworking as a driver cum supervisor with his employer. The learnedTribunal taking income of 4,000/- awarded the compensation. Thefuture prospects was awarded at the rate of 50%. The medicalexpenses of Rs.10,00,000/- were granted by deducting an amountof Rs.25,000/- on certain other terms and conditions. Rs.5,00,000/-D. A. Ethape, P.A. ( 5 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024is awarded on account of pain and suffering and consortium amountis granted alongwith compensation. The Insurance Company is,therefore, in appeal mainly on the quantum. 8.The learned Advocate for the Appellant vehemently arguedthat the learned Member has committed an error by granting futureprospects at the rate of 50% instead of 40% in view of judgment inthe case of National Insurance Co. Ltd. Vs. Pranay Sethi andors.1. He further submits that, the Tribunal has committed an errorin awarding Rs.5,00,000/- on account of pain and suffering. Hesubmits that the learned Tribunal has committed a mistake. Thoughhe argued other grounds but this Court does not find thoughgrounds to be substantiated.9.The learned Advocate for the Original Claimant - Appellant inFirst Appeal No.34079 of 2018 vehemently argued that, the learnedTribunal has erred in granting only Rs.10,00,000/- towards medicalexpenses when the claimant has clearly proved the medical bills ofRs.13,51,037/-. He has examined doctor to prove his bills. Thelearned Tribunal ought to have considered the loss of earning12017 (16) SCC 680D. A. Ethape, P.A. ( 6 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024capacity to the extent of 100%, though the disability is only to theextent of 75%. Considering that the claimant was working as adriver, now he would not be in a position to work as a driver. Thusthe loss of earning capacity ought to have been taken to the extentof 100%. The learned Tribunal has not granted any amount towardsloss of comfort pleasure in life etc. The income ought to have beentaken at Rs.8,500/- per month as came in the evidence of theemployer, who proved at Exhibit-44 showing that the claimant wasgetting salary of Rs.8,500/- per month. Both the Advocates opposedthe appeals on the strength of submissions made in support of theirappeals.10.From reading of the judgment and award, in the background ofthe submissions it is seen that the Court has awarded the futureprospects at the rate of 50%. In view of Pranay Sethi's Judgment itought to have been 40%. Thus, taking the monthly salary ofRs.5,000/- per month, the loss per month ought to have beencalculated at the rate of Rs.7,000/- instead of Rs.7,500/- takingdisability to the extent of 75%. The same would come to Rs.5,250/-.So far as the multiplier is concerned, this Court finds that theD. A. Ethape, P.A. ( 7 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.2024Tribunal has rightly applied multiplier of 17. Thus the total amountwould come to Rs.10,71,000 /-. 11.The next factor for consideration is amount towards medicalexpenses. From the record it is clear that, the claimant has provedthe medical bills of Rs.13,51,037/-. The Court has rightly deductedthe amount of Rs.25,000/- which was paid towards advance whichwas deducted from the final bill. This Court thus finds that theamount towards medical bill ought to have been grantedRs.13,26,037/- instead of 10,00,000/- on the count of medicalexpenses. Just and fair compensation towards pain and sufferingwould be Rs.1,00,000/-. So far as travelling expenses of Rs.10,000/-and special diet of Rs.15,000/-, this Court does not find any reasonto change the said amount. For loss of amenities also Rs.50,000/-needs to be paid to the claimant instead of Rs.5 lakhs. Thus,considering the above, this Court finds that the followingcalculation. CALCULATION01Monthly SalaryRs.5,000/- P.M.02.Future Prospects 40%2000/-5,000+2,000=7,000/-.D. A. Ethape, P.A. ( 8 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.202403.Disability 75% 5250/-5,250/-04.Multiplier 17 (Deceasedwas 27 yrs.)5,250x12x17=10,71,000/-05.Medical Bills13,26,037/-06.Pain & Suffering1,00,000/-07.Travelling Expenses10,000/-08Special Diet15,000/-09Loss of Amenities50,000/-Total 25,72,037/- withinterest as pertribunal award.12.So far as the loss of earning is concerned, this Court finds thatthe claimant can still do some other work if not as a driver. No erroris thus committed in making the calculation of loss of income. Forall these reasons this Court finds that the proper compensationwould be of Rs.25,72,037/-.13.The Appellant has deposited the entire amount of thecompensation alongwith interest as a condition for grant of stay inview of order dated 31st August 2017. By an order dated 9th April2018, this Court allowed the claimant to withdraw the 50% of theamount deposited in the Court with accrued interest and the saidamount is withdrawn. The claimant was further permitted towithdraw the amount of Rs.3,00,000/- vide order dated 23rd JanuaryD. A. Ethape, P.A. ( 9 ) FA-4495-2023 stm 2Corrected order as per Speaking to the Minutes of Order dated 27.11.2024 & 05.12.20242023. The remaining amount is lying presently in the office of thisCourt.14.The claimant is entitled for compensation of Rs.25,72,037/-along with interest @ 7% p.a. from the date of filing claim petitiontill entire amount is deposited in this Court, since the amount afterwithdrawal of 50% and thereafter Rs.3,00,000/-, the remainingamount still lying in the office of this Court to be disbursed to theclaimant from the amount of Rs.25,72,037/- alongwith accruedinterest. The excess amount alongwith accrued amount be refundedto the Appellant in Appeal No. 4495 of 2023 i.e. InsuranceCompany. 15.Award be drawn up accordingly. 16.Both First Appeals stand disposed off.17.Interim Applications, if any, also stand disposed off.[KISHORE C. SANT, J.] D. A. Ethape, P.A.