High Court
Facts
{1} fa3269-15.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.3269 OF 2015Bhagwan Nagnath Mude APPELLANTAge – 25 years, Occ – Now NilR/o Chincholi, Taluka – NilangaDistrict - LaturVERSUS1.Abbas Mohammad Patel RESPONDENTSAge – 49 years, Occ – ServiceR/o Kazi Galli, OsmanabadTaluka and District – Osmanabad2.Divisional Controller,M.S.R.T.C. Ltd., Latur.......Mr. Shrimant Munde h/f Mr. N. B. Ghute, Advocate for appellantMr. Vinesh C. Solshe, Advocate for respondent No.1Mrs. Ranjana D. Reddy, Advocate for respondent No.2. ....… [CORAM : NITIN B. SURYAWANSHI, J.] DATE : 2 nd SEPTEMBER, 2024 ORAL JUDGMENT :1.Admit. Taken up for final disposal by consent of the learnedadvocates for the parties.2.This appeal, filed by appellant – original complainant,under section 173 of the Motor Vehicles Act, challenges thejudgment and award passed by the learned ex-officio Member ofthe Motor Accident Claims Tribunal, Latur, in MACP No. 204 of2009. {2} fa3269-15.doc3.On 24th November, 2008, claimant, along with AgricultureOfficer and Security Officer was proceeding towards Nilanga in ajeep. When he reached Harangul Railway Station, at about 7.45p.m., one ST bus came from opposite direction and while wronglyovertaking, gave dash to the jeep driven by the claimant, whichwas on its correct side i.e. left side. In the accident, the claimantsuffered grievous injuries and was referred to Civil Hospital,Latur. From there, he was shifted to Planet Critical Care Center,Latur and was admitted there from 25th November, 2008 to 29thNovember, 2008. Thereafter, he was indoor patient in GandhiHospital, from 30th November, 2008 to 2nd December, 2008. Thenhe took treatment at Dinanath Mangeshkar Hospital at Pune. Inspite of the treatment, he is not fully recovered and has suffered30% permanent disability i.e. total loss of vision of right eye and20% disability towards limbs. Due to loss of vision of right eye,he is unable to drive vehicle. He, therefore, claimedcompensation of Rs.6,00,000/- from the driver of the ST bus andthe MSRTC,4.The respondents opposed the claim, by filing writtenstatements, contending that one travels bus was coming fromthe backside of the jeep driven by claimant, which had givendash to the jeep and due to that dash, the claimant has given {3} fa3269-15.docdash to the ST bus and hence, they are not liable to paycompensation.5.The Tribunal, after considering the evidence brought onrecord, partly allowed the claim and awarded compensation ofRs.2,56,175/- along with interest @ 6% p.a. Being aggrieved bythe inadequate compensation awarded by the Tribunal, claimanthas filed present first appeal for enhancement of compensation. 6.Heard learned advocate for the appellant – claimant,learned advocate for respondent No. 1 – ST bus driver andlearned advocate for respondent No.2 – MSRTC. Perused theimpugned judgment and award, Record and Proceedings and thecitations relied on by the learned advocate for the appellant.7.Learned advocate for appellant – claimant submits thatsince the claimant has permanently lost complete vision of hisright eye and he is not in a position to drive vehicle, hisfunctional disability ought to have been taken at 100% by theTribunal. However, in spite of there being disability certificateshowing 30% permanent disability to the vision and 20%disability due to malunited fracture of right radius ulna, theTribunal has erroneously held 25% total disability and hasawarded inadequate compensation to the claimant. The age ofthe claimant, at the time of the accident, was 23 years and,
Legal Reasoning
{4} fa3269-15.doctherefore, in view of the decision of the Hon’ble Apex Court in“Sarla Warma and Others V/s Delhi Transport Corporationand Another” 2009 (5) Mh.L.J. 775, the multiplier applicableis 18, however, the Tribunal has wrongly applied the multiplier of17. Further submission is that interest @ 9% p.a. should havebeen awarded by the Tribunal instead of 6% p.a. In support ofthis submission, he relied on a decision of learned Single Judge ofthis Court in “National Insurance Co. Ltd., V/s NileshSuresh Bhandari” LAWS (Bom)-2022-3-255. He submits thatthe Tribunal has awarded less compensation towards nonpecuniary damages, therefore, according to him, claimant isentitled for just and fair compensation of Rs.13,27.525/- alongwith interest @ 9% p.a.8.Learned advocate for respondent No. 2 - MSRTC supportedthe impugned judgment and award. She submits that thedisability certificate (Exhibit-75) is not issued by the doctor, whohas treated the claimant. Disability certificate (Exhibit-71)showing 20% disability issued by the doctor, indicates that thereis malunited fracture of right radius ulna, which cannot be said tobe a cause of any disability. She therefore, supported theimpugned judgment and award, submitting that the Tribunal hasawarded adequate compensation to the claimant and no case ismade out by the claimant to interfere in impugned judgment and {5} fa3269-15.docaward.9.Learned advocate for respondent No.1 – ST bus driver,adopted the submissions of MSRTC. In addition he submits thatthe Tribunal has failed to deduct one third amount towardspersonal expenses of the claimant, by deducting that amount, infact the compensation awarded to the claimant needs to bereduced.10.Neither the accident in question nor the injuries suffered bythe claimant are in dispute. By producing injury certificate of CivilHospital at Exhibit-27, the claimant has brought on record thathe sustained fracture of right radius ulna middle 1/3 and grievoushead injury. The discharge card issued by Dinanath MangeshkarHospital, also shows that the claimant had suffered theseinjuries. The discharge card also shows that the claimant has lostvision of his right eye. Dr. Amol Gaddikar, an eye specialist (CW-3) is examined and he has deposed that he examined theclaimant on 3rd May, 2010 and found that due to the injury to hisright eye, post optic nerve is damaged and there is total damageof vision of right eye. He, therefore, issued permanent disabilitycertificate (Exhibit-75) stating that the clamant has suffered 30%permanent disability. Dr. Gaddikar has specifically deposed thatthe claimant is unable to drive vehicle due to the disability of {6} fa3269-15.docright eye. Dr. Khaled Kazi (CW-2), has proved the disabilitycertificate (Exhibit-71) of fracture injury of right radius ulna,which is to the effect that the claimant has suffered 20%disability.11.In view of evidence Dr. Gaddikar that the claimant isunable to drive vehicle, the Tribunal ought to have assessedfunctional disability of the claimant, however, the Tribunal hasobserved that - “… besides driving the vehicle, the claimant can do anysuitable work and something earn for his livelihood. Hence, in the absence of anyexact evidence regarding disability specifically i.e. whether it is limbwise,bodywise or functional, the said disability cannot be taken into consideration toinfer that there is a total loss of income of the claimant and therefore, considering30% disability as per Exh.75, for loss of right eye vision and 20% disability formalunited fracture of right radius ulna, it will be proper to take it 25% disabilityas bodywise and for assessing the compensation.”12.From the above observations of the Tribunal, it is clear thatthe Tribunal has failed to appreciate the evidence of Dr. Gaddikarin the proper perspective and has erred in assessing bodywisedisability of the claimant at 25%. When it is specifically deposedby Dr. Gaddikar that the claimant is unable to drive vehiclebecause of the permanent disability, the Tribunal ought to havetaken functional disability of the claimant at least at 75%. True itis that the claimant can earn his livelihood by doing other work, {7} fa3269-15.docbut the fact remains that due to the permanent disabilityincurred because of the accident, he is not in a position to drivevehicle, which was his avocation at the time of the accident.13.There is merit in the contention of the claimant that in viewof the decision in “Sarla Warma” (supra), since at the time ofaccident, age of the claimant was 23 years, multiplier of 18 isapplicable in his case. The Tribunal has assessed monthly incomeof claimant at Rs.3580/- and yearly income at Rs.42,960/-on thebasis of evidence led by the claimant. The Tribunal has rightlyawarded compensation of Rs.15,000/- for pains and sufferingsand has also awarded medical expenses for which bills wereproduced by the claimant.14.Learned advocate for respondent No.1 - ST Bus driver isright in submitting that one third amount needs to be deductedfrom the compensation towards personal expenses of theclaimant in view of decision in “Sunil Kumar V/s Ram SinghGaud and Others” 2007 (14) SCC 61.15.In “Nilesh Bhandari” (supra), learned Single Judge of thisCourt, by relying on the decision of the Apex Court in“Kaushnuma Begum and Others V/s New India AssuranceCo.” 2001 (1) SCR 8, has awarded 9% interest p.a. Accident inthis case is of the year 2005, whereas in the present case, {8} fa3269-15.docaccident is of the year 2008. Therefore, claimant is entitled forinterest @ 7.5 % p.a. 16.For the aforestated reasons, the claimant is entitled forfollowing compensation:Sr. No.ParticularsAmount01Income of the claimant 3580 X 1242,96002Loss of income = 42960 X 75%32,22003Minus 1/3 towards personal expenses 32220 / 321,48004Future prospects @ 40% = 21480 X 40% + 2148030,07205Multiplier of “18” 30,072 X 185,41,29606Compensation towards pains and suffering15,00007Medical bills24,64508Total compensation5,80,94109Compensation awarded by the Tribunal2,56,17509Enhanced compensation = 580941-2561753,24,76617.In the result following orderORDERA.First Appeal is partly allowed with proportionate cost. B.Impugned judgment and award passed by learned Ex-officio Member, Motor Accident Claims Tribunal, Latur inMACP No. 204 of 2009 dated 18th March, 2011 is modifiedto the effect that the claimant is entitled for enhancedcompensation of Rs. 3,24,766/- along with interest @ 7.5%p.a. on the entire compensation, from the date of filing ofthe claim petition till realization. {9} fa3269-15.docC.Respondent No.2 MSRTC is directed to deposit the amountof enhanced compensation, along with interest in theTribunal, within 12 weeks from the date of receipt of writ ofthis judgment in the Tribunal.D.Claimants to pay court fee on enhanced compensation asper rules. [NITIN B. SURYAWANSHI]JUDGE drp/fa3269-15.doc