The High Court · 2024
Case Details
FA 243/211IN THE HIGH COURT AT BOMBAYAPPELLATE SIDE, BENCH AT AURANGABADFIRST APPEAL NO. 243 OF 2021Vinod Chhagan ShejwalAge 31 years, Occu. Nil,R/o. Village Kamkhed,Taluka and District Beed.....Appellant(Ori. Claimant)Versus1.Khaitan Logistic Pvt. Ltd.A-37, RIICO Industrial AreaKukas, Jaipur (Rajasthan).2.Oriental Insurance Co. Ltd.Through its branch ManagerBranch Office at near Shantaie HotelJalna Road, Beed, Tq. & Dist. Beed.....Respondents(Ori. Respondents)Mr. Shrimant Munde, Advocate for appellant.Mr. Arun G. Kanade, Advocate for respondent No. 2.CORAM : KISHORE C. SANT, J.CLOSED ON : 02/07/2024DELIVERED ON : 18/07/2024ORDER : 1.This appeal is by the original claimant, challenging judgment andorder dated 7.4.2016 passed in MACP 292/2014 by the learned President,Motor Accident Claims Tribunal, Beed, to the extent of not allowing theclaim in it’s entirety. The appellant/original claimant has thus filed thisappeal for enhancement of compensation. Respondent No. 1 is originalrespondent No. 1/owner of the vehicle. Respondent No. 2 is the InsuranceCompany with whom the vehicle of respondent No. 1 was insured. (For thesake of convenience, the parties are referred as per their original status inthe claim petition.)
Legal Reasoning
FA 243/2122.Facts giving rise to the present first appeal are that the claimantreceived injury on 7.6.2014 when he was going in the rickshaw bearing No.MH-23/H-9676 from Beed to his village Kamkheda at around 11 a.m. onBeed Aurangabad road. The container bearing No. RJ-14/JC-1469 gave dashto the rickshaw. Because of the said accident, the claimant received seriousinjuries. He was admitted to General Hospital, Beed and after preliminarytreatment he was shifted to Aurangabad. He was discharged on 22.6.2014.Complaint is also lodged against the driver of the container. 3.The case of the claimant is that because of the said accident hereceived injuries and has acquired 30% permanent disability. Thoughdisability is only to the extent of 30%, he has lost his earning capacity. Healso prayed compensation for medical expenses.4.Respondent No. 2 opposed the claim. It was a defence that theclaimant has not added the owner of the rickshaw and the Insurancecompany of the rickshaw as party to the proceeding. The Claimant wasworking as labour and taking education in B.A. 5.The learned Tribunal, after considering the evidence and thedocuments on record has granted lump-sum compensation of Rs.2,50,000/- with interest at the rate of 8% p.a. from the date of filing of theclaim petition. 6.Mr. Shrimant Munde, learned advocate for the claimant vehemently FA 243/213argued appeal. He submits that the income of the applicant was Rs.4500/-p.m. His age was 26 years at the time of accident and multiplier of 18 wasthus applied. Though disability was only 30%, loss of earning capacity was100%. He submits that the Tribunal ought to have granted Rs. 9,72,000/-for loss of earning, towards medical expenses of Rs. 2,17,256/-, towardsfuture prospects Rs.3,00,000/-, towards pain and suffering Rs.50,000/- andtowards travelling, special diet and others amount of Rs. 20,000/-. Hefurther submits that total compensation of Rs. 15,59,256/- ought to havebeen granted. In support of the claim, the learned advocate for the claimantrelied upon the following judgments :-(i)National Insurance Co. Ltd. Vs. Nilesh SureshBhandari, reported in ALL MR-2022-3-524, decided by thisCourt at Principal Seat in First Appeal No. 9699/2020 on7.3.2022.(ii)Yadav Kumar Vs. The Divisional Manager, NationalInsurance Co. Ltd. & Anr., reported in 2010 AIR (SC) 3741.(iii)Sunil Kumar Vs. Ram Singh Gaud & Ors., reported in2008 ACJ 8 and(iv)Mohd. Sabeer @ Shabir Hussain Vs. Regional Manager,U.P. State Road Transport Corporation, 2023 AIR (SC) 186.(v)Yashodamma S. Vs. Regional Manager RelianceGeneral Insurance Co. Limited and Anr., 2023 ACJ 605.7.The learned advocate for the Insurance Company vehementlyopposed the appeal. He submits that the applicant could not produce onrecord any material to show that he was working as a labour. Though theappellant acquired permanent disability to the extent of 30%, still he is inposition to work. The injury certificate produced on record clearly show thatthe injuries suffered were simple injuries. The applicant could produce billsonly up to Rs.2,17,256/- towards medial and hospitalization expenses. FA 243/214Nothing is produced on record to prove the exact income. The Court hastherefore rightly considered the case. In the present case, there is no deathclaim or amputation resulting into loss of 100% earning capacity andtherefore, future prospects need not be considered. In support of abovesubmission, the learned counsel for Insurance Company has relied upon thefollowing judgments :-(i)National Insurance Company Limited Vs. Pranay Sethiand Ors., (2017) 16 SCC 680 and(ii)Sidram Vs. The Divisional Manager, United IndiaInsurance Co. Ltd. & Anr., 2022 LiveLaw (SC) 968.8.On considering the arguments and the judgment, following questionsarise for consideration of this Court.(I)Whether the claimant is entitled to the compensation as prayed for ?(II)Whether 30% disability has resulted into loss of total earning capacityof the claimant ?(III)Whether claimant is entitled to future prospects ?9.In the case of Nilesh Bhandari (supra), the claimant established thathe had sustained severe bodily injuries and was admitted in varioushospitals. He was required to undergo multiple operations because of themultiple fractures and long hospitalization requiring to spend huge amount.It was the case where claimant had suffered disability resulting into loss oftotal earning capacity. In that case, future prospects were computed to theextent of 40%. In the case of Yadav Kumar (supra), the Supreme Courtconsidered the difference between the damages and compensation. It isstated that the damages are only given for the injury which is suffered by FA 243/215the party whereas the compensation stands on a slightly higher footing andthe purpose is to compensate a person from the losses which he suffers dueto accident. In that case, the Trial Court and the High Court had not grantedcompensation towards loss of future earning. In that case also the applicanthad suffered various injuries resulting into loss of 100% working capacity.In the case of Mohd. Sabeer (supra), the Supreme Court considered thatwhere the claimant suffers a permanent disability as a result of injuries, theassessment of compensation for loss of future earnings would depend uponthe impact and effect of the permanent disability on his earning capacity. Inthat view future prospects were considered. In the said case, the claimanthad suffered amputation of lower right leg. He had suffered 70% disability.The High Court had considered the disability only to the extent of 35%. Inthat view of the matter the Court granted future prospects. 10.This Court finds that in all the judgments either there was loss of100% earning capacity or the claimants were totally disabled and in thatview, future prospects were granted. 11.So far as the judgment relied upon by the Insurance Company isconcerned, in the case of Pranay Sethi (supra) the Hon’ble Apex Court wasconsidering the case of death claim and in that view, the future prospectswere granted. In the case of Sidram (supra), the Hon’ble Apex Court in para31 held that the future prospectus are to be considered in case of death ofvictim. 12.Considering this position, this Court finds in the present case that it is FA 243/216injury claim and the claimant has suffered 30% disability. From theevidence of the doctor examined by the claimant, it has come on recordthat the injuries suffered by the claimant were simple injuries. The doctorfurther accepted that the claimant can do light work. Thus, no case is madeout by the claimant that he has lost 100% capacity to work. From therecord, it is seen that the claimant had produced on record the receipts ofmedicines and medical bills. The Trial Court on considering that has grantedamount of Rs.1,25,000/- towards medical expenses to the claimant. Fromthe evidence of PW 2, the disability certificate, Exh. 41/C issued by thedoctor shows that the disability is to the extent of 30%. There is destructionor permanent impairing of the powers of any member of joint. Except this,there is no evidence to show that the claimant suffered earning capacity tothe extent of 100%. The claimant also could not prove that he has lost100% earning capacity. Thus, this Court holds that the learned Trial Courthas not committed any error in assessing the disability to the extent of30%. In view of the judgment, it is clear that since it is not the death claimor amputation of any limb or 100% loss of earning capacity, there is noquestion of future prospects. 13.So far as amount of compensation is concerned, this Court finds thatbecause of 30% disability certainly the claimant will suffer pain for entirelife. He is also deprived of pleasures in life to some extent and for that somemore amount ought to have been granted by the learned Tribunal.Considering this aspect, this Court finds that the Tribunal has awarded onlyRs. 1,25,000/- towards pain and suffering and loss of pleasures in life andRs. 1,25,000/- towards medical bills. This Court finds that the compensation
Decision
FA 243/217ought to have been granted more than Rs. 1,25,000/-. So this Courtmodifies the amount of compensation as Rs. 2,50,000/- towards pain andsuffering and Rs. 2,17,256/- towards medical expenses. In view of thediscussion made above, the questions are thus, answered accordingly andthe award is modified as below :-O R D E R(I)The appeal is partly allowed with no order as to costs.(II)Respondent Nos. 1 and 2 to pay jointly and severally totalcompensation of Rs. 2,50,000/- + Rs. 2,17,256/- i.e. Rs. 4,67,256/-including NFL at the rate of 8% p.a. from the date of filing of the claimpetition i.e. 16.9.2014. (III)The respondent Nos. 1 and 2 to deposit the amount along withaccrued interest in the office of this Court within twelve weeks from today. (IV)The award be modified accordingly. The appeal stands disposed of. [ KISHORE C. SANT, J.] SSC/