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Girdhar Brijmohan Maru v/s Vimal Lalchand Mutha & Others


Company & Directors' Information:- K LALCHAND PRIVATE LIMITED [Active] CIN = U51900MH1963PTC012717

Company & Directors' Information:- GIRDHAR AND CO PVT LTD [Active] CIN = U18101PB1943PTC000532

Company & Directors' Information:- VIMAL INDIA PRIVATE LIMITED [Strike Off] CIN = U24231DL1999PTC099648

Company & Directors' Information:- GIRDHAR AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U17120DL2000PTC104066

    First Appeal No. 155 of 2017

    Decided On, 26 June 2019

    At, In the High Court of Bombay at Aurangabad

    By, THE HONOURABLE MRS. JUSTICE VIBHA KANKANWADI

    For the Appellant: Mukul Kulkarni, Advocate. For the Respondents: R2, R.G. Totla, R4, M.M. Ambhore, Advocates.



Judgment Text

1. Present appeal has been filed by the original claimant for enhancement of compensation. He had filed Motor Accident Claims Petition No.576/1999 before Motor Accident Claimd Tribunal, Dhule for getting compensation of Rs.3,50,000/- for the injuries suffered by him in vehicular accident.

2. The claimant has contended that he along with his family members were proceeding in Tempo Trax No.MH 15/K150 on 07.02.1999. One Anil Shewale was the driver of the said vehicle. When that vehicle reached near Shani mandir, Purmepada on MumbaiAgra Highway a truck bearing No.HR 38 A-1442 came from opposite direction in high speed and was overtaking another vehicle which was going ahead of it. In that process due to the negligence of the said truck driver the said truck dashed jeep. As a result of which, the claimant had sustained injuries. Upon the investigation it was found that he had sustained fracture to his right femur. It is stated that the eye sight of his right eye has been totally lost. He has spent huge amount on his medical expenses. He was running a business in cloth and used to earn Rs.6,000/- to Rs.7,000/- per month. Since he has sustained permanent disability due to the negligence on the part of respondent he has claimed compensation.

3. The petition proceeded ex parte against respondent No.1the owner of the truck. Respondent No.2 is the insurance company of the truck. The company had resisted the claim by filing written statement. It had denied age, occupation, income and the fact that truck driver was negligent in driving in which the accident had taken place as pleaded in the petition. Respondent No.3 was the owner of the Tempo Trax from which the claimant and his family members were travelling. Respondent No.4 is the insurance company with whom the tempo trax was insured. Respondent No.3 failed to file written statement but the respondent No.4 by filing written statement denied liability to pay compensation and it was contended that the accident had taken place due to the sole negligent on the part of truck driver.

4. Taking into consideration the rival contentions, issues came to be framed. Claimant had adduced documentary as well as oral evidence. Taking into consideration the evidence as well as after hearing both sides the learned Tribunal has held that the claimant sustained injuries due to the sole negligence on the part of truck driver and therefore, respondent Nos.1 and 2 are the only persons liable to pay compensation joint and severally to the claimant amount of Rs.75,000/- with interest @ 7.5 % per annum from the date of the petition till actual realisation of the entire amount has been awarded. Hence, the present appeal has been filed by the original claimant.

5. Heard learned Advocate Mr. Mukul Kulkarni for claimant and learned Advocate Mr. M.M. Ambhore for respondent No.4. Respondent Nos.3/1 to 3/3 were served, however, they failed to appear. Respondent No.1 was served through paper publication, however, he did not appear. Learned Advocate appearing for respondent No.2 is absent.

6. It has been vehemently submitted on behalf of the claimant that the learned Tribunal though arrived at a right conclusion that the claimant received injuries due to the sole negligence on the part of truck driver, while awarding compensation has not applied proper yardsticks. The evidence that was adduced by the claimant has not been considered properly. The amount of medical bills has not been considered properly though they are proved. Compensation has not been arrived at on component wise and the bifurcation has not been shown. The learned Advocate appearing for respondent No.4 submitted that the learned Tribunal was right in exonerating the respondent No.4.

7. Taking into consideration the fact that none of the respondents have challenged the findings to issue No.1 and the scope of this appeal is limited to the quantum, following point arise for my determination. Findings and reasons for the same are as follows.

Whether the learned Tribunal has assessed the quantum of compensation properly, if not, then what would be the just compensation?

REASONS

8. At the costs of repetition it can be said that taking into consideration the evidence on record the Tribunal has arrived at the conclusion that the injuries were sustained by the claimant due to rashness and negligence on the part of truck driver. Therefore, while awarding the compensation the liability has been rightly fixed on respondent Nos.1 and 2, who are the owner and insurance company of the offending vehicle. No evidence was led by the insurance company to prove any statutory defence. Under such circumstance, it was the duty of the Member, Motor Accident Claims Tribunal to award just compensation as per the said principles. The claimant had examined himself and then further examined in all four medical officers to prove his injuries and the treatment that he had taken. Taking into consideration the evidence of PW 2 Dr. Sheetal Mehata, PW 3 Dr. Prasad Bhandari and PW 5 Dr. Sancheti it can be definitely said that the claimant had proved that he had sustained fracture to his right femur. As regards his eye injury is concerned, it is stated that there was temporary disability. The disability certificate at Exh.77 is issued by Civil Surgeon. However, perusal of Exh.77 does not make it clear, as to whether that permanent disability is restricted to particular limb or not and the handwritten part of the same is giving three different injuries. Further, though that disability certificate is given by Civil Surgeon, who can be said to be the Government servant, yet said Civil Surgeon was not examined. In view of the decision in Rajesh Kumar vs. Raghuveer Singh, 2008 ACJ 2131 SC, Tribunal cannot accept disability certificate without examining the Doctor concerned. Under such circumstance the further evidence ought to have been led by the claimant that the said disability had affected his earning capacity. Mere statement by the claimant that he cannot perform work as before is not sufficient under such circumstance. However, that does not estop or preclude him from claiming compensation under other heads. Each of the Doctor has given the details of the treatment that was given to the claimant. He has undergone operations twice which required hospitalization. Under such circumstance, definitely case is made out to grant compensation under those conventional heads. The medical bills have been proved through these doctors as well as through PW 4 Sucheta Shah. Those bills which have been proved on record to the tune of Rs.45,000/-. A statement has been made by the claimant that he has incurred medical expenses of more than Rs.1,00,000/but the documents are not supporting his statement. Therefore, whatever he is entitle to get reimbursement is to the tune of Rs.45,000/-. Further, taking into consideration the fact that he has undergone two operations, he is entitle to get compensation of Rs.40,000/- towards pains and sufferings. In all he was required to be hospitalized for about 15 days and therefore, he would have been looked after by somebody. Under such circumstance, under the head of attendance it would be just and proper to award amount of Rs.10,000/- to him.

9. The claimant has produced on record his income tax returns. His occupation was owner of weaving machines. Average of those income tax returns is required to be considered and it would be just and proper to hold that he might have been earning around Rs.63,000/- per annum. His average monthly income would be Rs.5,250/-. He would have taken rest. Taking into consideration the fact that he had undergone two operations for about 6 months and therefore under the head of loss of income he would get amount Rs.31,500/-. Further, as per Exh.120, the certificate is given by Dr. Sancheti that for removal of implant he may require amount of Rs.25,000/-. Under such circumstance, this amount is also required to be added in the total amount of compensation. Thus, the total amount of compensation, to which the claimant is entitled to, is Rs.1,51,500/-. This amount is inclusive of the amount under No Fault Liability. It is clarified that in para No.13 of the Judgment of learned Member, MACT it is stated that amount of Rs.45,000/- was towards NFL. But it appears that it is either typographical mistake or that amount of inclusive of interest, if at all it is. But then what can be included is amount of Rs.25,000/- only. As per the deposit of the claimant when he says that he has received that much amount only. Therefore, taking into consideration the above said reasons it is held that the learned Member, MACT was not justified in giving a lump sum amount without any base as compensation. The bifurcations ought to have been given in clear words. The learned Advocate appearing for the appellant has submitted that the interest has been awarded @ 7.5 % per

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annum, which is on the lower side. Definitely, taking into consideration the fact that the petition was filed in the year 1999 and it was decided in 2007. The learned Member, MACT ought to have granted interest @ 9% per annum. For the reasons stated above point is answered accordingly and following order is passed. ORDER 1. Appeal is hereby partly allowed. 2. The Judgment and Award passed by learned Member, Motor Accident Claims Tribunal, Dhule in M.A.C.P. No.576/1999 dated 31.10.2007 is hereby set aside to the extent of quantum and modified as follows. “The respondent Nos.1 and 2 shall pay amount of Rs.1,51,500/- (Rupees One Lac Fifty One Thousands and Five Hundred only) (inclusive of amount of No Fault Liability) to the claimant with interest @ 9% per annum from the date of the petition till the actual realization of the amount.” 3. It is clarified that rest of the Award is kept as it is. 4. Award be drawn accordingly.
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