Bombay High Court
The United India Insurance Co.Ltd vs Mushtak Ahmed Rashid Khan And Othrs on 8 May, 2025
2025:BHC-AS:21961-DB
Manoj 906-XOB(ST)-22161-2009.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CROSS OBJECTION (ST) NO. 22161 OF 2009
IN
FIRST APPEAL NO. 1039 OF 2009
The United India Insurance Co. Ltd.,
Bazar Road, IInd Floor,
Pardeshi Building, Opp. Laxmi
Market, Kalyan, Dist. Thane ...Appellant
V/s.
1. Mushtak Ahmed Rashid Khan
Age : 48 years, S.T. Dadar
r/a Shalu Manzil, Azad Nagar,
Joshi Baug, Kalyan
2. Rashmi Juber Momin,
Age : Major, Occ: Business,
R/at Village Pimpri Pandhar,
Taluka- Junnar, Dist. Pune
3. Balkrishna Damodar Pote
Age: 33 years, R/a Village Pimpri
Pandhar, Taluka Junnar, Dist. Pune ...Respondents
Ms. S. V. Sonawane, for the Respondent No.1/Original Claimant.
CORAM : SHYAM C. CHANDAK, J.
DATED : 08th MAY, 2025
JUDGMENT :-
. The aforesaid cross-objection is filed by Respondent No.1 ("Original Claimant") impugning the Judgment and Award dated 04/04/2009, in M.A.C.P. No.55 of 2005 ("claim"), passed by the learned Member, Motor Accident Claims Tribunal, Kalyan, thereby Respondent No.2 and the Appellant ("Original Opponent Nos.1 and 1/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc 2") held jointly and severally liable to pay the claimant a sum of Rs.14,20,732/- including no fault liability amount alongwith 9% interest per annum from the date of the claim, i.e., 10/02/2005 till realization of the amount.
1.1) The Cross-objection preferred by the claimant is founded on the premise that 'just compensation' is not awarded by the Tribunal.
2) Record indicates that, the aforesaid Appeal was admitted on 10/08/2009. Thereafter, Respondent Nos.1 to 3 were served. By an Order dated 29/07/2022, the Appeal was adjourned to 12/08/2022 for final hearing as a final opportunity to the Appellant. However, none appeared for the Appellant. By an Order dated 03/01/2024, Ms. Poonam Mital, the learned Advocate on the panel of the Appellant/Insurance Company was requested to appear in the matter and at her requests, the matter was adjourned to 15/01/2024. Thereafter, the matter was listed and notified for hearing from time to time. However, none appeared for the Appellant/Insurer. Therefore, the Appeal was dismissed for want of prosecution by an Order dated 18/01/2024.
2.1) The cross-objection was also listed and notified for hearing from time to time, yet, there was no representation for the Appellant/Insurer.
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Manoj 906-XOB(ST)-22161-2009.doc 3) Hence, heard Ms. Sonawane, the learned Advocate for
Respondent No.1/Original Claimant. Perused the record.
4) Facts in brief are that, the claimant was employed as a driver with the MSRTC. On 25/06/2000, at about 10:45 a.m., the claimant was driving ST bus No. MH20A-4807 during the course of his employment, from Bhimashankar to Kalyan. When the bus was passing from Dingore village Dattawadi, on Nagar Kalyan Road, a motor tempo bearing No.MH14O-5805 ("tempo") came from opposite side driven in a rash and negligent manner and dashed the bus. As a result, the claimant suffered grievous injuries. On receiving the report of the accident, it was registered with Otur Police Station under Sections 279, 337, 338 and 427 of I.P.C. and 184 of the Motor Vehicles Act, 1988 against Respondent No.3, who was driving the tempo.
5) The claimant was medically treated but the accidental injuries caused him 70% permanent partial disabilities. The claimant was aged 45 years and getting monthly salary income of Rs.7,836/-. He was removed from the service on account of the disability. Therefore, the claimant filed the said claim seeking compensation of Rs.15,00,000/- from Respondent Nos.2, 3 and the Appellant, who were the owner, driver and insurer of the tempo, respectively.
6) Respondent No.2 and 3 resisted the claim filing their 3/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc
Written Statement (at Exhs.35 & 36) therein it was admitted that, Respondent No.2 was owner of the tempo and it was insured with the Appellant. However, they contended that, as the claimant was an employee of the MSRTC, he shall claim the compensation from his employer.
7) The Appellant resisted the claim by entering the Written Statement (Exh.25). The Appellant did not admit and specifically denied each and every material allegation and averment etc., made in the claim. The Appellant contended that the accident occurred due to absolute negligence on the part of the claimant. In the alternative, it was contended that the accident was inevitable. Therefore, the Appellant was not responsible to pay the compensation.
8) To prove the claim, the claimant adduced his evidence on affidavit (PW1/Exh.42). Additionally, the claimant examined Dr. Shrikrishna Sitaram Dhone (PW2/Exh.48) to prove the disability, Satish Padmakar Wani (PW3/Exh.59) to prove the last drawn income and Mr. Uttam Panditrao Wipar (PW4/65), the contemporary driver, to prove the probable future prospects. Besides, the claimant relied upon various documents in evidence.
9) On the issue of the accident, the claimant, in his evidence on Affidavit, categorically stated that, at the time and place of the accident, the tempo came from the opposite direction, i.e., from 4/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc Kalyan side. The tempo was driven in a rash and negligent manner and at a high speed. Therefore, the tempo dashed to the bus. As a result, the bus suffered huge damage. Therefore, police registered C.R.No. 47 of 2000 against Respondent No.3 and charge-sheeted him before the Court of Judicial Magistrate First Class at Junnar, bearing C.C.No.349 of 2000. This evidence is supported by the F.I.R. and the Spot Panchnama. No evidence is adduced in the rebuttal by the Appellant, Respondent Nos.2 and 3. This led the Tribunal to record a finding that the accident occurred due to rash and negligent driving of the tempo. There is nothing on record to take an exception to this finding, therefore, I am in agreement with the said finding.
10) The claimant's evidence is that he had sustained following injuries due to the accident : a) CLW on right cheek, b) CLW to nostrils, c) CLW to right knee bone deep and d) movements of Patella were restricted. This evidence is supported by the Discharge Card (at Exh.56) and medical history (at Exh.51). Said oral and documentary evidence remained unaffected in the cross-examination. Hence, I accept the injuries.
11) The evidence of the claimant and AW2-Dr. Dhone coupled with the Disability Certificate (Exh.58) show that on 15/07/2005, AW2 examined the claimant and found that, due to the accidental injuries, the claimant has suffered permanent impairing of the power 5/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc of right knee joint, facial paralysis - right side, permanent disfigurement of the face and defect in the vision of right eye. AW2 deposed that thus, the claimant has suffered 70% permanent partial disability and accordingly, he issued the Disability Certificate. This oral and documentary evidence did not shatter in the cross- examination. Therefore, I am in agreement with finding recorded by the Tribunal that the claimant has suffered the disabilities as above.
12) The evidence of the claimant is that he could not work as a driver for about two years due to the accidental injuries and the disability. Therefore, he had to take medical leave and earned leave for about two years. At the time of the accident, he was drawing a monthly salary of Rs.7,836/-. Thus, there was loss of the income of Rs.1,88,064/- on account of availing the leave for about 24 months. His evidence is that during the said period of two years, he did not get regular salary increment, DA and other allowances. Thus, the total loss of the income was Rs.2,00,000/-, approximately. 12.1) However, there is no documentary evidence to show that sufficient medical and earned leave were to the credit of the claimant and he was on leave for two years. In fact, no leave record has been produced to substantiate the claim that the claimant suffered the loss of the income of Rs.1,88,064/- on account of utilising the leave for about two years. There is no evidence to show that as the claimant 6/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc was on two years' leave, he was not given the salary increment, DA and other allowances. On the contrary, the evidence of AW4 indicates that after the accident, the claimant was under suspension, however, he was paid salary during the suspension period. Since, the claimant did not produce the relevant leave record, adverse inference is permissible here. Therefore, it is difficult to hold that the claimant has suffered the loss of the actual income of Rs.2,00,000/- from the date of the accident till his termination of service w.e.f. 28/11/2002.
13) The evidence of the claimant is that on account of the disability he has been terminated from the service with effect from 28/11/2002. This claim is corroborated with the evidence of AW3, medically unfit certificate (Exh.64) and service book entry alongwith the termination order (Exh.63 colly.). As such, there is 100% loss of the salary income on account of accidental injuries and consequent disability.
14) The claimant's evidence that at the time of the accident he was drawing monthly salary of Rs.7,836/- is not challenged in the cross-examination. The evidence of the claimant and AW3 coupled with the salary certificate (Exh.61) proved that at the time of his termination in November 2002, his monthly salary was Rs.8,947/-. 14.1) The date of birth of the claimant is 18/06/1956, so, he was aged 44 years on the date of accident, i.e., 26/06/2000 and more 7/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc than 46 years of age on the date of his termination from service. The evidence of the claimant is that his age of retirement from the service was 58 years. Thus, there was loss of more than 11 years' income from the service and the pensionary benefits. His evidence is that, considering the future prospects, his average monthly salary would have been Rs.15,000/-. Accordingly, he has suffered loss of the income of Rs.1,80,000/- per annum. In support of this evidence, AW4 deposed that he was serving as a driver with the MSRTC for last 25 years. He joined the service in the year 1979. There is difference of 2 to 4 months in the joining of himself and the claimant. AW4 deposed that on the date of his evidence, i.e., 23.04.2008, he was drawing monthly salary of Rs.13,500/-. In the month of February 2008 the total payable monthly salary of AW4 was Rs.13,216/- and in March 2008, it was 12,396/- (Vide salary slips Exhs.67 & 68). Thus, the evidence of the claimant as to his average monthly income due to the future prospects is corroborated to some extent with the salary slips and the evidence of AW4.
14.2) However, the actual loss of the salary income was suffered by the claimant w.e.f. his termination on 28/11/2002. At that time his monthly salary was Rs.8,947/-, which was annually Rs.1,07,364/-. The claimant was aged 46 years. Therefore, the Tribunal awarded Rs.13,95,732/- (8947 x 12 x 13) towards the loss of the income on 8/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc account of the removal from the service. Admittedly, the claimant was in the permanent service. However, the Tribunal did not consider and add the future prospects. In accordance with the decision in Sarla Verma and others Vs. Delhi Transport Corporation and another 1 and National Insurance Co. Ltd. Vs. Pranay Sethi and Others2, 30% of the proved net annual income should be added towards the future prospects. On such addition, the actual net yearly income would be Rs.1,39,573/-. The Applicable multiplier is '13'. There has been 100% loss of the future income on account of the disability. Therefore, the claimant is entitled to get Rs.18,14,452/- towards the loss of the future income/income capacity.
15) The Tribunal awarded Rs.5,000/- for 'special diet' and Rs.10,000/- for 'attendance charges', which I hold reasonable, in the facts of the case.
16) Additionally the Tribunal awarded Rs.10,000/- for pain and suffering, but considering the injuries of the claimant, the disability it caused and that the claimant has to bear the disability for entire life, in my considered view, he deserves to get Rs.40,000/-. 16.1) Looking at the disability suffered by the claimant to his leg and the vision, it is safe to infer that he must have lost enjoyment of the life to some extent, therefore, he deserves to get some award
1. 2009 ACJ 1298 (SC)
2. 2017 ACJ 2700 (SC) 9/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 ::: Manoj 906-XOB(ST)-22161-2009.doc under this head, but no compensation has been awarded for the same by the Tribunal. Therefore, and considering the said disability, I deem it appropriate to award Rs.60,000/-.
17) Thus the claimant is entitled to receive the enhanced amount of award as under :
Total compensation amount : Rs.19,29,452 /-
Minus the compensation amount : - Rs.14,20,732/-
awarded by the Tribunal and paid. -------------------
Enhanced compensation amount : = Rs. 5,08,720/-
-------------------
18) Conspectus of the above discussion is that the Tribunal
rightly held that the 70% permanent partial disability resulted in the loss of the service and 100% loss of the income. However, the Tribunal did not compensate for the loss of the future income. Similarly, the Tribunal did not award adequate amount for 'pain and suffering' nor conceived and awarded any compensation for the 'loss of enjoyment of the life' due to the disability. Said infirmity, therefore, warranted an interference with the impugned Judgment and Award to enhance the compensation, accordingly. Thus, the Cross-objection partly succeeds.
19) Hence, following Order is passed :-
(i) The Cross-Objection is partly allowed with
proportionate costs.
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(ii) The impugned Judgment and Award dated
04/04/2009, in M.A.C.P. No.55 of 2005 ("claim"), passed by the learned Member, Motor Accident Claims Tribunal, Kalyan, is modified.
(iii) In addition to the amount of Rs.14,20,732/-
(inclusive of NFL amount) together with interest thereon at the rate of 9% p.a. from the date of the Claim Petition awarded by the Tribunal, the Appellant and Respondent No.2 shall jointly and severally pay the enhanced compensation of Rs.5,08,720/- together with interest thereon at the rate of 7.50 % per annum from the date of the Claim Petition till realisation of the amount.
(iv) The Appellant and Respondent No.2 are directed to comply with this Judgment and Order within a period of four months from today, by depositing the amount in the Tribunal.
(v) On deposit of the amount the Tribunal shall immediately inform about the deposit to Respondent No.1/claimant.
(vi) The deposited amount shall be paid to the claimant, subject to payment of a deficit Court fee, if any.
(vii) Appellant/Insurance Company will be entitled to the adjustment of the amount against the already paid under the impugned Award.
PREETI HEERO JAYANI (SHYAM C. CHANDAK, J.) Digitally signed by PREETI HEERO JAYANI Date: 2025.05.13 16:20:04 +0530 11/11 ::: Uploaded on - 13/05/2025 ::: Downloaded on - 17/05/2025 07:50:25 :::