Bhimraj Annasaheb Deshmukh v. Shriniwas Laxminarayan Bihani And ANR

2024:BHC-AUG:25118 {1} drp

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD FIRST APPEAL NO.4350 OF 2017 Bhimraj Annasaheb Deshmukh APPELLANT Age - 40 years, Occ - Vegetable Seller R/o Chitale Station, Taluka - Rahata Now at Ramgad, Taluka - Shrirampur District - Ahmednagar

VERSUS

1.

Shriniwas Laxminarayan Bihani RESPONDENTS Age -55 years, Occ - Business R/o Om Chemicals Behind Samrat Lodge, Main Road, Shrirampur District - Ahmednagar 2.

The New India Insurance Co. Ltd., 3rd Floor, Rushiraj Regency, Near Vidya Vikas Circle Nashik .......

Mr. Vinayak S. Bedre, Advocate for the appellants Mr. Mohit R. Deshmukh, Advocate for respondent No.2 .......

[CORAM : NITIN B. SURYAWANSHI, J.] DATE : 17 th OCTOBER, 2024 JUDGMENT :

1.

Heard.

2.

Admit.

3.

Heard finally with the consent of learned advocates for the appearing parties.

4.

By this appeal, filed under section 173 of the Motor Vehicles Act, the appellant - claimant challenges Judgment and

{2} Award dated 22nd February, 2017 passed by learned Member, Motor Accident Claims Tribunal, Shrirampur in MACP No. 215 of 2015 and seeks enhancement of compensation.

5.

Facts, in nutshell, can be stated thus - On 7th April, 2015 at about 11.00 a.m., appellant was proceeding on his bicycle from Chitali to Shrirampur and when he reached near village Nimgaon Khairi, tanker No. MH-17/T-8231 came from Nimgaon Khairi side and gave dash to the bicycle of the appellant from behind. In the accident, appellant sustained grievous injuries to his right hand and right leg. He was shifted to Sakhar Kamgar Hospital, Shrirampur. Police registered Crime No. I-53 of 2015 against the driver of the offending tanker. Appellant filed claim contending that he was a vegetable seller and was earning Rs.10,000/- per month. Due to the injuries sustained in the accident, he is unable to carry out his vegetable selling business and he, therefore, claimed compensation of Rs.7,00,000/- Opponent No.1 - owner of the offending tanker, opposed the claim, by filing written statement, contending that the driver of the offending tanker was holding valid and effective driving licence and the tanker was insured with opponent No.2.

{3} Opponent No.2 - Insurer, opposed the claim by filing written statement, contending that there is non compliance of mandatory provision of sections 134 (c) and 156 (8) of the Motor Vehicles Act and the accident has taken place due to the negligence of the appellant. Breach of conditions of the insurance policy was also claimed.

The Tribunal, after recording evidence, partly allowed the claim and directed the respondents - opponents to jointly and severally pay compensation of Rs.2,72,000/- along with 8% interest p.a. The appellant - claimant is aggrieved by the inadequate compensation awarded by the Tribunal. 6.

Heard learned advocate for the appellant and learned advocate for respondent No. 2- insurer. None appeares for respondent No.1, though served. Perused the record. 7.

The Tribunal has assessed notional income of the appellant at Rs.3,000/- per month. It is not in dispute that the appellant is a vegetable seller. Learned advocate for the appellant has placed reliance on "Sayed Sadiq Etc V/s Divisional Manager, United India Insurance Company" 2014 (2) SCC 735, In the said case, claimant had suffered injury in the accident occurred in 2008 and he was a vegetable vendor (same like that of the present appellant). The Apex Court, has assessed his notional

{4} income at Rs.6,500/- per month, holding that he was not expected to produce documents to prove his monthly income and it would be reasonable to take his earning at Rs.6,500/- per month. The Apex Court also awarded future prospects to the claimant.

8.

Appellant in the present matter is similarly situated. Indeed, in the case in hand, the Tribunal has erred in assessing notional income of the appellant at Rs.3,000/- per month, which in the light of the aforesaid rulling needs to be taken at Rs.6,500/- per month. The Tribunal has failed to add component of future prospects in the income of the appellant, while awarding compensation, which is payable to the claimant in the light of the decisions in Sayed Sadiq (supra), "T. J. Parameshwarappa @ Parameshwarappa @ J. T. Parmeshwarappa @ Talakena Godra Parameshwarapp V/s Branch Manager, New India Assurance Company Limited and Others" 2022 (11) JT 378 and "Sidram V/s Divisional Manager, United India Insurance Company Limited and Another" (2023) 3 SCC 439.

9.

In the case in hand, though as per the evidence of PW-2 Dr. Bhagwat Gangadhar Murade, appellant has suffered 60% permanent disability, the Tribunal has assessed functional

{5} disability of appellant at 30%, rightly so.

10.

In view of aforesaid, the appellant is entitled for following compensation.

S. N. Particulars Compensation Notional income Rs.6,500/- Addition of Future prospects @ 25 % Rs.1,625/- Monthly income after addition future prospects Rs.8,125/- Annual Income (8125 X 12) Rs. 97,500/- Functional disability 30 % (loss of income) (97500 X 30%) Rs.29,250/- Multiplier of 14 (29,250 X 14) Pecuniary loss Rs.4,09,500/- Medical Bills Rs.1,00,800/- Non Pecuniary Loss Rs.33,800/- Total Rs.5,44,100/- Compensation granted by the Tribunal Rs.2,72,000/- Enhanced compensation Rs.2,72,100/- 11.

For the aforestated reasons, following order:

ORDER

A.

First Appeal is partly allowed with proportionate costs. B.

Impugned Judgment and Award dated 22nd February, 2017 passed by learned Member, Motor Accident Claims Tribunal, Shrirampur in MACP No. 215 of 2015 is modified by holding that the appellant - claimant is held entitled for enhanced compensation of Rs.2,72,100/- along with interest @ 8 % p.a. Rest of the Award is maintained. [NITIN B. SURYAWANSHI] JUDGE drp/FA4350-17.doc