Back
2017 Supreme(Bom) 2133
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Mahavir Sampat Keskar - Appellant
Versus
Suresh Krishnaji Deshpande & Ors. - Respondents
First Appeal No. 493 of 2013
Decided On : 09-06-2017
For the Appellant :Mr. D.W. Bhosale, Advocate.
For the Respondent:Mr. Ketan V. Joshi, Advocate, Mrs. Sucheta D. Ghaisas, i/b S.S. Jinsiwale, Advocates.
Headnote:Motor Vehicles Act, 1988 - Section 166-Claim of compensation.-Where amputation of right leg of claimant employed as arrear resulted in loss of his ability to work as driver therefore his functional disability is 100%.
It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%) the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation.
This is, therefore, the settled law on the subject. The view of the single Judge taking the disability therefore at only 80% is difficult to sustain. There is a functional disability of 100% and that is the only way in which the matter could have been approached.
Motor Vehicles Act, 1988 - Section 168-Claim of compensation.-Since claimant employed as a driver, lost his leg in accident hence Rs. 5 lacs awarded as non-pecuniary damages.
The amount of Rs. 1,50,000/- seems to Court to be altogether too low. An amount should have been considered towards pain and suffering. A separate assessment ought to have been made for loss of amenities, and loss of marital prospects. There is also the question of loss of expectation of life in the sense that a disabled person might suffer far greater health issues than one who is otherwise in possession of all faculties unimpaired. Here again the same principles of just compensation must apply. Taking all these factors into account, Court award an amount of Rs. 5,00,000/- as non-pecuniary damages. It may not be necessary or advisable these into break into individual components.
Motor Vehicles Act, 1988 - Section 168-Just compensation.-Where claimant, a driver lost his leg in accident therefore even in absence of any evidence on to his salary, his salary any to be taken of Rs. 5000/- p.m. in year, 2008.
There is no basis for that. In fact, Neerupam Mohan Mathur says so in terms and in paragraph 5, the Supreme Court had before it a similar case of a permanent disability though of the right hand. The High Court took the loss of earning capacity to 70% but while doing this the Supreme Court confirmed the view taken by the High Court that there could be no deduction towards self expenses.
G.S. PATEL, J.
1. Admit.
2. By consent, taken up for hearing and final disposal on the basis of the papers on record in the Appeal paper-book and annexed to the Civil Application.
3. The Appeal is directed against an order and judgment dated 29th June 2011 of the Motor Accident Claims Tribunal, Pandharpur. The Appellant ("Keskar") is the original Applicant. In this appeal, he seeks enhancement of the compensation awarded. There were two individuals arrayed as Opponents Nos. 1 and 3 to the claim. Opponents Nos. 2 and 4 were, respectively, the insurers of Opponents Nos. 1 and 3.
4. This is how the matter arises. Opponent No. 1 ("Deshpande") owned a Premier Padmini No. MH-21-B-0074. This was insured with the United Insurance Co Ltd, Opponent No. 2. Opponent No. 3 ("Lokare") owned an Escort Tractor No. MH- 13-J-8695, and this was insured with the Oriental Insurance Co Ltd, Opponent No. 4.
5. On 17th January 2008 at about 10.00 a.m. Keskar, the Applicant, was travelling from Keskarwadi to Bhalvani, Taluka Pandharpur on a motorcycle. Keskar was driving the motorcycle. His friend Rameshwar Chavan ("Chavan") was riding pillion. Keskar claimed he was riding along at a moderate speed, obeying all traffic rules. As they reached the Chandrabhaga Sugar Factory, a tractor with two trailers loaded with sugar cane was approaching from the opposite direction. At the same time, a Premier Padmini motor car, owned by Deshpande, attempted to overtake the tractor. This means that the Padmini and the tractor were both on the same side of the road, and both were in an oncoming direction, i.e., toward Keskar's motorcycle. As a result of the Padmini's overtaking manoeuvre, it collided with Keskar's motorcycle and knocked both down. The tractor could not stop in time. It ran over Keskar's right leg, fracturing it. Keskar's friend and fellow traveller Chavan was also injured in his right knee.
6. Keskar's claim was that the accident was due to the rash driving and negligence of both drivers, i.e., Deshpande driving Premier Padmini, and Lokare was driving the tractor. A crime bearing No. 12/08 was registered by the police, but only against Deshpande, the driver of the Premier Padmini.
7. Keskar was taken to the Sub-District Hospital, Pandharpur. Later that day, he was shifted to Ashwini Sahakari Rugnalaya and Research Center at Solapur. He was hospitalized for 20 to 30 days. His leg had to be operated. Ultimately it was amputated above the knee. Keskar incurred medical expenses of Rs. 2,25,000/- for this surgery and procedure. At the time of the claim, he said he was still undergoing treatment. He also made a claim for mental agony and distress.
8. At the relevant time, Keskar was employed as a driver by one Rajaram Mane ("Mane"). Keskar claimed that his salary was Rs 4,000/-, excluding allowances. He also said that it was his ambition to one day own and ply his own vehicle. The disability resulting from this accident rendered him not only jobless but permanently disabled and unable to work or take employment as a driver. Initially, Keskar claimed compensation of Rs. 8,15,000/-. Before the Tribunal he restricted his claim to Rs. 5 lakhs. Deshpande filed his Written Statement at Exhibit 28. He claimed that at the time of the accident it was not Keskar but Chavan who was driving the motorcycle and Keskar was riding pillion. Deshpande said that the tractor in question, being driven by Lokare, abruptly and without warning turned to the right. Keskar's friend Chavan collided with the tractor and both Keskar and Chavan fell. This was when, according to Deshpande, the collision with his Premier Padmini occurred. Deshpande's claim was that the accident and injury were, therefore, the result of Keskar's or, at any rate, his friend Chavan's negligence. He, therefore, said neither he nor his insurer was liable to pay any amount.
9. Deshpande's insurer, the United India Insurance Co Ltd, Opponent No. 2, also filed Written Statement at Exhibit 20. It denied the injur
