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2019 Supreme(Bom) 1053
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
Vibha Kankanwadi, J.
Girdhar Brijmohan Maru – Appellant
Versus
Vimal Lalchand Mutha – Respondent
First Appeal No. 155 of 2017
Decided On : 26-06-2019
Mukul Kulkarni, Adv., R.G. Totla, Adv., M.M. Ambhore, Adv.
Headnote:
Motor accident – Claim compensation - Claimant has contended that he along with his family members were proceeding in Tempo - One was driver of said vehicle - When that vehicle reached Highway a truck came from opposite direction in high speed and was overtaking another vehicle which was going ahead of it - In that process due to negligence of said truck driver said truck dashed jeep - As a result of which, claimant had sustained injuries - Upon investigation it was found that he had sustained fracture to his right femur - It is stated that 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 - Since he has sustained permanent disability due to negligence on the part of respondent he has claimed compensation - Petition proceeded ex parte against respondent, owner of truck - Respondent is the insurance company of the truck - Company had resisted claim by filing written statement - It had denied age, occupation, income and fact that truck driver was negligent in driving in which accident had taken place as pleaded in petition - Respondent was owner of Tempo from which claimant and his family members were travelling. Respondent is insurance company with whom the tempo was insured - Respondent failed to file written statement but the respondent by filing written statement denied liability to pay compensation and it was contended that accident had taken place due to the sole negligent on part of truck driver - Whether learned Tribunal has assessed quantum of compensation properly, if not, then what would be the just compensation – Held, 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 per annum - His average monthly income would be certain sum - He would have taken rest - Taking into consideration fact that he had undergone two operations for about 6 months and therefore under head of loss of income he would get amount - Certificate is given by one that for removal of implant he may require amount - As per the deposit of the claimant when he says that he has received that much amount only - Taking into consideration said reasons it is held that learned Member, MACT was not justified in giving a lump sum amount without any base as compensation - Bifurcations ought to have been given in clear words - Learned Advocate appearing for appellant has submitted that interest has been awarded @ 7.5 % per annum, which is on the lower side - Definitely, taking into consideration fact that petition was filed in the year and it was decided - Learned Member, MACT ought to have granted interest @ 9% per annum - For the reasons stated above point is answered accordingly - Appeal is hereby partly allowed.
JUDGMENT :
Vibha Kankanwadi, J.
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 Claimed 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/K-150 on 07.02.1999. One Anil Shewale was the driver of the said vehicle. When that vehicle reached near Shani mandir, Purmepada on Mumbai-Agra 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.1-the 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
