(Presided over by Shri.S.D.Mohod ... - court.mah.nic.incourt.mah.nic.in/courtweb/orders/thadcis/orders/201201003462004_1.… · MOTOR ACCIDENT CLAIM PETITION NO. 346/2004 1. ... of

BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,AT THANE (Presided over by Shri.S.D.Mohod,Chairman,M.A.C.T. Thane)

PRESENTED ON : 30/04/2004 REGISTERED ON : 30/04/2004 DECIDED ON : 13/09/2010 DURATION :Y. M. D.

6 - 4 - 14

MOTOR ACCIDENT CLAIM PETITION NO. 346/2004

1. Shri. Mahajya Lahanu Gimbhal,Aged about 45 years,(Father of the deceased)

2. Smt.Tulsi Mahajya Gimbhal,Aged about 40 years,(Mother of the deceased)

Both are residing at : Dabhalon,Post: Sakharshet, Khalich Mal,Tal. Jawhar, District : Thane. .... Applicants.

V/s.

1. Shri.Nitinkumar Kantilal Rawal,Residing at : 197, Padma Nagar,New Kaneri, Bhiwandi, District:Thane.(Owner of the M/Truck No.MH-04/P-9495)

2. The United India Insurance Co.Ltd.Thane Divisional Office,

Shelar Building, Gokhale Road,Naupada, Thane.(Insurer of the M/Tempo No.MH-04/P-9495)Policy No. 121403/31/03/00831,Validity Period : 23/07/2003 to 22/07/2004. ... Opponents.

W I T H


Shri. Suresh Janya Pagi,Aged about 18 years,Occupation : Labourer,Residing at : Dabhalon, Post: Sakharshet, Khalich Mal,Taluka: Jawhar, District : Thane. ... Applicant.

V/s.


2. The United India Insurance Co.Ltd.Thane Divisional Office,Shelar Building, Gokhale Road,Naupada, Thane.(Insurer of the M/Tempo No.MH-04/P-9495)Policy No. 121403/31/03/00831,Validity Period : 23/07/2003 to 22/07/2004. ... Opponents.

W I T H


Shri. Vishnu Laxman Gimbhal,Aged about 20 years,Occupation : Labourer,Residing at : Dabhalon, Post: Sakharshet, Khalich Mal,Taluka: Jawhar, District : Thane. ... Applicant.

V/s.



A L O N G W I T H


Shri. Shivaji Dharma Gotarna,Aged about 21 years,

Occupation : Labourer,Residing at : Dabhalon, Post: Sakharshet, Khalich Mal,Taluka: Jawhar, District : Thane. ... Applicant.

V/s.



--------------------------------------

Claims U/Sec. 166 of the

The Motor Vehicles Act,1988.

--------------------------------------

---------------------------------------------

Shri.J.P.Gadiya Adv.for Claimants.

Opponent No.1- Exparte .

Shri.K.V.Poojari, Adv. for

Respondent no.2

---------------------------------------------

: C O M M O N J U D G M E N T :

(Delivered on this 13th day of September, 2010)

1] M.A.C.P.No. 346/2004 is by the parents of deceased Ladak

Mohajya Gimbhal against truck owner and insurer of it, U/Sec. 166 of the

Motor Vehicles Act, 1988.

M.A.C.P.No. 347/2004 is by injured Suresh Janya Pagi against

very truck owner and insurer of it U/Sec. 166 of the Motor Vehicles Act,

1988.

M.A.C.P.No. 348/2004 is by injured Vishnu Laxman Gimbhal

against the same truck owner and insurer company of it, U/Sec. 166 of the


M.A.C.P.No. 349/2004 is by injured Shivaji Dharma Gotarna

against very truck owner and insurer of it U/Sec. 166 of the Motor

Vehicles Act, 1988.

Since all the four claims arose out of one and the same

vehicular accident , those are being disposed off by this common judgment.

2] A few facts are that on 30/10/2003 Ladak son of Mohajya

Gimbhal, aged about 22 years, labourer by occupation ; Suresh Janya Pagi

,aged about 18 years, labourer by occupation ; Vishnu Laxman Gimbhal,

aged about 20 years, labourer by occupation, and Shivaji Dharma Gotarna,

aged about 21 years, labourer by occupation ; all residents of Dabhalon,

Post- Sakharshet, Khalicha Mal, Taluka- Jawhar, District- Thane, along

with others boarded truck bearing registration No. MH-04/P-9495, (for

short truck) at Charoti Naka, Taluka- Dahanu, District-Thane, on

Ahmedabad - Mumbai Highway, bound for Mumbai City.

3] Around 13.30 hours when truck was moving within the limits

of village Kude and within the jurisdiction of Manor Police Station, District

-Thane , it is alleged that because of driving it at high and excessive speed

and in rash and negligent manner by the driver of it, front cleaner side of it

burst and truck over turned. Ladak Mohajya Gimbhal suffered amongst

other injuries, head injury and breathed his last on the spot itself. Autopsy

on dead body of Ladak Mohajya Gimbhal was conducted at P.H.C. Manor.

4] Suresh Janya Pagi received injury to his left leg, left lumber

and left shoulder, Vishnu Laxman Gimbhal suffered amongst other

injuries fracture upper 1/3 humerus left and Shivaji Dharma Gotarna

sustained amongst other injuries fracture upper third humerus shaft , and all

of them were rushed to Bhagwati Hospital, Borivali, Mumbai, for getting

medically examined and treated.

5] Attributing negligence to truck driver as pointed out earlier,

parents of Ladak Mohajya Gimbhal have brought M.A.C.P.No. 346/2004,

against truck owner and insurer of it claiming compensation of

Rs.2,00,000/- with interest from the date of institution of petition till

realization of the same , in full, under different heads and on various

scores.

6] Ascribing negligence to truck driver , injured Suresh Janya

Pagi has instituted M.A.C.P.No.347/2004 against very truck owner and

insurance company of it claiming compensation of Rs.1,00,000/- with

interest from the date of filing of the petition till realization of the same ,

in full, under different heads and on various scores.

7] Alleging negligence to truck driver, injured Vishnu Laxman

Gimbhal has filed M.A.C.P. No.348/2004 against very truck owner and

insurance company of it claiming compensation of Rs.1,00,000/- with


in full, on different scores and under various counts.

8] Imputing negligence to truck driver, injured Shivaji Dharma

Gotarna has brought M.A.C.P. No. 349/2004 against very truck owner

and insurance company of it claiming compensation of Rs.1,00,000/- with


in full, under different heads and on various scores.

9] Truck owner, who is incidentally impleaded as party-

respondent no.1, in all the four claims, inspite of service with notice of

these petitions, since choose to remain away , he is set ex-parte.

10] Respondent no.2, The United India Insurance Company Ltd.

has filed Written Statement in M.A.C.P.No.346/2004 at Exh.19, in

M.A.C.P. No.347/2004 at Exh.21 , in M.A.C.P.No.348/2004 at Exh. 20

and in M.A.C.P. No.349/2004 at Exh.21, and resisted all the petitions.

11] Common stand of The United India Insurance Company Ltd. ,

in all the claim petitions is that deceased Ladak Mohajya Gimbhal , injured

Suresh Janya Pagi, Vishnu Laxman Gimbhal and Shivaji Dharma Gotarna ,

at the relevant time along with others, were travelling in a truck as

passengers, without permit to that effect, in a truck Goods Vehicle, and

therefore, it being breach of terms and conditions of policy, on the part of

truck owner/insured , it as insurer of a truck can not at all be fastened with

the liability in any of the claims. The respondent no.2 / The United India

Insurance Co.Ltd., thus, on all these contentions have sought dismissal of

all the four claim petitions with it's costs.

12] In M.A.C.P. No. 346/2004 Shri.B.P.Patil, learned Member of

this Tribunal framed following issues at Exh.22 and my findings thereon

for the reasons to follow are as under :

ISSUES FINDINGS

1) Do the claimants prove that deceasedLadak Mohajya Gimbhal died in the Motor vehicle accident took place on 30/10/2003 at 1.30 p.m. near K.M.Stone no.252/2 on Mumbai-AhmedabadHighway within the precinct of villageKude due to rash and negligent act of driving of truck bearing no.MH-04/P-9495 by its driver ? Yes.

2) Are the claimants entitled to Rs.1,63,000/- with compensation ? If yes, to what 7 % p.a. interest extent and from whom ? from respondent

no.1 only.

3) What order and award ? As per the order passed herein after.

13] In M.A.C.P.No.347/2004 Shri.B.P.Patil, learned Member of



ISSUES FINDINGS

1) Does the claimant prove that he sustained permanent disability/

grievous injuries in a motor vehicle accident dt. 30/10/2003 at about 13.30 hours on Mumbai-Ahmedabadhighway road, near Kilo meter stoneno.252/2 within the precinct of Kudevillage, due to rash and negligent driving of a truck bearing registrationno. MH-04/P-9495 owned by the opponent no.1 ? Yes.

2) Is the claimant entitled to the Rs.51,000/- withcompensation ? If yes, to what 7 % p.a. interest extent and from whom ? from respondent

no.1 only.





ISSUES FINDINGS

1) Does the claimant prove that he sustained permanent disability/grievous injuries in a motor vehicle accident dt. 30/10/2003 at about 13.30 hours on Mumbai-Ahmedabadhighway road, near Kilo meter stoneno.252/2 within the precinct of Kude

village, due to rash and negligent driving of a truck bearing registrationno. MH-04/P-9495 owned by the opponent no.1 ? Yes.

2) Is the claimant entitled to the Rs.72,000/- withcompensation ? If yes, to what 7 % p.a. interest extent and from whom ? from respondent

no.1 only.





ISSUES FINDINGS

1) Does the claimant prove that he sustained permanent disability/grievous injuries in a motor vehicle accident dt. 30/10/2003 at about 13.30 hours on Mumbai-Ahmedabadhighway road, near Kilo meter stoneno.252/2 within the precinct of Kudevillage, due to rash and negligent driving of a truck bearing registrationno. MH-04/P-9495 owned by the opponent no.1 ? Yes.

2) Is the claimant entitled to the Rs.74,000/- with

compensation ? If yes, to what 7 % p.a. interest extent and from whom ? from respondent

no.1 only.


: R E A S O N S :

ISSUE NO.1 :

(Common and identical in all petitions Nos. 346/2004 to 349/2004)

16] Accident, it's day, date , place and time is not at all in dispute ,

here. Similarly, it is no more in dispute that the accident took place

involving truck, in which, Ladak Mohajya Gimbhal, in M.A.C.P.

No.346/2004 suffered amongst other injuries, head injury and died of

shock, due to injury to his cerebral i.e. brain matter and cerebral

haemorrhage, on the spot itself.

17] Likewise, it is no more in dispute that claimant Suresh Janya

Pagi in M.A.C.P. No.347/2004, suffered injuries to his left leg, left lumber

and left shoulder , besides other injuries, claimant Vishnu Laxman Gimbhal

in M.A.C.P. No. 348/2004 received injuries to his left hand, left leg and on

neck, and claimant Shivaji Dharma Gotarna in M.A.C.P.No.349/2004

sustained amongst other injuries , fracture upper third humerus shaft and

were rushed in an injured state, soon after the accident, to Bhagwati

Hospital, Borivali, where they were treated as in- patients.

18] Negligence on the part of truck driver is sought to be

established by claimant no.1 Mohajya Lanahnu Gimbhal in M.A.C.P. No.

346/2004 , stepping into witness box as P.W.1 at Exh.37 and by pressing

into service certified copy of complaint by Goma Rupji Varkhande of

village Vadavali, Taluka- Talasari, to police station Manor and

panchanama of accident spot which came to be marked as Exh.38 & 39

respectively. In M.A.C.P.No. 347/2004, injured claimant Suresh Janya

Pagi getting into witness box as P.W.1 at Exh.30 ; in M.A.C.P. No.

348/2004 , injured claimant Vishnu Laxman Gimbhal by entering into

witness box as P.W.1 at Exh.29 and in M.A.C.P.No. 349/2004 injured

claimant Shivaji Dharma Gotarna by entering into witness box as P.W.1 at

Exh. 32, have sought to prove negligence of truck driver.

19] Claimant no.1- Mohajya Gimbhal examined as P.W.1 at

Exh.37 in M.A.C.P.No.346/2004 since was not admittedly at the accident

spot his evidence is of no consequence to establish negligence, on the part

of truck driver.

20] Ocular account of accident given by injured claimant-Suresh

Janya Pagi as P.W.1 at Exh.30 in M.A.C.P.No.347/2004, injured claimant-

Vishnu Laxman Gimbhal as P.W.1 at Exh.29 in M.A.C.P.No.348/2004, and

Shivaji Dharma Gotarna as P.W.1 at Exh.32 in M.A.C.P.No.349/2004, is

that accident took place on bursting of front tyre of the truck and then truck

turning turtle, which is found to be consistent with complaint Exh.37, spot

panchanama Exh. 38 and spot panchanama Exh.39 in M.A.C.P.No.

346/2004. Truck turning turtle after bursting of its front cleaner side tyre,

itself is the pointer of the fact that truck driver was not vigilant and

cautious to see whether tyres of the truck were roadworthy and then taking

care in driving it to see that no untoward incident occurs, allowing truck to

be plied on the road till bursting of its cleaner's side tyre , resulting in truck

over turning . It is thus, evident that truck driver was solely rash and

negligent in bringing about the accident, death of Ladak Mohajya Gimbhal

and injuries to Suresh Janya Pagi, Vishnu Laxman Gimbhal, Shivaji

Dharma Gotarna and no more evidence is necessitated to ascribe

negligence to the truck driver. Issue no.1 in all four claim petitions thus, is

to be replied in the affirmative and it stands answered accordingly .

ISSUE NO.2 :

(Common and identical in all the four claim petition nos. 346/2004 to

349/2004)

20] In M.A.C.P.No.346/2004, first claimant Mohajya Lanabnu

Gimbhal examined as P.W.1 at Exh.37 has asserted that his son Ladak, 22

years old, at the time of his death in the present accident, was earning in the

range of Rs.3,000/- to Rs.4,000/- p.m. Claimants have, however, not

brought documentary evidence with regard to earning of deceased Ladak ,

nor did they examine a person in whose employment deceased Ladak was

working and getting Rs.3,000/- p.m. Be that so, first claimant Mohojya

Lanahnu Gimbhal in cross-examination by respondent no.2 was candid in

saying that he is earning Rs.2,000/- p.m. by doing labour work. Deceased

Ladak in the year 2004 thus, at the most, can be taken to be earning

Rs.2,000/- p.m. and Rs. 24,000/- p.a., by doing labour work .

21] In the absence of specific evidence, how much deceased Ladak

was contributing to family kitty, of his parents, for first three years, his

contribution to family kitty of his parents will have to be taken 2/3rd and

thereafter 1/3rd as by the time had he survived , he would have got married

resulting in burdening with liability of his spouse and reduction in his

contribution to his parents. At the most his contribution to his parents can

be taken half of his earning after three years to be specific from the age

of 25 years onwards. Thus contribution of deceased Ladak for first three

years is to be taken at Rs.16,000/- p.a. and then Rs. 10,000/- p.a.

22] Coming now to adopting of suitable multiplier here, since the

deceased Ladak was unmarried and here claimants are his parents, age of

his parents is to be taken into account, in order to adopt appropriate

multiplier . With regard to their age, claimants have brought no age proof ,

either in the form of birth certificate, school-leaving certificate or

certificate issued by local authority. This Tribunal thus, has to depend

upon the age mentioned in title clause of the petition to be 45 and 40 of

claimants and adopting of multiplier of '13' would be appropriate one,

especially, when they have not brought their age proof. Thus, if a sum of

Rs.16,000/- is multiplied by '3' and an amount of Rs.10,000/- is multiplied

by '10' , ( Rs.48,000/- + Rs.1,00,000/- =Rs.1,48,000/- ), would be the datum

figure which is to be awarded here, in toto, to the claimants, as loss of

contribution of their son deceased Ladak to family kitty.

23] Some sum is to be awarded here on transporting of dead body

and expenses of obsequies . Since dead body was not to be transported

covering much distance from Manor police station to the place of deceased

Ladak, awarding of Rs.2,000/- on conveying of dead body and Rs.3,000/-

on expenses of last rites, should suffice, here.

24] Some award also is to be made here, on loss to the estate.

Since deceased Ladak was admittedly from the family of labour class,

awarding of Rs.10,000/- should suffice and take care of this head, as just

amount of compensation on loss to the estate.

25] Break up of compensation awardable to the claimant nos.1 & 2

thus , can be enumerated as under :

1) towards loss of dependency. Rs.1,48,000/-

2) towards conveyance Rs. 2,000/-

3) towards funeral expenses Rs. 3,000/-

4) towards loss to the estate Rs. 10,000/-

------------------------------------------------------------------------------Total compensation Rs.1,63,000/-

------------------------------------------------------------------------------

On the above amount of Rs.1,63,000/-, no doubt, claimant nos.

1 & 2 are entitled to interest from the date of petition till realization

of the same, in its entirely , but not exceeding 7 % p.a. as recent trend of

awarding interest, as can be seen from the judicial pronouncements;

even of the Hon'ble Supreme Court is of awarding interest in the range of

6% to 7% p.a.

26] In M.A.C.P. No. 347/2004, claimant Suresh Janya Pagi

examined as P.W.1 at Exh.30 states that he incurred expenses of

Rs.15,000/- on his medical treatment and hospitalization. He however

produced not a single bill, receipt or cash memo , either of paying

hospitalization charges or buying medicines or related items from open

market, probably because of the fact that he being from lower strata and

labour class, he might not have incurred expenses on hospitalization and

buying medicines and related items from open market. He thus would

hardly be awarded with any sum on hospitalization and medicare.

27] Coming now to award to the claimant on loss of earning

during treatment period. Claimant Suresh Janya Pagi as P.W.1 has said at

Exh.30 that he was treated as in-patient for 5 to 6 days at Bhagwati

Hospital, Borivali, he then took treatment of Dr. Raju Khanzode for 4 days

as out-patient. He did not speak anywhere how long he was away from his

job. Discharge card Exh.31 issued by Bhagwati Hospital, Borivali ,

however, mentions that he had suffered dislocation of left shoulder.

28] It is matter of common experience that dislocation of any limb

of human being, normally takes period of 2 to 3 months for properly

setting, if he happens to be of young age. Since injured/claimant Suresh

Janya Pagi was 22 yrs. of age, when he was injured in the present accident,

he can be taken as away from the job for 3 months and he is to be awarded

equal to 3 months on loss of earning during treatment period.

29] As to his job and earning, claimant Suresh Janya Pagi asserts

that prior to accident or at the time of accident , he was labourer by

occupation and his earning to be Rs.100/- a day and Rs.3,000/- p.m. He

has however not produced a single document of his earning being

Rs.3,000/- p.m. indeed and he has not even examined his employer to show

and prove that he in fact was getting Rs.3,000/- p.m. in the year 2004 of the

present accident by doing labour work. He thus, is to be taken as unskilled

labourer and his earning to be Rs.2,000/- p.m.

30] Thus , if sum of Rs.2,000/- is multiplied by '3', Rs.6,000/-

would be the sum, which is awarded, here to the claimant Suresh Janya

Pagi on loss of earning during the period of treatment or for that matter he

remaining immobilized, under the head of general damages.

31] This takes me now to award to the claimant Suresh Janya Pagi

on future loss of earning. It is to be awarded in the injury claim equal to

percentage of disability ; if disability affects capacity of earning of injured

claimant by adopting multiplier method.

32] In order to prove nature and extent of disability suffered by

him , claimant Suresh Janya Pagi has examined Dr. Sujeet Ratan Jain,

Orthopedic Surgeon as P.W.2 . He has testified at Exh.34 that on

29/3/2005 he examined Suresh Janya Pagi for assessment of disability and

issued disability certificate Exh.35.

33] According to Dr.Sujeet Ratan Jain ,P.W.2 , due to stiffness of

left shoulder joint, restriction in abduction and external rotation of left

shoulder, there was weakness of shoulder of gulden muscle and loss of

incisor tooth, for which disability assessed by him was 20 % permanent

partial in nature. Despite cross-examination by respondent no.2 nothing

material has been brought out to show that disability assessed by him in the

claimant Suresh Janya Pagi was not in accordance with guide-lines issued

by Maharashtra Orthopedic Association.

34] Fact, however , remains that claimant Suresh Janya Pagi

himself in cross-examination by respondent no.2, has said that at present

he earns in the range of Rs.5,000/- to Rs.6,000/- p.m. It is thus, evident

from version coming from mouth of claimant himself that disability which

is permanent partial in nature of 20 % assessed by Dr. Sujeet Jain as P.W.2

has not marred prospect of his earning. He thus, would hardly be awarded

equal to percentage of disability by adopting multiplier method, on future

loss of earning. He, at the most, can be awarded some amount on he

suffering 20 % permanent partial disability. Considering the fact that here

claimant Suresh Janya Pagi had not suffered fracture of any limb, but only

dislocation, awarding of Rs.30,000/- whould take care of the same, as just

amount of compensation, on he suffering 20 % permanent partial

disability, here.

35] Added to this, some sum is to be awarded towards travelling

expenses and nutritious diet to the claimant. Though claimant Suresh

Janya Pagi has not spoken how much he spent on rich diet or travelling

expenses, he must have spent some amount on nutritious food to heal up

injury early and on conveyance not only of himself, but some one from his

family accompanying him every time to the hospital at least by public

conveyance. Some one from his family also must have looked after him

like that of attendant, at the cost of his/her earning and living. Thus, if I

award here, Rs.5,000/-, it would take care of rich diet, travelling expenses

and attendant charges as well, to injured claimant Suresh Pagi.

36] Before, I part with this, some award will have to be made to

claimant on pains, suffering , mental agony here. On suffering dislocation

of left shoulder , besides other injuries claimant must have undergone lot of

agonies and experienced pains as well. He is however awarded sumptuous

amount as on loss of earning during treatment period and on disability.

Thus, if I award him Rs.10,000/- here, it would take care of this head of

pains, suffering and mental agonies, as just one.

37] Break up of compensation awardable to the claimant SureshPagi thus, can be enumerated as under :

1) towards loss of earning during treatment period Rs. 6,000/-

2) towards disability Rs.30,000/-

3) towards pains,suffering andmental agonies Rs.10,000/-

4) towards rich diet, travelling expenses etc. Rs. 5,000/-

------------------------------------------------------------------------------Total compensation Rs.51,000/-

------------------------------------------------------------------------------

On the above amount of Rs.51,000/-, no doubt, claimant is

entitled to interest from the date of petition till realization of the same, in

its entirety , but not exceeding 7 % p.a. as recent trend of awarding interest,

as can be seen from the judicial pronouncements; even of the Hon'ble

Supreme Court is of awarding interest in the range of 6% to 7% p.a.

38] In M.A.C.P.No.348/04 claimant Vishnu Laxman Gimbhal

examined as P.W.1 at Exh.29 deposes that he could not go for labour work

for two months. Discharge card Exh.31 issued by Bhagwati Hospital,

Borivali shows that he had suffered amongst other injuries, fracture

humerus left. He thus, is to be awarded here, equal to 3 months of loss of

earning during treatment period, as he was of young age, within twenties

when he had suffered injuries in the present accident.

39] Now, as to his job and earning, claimant Vishnu Laxman

Gimbhal as P.W.1 has said that he was doing labour work, earning

Rs.3,000/- p.m. He has however, neither produced salary certificate nor

has examined his employer to show that he indeed used to earn Rs.3,000/-

p.m. by doing labour work. He, thus, is to be taken as earning Rs.2,000/-

p.m. as labourer at the time of accident. He thus is to be awarded Rs.6,000/-

(Rs.2,000/- x 3 = Rs.6,000/-) on loss of earning during treatment period for

he remaining immobilized and hospitalized.

40] Coming now to award to claimant Vishnu Laxman Gimbhal on

future loss of earning. It is to be normally awarded in the injury claims

equal to percentage of disability, if it mars capacity to earn, of the injured

claimant.

41] In the present matter injured claimant Vishnu Laxman

Gimbhal has examined Dr.Sujeet Jain as P.W.2 to prove nature and extent

of disability suffered by him. Dr.Sujeet Jain, P.W.2 has testified at Exh.33

that on 29/3/2003 he examined Vishnu Laxman Gimbhal and issued

disability certificate Exh.34.

42] Dr.Sujeet Ratan Jain as P.W.2 at Exh.33 proceeded to state

that due to stiffness of left shoulder, malunion of fracture humerus left,

weakness of left arm and forearm muscles and weakness of grip of left

hand, disability assessed by him in Vishnu was 30 % permanent partial in

nature. In cross-examination by respondent no.2 he however was candid in

opining that disability assessed by him was with regard to particular limb

and not as to entire body.

43] Be the case as it may, claimant Vishnu Laxman Gimbhal

himself in cross-examination by respondent no.2 has said that now he has

been earning Rs.4,000/- p.m. by doing labour work which would suggest

that due to permanent partial disability, capacity to work and earn of the

injured claimant has not been affected. Claimant Vishnu at the most here

can be awarded on his suffering 30 % permanent partial disability.

Considering the fact that fracture suffered by the claimant Vishnu was of

humerus, awarding of Rs.45,000/- should suffice, here.

44] This takes me now to award to the claimant on non-pecuniary

damages towards pains, suffering, mental agony etc. On suffering fracture

left humerus, besides other injuries, claimant Vishnu must have

experienced intolerable and unbearable pains and he must have also

undergone lot of agonies. He thus, if awarded with Rs.15,000/-, it would

take care here not only of pains, suffering and mental agonies , but of loss

of amenities of life as well.

45] Before I part with this, though injured claimant Vishnu has not

produced single bill, receipt or cash memo of buying nutritious food or of

hiring any vehicle, soon after accident he must have arranged some vehicle,

at least three wheeler to rush to the hospital. Thereafter, every time for

follow up treatment he must have spent not only on himself , but on

someone else from his family attending every time to him, at least

conveyance of three wheeler.

46] Claimant -Vishnu Laxman Gimbhal also must have taken

nutritious diet to heal up injuries , also someone from his family also must

have looked after him, like that of attendant at the cost of his/her earning

and living. Thus in the absence of bills, receipts, cash memos, evidence of

attendant or driver of any vehicle , if I award him, here amount of

Rs.6,000/- , it would not be without any base or foundation, but would

represent as just amount of compensation on nutritious diet, attendant

charges and conveyance expenses .

47] Break up of compensation awardable to the claimant Vishnu

Gimbhal, thus , can be enumerated as under :

1) towards loss of earning during treatment period Rs. 6,000/-

2) towards disability Rs.45,000/-

2) towards pains,suffering andmental agonies Rs.15,000/-

3) towards rich diet, travelling expenses etc. Rs. 6,000/-

------------------------------------------------------------------------------Total compensation Rs.72,000/-

------------------------------------------------------------------------------

On the above amount of Rs.72,000/- , no doubt claimant

Vishnu is entitled to interest from the date of petition till realization of

same, in its entirety, but not exceeding 7 % p.a. as recent trend of awarding

interest, as can be seen from the judicial pronouncements; even of the

Hon'ble Supreme Court is of awarding interest in the range of 6% to 7%

p.a.

48] In M.A.C.P.No. 349/2004 injured Shivaji Dharma Gotarna as

P.W.1 at Exh.32 has stated that he was treated as indoor patient for 13 days

and he could not report to his duties for about two years. He has however,

barring discharge card Exh.33 and injury certificate Exh.34, produced no

paper of follow up treatment. Be that so, Dr. Sujeet Jain an Orthopedic

Surgeon examined by him states in cross-examination that healing period

of fracture of the present injured was of three months. Present claimant

thus, at the most, can be taken away from his job or immobilized for four

months and he is to be awarded equal to four months of loss of earning.

49] As to his job and earning, claimant Shivaji Dharma Gotarna as

P.W.1 at Exh.32 has stated that from the time of accident he was engaged

on wages of Rs.200/- a day. He has however, produced no salary

certificate. He has also not bothered to examine his employer to show that

indeed he used to earn Rs.200/- a day that too, by doing labour work. He

thus, is to be taken as unskilled labourer and his earning in the year 2004 of

present accident as Rs.2,000/- p.m. He thus, is to be awarded Rs.8,000/-

(Rs.2,000/- x 4 = Rs.8,000/-) on loss of earning, during treatment period in

which, he remained immobilized.

50] This takes me now to award to the claimant -Shivaji on loss of

future earning. It is to be normally awarded in injury claim, equal to

percentage of disability by adopting multiplier method, if disability renders

him incapable of doing any work, as was prior to the accident.

51] Here claimant-Shivaji, to prove extent and gravity of

disability, has examined Dr. Sujeet Jain, Orthopedic Surgeon, as P.W.2.

He has testified at Exh.36 that on 29/3/2005 he examined Shivaji Dharma

Gotarna and issued disability certificate Exh.37.

52] P.W.2-Dr. Sujeet Jain further went on stating that due to

stiffness of left shoulder, weakness of left shoulder and arm muscles,

weakness of grip of left hand, malunited fracture humerus, wasting of

muscles of left shoulder and arm , disability in claimant Shivaji assessed by

him was 30 % permanent partial in nature.

53] Claimant- Shivaji Dharma Gotarna however, has said in

cross-examination by respondent no.2, that at present if work is available ,

he gets Rs.200/- per day by doing labour work, which would suggest that

his capacity to work and earn as labourer, is not at all, affected. He thus,

would hardly be awarded any sum of compensation here on disability by

adopting multiplier method.

54] Injured claimant Shivaji Dharma Gotarna here at the most, can

be awarded some sum on he suffering 30 % permanent partial disability.

Considering the fact that fracture suffered by him was of left shoulder,

awarding of Rs.45,000/- would take care of this head as just amount of

compensation.

55] Coming now to award to the claimant Shivaji Dharma

Gotarna here on non-pecuniary damages, towards pains, suffering and

mental agonies. On suffering fracture upper third humerus shaft, claimant

Shivaji Dharma Gotarna must have undergone lot of agonies . He also

must have experienced pains, intolerable and unbearable one . He is,

however, awarded sumptuous amount on the count of disability permanent

partial in nature. Thus, if I award him here Rs.15,000/- , it would take care

not only of pains , sufferings and mental agonies, but also of loss of

enjoyment of amenities of life and would represent as just amount of

compensation.

56] Before I part with this, it is required to mention here that

though claimant Shivaji Dharma Gotarna has not produced bills, receipts,

cash memos or travelling tickets and on he incurring on rich diet,

conveyance expenses and attendant charges and has not examined either

attendant or driver or owner of his vehicle, he however, must have taken

nutritious food to heal up injuries early. Someone from his family also

must have attended upon him like that of attendant, at the cost of his/her

earning and living. claimant also must have spent some amount on

arranging vehicle at least an auto-rickshaw every time for follow-up

treatment, not only for him, but for someone else accompanying him from

his family. Thus , if I award him Rs.6,000/- here, it would take care of

nutritious diet, conveyance expenses and attendant charges, as well.

57] Break up of compensation awardable to the claimant thus ,can be enumerated as under :

1) towards loss during treatment period Rs. 8,000/-

2) towards disability Rs.45,000/-3) towards pains,suffering and

mental agonies Rs.15,000/-4) towards rich diet, travelling

expenses etc. Rs. 6,000/-------------------------------------------------------------------------------

Total compensation Rs.74,000/-

-----------------------------------------------------------------------------

On the above amount of Rs.74,000/- , no doubt claimant is

entitled to interest from the date of petition till realization of same, in its

entirety, but not exceeding 7 % p.a. as recent trend of awarding interest, as

can be seen from the judicial pronouncements; even of the Hon'ble

Supreme Court is in the range of 6% to 7% p.a.

58] Now last aspect that requires to be adverted here, is on whom

liability of payment of compensation is to be fastened. Undisputedly, truck

belonged to respondent no.1 Nitinkumar Kantilal Rawal , he being

registered owner of it. As elaborated herein before, truck driver only found

to be tortfeasor in bringing about accident and injuring claimants Suresh

Janya Pagi, Vishnu Laxman Gimbhal and Shivaji Dharma Gotarna and

death of Ladak Mohajya Gimbhal on the spot. Respondent no.1, thus, can

not have escape, but has to pay, as calculated and quantified, in

M.A.C.P.No. 346/2004 to 349/2004 to the respective claimants, for

tortfeason of his driver.

59] As far as respondent no.2 is concerned, undisputedly truck

was insured with it by a policy which was valid and in force on the date of

accident. The contention of respondent no.2 however, is that risk of

deceased Ladak Mohajya Gimbhal and injured Suresh Janya Pagi, Vishnu

Laxman Gimbhal and Shivaji Dharma Gotarna was not covered under

policy, as there was no coverage of labourer. In support of its case

respondent no.2 has examined one Vitthal Ramaji Nandanwar as D.W.no.1

in M.A.C.P.No.346/04 at Exh.53 whose evidence has been adopted in

M.A.C.P.No. 347/2004 to 349/2004 of the injured claimants. Evidence of

D.W.no.1 for respondent no.2 Vitthal Ramaji Nandanwar is that policy

Exh.54 was “Act Only” Policy, in which risk of driver, cleaner and owner/

driver only was covered.

60] In cross-examination on behalf of claimants, D.W.no.1 for

respondent no.2, Mr. Vitthal Ramaji Nandanwar was made to state

specifically that premium of Rs.25/- was paid to cover risk of driver and

cleaner and premium of Rs.100/- was to cover risk of owner/ driver as extra

premium. It was attempted to suggest him that policy Exh.54 is not copy

of single page insurance policy, but to avail. Claimants, however, could

not elicit from his mouth that policy Exh.54 was comprehensive one, or

covering risk of persons travelling in it even as coolies or labourers.

61] Be the case as it may, as has been argued on behalf of

respondent no.2/ insurer, case averred in the petitions was given go bye and

in the evidence attempt was made to come with a case that deceased Ladak

Mohajya Gimbhal and injured Suresh Janya Pagi, Vishnu Laxman

Gimbhal and Shivaji Dharma Gotarna in M.A.C.P.No.347/2004 to

349/2004 were labourers and therefore the case which is attempted to be

introduced, as new one, is to be ignored.

62] On behalf of the respective claimants, reliance is heavily

placed on Sec.147 of M.V. Act, 1988 during the course of argument that

risk of bodily injury sustained by employees arising out of and in the

course of employment other than a liability arising under Workmen's

Compensation Act, 1923 (8 of 1923) gets covered of all the three injured

claimants Suresh Janya Pagi, Vishnu Laxman Gimbhal and Shivaji

Dharma Gotarna and deceased Ladak Mohajya Gimbhal. In reply to it, Mr.

Poojari, advocate for respondent no.2 has stated that injured claimants and

legal representatives of deceased Ladak Mohajya Gimbhal have not firstly

proved that they were the labourers and secondly their risk was covered

under policy Exh.54. In view of specific evidence of D.W.1 for respondent

no.2 Mr.Vitthal Ramaji Nandanwar, that no risk of injured claimants

Suresh Janya Pagi, Vishnu Laxman Gimbhal and Shivaji Dharma Gotarna

and deceased Ladak Mohajya Gimbhal was covered and they came with

altogether different case which was never pleaded, liability can not at all be

fastened upon respondent no.2 and respondent no.2 can not be called upon

to satisfy the award by indemnifying respondent no.1.

63] Respondent no.1, as pointed out earlier, however, has no

escape for his driver carrying all the three injured Suresh Janya Pagi,

Vishnu Laxman Gimbhal and Shivaji Dharma Gotarna and deceased Ladak

Mohajya Gimbhal, in a truck at the time of accident after allowing them to

board at Charotinaka.

64] Having regards to findings on issue nos. 1 & 2 recorded here-

in-above, in reply to this issue no.3, I proceed to pass following order :

: O R D E R :

(IN M.A.C.P.NO. 346/04)

1. M.A.C.P.No.346/2004 is hereby allowed, in part, with

proportionate costs against respondents no.1 only.

2. Respondent no. 1 do pay to the claimant nos.1 & 2

Rs.1,63,000/- with @ 7 % p.a. interest from the date of petition, till

realization of the same , in full.

3. A sum of Rs.1,63,000/- to include a claim U/Sec.140 of the


4. Petition against respondent no.2 stands dismissed.

5. Award be drawn up accordingly.

6. Copy of this judgment be kept in M.A.C.P.No.347/2004,

348/2004 & 349/2004.

(IN M.A.C.P.NO. 347/04)



2. Respondent no. 1 do pay to the claimant Rs.51,000/- with

@ 7 % p.a. interest from the date of petition, till realization of the same ,

in full.

3. A sum of Rs.51,000/- to include a claim U/Sec.140 of the




(IN M.A.C.P.NO. 348/04)





in full.





(IN M.A.C.P.NO. 349/04)





in full.





Thane. (S.D.Mohod)Dt.13/09/2010 Chairman, M.A.C.T. Thane.

Documents

(Presided over by Shri.S.D.Mohod ... - court.mah.nic.incourt.mah.nic.in/courtweb/orders/thadcis/orders/201201003462004_1.… · MOTOR ACCIDENT CLAIM PETITION NO. 346/2004 1. ... of