1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL NO.2368 OF 2006 WITH CIVIL APPLICATION NO.4114 OF 2006 WITH CIVIL APPLICATION NO.2430 OF 2007 United India Insurance Company ...Appellant. v. Vijay Dominic Gonsalves ...Respondent. Mr.N.G.Ghotekar, adv. For the Appellants. Mr.M.B.Kotak, adv. For the Respondent No1. CORAM : J.H. BHATIA, J. DATED : 5th August , 2009 P.C. 1 Admit. 2 With consent of the learned counsel for the parties, appeal is taken up for final hearing and disposal immediately. 3 To state in brief, the respondent no.1 is the original claimant. According to him, on 9/1/98, he was proceeding from Vasai to Vasai Road on his motor bike no.MH-04 BD-1054. His wife was the pillion rider. When his motor cycle reached in front of Camel Marble Company, one motor tanker bearing no.MH-04-P-6409 came from the opposite side and gave dash to his motor cycle in which the claimant suffered 2 serious injuries and permanent disability. The said tanker was owned by the respondent no.2 Ajit Raut, who has been deleted. Vehicle was insured with the present appellant. The claimant made a claim of Rs.10 lakh for the injuries, permanent disability, loss of income, etc. The MACT by the impugned order dated 17.4.2006 held the owner of the vehicle and the insurance company jointly and severally liable to pay compensation of Rs.6,11,000/- with interest @ 6% p.a. from the date of application till the realisation of the amount. The said judgment and order is challenged in the present appeal by the Insurance Company. 4 At the outset, the learned counsel for the insurance company concedes that vehicle was insured with the appellant/insurance company and the insurance company is liable to indemnify the insured fully. The learned counsel also did not dispute that accident had occurred due to rash and negligent driving of the driver and, therefore, insured was liable to pay compensation. He points out that on the basis of evidence, the tribunal had awarded compensation under different heads as follows: 1] Medical Expenditure supported by Vouchers Rs.41,000/- 2) Medical Expenditure not supported by vouchers Rs.10,000/- 3) Shock and pain Rs.25,000/- 3 4) Loss of enjoyment of amenities Rs.50,000/- 5) Conveyance and Special Diet Rs.15,000/- 6) Loss of income (Maximum 52 weeks) Rs.36,000/- 7) Loss of future income 36,000 X 9 = (As loss of 1 year already considered in item no.6) Rs.3,24,000/- 8) Attendant Charges Rs.10,000/- 9) Towards future operation and treatment Rs.1,00,000/- Total Rs.6,11,000/- He does not dispute the amount of compensation awarded under heads 1 to 6 and 8 and 9. He points out that the claimant was unable to do his business for a period of one year and, therefore, under item 6, on account of loss of income, the tribunal had awarded compensation of Rs.36,000/-. The disability certificate from the Bombay Hospital, produced by the claimant, shows that he had suffered 30% permanent disability because of the fracture of the hip bone. He was running his own printing business as proprietor. The learned counsel points out that in view of this, the tribunal should have computed loss of future income @ 30% only but under the head no.7, the Tribunal computed loss of income for the next 9 years @ Rs.36,000/- per year, which was his full 4 income. According to him, this should have been not more than 30% in view of the percentage of the permanent disability. The learned counsel for the respondent no.1 claimant contended that the claimant had to engage some other worker to manage the shop because of the disability and, therefore, he was required to bear additional expenditure in running the business. 5 After hearing the learned counsel for the parties, I find that there could be no justification to award full income towards the loss of future income. For the first one year, full loss of income was awarded under the head no.6 and that is perfectly justified. For future period, multiplier of 9 would be just and reasonable taking into consideration the age of the claimant. Claimant was not a laborer or a driver of vehicle or in particular type of job, which would require 100% fitness and which could not be done because of the disability suffered by him. Infact, he was proprietor of his printing press and naturally work in the printing press is required to be done by the labourers or workers engaged there. Proprietor would not be required to continuously stand and work on the printing press or machine. Therefore, it can not be held that he had suffered 100% loss of the income. In view of the facts and circumstances, I find that the Tribunal was not correct in awarding the 5 amount of Rs.3,24,000/- as future loss of income @ 36,000/- per year. As net income was found to be Rs.36,000/- p.a., 30% of the same would be Rs.10,800/-. Applying multiplier of 9, total loss would come to Rs. 97,200/-. To this extent, amount awarded needs to be modified. Taking into consideration future loss of income and the other heads, which are not in dispute, the appellant would be entitled to compensation of Rs. 3,85,200/-. 6 The learned counsel for the claimant contends that if this Court deems necessary to modify the amount of compensation, this Court may also modify the rate of interest awarded by the Tribunal. According to him, 6% interest was not justified particularly when during the period 1998-99, interest was generally awarded @ rate of 10 to 12%. From 2001 onwards, rates were reduced. Taking into consideration overall rates of interest prevailing in the market, the learned counsel for the insurance company left the question of interest to the discretion of this Court. Taking into consideration the facts and circumstances, I find that interest should be 9% p.a. from the date of application. 7 For the aforesaid reasons, appeal is allowed and the order passed by the Tribunal stands modified as follows: i) “Opponent Nos.1 and 2 shall jointly and severally pay an 6 amount of Rs.3,85,200/- to the claimant as compensation inclusive of liability under Section 140 of the Motor Vehicle Act with interest at the rate of 9% p.a. from the date of application till amount is fully realised. ii) Order passed by the Tribunal in respect of payment and disbursement shall remain intact. iii)Insurance Company has deposited the amount of Rs.25,000/- with this Court while filing the appeal. That amount be remitted to the Motor Accident Claims Tribunal, Palghar, Dist: Thane. The appellant has already deposited certain amounts before the Tribunal. Balance amount, if any, shall be deposited within six weeks. 8 No order as to costs. 9 As the appeal itself is finally disposed off, civil application nos.2430/07 and 4114/06 do not survive and stand disposed off accordingly. (J.H.Bhatia, J.) 7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION CIVIL APPLICATION NO.2710 OF 2009 IN FIRST APPEAL NO.2368 OF 2006 United India Insurance Company ...Applicant. v. Vijay Dominic Gonsalves ...Respondent. Mr.N.G.Ghotekar, adv. For the Applicant. Mr.M.B.Kotak, adv. For the Respondent No1. CORAM : J.H. BHATIA, J. DATED : 5th August , 2009 P.C. 1 Heard the learned counsel for the parties. 2 Earlier the name of the respondent no.2, who was insured was deleted. Thereafter, when the matter came for admission, the learned counsel for the respondent no.1, the claimant had taken objection that when the insured is not a party in the appeal, the appeal by the insurance company can not proceed and for that purpose he relied upon the judgment of the Supreme Court in Oriental Insurance Company Ltd. v. Sunita Rathi and Others 1998 ACJ 121. In view of that the appellant had filed this application for impleading insured as the respondent no.2 again. However, when this application is taken up for hearing, the 8 learned counsel for the appellant/Insurance Company makes a statement that facts of the Oriental Insurance Company Ltd. (Supra) were totally different. In that case, High Court had held that insured was not liable but the insurance company was liable. This view was not approved by the Supreme Court. He makes a statement that in the present case, insurance company admits that it is liable to indemnify the insured and insurance company has also not taking any plea of limit to the liability of the insurance company. He makes a statement that the insurance company will fully satisfy the claim as may be finally determined by this Court. In view of this statement and the stand now taken by the insurance company, he does not press the present application. Even though Mr.Kotak objects to this application, I am not satisfied with the objection. As the insurance company has unequivocally admitted its liability to indemnify the insured for the compensation, which may be awarded to the claimant, insured is no more necessary party. Therefore, this application stands disposed off as not pressed. (J.H. BHATIA,J.)