1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.778 OF 2009. Bajaj Allianz General Insurance Co.Ltd., Aurangabad. - APPELLANT VERSUS 1) Sonaji s/o Sukhdeo Rokade and another. - RESPONDENTS ***** Mr.SG Chapalgaonkar, Advocate for Appellant; Mr.PB Kakade, Advocate for Respondent no.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 3rd July, 2009. PER COURT : 1) Heard learned Counsel. By consent, the matter is finally heard at admission stage. Record and Proceedings perused by them. 2) In an accident dated 27th March, 2006, the claimant/injured was moving with his goods and suffered injuries ultimately resulting in amputation of his right hand, substantiated by Certificate, Exhibit-37, and also indicating that due to amputation, the claimant has sustained 80% disability. 3) The learned Judge has occasion to venture the claimant and naturally noticed the 2 amputation while recording the evidence, and consequently, did not insist for examining the doctor who has issued the certificate. I accept this approach of the learned Judge though there is judgment of the Hon’ble Apex Court in the matter of Rajeshkumar Vs. Yudhavir Shgh and Ors. - 2008 (6) Mh.L.J. 21. The facts in the case of Rajeshkumar were not matching to the facts in the present case and consequently, the learned Judge proceeded to accept Exhibit-37 in its letter and spirit and rightly. 4) The Counsel representing the appellant/insurance company was categorical in criticizing the Award making the total compensation of Rs.6,00,947. The Counsel would urge, hypothetical loss accrued by the learned Judge is contrary to the settled position. 80% permanent disablement construed by the learned Judge is erroneous. The claimant can pursue his agricultural activities, though may ot be with same efficiency, but the supervisory activities are not at all curtailed. 5) During the course of submissions, reported judgment in the matter of New India Assurance Co.Ltd. Vs. Charlie and Anr. - AIR 2005 SC 2157(1) tendered which has been verified, read by both the counsel and they have also argued. 6) The counsel for the claimant/respondents took recourse to the judgment in the matter of 3 Sanjay Verma Vs. Haryana Roadways reported in 2007 (3) T.A.C. 856 (Uttarakhand). In the judgment of Charlie, there was injury suffered by 37 years old married person, the compensation of Rs.4,68,825 awarded was reduced by the Apex Court to Rs.3,50,000. In the later case of Sanjay Verma, there was claim of Rs.53,00,000/-. The learned Member granted it to Rs.3,00,000/- for the injury suffered by the claimant in the accident and the amount spent on the treatment. There was deduction of 2/3rd of the amount under the head of loss of income and he awarded only 1/3rd of the amount to the claimant, which was subject to challenge. The Hon’ble Lordships did not agree for 1/3rd amount of deductions effected by the learned Judge. 7) To assess the correct position in the instant case, let us revert to the factual details. The victim, the injured is 22 years old. He is an agriculturist. The claimant, at Exh.30, before the learned Judge has stated that he was doing agriculture and business and was getting Rs. 4,000/- per month from the said activities. The claimant asserted, since his right hand is amputed from the shoulder, he has been totally prevented from doing his activities. The Counsel informs that the claimant is unmarried. 8) The learned Judge, considering the age, 4 future prospect of increasing his monthly earnings, treating the disablement as 80%, as stated above, awarded the compensation. 9) In the light of what the Hon’ble Lordships have observed in the matter of Charlie, there need not be any universal principle of deduction of 1/3rd as Hon’ble Lordships have observed that there is no rigid rule or formula to do so. The Hon’ble Lordships gave reference to the Judgment of the Apex Court reported in AIR 1962 SC 1, “The measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependent. The Apex Court observed – the general principle is that the actual pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimant of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death, must be ascertained. 10) The Hon’ble Lordships in the matter of Charlie have further observed – Much of the calculations necessarily remains in the realm of hypothesis, “ and in that region arithmetic is a good servant but a bad master “ since there are so often many imponderables. In every case “it is the overall picture that matters”, and the court must try to assess as best as it can the 5 loss suffered.” 11) The learned Judge granted Rs.4,89,600 as future loss of income and granted Rs.1,00,000/- as loss of amenities, inconvenience, discomfort. No specifications are given by the learned Judge for Head no.4 – loss of amenities making the figure to Rs.1,00,000/-. The learned Judge has applied multiplier 17 as the age of the claimant is 22 years, same cannot be disputed. The learned Judge has taken the notional income to be Rs.36,000/- and without affording any deductions, made the figure to Rs.6,12,000/- and calculated at 80% to be Rs.4,89,600/-. The learned Judge, missed to consider that the agricultural income of the claimant will not be diminishing. He has the capabilities of supervisory functions, he indeed can have his milk business activities, though may not be with same zeal and zest, but the fact remains, the learned Judge should have considered, deducting 1/3rd amount, as is indicated, in the several pronouncements and lastly in the matter of Charlie. In the matter of Sanjay Verma, the claimant was physically made handicapped due to injury suffered at lower part of the body. His annual earnings was Rs.41,300/-. This factor had paramount consideration. The injured in this case is 22 years old, it was incumbent upon the learned Judge to have applied deductions of 1/3rd of the amount of expenses, 6 which the victim would have incurred towards maintaining himself. The Note provided to Schedule-II of Section 163-A though refers to a deceased person, will have to be applied with identical parameters to the present case. The learned Judge, having considered the income at Rs.36,000/- and without carrying the deductions of 1/3rd has definitely erred and consequently, the order under challenge requires interference. 12) It is not in controversy that the amount, which the claimant was earning, and to which extent it will be causing deficit to the income, has its shades in calculations, which I have considered. Taking the amount of annual income as Rs.36,000/-, deducting 1/3rd for personal expenses, it comes to Rs.24,000/- and applying multiplier of 17, it comes to Rs. 4,08,000/-. Since the certificate indicated 80% of disability, the amount will be Rs.3,26,400/-, added to it is medical bills of Rs.6147/- and also I deem to add Rs.50,000/- towards the pains, sufferings and inconvenience etc. and Rs.5,200/- towards special diet and attendance. Thus, the total comes to Rs.3,87,747/-. The claimant ultimately would be entitled to receive this amount with interest @ 9%. The order under challenge, in the set of above facts, needs interference and accordingly following order - (i) The appeal is partly allowed; 7 (ii) The order granting compensation of Rs. 6,00,947/- is modified to the extent of Rs. 3,87,747 with interest @ 9% p.a. With costs. 13) The amount deposited by the appellant/insurance company in this Court, be paid over to the claimant in terms of the directions given today. CA ST.No.12578/2009 to that effect is disposed of. The residues to be returned to the appellant/insurance company. ( K.U.CHANDIWAL ) JUDGE bdv/fa778.09