1 FA.235.01 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 235 OF 2001 Mahesh Manohar Bastwadkar. ... Appellant Versus 1. Lahu Hari Haladankar (Deleted), 2. Sainath Bhikaji Pednekar, 3. New India Assurance Co. Ltd. ... Respondents ­­­­­ Mr. D.S.Sawant for the Appellant. Mr. Ranjan Tripathi i/b Mr. S.M.Vidyarthi for Respondent No.3. ­­­­­ CORAM : A.S.OKA, J. DATE : 05 th July, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the Appellant and the learned counsel appearing for Respondent No.3. 2 The Appellant is the claimant in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the said Act”). The appeal is for enhancement of the compensation granted by the Tribunal. 2 FA.235.01 3 The Appellant claims that he was working as a driver. On 10 th January, 1993, at about 09:15 pm, after completing his duty, he was taking rest at the site of the work. At that time, a dumper driven by the Respondent No.1, which was owned by the Respondent No.2, came in reverse direction and both the legs of the Appellant came under the wheels of the dumper. The Respondent No.3 is the Insurer of the dumper. The Tribunal recorded a finding that the accident occurred due to rash and negligence driving of the dumper by the Respondent No.1. The Tribunal held that the Respondent No.3 – Insurer was liable to satisfy the award against the Respondent No.2. The Tribunal granted compensation of Rs.85,000/­ with interest at the rate of 12% from the date date of the petition till the date of realization. 4 The learned counsel appearing for the Appellant relied upon the disability certificate issued by Dr.Dinesh R. Kale which is at Exhibit – 47. He estimated permanent disability of 60% of the left foot and the left ankle and permanent disability of 12% of the right ankle. As far as functional disability is concerned, Dr.Kale observed that it was a case of 3 FA.235.01 total loss of heel pad. The learned counsel submitted that the compensation of Rs.60,000/­ granted by the Tribunal on account of permanent disability is on the lower side. He submitted that no compensation has been granted on account of loss of income. He submitted that looking to the nature of the injuries, the compensation of Rs.10,000/­ granted for pain and suffering is also on the lower side. The learned counsel appearing for the Respondent No.3 submitted that there was no evidence on record to show that the Appellant was employed as a driver. He submitted that even a driving licence has not been produced. His submission is that the compensation granted is reasonable and no interference is required. 5 I have carefully considered the submissions. I have perused the record. Perusal of the disability certificate at Exhibit – 47 shows that the disability of left foot and ankle has been estimated at 60% and disability of right ankle has been estimated at 12%. There is a certificate of Dr. A.D.Puranik at Exhibit – 38 dated 27 th March, 1993, which records that the Appellant was required to be treated for correction of deformity of 4 FA.235.01 left foot and skin grafting was required to be done. As far as disability certificate at Exhibit – 47 is concerned, there is no objection raised by any of the Respondents for exhibiting the same. In the deposition, the age of the Appellant is stated as 28 years. The accident is of 1993 and his deposition was recorded in July 1996. Thus, on the date of the accident, the age of the Appellant must be about 25 years. 6 Assuming that there was no evidence of the fact that the Appellant was employed as a driver, his income can be safely taken at Rs.1,500/­ per month. The Appellant stated in his evidence that due to injuries sustained in the accident, he lost his job and he was jobless. There is no suggestion given in the cross­examination that the Appellant continued to earn even after the accident. Even if income is taken at Rs. 1,500/­ and disability is taken at the minimum rate of 20% by taking appropriate multiplier, even the amount payable on account of loss of income will be Rs.64,000/­ and more. The Tribunal has granted only a sum of Rs.60,000/­ on account of permanent disability. There is no separate compensation granted on account of loss of income. The claim 5 FA.235.01 for enhancement in the present appeal is confined to Rs.40,000/­. Hence, the same will have to be fully granted. 7 Hence, I pass the following order: i. The total compensation payable to the Appellant shall be Rs.1,25,000/­ ( including the amount of no fault liability ) ; ii. The additional amount of Rs.40,000/­ will carry interest at the rate of 8% per annum from the date of the institution of the claim petition till realization and/ or deposit of the same with the Tribunal ; iii. The rest of the impugned Award including interest on the sum of Rs.85,000/­ and costs is maintained ; iv. Time of three months is granted to deposit the excess amount with the Tribunal ; v. The Appellant will be entitled to proportionate costs of this appeal ; and vi. The appeal is allowed on above terms. [ A.S.OKA, J ]