1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 538/2005 Sk. Hidayat-ullah s/o Rahemat-ullah, Age : 28 years, Occupation : Ginning Fitter, R/o Near Shree Sai Photo Studio, Chandanzira, Jalna At present R/o Paithan Tq. Paithan Dist. Aurangabad. ...Appellant. Versus 1. Sk. Miya s/o Sk. Ratan, Age : 35 yers, Occu. Driver, R/o Near Tahsil office, Paithan, Dist. Aurangbad. 2. Baba Malji s/o Shamlalji Godha, Age : 50 years, Occu. Business, R/o Madha Nagar, Paithan, Dist. Aurangabad. 3. Oriental Insurance Co. Ltd., through its Divisional Manager, Adalat Road, Aurangabad. ...Respondents. Shri R.B. Deshpande, Advocate for appellant. Shri Dhananjay Deshpande, Advocate for respondent no.3. Mr.R.S. Deshmukh, Advocate , for respondent No.2. Respondent No.1 absent though served. CORAM : A.V. NIRGUDE, J Date : 2 nd August, 2010. ORAL JUDGMENT:- 1 Heard. 2 2 This appeal is filed against the judgment and award passed by the In- charge Extra Joint District Judge, Aurangabad (Henceforth be referred to as “the learned judge of the Tribunal”), in M.A.C.P. No. 373/2000. The appellant was the claimant. He moved the petition under Section 166 of the Motor Vehicles Act, 1988 (Henceforth be referred to as “the Act”) and claimed compensation of Rs.2,00,000/- on account of his suffering from permanent partial disablement due to the injuries caused in the vehicular accident. 3 The facts leading to this litigation are as under. The appellant was 23 years old when the accident took place. He said that he had completed his course as fitter in a Ginning factory. He took experience by working in Bajaj steel Industries, untill 1992. He said, he acquired skills of a fitter for a Ginning factory. At the time of accident, he was doing a job work in Gurudatta Ginning Pressing Factory at Chandhala Tq. Paithan Dist. Aurangabad. His monthly income was Rs.7000 to 8000. On 26/03/2000 the appellant was returning from village Chandhala to Paithan in the vehicle in question, which was loaded with empty gunny bags. The vehicle in question was a three wheeler goods carrier. The respondent No.1 was the driver of the vehicle. The appellant was sitting beside him. The driver of the vehicle lost control over the vehicle and the vehicle met with an accident resulting into serious injury to the right hand of the appellant. During the medical treatment, the doctor/s amputated the appellant’s right hand above the elbow. The appellant obtained a disability certificate which showed that the appellant had suffered 51% of permanent partial disablement. The appellant then filed the claim petition. 4 Respondent No.3 (the Insurance Company) filed a written statement 3 and opposed the petition. They denied the claim of the appellant, saying that the appellant could not have earned amount of Rs.7,000/- to 8,000/- per month and that he could not have spent the amount for his medical treatment etc.. In addition to this, it is also stated that the sitting capacity of the vehicle was “0” and since the appellant was sharing the seat of the driver, the accident must have taken place due to such over crowding. They thus claimed that the appellant himself was responsible for the accident. 5 They further pointed out that there was inordinate delay in filing of the report of the accident to the Police. The report was made on 26/03/2000 almost 1 ½ months after the accident. The learned judge of the Tribunal after recording evidence of the appellant, came to a conclusion that the appellant's income could not have been Rs.7,000/- to 8,000/- per month. He discussed the evidence of the appellant on this point but, did not record his finding as to what could have been the income of the appellant at the time of the accident. So, the first question that arose for my consideration in this appeal is, what could have been the income of the appellant on the date of accident ? 6 Although there is no documentary evidence to support the case of the appellant that he was working as the fitter in the Ginning factory, it is clear from his deposition that he was at least working in the Ginning factory. Assuming that he was not a skilled worker, it can not be denied that he was at least getting Rs.150/- per day, as wages. He admitted that this employment was available to him only seasonally as the Ginning pressing factory does not run throughout the year. He said, during the other part of the year, he was working as worker in sheet metal work shop. Even here, he said he would get Rs.150/- per day as wages. I am inclined to 4 hold that the appellant's daily wages could not been less than Rs.150. Having regard to the future prospects, the income of the appellant at the time of incident, could not have been less than Rs.4,000/- per month. 7 The second question is due to the injury and permanent disablement, to what extent his earning capacity would be reduced? The appellant was a worker. Assuming that he was gaining skills of a fitter in a Ginning factory, or as a worker in a Sheet metal Works, he heavily depended on his two hands, for his work. Loss of one hand, that too the right one from elbow, would render him almost useless. In such disabled condition, surely he would not be able to work as fitter or worker in Sheet metal Works. In my view, his earning capacity would be reduced to the extent of 75%. So, his loss would come to Rs.3,000/- per month. 8 The next question is what multiplier is applicable to this case. In view of the judgment of Supreme Court in the case of Sarala Varma and others Vs. Delhi Transport Corporation and another reported in 2009 (6) S.C.C. 121, for the age of 23, multiplier applicable would be 17. Applying said multiplier, amount of compensation comes to Rs. (3,000x12x17) = 6,12,000/-. 9 In addition to this amount, whether the appellant is entitled to any other compensation? The appellant is certainly entitled to compensation on account of pain and suffering. The learned judge of the Tribunal has granted him Rs.10,000/- on that count and I am not inclined to disturb the same. In addition to this, the appellant is entitled to the amount which he spent on his medical treatment. The evidence has come on record to show that the appellant has spent about Rs.30,000/- and the learned judge of the Tribunal has awarded the said amount to him. In addition to 5 this, the appellant is also entitled to compensation on account of loss of income during period of his medical treatment. I am inclined to grant him Rs.10,000/- on that count. In view of this, the total compensation comes to Rs.6,62,000/-. The appellant is entitled to get 6% p.a. interest on the said amount from the date of the application. The appellant is also entitled to the cost of this appeal. 10 The next question is whether the respondent No.3 the Insurance Company is liable to pay this amount? The learned judge of the Tribunal absolved them of the liability. The fact that the vehicle in question was insured with the respondent No.3 is admitted. The appellant clearly proved that he was the representative of the owner of the Goods carried in the vehicle at the time of accident. There is virtually no cross examination on this point. In view of Section 147 of the Act, the Insurance Company would be liable to pay the amount of compensation calculated above. The appeal therefore, succeeds. ORDER The respondents shall jointly or severally pay Rs.6,62,000/- with 6% p.a. Interest from the date of the application, along with cost of this appeal. The amount so far received by the appellant shall be deducted from the above mentioned amount. In view of the enhanced compensation granted, the appellant shall deposit deficit Court fee. [A.V. NIRGUDE, J.] tsk/ok 6