1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 11. FA/414/2009 With CA/2308/2009 In FA/414/2009 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. M.D.Shinde, Adv., for the appellant. Mr Ajit Kadethankar, Adv., for respondent no.1. ... CORAM: K.U.CHANDIWAL, J. DATE: 13/7/2009 P.C.:- 1. Dissatisfied with the award of Rs. 91,800/-, fixing the liability of original respondent no.1 ( appellant herein), is the subject of challenge in the First Appeal. The matter is finally heard at admission stage, without calling record and proceedings. 2. The claimant was a driver at a tractor bearing No.MH-23-B-5194, which was parked in the yard of the sugar factory on 22nd May, 2007. He was having rest beneath the trolley attached to the said tractor. It was at this unfortunate moment, another tractor, having registration No.MH-24- D-2546; attached with trolley No.MH-24-E-1833 2 loaded with sugarcane, driven by driver Dayanand, employed by the appellant, drive the vehicle in such a fashion that due to the dash, the claimant was crushed under the vehicle driven by said Dayanand and he was unconscious, he was removed to the hospital, has suffered following injuries as indicated at Exh.36. "1. Rt. foot : CLW on right foot, over and below 2nd, 3rd and 4th toe (Rt.). 2. Rt.ankle Swelling with loss of skin, with bony fusion exposed, movements could not be seen due to pain. 3. Lt. ankle joint swelling with movements could not be seen due to pain, tenderness." 3. The claimant canvassed that the accident culminated into his permanent disablement, for which Exh.48 issued by Dr.Sandhikar was tendered and proved. The age of the claimant was 27 years on the date of the accident having born on 1.7.1980 ( Exh.40). The claimant contemplated his monthly earning to be Rs.5000/- with additional emoluments ( diet charges of Rs.50/-). 4. The contention that the driver of the contractor Dayanand was not made a party will by itself not exonerate the appellant as the liability is vicarious and cannot be defused. It was apparently the negligence on the part of the 3 Dayanand leading to the accident where the vehicle was loaded with sugarcane. The terms of Insurance Company were breached which made the learned Judge to exonerate the Insurance Company - this also does not call for any interference. As per the calculations arrived at, as indicated in paragraph no.11 of the judgment, the learned Judge treated the notional salary as Rs.15,000/- annually, considering the age, multiplier of 18 was applied and the disablement was treated to be 20 per cent. The loss of salary of Rs.12,000/- was also considered. The hospitalization and diet charges were taken into account. These details, cannot be said to be illusory in nature requiring any interference. Appeal lacks merit. It is dismissed. No costs. 5. The amount deposited in this Court to be remitted to the learned Member, Motor Accident Claims Tribunal, Latur. Civil Application disposed of. (K.U.CHANDIWAL) JUDGE agp/fa414-09