Manasvi Nilesh Panchal vs Mr. Abdul Kayum Shaikh & Anr.

By consent of both the sides heard finally.

This appeal under Section 173 of Motor Vehicles Act, 1988 (for short “M.V.Act”) takes exception to the Judgment and Award dated 26.09.2019 passed in M.A.C.P. No. 2176 of 2015 whereby the injury claim filed by the were jointly and severally directed to pay a sum of Rs.9,99,389/- with interest @7.5% from the date of application till realisation of the amount.

The appellant- claimant is aggrieved by non grant of compensation for loss of income on account of permanent partial disability caused to her. There is no dispute about the fact that on 02.09.2015 at about 9.00 p.m. claimant was crossing Marway Road, Malad (W), when motorcycle bearing No.MH-02-CM-0687 came in negligent manner and gave forceful dash to the claimant, as a result of the same she fell down on the road and sustained serious injuries. She was treated in hospitals. The vehicle was owned by the opponent No.1 and insured with opponent No.2 (appellant herein). She claimed that on account of disability caused to her to the extent of 68% as assessed by Dr. Kshitij Shah, she was entitled for compensation of loss of income. The learned Tribunal instead of applying multiplier gave lumpsum compensation of Rs.35,000/- to the claimant. Being aggrieved by the said order, present appeal.

Learned counsel for the appellant/claimant submits that the Tribunal has committed error in not considering the evidence on record which proves that the expert assessed the disability of the claimant to the extent of 68%. In fact, it is his submission that having regard to the nature of work done by the claimant as a Sales Executive, this is a case of 100% functional and occupational disability. It is his submission that the Tribunal ought to have applied multiplier and decided the compensation in view of the guidelines of the Hon’ble Supreme Court in the case of G. Ravindranath Vs. E. Srinivas (ACJ 2013 SC 2131). Apart from this, he placed reliance on following other judgments:

Learned counsel for Respondent No.2/ insurer opposed the appeal. In fact, he sought to take exception to the findings recorded by the Tribunal by contending that it is open for the insurer to take exception to the said finding even without filing cross appeal or cross objection. To support his submission he placed reliance on Judgment of Hon’ble Supreme Court in the case of U.P.S.R.T.C. Vs. Km. Mamta & Ors. in Civil Appeal No. 1425 of 2016 and in the case of Ravinder Kumar Sharma Vs. The State of Assam and Ors. SCR (1999) SUPP. 2 SCR. On merit it is his submission that the evidence led by the claimant is not sufficient to prove the permanent partial disability as well as functional / occupational disability. It is his submission that the claimant had sustained Grade -II, compound fracture tibia fabula of both legs. However, from the evidence of Dr. Dinesh Kasture, it is clear that the fracture is partially united and in course of time the same would be united completely. It is submitted that to work as a Sales Executive there could not be any impediment to her with these fracture injuries. It is his submission that in fact the Tribunal has erred in accepting the disability of the claimant even to the extent of 35%. It is his further submission that this is not the case wherein multiplier could be applied for the purpose of demanding the compensation.

At the outset, this Court would like to deal with an attempt made by the insurer to challenge the findings recorded by the Tribunal without filing cross objection or appeal against the Judgment and Award. Perusal of the judgments cited (supra) in case of U.P.S.R.T.C. (supra) as well as Ravinder Kumar Sharma (supra), it cannot be said that the insurer would be entitled to challenge the Judgment and Decree without filing cross objection or appeal against the impugned Judgment and Award. Order 41 Rule 22 of C.P.C. provides that when there is no challenge to the ultimate decree passed by the Trial Court, in an appeal filed by other side; finding recorded against the respondents can be challenged without filing cross objection or appeal against such order. Here in this case by seeking to challenge the findings of the Tribunal on merit, the insurer wants this Court to cause interference in the impugned Judgment and Award which is wholly impermissible in law.

As far as the evidence before the Tribunal is concerned, the claimant Executive. She has categorically stated of causing of permanent partial disability. According to her case, 100% functional / occupational disability is sustained. She however led evidence of Dr. Kshitij Shah who deposed about the percentage of the disability to the extent of 68%. Learned Tribunal after having considered nature of the injury has recorded findings that the disability of the claimant deserves to be accepted at 35%. Having regard to the nature of injuries and also in view of the fact that the fractures caused to the claimant were partially united initially and likely to be united in due course of time. In such circumstances, the assessment of permanent partial disability to the extent of 35% is not perverse to cause any interference therein. This Court however finds no substance in the contention of the learned counsel for the claimant that this is the case of 100% occupational / functional disability. It is pertinent to note that even as per the case of the claimant she could not work for a period of three years. She does not claim that she is completely incapacitated from working. In such circumstances, this Court finds no reason not to accept the permanent partial disability to the extent of 35% as functional & occupational disability.

It is settled position of law that when there is permanent disability which has affected the functioning /work of the injured, the principle of applying multiplier for determination of compensation would have to be considered by the Tribunal. The claimant was aged about 33 years. She was earning Rs.15,000/- having regard to the said fact by applying multiplier with future prospects @40% in view of the Judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi, 2017 ACJ 2700(SC) , the compensation of amount which would be entitled by the claimant is Rs. 15,12,000/-.

As far as the claim of the claimant of compensation for loss of actual income, evidence on record indicates that she required hospitalisation frequently for a period of a year. There is nothing on record to indicate that thereafter she was unable to work and earn.

So also the interest granted by the Tribunal on the amount of compensation @7.5% is in consonance with prevailing rate of interest on the interest on the Fixed deposit. In such circumstances, other claims sought to be raised by the claimant deserves to be rejected.

In view of above, I pass following order.

The appeal is disposed of. All pending applications, if any, also disposed of.