BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,AT THANE (Presided over by Shri.S.D.Mohod,Chairman,M.A.C.T. Thane)

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1 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,AT THANE (Presided over by Shri.S.D.Mohod,Chairman,M.A.C.T. Thane) PRESENTED ON : 30/04/2004 REGISTERED ON : 30/04/2004 DECIDED ON : 13/09/2010 DURATION :Y. M. D MOTOR ACCIDENT CLAIM PETITION NO. 346/ Shri. Mahajya Lahanu Gimbhal, Aged about 45 years, (Father of the deceased) 2. Smt.Tulsi Mahajya Gimbhal, Aged about 40 years, (Mother of the deceased) Both are residing at : Dabhalon, Post: Sakharshet, Khalich Mal, Tal. Jawhar, District : Thane.... Applicants. V/s. 1. Shri.Nitinkumar Kantilal Rawal, Residing at : 197, Padma Nagar, New Kaneri, Bhiwandi, District:Thane. (Owner of the M/Truck No.MH-04/P-9495) 2. The United India Insurance Co.Ltd. Thane Divisional Office,

2 Shelar Building, Gokhale Road, Naupada, Thane. (Insurer of the M/Tempo No.MH-04/P-9495) Policy No /31/03/00831, Validity Period : 23/07/2003 to 22/07/ Opponents. W I T H MOTOR ACCIDENT CLAIM PETITION NO. 347/2004 Shri. Suresh Janya Pagi, Aged about 18 years, Occupation : Labourer, Residing at : Dabhalon, Post: Sakharshet, Khalich Mal, Taluka: Jawhar, District : Thane.... Applicant. V/s. 1. Shri.Nitinkumar Kantilal Rawal, Residing at : 197, Padma Nagar, New Kaneri, Bhiwandi, District:Thane. (Owner of the M/Truck No.MH-04/P-9495) 2. The United India Insurance Co.Ltd. Thane Divisional Office, Shelar Building, Gokhale Road, Naupada, Thane. (Insurer of the M/Tempo No.MH-04/P-9495) Policy No /31/03/00831, Validity Period : 23/07/2003 to 22/07/ Opponents.

3 W I T H MOTOR ACCIDENT CLAIM PETITION NO. 348/2004 Shri. Vishnu Laxman Gimbhal, Aged about 20 years, Occupation : Labourer, Residing at : Dabhalon, Post: Sakharshet, Khalich Mal, Taluka: Jawhar, District : Thane.... Applicant. V/s. 1. Shri.Nitinkumar Kantilal Rawal, Residing at : 197, Padma Nagar, New Kaneri, Bhiwandi, District:Thane. (Owner of the M/Truck No.MH-04/P-9495) 2. The United India Insurance Co.Ltd. Thane Divisional Office, Shelar Building, Gokhale Road, Naupada, Thane. (Insurer of the M/Tempo No.MH-04/P-9495) Policy No /31/03/00831, Validity Period : 23/07/2003 to 22/07/ Opponents. A L O N G W I T H MOTOR ACCIDENT CLAIM PETITION NO. 349/2004 Shri. Shivaji Dharma Gotarna, Aged about 21 years,

4 Occupation : Labourer, Residing at : Dabhalon, Post: Sakharshet, Khalich Mal, Taluka: Jawhar, District : Thane.... Applicant. V/s. 1. Shri.Nitinkumar Kantilal Rawal, Residing at : 197, Padma Nagar, New Kaneri, Bhiwandi, District:Thane. (Owner of the M/Truck No.MH-04/P-9495) 2. The United India Insurance Co.Ltd. Thane Divisional Office, Shelar Building, Gokhale Road, Naupada, Thane. (Insurer of the M/Tempo No.MH-04/P-9495) Policy No /31/03/00831, Validity Period : 23/07/2003 to 22/07/ Opponents Claims U/Sec. 166 of the The Motor Vehicles Act, Shri.J.P.Gadiya Adv.for Claimants. Opponent No.1- Exparte. Shri.K.V.Poojari, Adv. for Respondent no

5 : C O M M O N J U D G M E N T : (Delivered on this 13 th day of September, 2010) 1] M.A.C.P.No. 346/2004 is by the parents of deceased Ladak Mohajya Gimbhal against truck owner and insurer of it, U/Sec. 166 of the Motor Vehicles Act, M.A.C.P.No. 347/2004 is by injured Suresh Janya Pagi against very truck owner and insurer of it U/Sec. 166 of the Motor Vehicles Act, M.A.C.P.No. 348/2004 is by injured Vishnu Laxman Gimbhal against the same truck owner and insurer company of it, U/Sec. 166 of the Motor Vehicles Act, M.A.C.P.No. 349/2004 is by injured Shivaji Dharma Gotarna against very truck owner and insurer of it U/Sec. 166 of the Motor Vehicles Act, Since all the four claims arose out of one and the same vehicular accident, those are being disposed off by this common judgment. 2] A few facts are that on 30/10/2003 Ladak son of Mohajya Gimbhal, aged about 22 years, labourer by occupation ; Suresh Janya Pagi,aged about 18 years, labourer by occupation ; Vishnu Laxman Gimbhal, aged about 20 years, labourer by occupation, and Shivaji Dharma Gotarna,

6 aged about 21 years, labourer by occupation ; all residents of Dabhalon, Post- Sakharshet, Khalicha Mal, Taluka- Jawhar, District- Thane, along with others boarded truck bearing registration No. MH-04/P-9495, (for short truck) at Charoti Naka, Taluka- Dahanu, District-Thane, on Ahmedabad - Mumbai Highway, bound for Mumbai City. 3] Around hours when truck was moving within the limits of village Kude and within the jurisdiction of Manor Police Station, District -Thane, it is alleged that because of driving it at high and excessive speed and in rash and negligent manner by the driver of it, front cleaner side of it burst and truck over turned. Ladak Mohajya Gimbhal suffered amongst other injuries, head injury and breathed his last on the spot itself. Autopsy on dead body of Ladak Mohajya Gimbhal was conducted at P.H.C. Manor. 4] Suresh Janya Pagi received injury to his left leg, left lumber and left shoulder, Vishnu Laxman Gimbhal suffered amongst other injuries fracture upper 1/3 humerus left and Shivaji Dharma Gotarna sustained amongst other injuries fracture upper third humerus shaft, and all of them were rushed to Bhagwati Hospital, Borivali, Mumbai, for getting medically examined and treated. 5] Attributing negligence to truck driver as pointed out earlier,

7 parents of Ladak Mohajya Gimbhal have brought M.A.C.P.No. 346/2004, against truck owner and insurer of it claiming compensation of Rs.2,00,000/- with interest from the date of institution of petition till realization of the same, in full, under different heads and on various scores. 6] Ascribing negligence to truck driver, injured Suresh Janya Pagi has instituted M.A.C.P.No.347/2004 against very truck owner and insurance company of it claiming compensation of Rs.1,00,000/- with interest from the date of filing of the petition till realization of the same, in full, under different heads and on various scores. 7] Alleging negligence to truck driver, injured Vishnu Laxman Gimbhal has filed M.A.C.P. No.348/2004 against very truck owner and insurance company of it claiming compensation of Rs.1,00,000/- with interest from the date of filing of the petition till realization of the same, in full, on different scores and under various counts. 8] Imputing negligence to truck driver, injured Shivaji Dharma Gotarna has brought M.A.C.P. No. 349/2004 against very truck owner and insurance company of it claiming compensation of Rs.1,00,000/- with interest from the date of filing of the petition till realization of the same,

8 in full, under different heads and on various scores. 9] Truck owner, who is incidentally impleaded as partyrespondent no.1, in all the four claims, inspite of service with notice of these petitions, since choose to remain away, he is set ex-parte. 10] Respondent no.2, The United India Insurance Company Ltd. has filed Written Statement in M.A.C.P.No.346/2004 at Exh.19, in M.A.C.P. No.347/2004 at Exh.21, in M.A.C.P.No.348/2004 at Exh. 20 and in M.A.C.P. No.349/2004 at Exh.21, and resisted all the petitions. 11] Common stand of The United India Insurance Company Ltd., in all the claim petitions is that deceased Ladak Mohajya Gimbhal, injured Suresh Janya Pagi, Vishnu Laxman Gimbhal and Shivaji Dharma Gotarna, at the relevant time along with others, were travelling in a truck as passengers, without permit to that effect, in a truck Goods Vehicle, and therefore, it being breach of terms and conditions of policy, on the part of truck owner/insured, it as insurer of a truck can not at all be fastened with the liability in any of the claims. The respondent no.2 / The United India Insurance Co.Ltd., thus, on all these contentions have sought dismissal of all the four claim petitions with it's costs.

9 12] In M.A.C.P. No. 346/2004 Shri.B.P.Patil, learned Member of this Tribunal framed following issues at Exh.22 and my findings thereon for the reasons to follow are as under : ISSUES FINDINGS 1) Do the claimants prove that deceased Ladak Mohajya Gimbhal died in the Motor vehicle accident took place on 30/10/2003 at 1.30 p.m. near K.M. Stone no.252/2 on Mumbai-Ahmedabad Highway within the precinct of village Kude due to rash and negligent act of driving of truck bearing no.mh-04/p by its driver? Yes. 2) Are the claimants entitled to Rs.1,63,000/- with compensation? If yes, to what 7 % p.a. interest extent and from whom? from respondent no.1 only. 3) What order and award? As per the order passed herein after. 13] In M.A.C.P.No.347/2004 Shri.B.P.Patil, learned Member of this Tribunal framed following issues at Exh.22 and my findings thereon for the reasons to follow are as under : ISSUES FINDINGS 1) Does the claimant prove that he sustained permanent disability/

10 grievous injuries in a motor vehicle accident dt. 30/10/2003 at about hours on Mumbai-Ahmedabad highway road, near Kilo meter stone no.252/2 within the precinct of Kude village, due to rash and negligent driving of a truck bearing registration no. MH-04/P-9495 owned by the opponent no.1? Yes. 2) Is the claimant entitled to the Rs.51,000/- with compensation? If yes, to what 7 % p.a. interest extent and from whom? from respondent no.1 only. 3) What order and award? As per the order passed herein after. 14] In M.A.C.P.No.348/2004 Shri.B.P.Patil, learned Member of this Tribunal framed following issues at Exh.21 and my findings thereon for the reasons to follow are as under : ISSUES FINDINGS 1) Does the claimant prove that he sustained permanent disability/ grievous injuries in a motor vehicle accident dt. 30/10/2003 at about hours on Mumbai-Ahmedabad highway road, near Kilo meter stone no.252/2 within the precinct of Kude

11 village, due to rash and negligent driving of a truck bearing registration no. MH-04/P-9495 owned by the opponent no.1? Yes. 2) Is the claimant entitled to the Rs.72,000/- with compensation? If yes, to what 7 % p.a. interest extent and from whom? from respondent no.1 only. 3) What order and award? As per the order passed herein after. 15] In M.A.C.P.No.349/2004 Shri.B.P.Patil, learned Member of this Tribunal framed following issues at Exh.22 and my findings thereon for the reasons to follow are as under : ISSUES 1) Does the claimant prove that he sustained permanent disability/ grievous injuries in a motor vehicle accident dt. 30/10/2003 at about hours on Mumbai-Ahmedabad highway road, near Kilo meter stone no.252/2 within the precinct of Kude village, due to rash and negligent driving of a truck bearing registration no. MH-04/P-9495 owned by the opponent no.1? FINDINGS Yes. 2) Is the claimant entitled to the Rs.74,000/- with

12 compensation? If yes, to what extent and from whom? 7 % p.a. interest from respondent no.1 only. 3) What order and award? As per the order passed herein after. ISSUE NO.1 : : R E A S O N S : (Common and identical in all petitions Nos. 346/2004 to 349/2004) 16] Accident, it's day, date, place and time is not at all in dispute, here. Similarly, it is no more in dispute that the accident took place involving truck, in which, Ladak Mohajya Gimbhal, in M.A.C.P. No.346/2004 suffered amongst other injuries, head injury and died of shock, due to injury to his cerebral i.e. brain matter and cerebral haemorrhage, on the spot itself. 17] Likewise, it is no more in dispute that claimant Suresh Janya Pagi in M.A.C.P. No.347/2004, suffered injuries to his left leg, left lumber and left shoulder, besides other injuries, claimant Vishnu Laxman Gimbhal in M.A.C.P. No. 348/2004 received injuries to his left hand, left leg and on neck, and claimant Shivaji Dharma Gotarna in M.A.C.P.No.349/2004 sustained amongst other injuries, fracture upper third humerus shaft and

13 were rushed in an injured state, soon after the accident, to Bhagwati Hospital, Borivali, where they were treated as in- patients. 18] Negligence on the part of truck driver is sought to be established by claimant no.1 Mohajya Lanahnu Gimbhal in M.A.C.P. No. 346/2004, stepping into witness box as P.W.1 at Exh.37 and by pressing into service certified copy of complaint by Goma Rupji Varkhande of village Vadavali, Taluka- Talasari, to police station Manor and panchanama of accident spot which came to be marked as Exh.38 & 39 respectively. In M.A.C.P.No. 347/2004, injured claimant Suresh Janya Pagi getting into witness box as P.W.1 at Exh.30 ; in M.A.C.P. No. 348/2004, injured claimant Vishnu Laxman Gimbhal by entering into witness box as P.W.1 at Exh.29 and in M.A.C.P.No. 349/2004 injured claimant Shivaji Dharma Gotarna by entering into witness box as P.W.1 at Exh. 32, have sought to prove negligence of truck driver. 19] Claimant no.1- Mohajya Gimbhal examined as P.W.1 at Exh.37 in M.A.C.P.No.346/2004 since was not admittedly at the accident spot his evidence is of no consequence to establish negligence, on the part of truck driver. 20] Ocular account of accident given by injured claimant-suresh

14 Janya Pagi as P.W.1 at Exh.30 in M.A.C.P.No.347/2004, injured claimant- Vishnu Laxman Gimbhal as P.W.1 at Exh.29 in M.A.C.P.No.348/2004, and Shivaji Dharma Gotarna as P.W.1 at Exh.32 in M.A.C.P.No.349/2004, is that accident took place on bursting of front tyre of the truck and then truck turning turtle, which is found to be consistent with complaint Exh.37, spot panchanama Exh. 38 and spot panchanama Exh.39 in M.A.C.P.No. 346/2004. Truck turning turtle after bursting of its front cleaner side tyre, itself is the pointer of the fact that truck driver was not vigilant and cautious to see whether tyres of the truck were roadworthy and then taking care in driving it to see that no untoward incident occurs, allowing truck to be plied on the road till bursting of its cleaner's side tyre, resulting in truck over turning. It is thus, evident that truck driver was solely rash and negligent in bringing about the accident, death of Ladak Mohajya Gimbhal and injuries to Suresh Janya Pagi, Vishnu Laxman Gimbhal, Shivaji Dharma Gotarna and no more evidence is necessitated to ascribe negligence to the truck driver. Issue no.1 in all four claim petitions thus, is to be replied in the affirmative and it stands answered accordingly. ISSUE NO.2 : (Common and identical in all the four claim petition nos. 346/2004 to 349/2004)

15 20] In M.A.C.P.No.346/2004, first claimant Mohajya Lanabnu Gimbhal examined as P.W.1 at Exh.37 has asserted that his son Ladak, 22 years old, at the time of his death in the present accident, was earning in the range of Rs.3,000/- to Rs.4,000/- p.m. Claimants have, however, not brought documentary evidence with regard to earning of deceased Ladak, nor did they examine a person in whose employment deceased Ladak was working and getting Rs.3,000/- p.m. Be that so, first claimant Mohojya Lanahnu Gimbhal in cross-examination by respondent no.2 was candid in saying that he is earning Rs.2,000/- p.m. by doing labour work. Deceased Ladak in the year 2004 thus, at the most, can be taken to be earning Rs.2,000/- p.m. and Rs. 24,000/- p.a., by doing labour work. 21] In the absence of specific evidence, how much deceased Ladak was contributing to family kitty, of his parents, for first three years, his contribution to family kitty of his parents will have to be taken 2/3 rd and thereafter 1/3 rd as by the time had he survived, he would have got married resulting in burdening with liability of his spouse and reduction in his contribution to his parents. At the most his contribution to his parents can be taken half of his earning after three years to be specific from the age of 25 years onwards. Thus contribution of deceased Ladak for first three years is to be taken at Rs.16,000/- p.a. and then Rs. 10,000/- p.a.

16 22] Coming now to adopting of suitable multiplier here, since the deceased Ladak was unmarried and here claimants are his parents, age of his parents is to be taken into account, in order to adopt appropriate multiplier. With regard to their age, claimants have brought no age proof, either in the form of birth certificate, school-leaving certificate or certificate issued by local authority. This Tribunal thus, has to depend upon the age mentioned in title clause of the petition to be 45 and 40 of claimants and adopting of multiplier of '13' would be appropriate one, especially, when they have not brought their age proof. Thus, if a sum of Rs.16,000/- is multiplied by '3' and an amount of Rs.10,000/- is multiplied by '10', ( Rs.48,000/- + Rs.1,00,000/- =Rs.1,48,000/- ), would be the datum figure which is to be awarded here, in toto, to the claimants, as loss of contribution of their son deceased Ladak to family kitty. 23] Some sum is to be awarded here on transporting of dead body and expenses of obsequies. Since dead body was not to be transported covering much distance from Manor police station to the place of deceased Ladak, awarding of Rs.2,000/- on conveying of dead body and Rs.3,000/- on expenses of last rites, should suffice, here. 24] Some award also is to be made here, on loss to the estate. Since deceased Ladak was admittedly from the family of labour class,

17 awarding of Rs.10,000/- should suffice and take care of this head, as just amount of compensation on loss to the estate. 25] Break up of compensation awardable to the claimant nos.1 & 2 thus, can be enumerated as under : 1) towards loss of dependency. Rs.1,48,000/- 2) towards conveyance Rs. 2,000/- 3) towards funeral expenses Rs. 3,000/- 4) towards loss to the estate Rs. 10,000/ Total compensation Rs.1,63,000/ On the above amount of Rs.1,63,000/-, no doubt, claimant nos. 1 & 2 are entitled to interest from the date of petition till realization of the same, in its entirely, but not exceeding 7 % p.a. as recent trend of awarding interest, as can be seen from the judicial pronouncements; even of the Hon'ble Supreme Court is of awarding interest in the range of 6% to 7% p.a. 26] In M.A.C.P. No. 347/2004, claimant Suresh Janya Pagi examined as P.W.1 at Exh.30 states that he incurred expenses of Rs.15,000/- on his medical treatment and hospitalization. He however

18 produced not a single bill, receipt or cash memo, either of paying hospitalization charges or buying medicines or related items from open market, probably because of the fact that he being from lower strata and labour class, he might not have incurred expenses on hospitalization and buying medicines and related items from open market. He thus would hardly be awarded with any sum on hospitalization and medicare. 27] Coming now to award to the claimant on loss of earning during treatment period. Claimant Suresh Janya Pagi as P.W.1 has said at Exh.30 that he was treated as in-patient for 5 to 6 days at Bhagwati Hospital, Borivali, he then took treatment of Dr. Raju Khanzode for 4 days as out-patient. He did not speak anywhere how long he was away from his job. Discharge card Exh.31 issued by Bhagwati Hospital, Borivali, however, mentions that he had suffered dislocation of left shoulder. 28] It is matter of common experience that dislocation of any limb of human being, normally takes period of 2 to 3 months for properly setting, if he happens to be of young age. Since injured/claimant Suresh Janya Pagi was 22 yrs. of age, when he was injured in the present accident, he can be taken as away from the job for 3 months and he is to be awarded equal to 3 months on loss of earning during treatment period.

19 29] As to his job and earning, claimant Suresh Janya Pagi asserts that prior to accident or at the time of accident, he was labourer by occupation and his earning to be Rs.100/- a day and Rs.3,000/- p.m. He has however not produced a single document of his earning being Rs.3,000/- p.m. indeed and he has not even examined his employer to show and prove that he in fact was getting Rs.3,000/- p.m. in the year 2004 of the present accident by doing labour work. He thus, is to be taken as unskilled labourer and his earning to be Rs.2,000/- p.m. 30] Thus, if sum of Rs.2,000/- is multiplied by '3', Rs.6,000/- would be the sum, which is awarded, here to the claimant Suresh Janya Pagi on loss of earning during the period of treatment or for that matter he remaining immobilized, under the head of general damages. 31] This takes me now to award to the claimant Suresh Janya Pagi on future loss of earning. It is to be awarded in the injury claim equal to percentage of disability ; if disability affects capacity of earning of injured claimant by adopting multiplier method. 32] In order to prove nature and extent of disability suffered by him, claimant Suresh Janya Pagi has examined Dr. Sujeet Ratan Jain, Orthopedic Surgeon as P.W.2. He has testified at Exh.34 that on

20 29/3/2005 he examined Suresh Janya Pagi for assessment of disability and issued disability certificate Exh ] According to Dr.Sujeet Ratan Jain,P.W.2, due to stiffness of left shoulder joint, restriction in abduction and external rotation of left shoulder, there was weakness of shoulder of gulden muscle and loss of incisor tooth, for which disability assessed by him was 20 % permanent partial in nature. Despite cross-examination by respondent no.2 nothing material has been brought out to show that disability assessed by him in the claimant Suresh Janya Pagi was not in accordance with guide-lines issued by Maharashtra Orthopedic Association. 34] Fact, however, remains that claimant Suresh Janya Pagi himself in cross-examination by respondent no.2, has said that at present he earns in the range of Rs.5,000/- to Rs.6,000/- p.m. It is thus, evident from version coming from mouth of claimant himself that disability which is permanent partial in nature of 20 % assessed by Dr. Sujeet Jain as P.W.2 has not marred prospect of his earning. He thus, would hardly be awarded equal to percentage of disability by adopting multiplier method, on future loss of earning. He, at the most, can be awarded some amount on he suffering 20 % permanent partial disability. Considering the fact that here claimant Suresh Janya Pagi had not suffered fracture of any limb, but only

21 dislocation, awarding of Rs.30,000/- whould take care of the same, as just amount of compensation, on he suffering 20 % permanent partial disability, here. 35] Added to this, some sum is to be awarded towards travelling expenses and nutritious diet to the claimant. Though claimant Suresh Janya Pagi has not spoken how much he spent on rich diet or travelling expenses, he must have spent some amount on nutritious food to heal up injury early and on conveyance not only of himself, but some one from his family accompanying him every time to the hospital at least by public conveyance. Some one from his family also must have looked after him like that of attendant, at the cost of his/her earning and living. Thus, if I award here, Rs.5,000/-, it would take care of rich diet, travelling expenses and attendant charges as well, to injured claimant Suresh Pagi. 36] Before, I part with this, some award will have to be made to claimant on pains, suffering, mental agony here. On suffering dislocation of left shoulder, besides other injuries claimant must have undergone lot of agonies and experienced pains as well. He is however awarded sumptuous amount as on loss of earning during treatment period and on disability. Thus, if I award him Rs.10,000/- here, it would take care of this head of pains, suffering and mental agonies, as just one.

22 37] Break up of compensation awardable to the claimant Suresh Pagi thus, can be enumerated as under : 1) towards loss of earning during treatment period Rs. 6,000/- 3) towards pains,suffering and mental agonies 2) towards disability Rs.30,000/- Rs.10,000/- 4) towards rich diet, travelling expenses etc. Rs. 5,000/ Total compensation Rs.51,000/ On the above amount of Rs.51,000/-, no doubt, claimant is entitled to interest from the date of petition till realization of the same, in its entirety, but not exceeding 7 % p.a. as recent trend of awarding interest, as can be seen from the judicial pronouncements; even of the Hon'ble Supreme Court is of awarding interest in the range of 6% to 7% p.a. 38] In M.A.C.P.No.348/04 claimant Vishnu Laxman Gimbhal examined as P.W.1 at Exh.29 deposes that he could not go for labour work for two months. Discharge card Exh.31 issued by Bhagwati Hospital, Borivali shows that he had suffered amongst other injuries, fracture humerus left. He thus, is to be awarded here, equal to 3 months of loss of

23 earning during treatment period, as he was of young age, within twenties when he had suffered injuries in the present accident. 39] Now, as to his job and earning, claimant Vishnu Laxman Gimbhal as P.W.1 has said that he was doing labour work, earning Rs.3,000/- p.m. He has however, neither produced salary certificate nor has examined his employer to show that he indeed used to earn Rs.3,000/- p.m. by doing labour work. He, thus, is to be taken as earning Rs.2,000/- p.m. as labourer at the time of accident. He thus is to be awarded Rs.6,000/- (Rs.2,000/- x 3 = Rs.6,000/-) on loss of earning during treatment period for he remaining immobilized and hospitalized. 40] Coming now to award to claimant Vishnu Laxman Gimbhal on future loss of earning. It is to be normally awarded in the injury claims equal to percentage of disability, if it mars capacity to earn, of the injured claimant. 41] In the present matter injured claimant Vishnu Laxman Gimbhal has examined Dr.Sujeet Jain as P.W.2 to prove nature and extent of disability suffered by him. Dr.Sujeet Jain, P.W.2 has testified at Exh.33 that on 29/3/2003 he examined Vishnu Laxman Gimbhal and issued disability certificate Exh.34.

24 42] Dr.Sujeet Ratan Jain as P.W.2 at Exh.33 proceeded to state that due to stiffness of left shoulder, malunion of fracture humerus left, weakness of left arm and forearm muscles and weakness of grip of left hand, disability assessed by him in Vishnu was 30 % permanent partial in nature. In cross-examination by respondent no.2 he however was candid in opining that disability assessed by him was with regard to particular limb and not as to entire body. 43] Be the case as it may, claimant Vishnu Laxman Gimbhal himself in cross-examination by respondent no.2 has said that now he has been earning Rs.4,000/- p.m. by doing labour work which would suggest that due to permanent partial disability, capacity to work and earn of the injured claimant has not been affected. Claimant Vishnu at the most here can be awarded on his suffering 30 % permanent partial disability. Considering the fact that fracture suffered by the claimant Vishnu was of humerus, awarding of Rs.45,000/- should suffice, here. 44] This takes me now to award to the claimant on non-pecuniary damages towards pains, suffering, mental agony etc. On suffering fracture left humerus, besides other injuries, claimant Vishnu must have experienced intolerable and unbearable pains and he must have also

25 undergone lot of agonies. He thus, if awarded with Rs.15,000/-, it would take care here not only of pains, suffering and mental agonies, but of loss of amenities of life as well. 45] Before I part with this, though injured claimant Vishnu has not produced single bill, receipt or cash memo of buying nutritious food or of hiring any vehicle, soon after accident he must have arranged some vehicle, at least three wheeler to rush to the hospital. Thereafter, every time for follow up treatment he must have spent not only on himself, but on someone else from his family attending every time to him, at least conveyance of three wheeler. 46] Claimant -Vishnu Laxman Gimbhal also must have taken nutritious diet to heal up injuries, also someone from his family also must have looked after him, like that of attendant at the cost of his/her earning and living. Thus in the absence of bills, receipts, cash memos, evidence of attendant or driver of any vehicle, if I award him, here amount of Rs.6,000/-, it would not be without any base or foundation, but would represent as just amount of compensation on nutritious diet, attendant charges and conveyance expenses. 47] Break up of compensation awardable to the claimant Vishnu

26 Gimbhal, thus, can be enumerated as under : 1) towards loss of earning during treatment period Rs. 6,000/- 2) towards pains,suffering and mental agonies 2) towards disability Rs.45,000/- Rs.15,000/- 3) towards rich diet, travelling expenses etc. Rs. 6,000/ Total compensation Rs.72,000/ On the above amount of Rs.72,000/-, no doubt claimant Vishnu is entitled to interest from the date of petition till realization of same, in its entirety, but not exceeding 7 % p.a. as recent trend of awarding interest, as can be seen from the judicial pronouncements; even of the Hon'ble Supreme Court is of awarding interest in the range of 6% to 7% p.a. 48] In M.A.C.P.No. 349/2004 injured Shivaji Dharma Gotarna as P.W.1 at Exh.32 has stated that he was treated as indoor patient for 13 days and he could not report to his duties for about two years. He has however, barring discharge card Exh.33 and injury certificate Exh.34, produced no paper of follow up treatment. Be that so, Dr. Sujeet Jain an Orthopedic

27 Surgeon examined by him states in cross-examination that healing period of fracture of the present injured was of three months. Present claimant thus, at the most, can be taken away from his job or immobilized for four months and he is to be awarded equal to four months of loss of earning. 49] As to his job and earning, claimant Shivaji Dharma Gotarna as P.W.1 at Exh.32 has stated that from the time of accident he was engaged on wages of Rs.200/- a day. He has however, produced no salary certificate. He has also not bothered to examine his employer to show that indeed he used to earn Rs.200/- a day that too, by doing labour work. He thus, is to be taken as unskilled labourer and his earning in the year 2004 of present accident as Rs.2,000/- p.m. He thus, is to be awarded Rs.8,000/- (Rs.2,000/- x 4 = Rs.8,000/-) on loss of earning, during treatment period in which, he remained immobilized. 50] This takes me now to award to the claimant -Shivaji on loss of future earning. It is to be normally awarded in injury claim, equal to percentage of disability by adopting multiplier method, if disability renders him incapable of doing any work, as was prior to the accident. 51] Here claimant-shivaji, to prove extent and gravity of disability, has examined Dr. Sujeet Jain, Orthopedic Surgeon, as P.W.2.

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