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2012 DIGILAW 334 (BOM)

Sadhana Atul Gujrathi v. Mohommed Dhola Ansari

2012-02-13

MRIDULA BHATKAR

body2012
Judgment : This appeal is filed by the original applicant/appellant for the enhancement of compensation. 2. The appellant alongwith her family members had gone to pilgrimage in state of Bihar. On 31/12/1997 she met with an accident at District Madhuban. When she was standing, the bus suddenly came from reverse direction and two rear wheels of the bus went on her body. She sustained multiple injuries including fracture of leg. She was admitted in the hospital at Bihar and thereafter at Nasik and Pune. She underwent surgery and incurred lot of medical expenses. She filed claim against the owner, driver and insurer of the vehicle for the compensation of Rs.9 lacs. 3. The claim was contested by the opponents mainly the Insurance Company and the Tribunal passed award of compensation of Rs.4,36,000/-. Being aggrieved by the said order, the appellant has filed this appeal for enhancement of compensation. 4. Point for determination:- Whether the appellant is entitled to enhancement of compensation ? Partly allowed 5. The appellant through her power of attorney i.e. her husband appeared who argued the appeal. He submitted that after the award was passed the appellant has undergone surgery at Pune and she is 90% disabled. He submitted that she was running a shop by name Parag Agency and her income was Rs.4,000/-p.m.. He has relied upon the income tax returns of the shop. He submitted that these factors ought to have been considered by the Tribunal. 6. Mr. Ghotekar, learned counsel appearing for the insurance company submitted that the claim against respondent nos.1 and 2 is dismissed for want of prosecution and hence the award is against Insurance Company only. He submitted that the claim cannot be enhanced against the Insurance Company alone. He further submitted that the income tax returns filed by the appellant are of the next year and the income tax returns of the earlier years ought to have been considered. 7. Perused the record and evidence tendered by the parties. Dr. Shah was examined by the original applicant as her witness on the point of disability which is at Exh.69 who stated that she could not walk and stand. There is 91% impairment of her left leg. He has opined that she would require to undergo operation of hip bone replacement. It will cost Rs.1,50,000/-. Dr. Shah was examined by the original applicant as her witness on the point of disability which is at Exh.69 who stated that she could not walk and stand. There is 91% impairment of her left leg. He has opined that she would require to undergo operation of hip bone replacement. It will cost Rs.1,50,000/-. However, on query the husband of the appellant stated that the said operation was not performed but her bladder was removed. On perusal of the papers produced by him it is found that it is an operation by name "Hysterectomy" and obviously it is not related to the accident. For want of evidence, amount of compensation cannot be enhanced or granted as prayed for on the point of future operation. 8. There is evidence that she was running one shop by name Parag Agency of which income tax returns are submitted at Exh.56 to 58. Submission of the appellant that the shop was closed cannot be accepted as attending shop is sedentary job and shop can be run under the supervision. However, as she was bedridden and operated number of times, as per schedule-2 of the Act, compensation can be awarded of 52 weeks i.e. one year. For the purpose of calculation her notional income is considered as Rs.15,000/-per annum with interest @ 7.5% per annum from the date of filing of the claim i.e.6.8.1998. Hence the award is enhanced to the extent of Rs.30,000/-only. The award be modified accordingly. The Insurance Company is directed to deposit the said amount within four weeks from today.