8-fa 42-16 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR FIRST APPEAL NO.42/2016 APPELLANTS : Victor Stenail Millor , (On R.A.) Aged about 43 years, Occupation Driver R/o Plot no.212, A Kaushiya Nagar, Near Thevare High School, Parvati Nagar Road, Nagpur. ...VERSUS… RESPONDENTS : 1) Vikasrao Mahadeorao Deshmukh, Aged Major Occu : Owner, R/o :F-1,Kunal Residency,, (On R.A.) Near Harihar Nagar, Beltarodi,Nagpur. 2) The Divisional Manager, IFFCO-TOKIO Gen. Insurance Co.Ltd, 8th Floor, 701-A, Shriramshyam Tower, Beside N.I.T.Complex, Kingsway, Sadar, Nagpur. --------------------------------------------------------------------------------------------------- Mr. K.P. Mirache,, Advocate for Appellant Ms.S.A.Dhawas, Advocate for the Respondent No.1. Mr.A.M.Kukday a/w Mr. V.D.Akhade, Advocate for Respondent No.2. --------------------------------------------------------------------------------------------------- CORAM : NEERAJ P. DHOTE, J. DATE : 09/03/2026 ORAL JUDGMENT : 1) The present Appeal is filed under Section 173 of the Motor Vehicles Act (for short M.V. Act) by the original Claimant for further enhancement in the compensation towards the permanent disability suffered by him in the Motor Vehicular Accident dated 2026:BHC-NAG:3981 8-fa 42-16 2 22/11/2007 by use of the vehicle, which was owned by Respondent No.1 and Insured with Respondent No.2. 2) Heard the earned Advocate for the Appellant, the learned Advocate for the Respondent No.1 and the learned Advocate for Respondent No.2. With their assistance, perused the papers. 3) The Appellant preferred the Claim Petition bearing No.130 of 2008 before the learned Accident Claims Tribunal, Nagpur under Section 166 of the M.V. Act for compensation. The Appellant led the necessary evidence. The learned Tribunal passed the Judgment and Award dated 28.08.2012 awarding the compensation of Rs.65,700/- with interest @ 7.5 % per annum from the date of the Application till the amount was realised. 4) It is submitted by the learned Advocate for the Appellant that, the Appellant has suffered 100% functional disability. The learned Tribunal did not consider the evidence on record in it’s right perspective and granted meager amount of Rs.22,000/- for disability. He submits that, there is ample evidence on record to show the nature of injury and disability suffered by the Appellant. He submits that, in absence of the proof 8-fa 42-16 3 towards the income of the Appellant, notional income of Rs.3,000/- may be considered. He submits that, the Appeal be allowed. 5) The Appeal is opposed by the learned Advocate for the Respondent No.2. He submits that, the disability certificate was issued in the year 2008, whereas the Appellant had undergone initial treatment on 26.11.2007. He submits that, the implant of the Appellant was removed on 15.06.2010. He submits that, there is no evidence in respect of the functional disability suffered by the Appellant. He submits that, the learned Tribunal has rightly considered the evidence on record and has granted appropriate compensation. In support of his submission, he relied on the decision of this Court in the case of Siddharth Janardhan Dupare Vs. Babu Sheikh s/o Basir Sheikh and anr. 2020(5)Mh.L.J 153. He submits that, the Appeal be dismissed. 6) The learned Advocate for the Respondent No.1 supports the submissions made by the learned Advocate for the Respondent No.2. 7) Perusal of the decision relied upon by the learned Advocate for Respondent No.2 shows that, it was the Appeal by 8-fa 42-16 4 the Claimant under the M.V. Act for enhancement in the compensation amount for his 50% permanent disability in his right leg. This Court on considering the evidence on record observed that, “the permanent disability is in respect of right leg of appellant. It has also come on record that he was labourer and used to work in the agricultural field. However, nothing has brought on record that after suffering from permanent disability in right leg to the extent of 50%, he is not able to carry out the regular work of agricultural operation”. 8) Coming to the case at hand, there is discharge card below Exh.37 of the Government Hospital, Nagpur showing the diagnosis as “Fracture ST femur with head injury, operated on 20.11.2007 by PF Nail. The said exhibit shows the remarks under the column “Treatment Advised- active knee range of motion (ROM) walk non weight bearing with Crutches”. The Appellant examined the witness No.2 Dr. Shailesh Shakanrrao Bijve, who was the Orthopedic in the Government Hospital, Nagpur. His evidence shows that, on 10.11.2008, the Appellant visited the Government Hospital and he assessed the permanent disability of 22% due to fracture sub-trohanteri femur right”. His evidence 8-fa 42-16 5 shows that, he issued disability certificate below Exh.36. It has come in his evidence that, there was difficulty to the patient while walking and squatting position. The Discharge Card below Exh.37 is brought on record in the evidence of this Doctor witness. In the cross-examination, it has come that, the Appellant was operated. There is discharge card of the Government Hospital dated 19.06.2010. The diagnosis is mentioned as OP/C/O fracture subtrochanteric femur with ORIF with PFN Done two years. It further shows that, implant was removed on 15.06.2010. 9) There is ample evidence on record to show that, the Appellant suffered permanent disability due to Motor Vehicular Accident. The Appellant established that, he suffered 22% permanent disability. Though the Appellant claimed that, he was the driver, there is no evidence to support the said material. No driving license is brought on record by the Appellant, therefore, the Appellant will have to be considered as the casual labourer. There is no proof of income of the Appellant and under such circumstances, the notional income of Rs.3000/- is to be considered. Considering the medical evidence and the nature of permanent disability, the functional disability of the Appellant is 8-fa 42-16 6 considered as the same, which is permanent disability i.e. 22 %. With these observations, the compensation is recalculated as under:- i. Notional Income per month Rs.3,000/- X 12 ii Annual Income Rs.36,000/- iii 22% Loss of disability (-) Rs.28,080/- iv Multiplier 14: 7,920 X 14 + Future prospects of 25 % (+) Rs.1,10,880/- Rs. 27,720/- v Loss due to disability Rs.1,38,600/- vi Loss of Income During Treat- ment period Rs.12,000/- vii Towards Pain and Suffering Rs.50,000/- viii Towards Travelling Expense Rs. 5,000/- ix Towards Special Diet Rs. 5,000/- x Total Compensation Granted by Tribunal (-) Rs.2,22,300/- Rs. 65,700 xi Enhanced amount Rs.1,56,600/- 10) The enhanced compensation would be inclusive of the compensation awarded by the learned Tribunal. The learned Tribunal has awarded the compensation of Rs.65,700/-. The amount of enhanced compensation comes to Rs.1,56,600/-. The same be paid jointly and severally by the Respondent Nos.1 and 2. 8-fa 42-16 7 The rest of the Award remains intact. First Appeal stands disposed of accordingly with no order as to costs. 11) R and P be sent back to the learned Tribunal. (NEERAJ P. DHOTE, J.) Kavita