1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APEAL NO. 377 OF 1995 The New India Assurance Company Ltd., having its Registered Office at 87, Mahatma Gandhi Road, Fort Bombay and a Branch Office at Nizamabad Andhra Pradesh. .. Appellant Versus 1. Ku. Meera d/o Mohanrao Shinde, Age: 12 years, (Minor), U/g of her father Mohanrao s/o Mahajan Shinde,. Age: 55 years, Occ: Agri., R/o. Manajram Post Manjram, Tq. Biloli, Dist. Nanded. 2. Shri. Bhagwan s/o Ramrao Boinwad, Age: Major, Occ: Service, R/o. Ratoli, Tq. Biloli, Dist. Nanded. 3. Shri. Hanmant s/o Ramrao Dekore, Age: Major, Occ: Service, R/o. Kanteshwar Nizamabad (A.P.) (Dismissed vide Addl.Registar's order 28/03/2000) ..Respondents Mr. A.S. Usmanpurkar, Advocate holding for Mr. K.V. Kulkarni, Advocate for appellant. Mr. G.N. Chincholkar, Advocate for respondent No. 1. 2 CORAM : K. K. TATED, J. RESERVED ON : 12/06/2009 PRONOUNCED ON: 18 /06/2009 JUDGMENT : 1. Heard learned Counsel appearing on behalf of the appellant and learned Counsel appearing on behalf of respondent No. 1. Appellant is original respondent No. 3, respondent No. 1 is original claimant and respondent Nos. 2 and 3 are original respondent Nos. 1 and 2. Present appeal is dismissed against respondent No. 3 as per ordser dated 28th March 2000. 2. Present First Appeal arises out of the judgment and award dated 20-01-1995 passed by the District Judge as an Ex-Officio Member of M.A.C.T. Nanded in M.A.C.P. No. 22/1994. Original respondent No. 3 Insurance Company preferred present First Appeal challenging the quantum of Rs. 15,000/- awarded by the Tribunal. In the present case, the accident took place on 31-05-1993 in which 12 years girl was injured. The injury was to her mouth and teeth. Because of the said accident, respondent No. 1 original claimant filed claim petition through her father claiming compensation to the tune of Rs. 1,00,000/- under 3 Section 166 of the Motor Vehicles Act, 1988. In this accident, respondent No. 1 was injured on several places and location of tooth was dislocated and one tooth was fallen due to the accidental injuries. It is the case of respondent No. 1 that the injury is permanent one. On the date of accident, respondent No. 1 was a student of 6th Standard. On 31-05-1993 at about 5-30 p. m. respondent No. 1 along with Sugandha, her relative had been to a small bridge near Primary Health Centre of Manjaram and both of them sat on a parfait wall of the said bridge in order to enjoy evening hours. At that time, respondent No. 2 had been on motor cycle bearing TVS-Suzuki No. AP 25/A/2820 came in rash and negligent manner and gave dash to respondent No. 1 and Sugandha, due to which both of them fallen below small bridge and respondent No. 1 sustained several injuries and dislocated her teeth. After primary check up at Naigaon hospital, father of respondent No. 1 admitted respondent No. 1 at Shri Guru Gobind Singhji Memorial Hospital, Nanded and she was in the said hospital for two weeks. Thereafter, respondent No. 1 filed M.A.C.P. No. 22/1994 on 05-01-1994 in the Court of District Judge as an Ex-Officio Member of M.A.C.T. at Nanded under Section 166 of the M.V. Act, 1988 claiming compensation of Rs. 1,00,000/-. 3. After considering submissions of both the sides, the Tribunal by its judgment and award dated 20-01-1995 awarded a sum of Rs. 15,000/- inclusive of no fault liability with interest @ 12% p. a. from the date of 4 filing of the petition i. e. 05-01-1994 till realisation of the said amount. Being aggrieved by the said judgment and award dated 20-01-1995, original respondent No. 3 New India Assurance Company Limited preferred present first appeal on the ground that learned Tribunal has committed an error in holding that the accident in question has been caused due to rash and negligent driving of respondent No. 2. They further submitted that the evidence on record has not been properly appreciated by the Tribunal. The evidence produced by respondent No. 1 to prove the fact of negligence of respondent No. 2 is not sufficient to come such a finding. Learned Counsel appearing on behalf of the appellant further submitted that the Tribunal has also committed an error in holding that there was permanent disability caused to respondent No. 1 on account of injuries sustained by her in the said accident. Learned Counsel appearing on behalf of appellant submitted that the Tribunal awarded compensation on higher side and therefore, the present appeal to be allowed with costs. 4. On the other hand, learned Counsel appearing on behalf of respondent No. 1 submitted that it is crystal clear from the evidence on record that the accident took place because of negligent driving on the part of respondent No. 2. Learned Counsel appearing on behalf of respondent No. 1 also submitted that original claimant - 12 year's girl was admitted in Shri Guru Gobind Singhji Memorial Hospital, Nanded on 31-05-1993 and she was discharged on 14-06-1993. He submitted 5 that this itself shows the seriousness of accident. On the basis of these facts, learned Counsel appearing on behalf of respondent No. 1 submitted that there is no merit in the present appeal and same is liable to be dismissed with costs. 5. On the basis of these submissions of both Counsel, point for determination comes in the present case is that " is it necessary to interfere the findings of Tribunal?". My finding on this point is in the negative. 6. With the assistance of both the Counsel, I have gone through the Record and Proceedings of the trial Court. Learned Counsel appearing on behalf of the appellant submitted that there was no accident and in spite of that, respondent No. 1 filed false petition against them. Learned Counsel appearing on behalf of the appellant submitted that respondent No. 1 was playing near the small bridge of Primary Health Centre fell down in the ditch and sustained injuries on person. It is the case of the appellant that respondent No. 1 falsely involved respondent No. 2 driver of the vehicle and filed M.A.C.P. No. 22/1994 for compensation. It is to be noted that the Divisional Manager of the appellant New India Assurance Company Limited filed Written Statement before the M.A.C.T. dated 29-07-1994. In the said written statement Para. 6 reads as under. 6 "That contents of Para No. 3 of the petition are denied for want of knowledge. This respondent company does not admits that, the motor cyclist drove his vehicle in a rash and negligent manner. On the contrary the injured who are playing near the small bridge of Primary Health Centre fell down in the ditch and sustained injuries on person. But P.S. falsely involved the said driver in the alleged offence. It is equally denied that, the petitioner admitted in the G.G.M. hospital at Nanded. However the petitioner have put to strict proof of the same." 7. It is to be noted that the said Divisional Manager never entered into witness box to justify these facts. Not only that, nowhere he stated in his W.S. on what basis, he made such type of statement. Even not a single witness is examined by the appellant to show that respondent No. 1 fell down in the ditch near small bridge of Primary Health Centre and sustained injuries on person. There is no evidence on record of respondent No. 2 driver of the vehicle. Therefore, there is no substance in the submissions made by learned Counsel appearing on behalf of the appellant that there was no accident took place. 8. Learned Counsel appearing on behalf of the appellant submitted that respondent No. 1 failed to prove negligence on the part of driver of vehicle i. e. respondent No. 2. P.W. 1 at Exhibit-42 Balaji Datta Shinde specifically stated motor vehicle driven by Bhagwan respondent No. 2 gave a dash to respondent No. 1. In cross examination, he stated that the 7 vehicle was in 70/80 Kms per hour speed. This itself shows that because of rashness and negligent driving of respondent No. 2, the accident took place. Therefore, it is not possible to accept contentions raised by the appellant that respondent No. 1 failed to prove rashness and negligence on the part of respondent No. 2. 9. Learned Counsel appearing on behalf of appellant submitted that respondent No. 1 failed to prove injuries. Neither Medical Officer who examined and/or treated respondent No. 1 gave evidence nor the Officer who issued discharge card. It is the case of learned Counsel appearing on behalf of appellant that the Tribunal should have dismissed the claim petition for want of proof of injuries. In support of this contention, learned Counsel appearing on behalf of appellant relied on the judgment in the matter of Rajesh Kumar alias Raju vs Yudhvir Singh and another, reported in 2008 (6) Mh. L. J. 21. In this authority, the Apex Court held that unless author of certificate examined himself, it is not admissible in evidence. Learned Counsel appearing on behalf of the appellant mainly relied on Para 9 of the said judgment which reads as under. "9. The certificate in question of this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accidsent took place is not 8 known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act otherwise is not known . It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 10. It is to be noted that the facts and circumstances of this authority and the present case are altogether different. Not only that, in this authority, certificate in question was obtained by claimant after two years. In the present case, respondent No. 1 produced on record at Exhibit-33 discharge card issued by Shri Guru Gobind Singhji Memorial Hospital, Nanded showing that respondent No. 1 was indoor patient for period from 31-05-1993 to 14-06-1993. Respondent No. 1 also produced injury certificate at Exhibit-32 issued by the Medical Officer. Discharge Card shows that respondent No. 1 was indoor patient in Shri Guru Gobind Singhji Memorial Hospital, Nanded from 31-05-1993 to 14-06-1993. This itself is sufficient to justify the 9 compensation of Rs. 15,000/- awarded by the Tribunal. It is to be noted that in the case of young children of tender age, in view of uncertainties abound, neither their income at the time of accident nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. In such cases, question of assessment of compensation becomes stiffer. The figure of compensation in such cases involves good deal of guess work. 11. In the present case, considering the facts on record and the evidence produced by respondent No. 1, I do not find any substance in the submissions made by learned Counsel appearing on behalf of the appellant that the Tribunal awarded excess compensation. In view of the above mentioned facts and circumstances, I do not find substance in the present first appeal preferred by original respondent No. 3 Insurance Company against the judgment and award dated 20-01-1995 passed by the District Judge as an Ex-Officio Member of M.A.C.T. Nanded in M.A.C.P. No. 22/1994 and same is dismissed with costs. [ K.K. TATED, J.] sut/JUN09/fa377.95