1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1035 OF 1996 Maruti Parshuram Dave ... Appellant vs. 1 Shah Premaji Palan 2 New India Assurance Company Ltd. ...Respondents Mr.Sagar Joshi for the appellant Mr.D.R.Mandlik i/b Mr.S.R.Singh for respondent no.2 CORAM :A.S.OKA,J. DATE : APRIL 13, 2010 JUDGMENT : 1 Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent. None appears for the 1st respondent though notice is served. The appellant is the claimant in a claim petition filed under section 110-A of the Motor Vehicles Act,1939. According to the case of the appellant he was waiting for a State Transport Bus at Vadkhal bus stand in District Raigad as he wanted to proceed to Mahad. According to his case, the driver of the truck owned by the 1st respondent stopped the truck and requested the passengers standing at the bus stand to board the truck for going towards Mahad. Accordingly, the appellant boarded the truck. According to the appellant, the truck was being driven in a rash and negligent manner as a result of which it overturned. The appellant sustained injuries. He claimed compensation of Rs.45,000/-. The 1st respondent did not contest the petition. The 2nd respondent, the insurer of the truck contested the claim petition by contending that the petitioner was a gratituous passenger in the truck and liability of such gratituous passenger was not required to be covered by the policy of insurance. The Tribunal 2 recorded a finding that accident occurred due to rash and negligent driving on the part of the driver of the 1st respondent. The learned Judge accepted the case made out by the 2nd respondent of breach of terms and conditions of the policy. The Tribunal accepted the case that the Appellant was travelling in the goods truck as a gratituous passenger. The learned Judge however awarded compensation of Rs.2000/- only. Interest at rate of 12% per annum was awarded. 2 The learned counsel for the appellant submitted that the appellant has purchased a bag of onions at Vadkhal market and as he could not get entry in the State Transport Bus, the appellant had hired the truck for carrying the goods. The learned counsel for the appellant states that a copy of the policy was not produced on record. He submitted that the Tribunal has completely brushed aside the evidence of Dr.Ranjit Choudhari. He submitted that the evidence of the appellant that he could not work as a result of the injuries has been completely discarded. He submitted that while appreciating of medical evidence on record, the learned Member of the Tribunal has taken a hyper technical view. The learned counsel for the 2nd respondent supported the impugned Judgment and Award by pointing out that on his own showing the appellant was a gratituous passenger in the truck. 3 I have carefully considered the submissions. The accident occurred on 11th August 1987. The appellant has examined Dr.Ranji Choudhari, Medical Officer at Alibag who stated that on 18th December 1987 he has examined the appellant. He proved the certificate at Exhibit-21 and stated as under : 3 ...It is signed by me, contents are correct (Exhibit-21). After examining him, I found that he had mal united fracture right clarical. He was unable to work and lift heavy weight. In the cross examination he admitted that he had not seen the certificate issued by the hospital issued at Mangaon. He stated that the Appellant had not brought the case papers and he was unable to tell the history of the accident. He stated that he is not in a position to state whether he had taken X-ray or not. He stated that he called upon the appellant to lift the stool which the appellant could not do. 4 It is pertinent to note that the appellant also examined Dr.Santosh Kamerkar who had examined the appellant on the date of accident i.e. 11th August 1987. He has proved the certificate at Exhibit-25 issued by him on 23rd September 1987. He stated that in the certificate he has stated that the appellant suffered a from vehicular accident . In the cross examination he stated that the appellant suffered a rupture of muscle. He stated that the said injury could have healed within a period of one week and the patient would be absolutely normal to do his usual work. The learned Member of the tribunal has rightly rejected the evidence of Dr.Ranjit Choudhari as the same is completely contrary to the evidence of Dr.Santosh Kamerkar. The said evidence of Dr.Kamerkar shows that the appellant has suffered a tear of muscle and he had abrasions on the right upper lip, nose and frontal region. Dr.Kamerkar stated that the appellant was admitted in the Cottage hospital, Mangaon. Thus, this was a case of tear of muscle apart from abrasions. The evidence on record shows that the appellant was admitted in hospital. Looking to the 4 nature of the injuries as reflected from the evidence of Dr.Kamerkar, general damages of Rs.6,000/- ought to have been granted. Towards medical expenses, special diet charges and transport expenses, the Tribunal ought to have granted a sum of Rs.6,000/-. This was a case where compensation of Rs.12,000/- ought to have been granted. On the enhanced amount, interest deserves to be granted at the rate of 8% per annum from the date of the filing of claim petition till realisation. 5 The appellant himself in his examination-in-chief stated that on the permission granted by the driver of the truck, he entered the truck as a gratituous passenger. It is not his case that he had hired the truck for carrying the onions and going by his own evidence, it is apparent that he was a gratituous passenger in the goods vehicle. Therefore, the 2nd respondent insurer has been rightly exonerated. 6 Hence, I pass the following order : i) In addition to the compensation with interest payable under the impugned Judgment and Award, the appellant will be entitled to compensation of Rs. 10,000/- from the 1st respondent with interest thereon at the rate of 8% per annum from the date of filing the claim petition till deposit of the said amount with the tribunal. ii)Rest of the award is confirmed. iii)The appeal is partly allowed in above terms. iv)The appellant will be entitled to proportionate costs of the appeal from the 1st respondent. JUDGE