1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.643 OF 1997 Anant Atmaram Sansare ...Appellant vs. 1 Shri Gautam Sudhir Basu 2 Oriental Insurance Company, Panvel ...Respondents Shri Sagar Joshi i/b Suhas Oak for the appellant. Ms Dhanashree Shende h/f N.V.Gangal for respondent no.2 CORAM :A.S.OKA,J. DATE : NOVEMBER 20, 2009 JUDGMENT : 1 Heard the learned counsel for the appellant and the learned counsel for the second respondent. The appellant is the original claimant in a claim petition filed under section166 of the Motor Vehicles Act,1988 (hereinafter referred to as the said Act). On 4 th June 1993, Appellant suffered an accident. He was plying a bicycle and was proceeding towards his village Korajkhol. When he reached the village, a car owned by the first respondent came from the side of Mahad and gave a dash to his bicycle. As a result of the impact, he sustained injuries. A claim petition claiming compensation of Rs. 40,000/- was filed by the appellant against the first respondent and the second respondent. The allegation is that the car involved in the accident was at the relevant time insured with the second respondent. 2 By the impugned Judgment and Award, the learned Member of the Tribunal granted compensation of Rs. 33,500/- inclusive of the amount paid under no fault 2 liability with interest at the rate of 12% per annum. The learned Member, however, dismissed the claim petition as against the second respondent on the ground that except for certificate issued by the RTO, no other document was produced by the appellant to show that the vehicle was insured with the second respondent. 3 The learned counsel for the appellant submitted that the learned Member committed an error by exonerating the second respondent-insurance company in as much as the said respondent has neither filed a written statement nor adduced any evidence. He submitted that the RTO certificate at Exh.31 shows that the vehicle in question was at the relevant time insured with the second respondent. He submitted that as there is no written statement denying the allegations made in the claim petition, there was no issue framed by the Tribunal on the aspect of validity and existence of the insurance and therefore, the appellant was under no obligation to lead evidence in that behalf. He submitted that the compensation awarded by the Tribunal is on the lower side in as much as only a sum of Rs.10,000/- has been awarded on account of loss of amenities. He submitted that the entire compensation of Rs.40,000/- ought to have been awarded. 4 The learned counsel for the second respondent pointed out that the written statement of the second respondent was tendered along with an application but the Tribunal erroneously rejected the said application. He submitted that the written statement tendered along with the said application ought to have been taken on record in which a specific contention has been raised that the vehicle in question was not insured with the second respondent. He submitted that the RTO certificate at 3 Exh.31 does not specify that there was an insurance. She submitted that in absence of the evidence of fact that the vehicle in question was insured with the second respondent, the Tribunal was justified in rejecting the petition as against the second respondent. 5 I have considered the submissions. In the claim application filed by the appellant, it is asserted that the vehicle in question was at the relevant time insured with the second respondent-insurance company. Along with the list of documents at Exh.12, on 28 th January 1994, the RTO certificate at Exh.31 was filed. The said RTO certificate appears to have been marked as exhibit without any objection of the second respondent. It is true that the RTO certificate does not set out the period of the policy. However, the insurance certificate number of the insurance by the 2 nd respondent has been specifically mentioned in the RTO certificate issued specifically in respect of the said vehicle. As stated earlier, the RTO certificate has been marked as an exhibit without any objection from the second respondent. It must be noted here that the second respondent-insurance company had not filed any written statement. An application was made by the second respondent at Exh.39 on 31 st October 1996 for setting aside the order to proceed with the claim against the second respondent without written statement and for taking the written statement on record. The said application was rejected on the very day on the ground that recording of evidence was already over. The said order was not challenged by the second respondent. 6 At this stage, it must be noted that on 1 st August 1996 an application was made by the second respondent contending that the RTO certificate was not filed by the 4 appellant. Therefore, a prayer was made for dismissal of the claim petition as against the second respondent. The said application ignores the fact that the RTO certificate was produced along with the list at Exh.12 on 28 th January 1994. Another application was made by the second respondent at Exh.34 on 3 rd August 1996 contending that the RTO certificate produced by the appellant cannot be accepted. Thereafter, on 3 rd October 1996 an application was made by the second respondent at Exh.35 for setting aside the order to proceed without written statement. The said application was rejected. On 31 st October 1996 the second respondent made an application at Exh.37. An adjournment was sought by the second respondent for leading evidence. On the very day an application was made by the second respondent at Exhibit 38 seeking leave under section 170 of the said Act. The said application was rejected. As stated earlier, an application at Exh-39 was made by the 2 nd respondent on the very day seeking permission to tender the written statement. The said application was rejected. Thus, there was no written statement filed by the second respondent. In fact, assertions made in the claim petition regarding insurance with the second respondent have gone unchallenged. The RTO certificate at Exh. 31 was produced though there was no issue framed on the aspect of insurance of the vehicle. The RTO certificate gives policy number of the policy issued by the second respondent. The said certificate was produced on 28 th January 1994. Thereafter there was sufficient time available to the second respondent to produce a copy of policy bearing the said number to show that it was not valid on the date of accident. However, that was not done. Apart from the fact that the certificate of RTO was produced to show that the vehicle in question was insured with the second respondent, as the written 5 statement was not filed by the second respondent, the facts stated in the written statement were deemed to have been admitted. Thus, there was no justification for the Tribunal to dismiss the claim against the second respondent. There was no pleading by the second respondent denying the insurance. In the facts of the case, the Tribunal ought to have relied upon the RTO certificate. Therefore, the learned Member has committed an error by exonerating the second respondent. The second respondent shall be liable to satisfy the award. 7 Now turning to the quantum of compensation, the nature of the injuries sustained by the appellant will have to be seen. The injuries sustained by the appellant have been noted by the learned Member of the Tribunal in paragraph 9 of the Judgment which read thus : 1. Fracture middle third right clavicle. 2. Contusion and abrasion on left maxilla 2 x 1/4 oozing of blood present. 3. Haemotoma on right parietal region. 4. CLW on left leg. 8 The learned Member of the Tribunal has considered the various aspects such as hospitalisation of the appellant for 10 days. 10% disability has been considered by the Tribunal. A sum of Rs.20,000/- has been awarded on account of injuries and pain. An amount of Rs.10,000/- has been awarded for loss of amenities. Looking to the nature of the injuries sustained by the Appellant, a sum of Rs.10,000/- granted to the appellant for loss of amenities appears to be more than sufficient. A sum of Rs.3500/- has been awarded for conveyance, special diet etc. The age of the appellant at the relevant time was 58 years. Therefore, the compensation 6 amount of Rs.33,000/- awarded by the learned Member of the Tribunal appears to be reasonable and no case for enhancement is made out. 9 Hence, I pass the following order : i) Impugned Judgment and Award dated 31 st October 1986 is modified. The second respondent shall be liable to satisfy the award made against the first respondent. Accordingly, the claim petition stands partly allowed against the 1 st and 2 nd respondents. ii)Appeal is partly allowed in above terms with no order as to costs. JUDGE