1 First Appeal No. 438.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 438 OF 1995 The United India Insurance Co. Ltd. Branch Office Jalgaon Tq.& Dist. Jalgaon, Through its duly constituted attorney, Divn. Manager,Divisional Office at United India Insurance Co. at Aurangabad. .. .. Appellant Versus 1. Bhaskar Govinda Bari Age : 40 Years, Occu. : Service, R/o Shirsoli, Tq. & Dist. Jalgaon. 2. Dhondu Lotu Nannavare, Age : 37 Years,Occup. : Driver, R/o Bambhori,Tq.Erandol, District Jalgaon. 3. Pushpa Dinesh Patil, R/o Plot No.6, Dinanath Wadi, Zilla Peth, Jalgaon. .. .. Respondents Shri D. V. Soman, Advocate for Appellant. Shri N.R.Shaikh, Advocate for the Respondent No. 1. Shri G.V.Wani, Advocate for the Respondent No. 3. 2 First Appeal No. 438.95 CORAM : K. K. TATED, J. DATE : 29TH NOVEMBER, 2010. JUDGMENT : . This Appeal is preferred Under Section 110-A of the Motor Vehicles Act, 1939. The appellant-Original respondent No.3 challenges the Judgment and Award, dated 15 th July, 1995 passed by the District and Sessions Judge and Ex-Officio Member, Motor Accident Claims Tribunal, Jalgaon, in Motor Accident Claim Petition No. 28 of 1986. The Tribunal by its order dated 15 th July, 1995 awarded compensation to the tune of Rs. 65,000/- (Rupees Sixty Five Thousand) inclusive of ‘No Fault Liability’ with interest at the rate of Rs. 12% per Annam from the date of petition till realization, in favour of respondent No.1-original claimant. 2. FEW FACTS OF THE MATTER ARE AS UNDER : . The respondent NO.1-original claimant was working as a 3 First Appeal No. 438.95 gardener in Rasoi Refineries, Jalgaon. His monthly wages were Rs. 250/-. On 24 th June, 1984, he was proceeding towards officer’s quarters, on his bicycle, at that time he was carrying some equipments required for gardening. He was proceeding on bicycle by the left side of the road. At that time truck came from opposite direction and dashed him and the wheels of the truck passed over his both legs. The said truck stopped after crossing distance of 100 feet. Thereafter, he took treatment in Civil Hospital. He spent about Rs.6,000/-(Rupees Six Thousand) to Rs.7,000/-(Rupees Seven Thousand) towards medicines. Therefore, he filed claim petition, claiming sum of Rs.1,00,000/- (Rupees one lac) along with interest at the rate of 12% p.a. from the date of accident till realization. 3. Appellant-original respondent No.3 filed Written Statement dated 16 th May, 1986 and opposed claim petition on the grounds that goods truck No MWD-6531 involved in the 4 First Appeal No. 438.95 accident was not insured with appellant-Insurance Company. Respondent No.2 original opponent No.2 also filed written statement dated 4 th February, 1994 opposing claim petition of respondent No.1-original claimant. The Tribunal after considering the evidence on record held that appellant- Insurance Company and respondent Nos. 2 and 3 were jointly and severally liable to pay Rs. 65,000/- (Rupees Sixty Five Thousand) inclusive of ‘No fault liability’ to the respondent No.1- Original claimant with interest at the rate of 12% p.a. from the date of application till realization. 4. Mr. Soman, learned counsel appearing for appellant submits that the Tribunal has not considered that vehicle was not insured with appellant and therefore Insurance company is not responsible to make any payment. He further submits that Tribunal failed to consider that Insured, the owner of the vehicle failed to produce documents in respect of insurance, though he 5 First Appeal No. 438.95 was present before the Court and in spite of that the Tribunal held that Insurance Company was responsible to make payment. He further submits that as respondent No.1 failed to produce cogent evidence on record to show that truck involved in the accident was insured with appellant, appellant could not be held responsible to make payment. 5. The learned counsel further submits that as respondent No.1 original claimant failed to prove that the said vehicle was duly insured with appellant, the appellant is not responsible to make payment of compensation to them. Therefore, the Judgment and Award passed by the Tribunal should be modified to the extent that Insurance Company is not responsible to make payment of compensation. 6. On the other hand, Mr. Shaikh learned counsel appearing on behalf respondent-Original claimant submits that claimant 6 First Appeal No. 438.95 produced cover Note pertaining to the insurance Policy of the said vehicle for the period 12 th December, 1983 to 11 th December 1984. The respondent obtained Cover Note from RTO's Office by making an application, which is at Exh.72. It is specifically stated in the Cover Note that the said Truck was insured with the appellant during the said period, when the accident took place. In spite of that the appellant has not filed Insurance Policy on record. 7. He further submits that, respondents- original claimants examined Nawajoddin Kutuboddin Mulla Junior Clerk from RTO Office Jalgaon at Exh. 71. The said witness categorically stated that Truck involved in the present accident was duly insured with appellant for the period from 12 th December, 1983 to 11 th December, 1984. 8. The learned counsel appearing on behalf of respondent- 7 First Appeal No. 438.95 Original claimant further submits that original claimant was hospitalized for a period of two months and four days as indoor patient, because of the accident. His legs were kept in plaster. After discharging from the Hospital also he required to take treatment for several months. Thereafter, he claimed sum of Rs.1,00,000/-(Rupees One lac only),inspite of that the Tribunal awarded only Rs.65,000/-(Rupees Sixty Five thousand) inclusive of 'No fault liability'. Considering the injuries sustained by the respondent No.1-original claimant and duration for which he was hospitalized, compensation awarded by Tribunal is on lower side. Therefore, Appeal preferred by the Insurance Company is liable to be dismissed with costs. 9. On submissions of both sides following two points arise for consideration in the Appeal, as under: (i)Whether Goods Truck No. MWD-6531 was duly insured with appellant on the date of accident i.e. 24 th June 1984? 8 First Appeal No. 438.95 (ii) Whether the compensation awarded by the Tribunal in favour of respondent No.1- Original Claimant is on higher side? 10. The Tribunal framed issue No.4-A on the point , “Whether Goods Truck MWD-6531 was duly insured with appellants on the date of accident ?” Respondent No.1 original claimant applied to the RTO Office for making inquiry whether Truck No. MWD 6531, which was involved in the accident is insured with Appellant or not? In reply to his application, the Authority of RTO office provided copy of Cover Note stating that the said truck was duly insured with Appellant from 12 th December, 1983 to 11 th December, 1984. Not only that in support of these facts respondent No. 1-original claimant examined witness No.2 Nawajoddin Kutuboddin Mulla Junior Clerk from RTO Office, Jalgaon at Exh.71. He produced relevant register before the Court. From the said register he categorically stated that Truck 9 First Appeal No. 438.95 bearing No MWD-6531 was duly insured with appellant for the period from 12th December, 1983 to 11 th December 1984. It is to be noted that no one entered into witness box on behalf of the appellant to bring evidence on record to show that the said truck was not duly insured with it. Therefore, considering the copy of Cover Note produced by the respondent No.1-Original Claimant on record and considering the evidence of P.W.2Nawajoddin Kutuboddin Mulla, there is no doubt that Goods Truck bearing NO MWD-6531 was duly insured with the appellant at the relevant time. 11. Second point arising in this appeal is about to the extent of compensation. The respondent No.1-Original Claimant sustained several injuries in this accident. He was working as gardener in Rasoi Refineries, Jalgaon. He was permanent employee and was drawn salary of Rs.250/- per month at the time of accident. He was getting overtime wages, Bonus, to the extent of Rs.70/-per 10 First Appeal No. 438.95 month, in addition to the salary. In the said accident he sustained multiple fractures; he remained in Hospital for two months and four days as indoor patient. His legs were kept in Plaster. He claimed compensation of Rs. 5000/- towards loss of earning of the income upto the date of filing this application, Rs. 60,000/- for future earning capacity. Rs. 2000/- towards medical treatment and charges in the hospital, Rs. 2000/- towards medicine, Rs. 2000/- towards special diet as advised by the Medical Officer and required for speedy Recovery, Rs. 10,000/- towards mental torture, shock, agony and pain, Rs. 8000/- towards expenditure of attendant, Rs. 6000/-towards loss of care of children and Rs. 5000/- for loss of confidence. 12. When admittedly respondent No. 1-Original claimant was hospitalized for about two months definitely he had to incur some expenses on medicines, treatment and attendants and also on other counts. Considering the period for which he was 11 First Appeal No. 438.95 hospitalized for his treatment, I do not find any substance in the submission made by the learned counsel for the appellant- Insurance company that Tribunal has awarded compensation on higher side. Considering the evidence brought on record by the respondent No.1, I find that compensation awarded by the Tribunal is just and reasonable. Therefore, there is no substance in the submission of learned counsel appearing on behalf of the appellant Insurance Company that Tribunal has awarded compensation on higher side. 13. In view of above mentioned facts and circumstances, there is no substance in the present Appeal and the same is dismissed. Sd/- [K. K. TATED, J.] MTK.