1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.1297 OF 2009. 1 New India Assurance Company Ltd., having its registered and head office at 87 M.G. Road Fort, Mumbai 400001 Branch at Lakkadkot, Jalna 431 203 and Divisional Office at Ajay Eng. Compound, Dr. R.P. Road, Aurangabad 431005, through its Divisional Manager and Constituted Attorney Mr. Vishwas Bansi Gaikwad, aged 54 yrs. 2 Mr. Onkar Govindrao Pawar, 30 yrs. Occu. Driver & Owner Jeep No.MH-22 4351, r/o Khali, Tq. Gangakhed, Dist. Parbhani. .... APPELLANTS. (Ori. R.Nos.2 and 2 respectively). VERSUS Mr. Kishorekumar Jaywantrao Wagh, 34 yrs., occu. Service, r/o Nairman Nagar, Nr. Railway Station, Jalna 431 203. .... RESPONDENTS. (Ori. Applicant) ... Shri V.N Upadhye, Advocate for appellants. Shri P.P. Deshpande, Advocate for respondent. ... CORAM:R.G. KETKAR,J. RESERVED ON: 07.12.2009. PRONOUNCED ON: 19.12.2009. 2 JUDGMENT: 1. This first appeal is preferred by the original respondents challenging the judgment and award dated February 3, 2009 passed by the learned Chairman, Motor Accident Claims Tribunal, Jalna (for short, tribunal) in M.A.C.P. No.82 of 2006. By the impugned judgment and award, the tribunal partly allowed the claim petition filed by respondent herein and directed the appellants to jointly and severally pay the respondent – claimant an amount of Rs.4,73,750/- together with interim compensation and interest @ 7% from the date of registration of the petition till realization of the amount. The parties will be referred to herein after as per their original status before the tribunal. 2. The claimant filed the claim petition contending that at 9.30 p.m. on January 13, 2004 while he was returning home on Hero Honda Motorcycle bearing registration number MH-21- E-7252, the accident took place on Kadrabad – Panives road in Jalna city. While he was 3 returning home, Jeep bearing registration number MH-22-4351 belonging to the 1st respondent gave dash to the motor cycle causing damage to the motorcycle. He was grievously injured and was admitted to Government Medical College & Hospital, Aurangabad. 3. It is his case that the injuries sustained by him were very serious and his right foot was amputed. He took treatment in Shri Krishna Hospital, Aurangabad. The claimant was working as a teacher and because of amputation of his right foot, he suffered 53% permanent disability. He is required to take assistance of others. He had incurred travelling expenses of Rs.8,000/- and medical expenses of Rs.10,000/-. Even in future, he will be required to take medical treatment. He further asserted that he is required to replace the artificial leg frequently for which, he will be required to incur expenses in future as well. On account of the accident, he could not attend the work for a long period. The claimant contended that the respondent No.1 is the owner of the offending vehicle and is 4 insured with the respondent No.2. The claimant is a third party qua this policy and the respondents are jointly and severally liable to pay the compensation. On these among other grounds, he claimed compensation of Rs. 7,00,000/-. 4. The respondent No.1 filed written statement at Exh.17 and denied the assertions made by the claimant. In so far as respondent no.2 Insurance Company is concerned, the contentions raised in the claim petition were denied. It alleged that the respondent no.1 had committed breach of the conditions of policy and consequently, it is not liable to pay compensation. 5. On the basis of the pleadings of the parties, the tribunal framed issues. In support of the claimant’s case, he examined himself at Exh.35 and produced police papers as well as medical papers. The claimant was not cross- examined by the respondent No.1- owner of the Jeep. 5 6. On the basis of the material on record, the tribunal found that the claimant was working as a teacher in Jain School from 1996. While he was returning home on January 13, 2004 the offending vehicle of the respondent no.1 gave dash to him. From the deposition of the claimant, the tribunal also came to the conclusion that the offending vehicle wrongly entered on the road which was `one way traffic’ road. After the accident, the claimant gave information to the police and produced First Information Report on record at Exh.36. He also produced the spot panchanama at Exh.37. On behalf of the respondents, no evidence in rebuttal was adduced. The respondent no.1 also did not examine himself to contradict the case made out by the claimant. On the basis of the material on record, the tribunal came to the conclusion that the offending vehicle entered the one way traffic road and gave dash to the claimant. The tribunal came to the conclusion that the driver of the offending vehicle was rash and negligent and he is responsible for causing the accident. 6 7. In so far as the quantum is concerned, the tribunal considered the medical bills produced alongwith lists at Exh.31, 32 and 33. In so far as the bills alongwith list at Exh.31 are concerned, they were discarded on the ground that the claimant did not produce the original bills. The claimant produced 20 bills alongwith list at Exh.32 showing that he had incurred expenses of Rs.14,049/-. The claimant produced 12 bills alongwith list at Exh.33 showing that he had incurred medical expenses to the tune of Rs. 22,702/-. The tribunal accepted these bills and came to the conclusion that the claimant incurred in all total expenses of Rs.36,751/- for purchasing medicines. 8. The tribunal also awarded an amount of Rs. 50,000/- incurred by the claimant for purchasing artificial limb as against his claim of Rs. 72,000/-. The tribunal awarded Rs.10,000/- towards expenses of the attendant, travelling expenses and special diet. The tribunal awarded Rs.5000/- towards pain and suffering. After considering the injury certificate, the tribunal 7 recorded the finding that the claimant suffered permanent disability to the extent of 53%. For the loss of efficiency, the tribunal awarded Rs. 1,92,000/-. Under the heading of future expenses on transportation, attendant and replacing artificial limb frequently, the tribunal awarded compensation of Rs.1,00,000/-. Eventually, the tribunal awarded compensation of Rs.4,73,750/- to the claimant. Against this judgment and award, the respondents have preferred the above first appeal. 9. In support of this appeal, Shri Upadhye, learned for the appellants submitted that the tribunal committed serious error in recording the finding on the issue of negligence. He submitted that in paragraph 2 of the claim petition, the claimant asserted that while he was returning from Marathi Medium Jain High School near Shivaji Statue from the road Kadrabad to Panives, when he reached near the house of Goriyantal, one jeep came in very high speed from opposite direction and gave dash to the motorcycle of the claimant. The claimant fell down on the road with 8 motorcycle and sustained injury on head and also serious injuries to his right leg and left hand was fractured and sustained dumb injury. Due to the bleeding injuries, the claimant became unconscious. In support of the claimant’s case, he relied upon F.I.R., spot panchanama, crime details, policy copy, Form AA, Form CCMP “B” i.e. disability certificate. However, in the oral evidence, for the first time, the claimant tried to make out a case of the offending vehicle wrongly entering the road which was for one way traffic. This was not at all pleaded in the main petition as also the police papers did not support the story of one way traffic. The learned Counsel for the appellants relied upon the judgment of the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd., Vs Premlata Shukla & others, 2007(7) SCC 56. Relying upon this judgment, he submitted that once a part of the contents of the document is admitted in the evidence, the party bringing the same on record cannot be permitted to turn round and raise a contention that the contents of the document or part thereof had not been proved. 9 He, therefore, submitted that none of these documents substantiate the case of the claimant that there was one way traffic on the road and the offending vehicle wrongly entered in the one way traffic. He further submitted that even the spot panchanama indicates that it was the claimant was on the wrong side of the road. 10. On the question of the quantum, he submitted that the tribunal awarded Rs.30,000/- towards salary in lieu of leave. However, the tribunal itself, in paragraph 23 held that the claimant did not substantiate the said claim by leading evidence thereof. He also criticized the tribunal for awarding Rs.50,000/- twice on account of incurring expenses for artificial limb in paragraphs 20 and 25 of the judgment. He submitted that the tribunal committed an error in para 28 of the judgment in awarding Rs.1,92,000/- towards loss of efficiency. He submitted that there is absolutely no basis whatsoever to award the said amount and it is liable to be denied under that count. 10 11. On the other hand, Shri P.P. Deshpande, learned Counsel appearing on behalf of the respondent – claimant submitted that the claimant was not cross-examined by the respondent no.1 Jeep owner. Even on behalf of respondent No.2, the claimant was not confronted the issue of the offending vehicle wrongly entering on the road which was for one way traffic. The respondents did not lead any evidence in rebuttal on the issue of the entry of the offending vehicle in one way traffic road. He, therefore, submitted that it is not open for the Insurance Company to contend that the claimant was negligent. The learned Counsel for the claimant submitted that the direction South and North shown on the map in the spot panchanama are clearly incorrect. This will be clear from the perusal of the said panchanama. The claimant was correctly driving the motor cycle and not from the wrong side. I find substance in these submissions advanced on behalf of the claimant. As observed earlier, the claimant was not cross-examined by respondent No. 1. There was no evidence in rebuttal led by the respondents. Though, the respondent No.2 cross- 11 examined the claimant, no attempt was made to contradict the case made out by the claimant in examination-in-chief. No attempt was made by the respondents to examine any witness to disprove the case made out by the claimant in the evidence. Even the bare perusal of the spot panchanama reveals that directions north and south are incorrectly shown. It is, therefore, not possible to accept the submission made on behalf of the respondents that the claimant was negligent in driving the motor cycle which resulted in accident. 12. In so far the quantum of compensation is concerned, the learned Counsel for the claimant fairly conceded that the amount of Rs.50,000/- towards expenses for artificial limb is included in paragraph 20 as also paragraph 25 and, therefore, the amount of Rs.50,000/- is liable to be deducted from Rs.1,81,751/- as reflected in paragraph 25 of the judgment. He submitted that the tribunal rightly awarded compensation of Rs. 36,751/- being the expenses of medicines as reflected in paragraphs 17 to 19 and expenses for 12 artificial limb, Rs.50,000/- as per paragraph 20. Thus, in so far as amount of Rs.86,751/- (Rs. 36,751+50,000) is concerned, no fault can be found with the judgment of the tribunal. He submitted that the tribunal rightly held that after the accident, it was not possible for the claimant to attend his work for three months and considering his salary of Rs.10,000/- per month, the tribunal rightly awarded Rs.30,000/- towards leave reimbursement. He however, submitted that the tribunal committed an error in awarding compensation of Rs.5000/- towards pains, mental agony and hardship. On the contrary, the tribunal ought to have awarded an amount of Rs.1,00,000/- towards pains, sufferings, mental agonies and loss of amenities of life. In support of his submission, he relied upon the Division Bench judgment of this Court in case of - Jayawant Walawalkar v. V.P. Shanmugam and another, 2001(1) T.A.C.582 (Bom.), the judgments of the Apex Court in the cases of R.D. Hattangadi v. M/s Pest Control (India) Pvt. Ltd., 1995(1) T.A.C.557 (SC), and Amar Singh v. Ishwar and others, 1999(3) T.A.C. 10 (SC). He further submitted that 13 even though the claimant has not preferred cross- objections as per Order 41, Rule 33 of the Code of Civil Procedure, 1908, in view of the judgment of this Court in the case of Namdeo vs. Bharat and another, 2006(2) T.A.C.753 (Bom.), the Court can grant relief and instead of Rs.5000/- under the head of pains, suffering and mental agony, it requires to be enhanced to Rs.1,00,000/-. He also relied upon the judgment of the Apex Court in the case of Nagappa vs. Gurudayal Singh and others, 2003(1) T.A.C. 241 (SC). 13. The learned Counsel for the claimant submitted that the claimant is entitled to the amount of Rs.5,18,000/- under different heads, as under: i) Amount already incurred for medical treatment and artificial limb. Rs.1,26,000/- ii) Permanent disability and loss of earning capacity. Rs.1,92,000/- iii) Future medical expenses for artificial limb & other miscellaneous expenses. Rs.1,00,000/- iv) Compensation for pains, suffering and mental agony. Rs.1,00,000/- ------------- Total compensation: Rs.5,18,000/- 14 14. In view of the rival contentions of the parties and after perusal of the record as also judgments relied upon by the learned Counsel appearing for the parties, in my opinion, the tribunal has rightly awarded the compensation of Rs.36,751/- towards expenses incurred by the claimant for medical treatment. The tribunal also rightly awarded compensation of Rs.50,000/- towards expenses incurred by the claimant for artificial limb. In so far as the amount of Rs. 30,000/- awarded by the tribunal towards reimbursement of leave is concerned, the inference drawn by the tribunal in para 23 that the claimant could not attend the duties for three months on account of amputation of foot cannot be said to be unreasonable. The award of Rs.30,000/- in lieu of reimbursement of leave is, in my opinion, proper. In so far as the amount of Rs.10,000/- awarded by the tribunal towards travelling expenses, expenses for attendant and special diet is concerned, it also cannot be said to be unreasonable. However, the amount of Rs. 5000/- awarded by the tribunal under the head of 15 pains, shock and suffering, in opinion, is on lower side. Considering the judgment of the Apex Court in the case of Amar Singh (supra) as also the Division Bench judgment of this Court in the case of Jayawant Walawalkar v. V.P. Shanmugam and another (supra), in opinion, ends of justice would be met if the amount of Rs.50,000/- is awarded under the head of pains, shock and sufferings. This is particularly when the claimant has sustained 53% permanent disability on account of amputation of the right foot. In so far as the award of Rs.1,92,000/- towards loss of efficiency is concerned, I find substance in the arguments advanced on behalf of the respondents. The claimant did not loose the job. It is however, true that because of amputation of right foot, he has suffered set back in life. In the facts and circumstances of the case, I find that the amount of Rs.1,92,000/- is on higher side. In my opinion, an amount of Rs.1,00,000/- would be the just compensation under the head of loss of future prospects and efficiency. The amount of Rs.1,00,000/- awarded by the tribunal towards expenses that would be incurred by the 16 claimant on transportation, attendant and frequently replacing artificial limb, in my opinion, is reasonable. However, no interest is payable on this amount of Rs.1,00,000/- as per the judgment of the Apex Court in the case of R.D. Hattangadi (supra). 15. In these circumstances, in my opinion, the claimant is entitled to compensation under different heads, as under: i) Expenses of medicines Rs.0,36,751/- ii) Expenses for artificial limb. Rs.0,50,000/- iii) Reimbursement of leave Rs.0,30,000/- iv) Expenses on transportation, attendants, special diet. Rs.0,10,000/- v) Compensation for pains, suffering & mental agony. Rs.0,50,000/- vi) Compensation towards loss of efficiency and future prospects. Rs.1,00,000/- vii) Compensation towards future expenses on transportation, attendant, & replacement of artificial limb frequently. Rs.1,00,000/-. -------------- TOTAL: Rs.3,76,751/- 17 16. In the result, the appeal is partly allowed. The appellants – original respondents No.1 and 2 are jointly and severally liable to pay the amount of Rs.3,76,751/- to the respondent – original claimant together with interim compensation and interest @ 7% p.a. on the amount of Rs.2,76,751/- from the date of filing claim petition till realization. [ R.G. KETKAR, J ] ..... Kadam. 18 FIRST APPEAL NO.1297 OF 2009. Date of decision :19.12.2009 For approval and signature. THE HONOURABLE SHRI JUSTICE R.G. KETKAR. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.