1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.455 OF 1996 New India Assurance Company Ltd., having its registered office at New India Assurance Building, 87, M.G.Marg, Fort, Bombay-1, and having branch No.35, Maker Chamber, VI, IIIrd Floor, Jamnalal Bajaj road, Nariman Point, Appellant/ori. Bombay - 21. Opponent No.2 versus 1. Kashmir Singh Amarsingh age 32 years, occupation driver,room No.4,Vikroli Park Side, Bamkhana, Vikroli, Bombay - 400 079. 2. Bholanath Keshrwani s/o S.C.Kesharwani, age major, Respondents/ r/of 17, MIG Housing Board No.1 is orig. Colony,Katni,Dist.Jabalpur applicant and Madhya Pradesh. No.2 is orig. opponent No.1 ------------------------------------------------------ Shri D.S.Kulkarni, Advocate, for the appellant. Shri P.P.Khandagale,Advocate for Respondent No. 1. Smt. C.S. Deshmukh, Advocate, for Respondent No.2. ------------------------------------------------------ 2 Coram : P.R. Borkar, J. Date : April 09, 2010 ORAL JUDGMENT 01. This appeal is by insurance company being aggrieved by award of Rs.1,00,000/= inclusive of no fault liability declared by the learned Member, Motor Accident Claims Tribunal, Jalgaon, in Motor Accident Claim Petition No.73 of 1989 decided on 4.9.1995. 02. Briefly stated, it is the case of Respondent no.1-claimant that on 24.8.1988 he was driving his motor truck No. MIT 3249 from Dhule to Jalgaon on national highway. When he was near hotel Gandharva, motor truck No. MKK 6022 owned by respondent No.1 and insured with appellant came from opposite direction in rash and negligent manner and gave dash to the truck No. MIT 3249 which was being driven by respondent No. 1-claimant. As a result, respondent No.1 suffered fracture and permanent disability. He, therefore, claimed compensation of Rs.1,50,000/= which claim was later on increased to Rs.4,00,000/-. 3 03. Respondent No.2 in this appeal, who is the owner of the truck No. MKK 6022, filed his written statement at Exh.6 and denied that his driver was rash and negligent in driving the said vehicle. According to him, accident took place due to negligence of the claimant himself. Respondent No. 2 also denied all other allegations in the claim petition. Appellant-insurance company filed written statement and supported the defence taken by present respondent No.2-owner of the truck No.MKK 6022. There is no defence of any breach of policy. 04. Learned Member of the Tribunal recorded the evidence and ultimately awarded compensation of Rs. 1,00,000/= to present respondent No.1-original claimant. It is this order which is challenged in this appeal. 05. Heard Shri D.S.Kulkarni, Advocate, for the appellant, Shri P.P.Khandagale, Advocate for Respondent No. 1. and Smt. C.S. Deshmukh, Advocate, for Respondent No.2. 06. It is mainly argued that the defence of contributory negligence was not considered. The 4 claimant himself was negligent. However, after considering evidence on record and the judgment of the learned Member of the Tribunal, it does not appear that Respondents before the Tribunal (present appellant and respondent No.2) have led any oral evidence. Claimant-present respondent No. 1 examined himself at Exhibit 29. According to him, on the day of incident at about 7.00 a.m., he was proceeding from Bombay to Nagpur on national highway. His truck was on left side of the road. Left side wheels of his truck were on kaccha road, whereas driver side wheels were on tar road. At that time truck No.MKK 6022 came from opposite direction in high speed. In spite of signal given by the claimant, the driver of the said truck No.MKK 6022 did not control speed of his truck and dashed the truck of the claimant on driver side. As a result, claimant-respondent No.1 sustained injuries on his leg and head and he became unconscious. He was admitted in Civil Hospital, Jalgaon for two days and thereafter was shifted to Bombay for treatment. He was treated by Dr.Mukhi for more than one month as indoor patient. Even thereafter, claimant continued treatment. He spent Rs.30,000/= towards his medical treatment in the hospital of Dr. Mukhi. Claimant-respondent no.1 5 further deposed that by the time his deposition was recorded on 22.8.1995, he spent about Rs.70,000/= over his medical treatment. He produced medical certificate, so also disablement certificate. 07. Cross examination of the claimant does not show that in any way, he was not telling the truth. It was suggested that his truck was in the middle of the road when the accident took place, but that suggestion was denied. The Tribunal also did not accept the defence. The court also took into consideration the spot panchanama (Exh.27). The panchanama is drawn on 24.9.1988 as can be seen from the date appearing above the signature at the foot. It appears that both the vehicles were on the road and in damaged condition. 08. Shri V.N.Upadhye, learned counsel for the appellant-insurance company submitted that the accident had taken place on 24.8.1988 and the date on spot panchanma is drawn is 24.9.1988. However, it appears that the date might not have been correctly mentioned because otherwise details of the condition of the trucks as described in the panchanama could not have been noted in the panchanama. Both the vehicles were on the road in damaged condition and it is 6 improbable that the vehicles would be left in such condition for almost one month. The driver sides of both the vehicles had been damaged. The learned Member of the Tribunal has come to the conclusion that the accident took place due to negligence of the driver of truck bearing No.MKK 6022 which is owned by present respondent No.2 and insured with the appellant. 09. So far as quantum is concerned, the learned Member of the Tribunal has considered that aspect in paragraph 7 of his judgment. There was fracture to tibia fibula, so also head injury. Medical certificate (Exh.31) issued by Dr. Mukhi indicates that for two months the claimant-respondent No.1 was under his treatment. At Exhibit 32, there is another medical certificate issued by Dr. Sudhir Joshi of Bombay, assessing permanent disability at 60 per cent. It is true that Dr, Joshi is not examined. 10. Considering that the claimant was a driver, who was without work for four months due to injuries, the medical expenses of Rs.30,000/= incurred by him cannot be said to be excessive. The learned Member of the Tribunal has also taken into consideration all 7 circumstances while arriving at quantum. In no way we can say that the compensation awarded is excessive, or exorbitant. This is not a case requiring interference in the discretion used by the learned Member of the Tribunal. 11. In the result, first appeal is dismissed. pnd/fa455.96 (P.R.BORKAR, J.)