1 fa1965 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1965 OF 2010 The New India Assurance Co. Ltd. ...Appellant vs. Ashok Nivrutti Marathe & Ors. ...Respondents Mr.S.M.Dange for the appellant Mr.Prabhakar Jadhav i/b Mr.Vishal Kolekar for the respondent no.1 CORAM : A.S.OKA,J. DATE : AUGUST 20, 2011 P.C.: 1 Heard the learned counsel for the appellant and the learned counsel for the first respondent. Parties were put to notice that the appeal will be heard finally at the stage of admission. 2 The first respondent is the claimant in a claim petition filed under section 166 of the Motor Vehicles Act,1988. The case made out by the first respondent is that on 8th April 2001 at about 12.40 p.m., the first respondent was proceedings by his motor cycle. The case made out by the first respondent is that he was coming from Jejuri and proceeding towards Pune. At about 12.40 p.m., one six seater auto rickshaw came from the opposite direction in a high speed. The said rickshaw gave a dash to his motor cycle. The first respondent sustained fracture of leg. Initially, he was admitted to a hospital at Hadapsar and on the same day he was shifted to Sancheti Hospital at Pune 2 fa1965 where he was an indoor patient up to 20th April 2001. The case made out by the first respondent is that the incident occurred due to rash and negligent driving of the driver of the six seater rickshaw. 3 The claim was contested only by the appellant which is the insurer of the six seater rickshaw. It was contended that it was the first respondent who was driving his motor cycle in a high speed and in a zig zag manner. It is the contention that the first respondent came from the wrong side and gave a dash to six seater rickshaw which was already parked. The Tribunal held that the accident occurred due to negligence of the driver of the auto rickshaw and proceeded to grant compensation of Rs.2,39,712/- with interest at the rate of 8% per annum. 4 The first submission of the learned counsel for the appellant is that there was no negligence on the part of the driver of the auto rickshaw and the evidence of the first respondent does not establish the negligence. The second submission is that the disability certificate showing alleged disability of 23% was not proved in as much as the Doctor Mukund Digikar who has given the said certificate has not treated the first respondent. He submitted that copies of the income tax returns of the first Respondent show that there is no loss of earning capacity and in fact the income of the first respondent has increased after the accident. He submitted that none of the bills/vouchers produced by the first respondent were proved and no amount could have been granted in absence of any proof. The 3 fa1965 learned counsel for the first respondent supported the impugned Judgment and Award. He pointed out that the disability certificate has been issued by the civil hospital which is the Government hospital and Dr.Digikar who is an Orthopedic Surgeon has been examined as a witness. He submitted that the compensation granted is reasonable and no interference is called for. 5 I have perused the pleadings, notes of evidence on record of the Trial Court. The disability certificate has been proved by the first respondent by examining Dr.Mukund Saidaji Digikar who was an Orthopedic Surgeon attached to Sasoon hospital. He examined the respondent no.1 on 4th April 2002 for assessing and calculating the permanent disability. He stated that there was a fracture on left tibia. He stated that there was limp at left side with stiffness of left ankle and left knee joint. He estimated the permanent disability to the extent of 23%. He admitted that certificate at Exh.41 shows permanent partial disability. Admittedly, he is not Doctor who had treated the first respondent after the accident. 6 As far as negligence is concerned, the first respondent has stepped into witness box by filing his affidavit in lieu of examination-in-chief. He has stated that the six seater rickshaw came in very high speed and gave a dash when he was driving the motor cycle by left side of the road. The appellant insurance company has not made any effort to examine the driver of the auto rickshaw. The Tribunal 4 fa1965 constituted under the said Act is not bound by the strict rules of evidence. In absence of any evidence of the driver of the auto rickshaw, the learned Member of the Tribunal has accepted the case made out by the first respondent of negligence on the part of the driver of the auto rickshaw. There is no reason to find fault with the said finding. 7 Perusal of the record shows that income tax returns of the first respondent have been filed on record. Income tax returns show that there is a steady rise in the income of the first respondent after the accident. There is absolutely no evidence of any loss of earning capacity. Therefore, compensation could not have been granted on account of loss of any percentage of earning capacity. 8 Along with the list at Exh.18, the first respondent produced large number of vouchers in respect of the expenditure incurred on treatment. There is nothing on record to show that the appellant came out with the contention that said documents were fabricated. As stated earlier, the Tribunal is not bound by the strict rules of evidence. The Tribunal has granted a sum of Rs. 57,000/- on account of medical expenses. The said amount cannot be faulted with which is supported by the original documents. As far as the amount granted by the Tribunal of Rs.1,72,500/- on account of loss of income is concerned, that part will have to be set aside as there is no evidence of loss of earning capacity of the first respondent. The disability certificate has been issued by an Orthopedic 5 fa1965 surgeon attached to a Government hospital. There is no reason to doubt the opinion recorded therein. Hence, a sum of Rs.35,000/- will have to be granted on account of pain and suffering especially when admittedly the first respondent suffered a fracture of left tibia and was hospitalized for 10 days. By a surgery, interlocking nailing was required to be done. In addition to aforesaid amounts of Rs. 57,212/- and Rs.35,000/-, some amount will have to be granted on account of conveyance and special diet. Thus, reasonable compensation will be around a sum of Rs.1,00,000/-. To that extent, impugned award will have to be modified. 9 Hence, I pass the following order : i) The amount of compensation fixed under the impugned Judgment and Award is reduced to Rs. 1,00,000/- with interest at the rate of 8% per annum from the date of filing the claim petition till realisation. ii)It will be open for the appellant to withdraw the excess amount deposited with the tribunal iii)The amount payable to the first respondent as per the modified award shall be paid over to him by an account payee cheque. iv)A sum of Rs.25,000/- deposited in this Court shall be refunded to the appellant. v) Civil application no.4864 of 2009 does not survive and the same is disposed of. JUDGE