United India Insurance Company Ltd v. Ravindra

FA-563-2012+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 563 OF 2012United India Insurance Company Ltd.,Through Its Divisional Manager,Seven Hills, Jalna Road, Aurangabad...AppellantVersus1.Ravindra S/o Vithal Adgale,Age: 31 years, Occu: Mason,R/o. Phulenagar, Peer Bazaar,Aurangabad2.Babarkhan S/o. Umarkhan Pathan,Age: Major, Occu: Business,R/o. Pose Neknoor, Tq. & Dist. Beed...RespondentsWITHFIRST APPEAL NO. 520 OF 2012United India Insurance Company Ltd.,Through Its Divisional Manager,Seven Hills, Jalna Road, Aurangabad...AppellantVersus1.Bhagwan S/o. Budhaji Adgale,Age: 36 years, Occu: Mason,R/o. Nagsen-nagar, Osmanpura, Galli No. 3,Osmanpura, Aurangabad2.Babarkhan S/o. Umarkhan Pathan,Age: Major, Occu: Business,R/o. Pose Neknoor, Tq. & Dist. Beed...Respondents***Mr. S. S. Rathi, Advocate for AppellantsMr. A. P. Khedkar, Advocate for Respondents***Page 1 of 8 FA-563-2012+.odtCORAM:ABHAY S. WAGHWASE, JRESERVED ON:JANUARY 13, 2026PRONOUNCED ON:JANUARY 17, 2026JUDGMENT:1.These Appeals are preferred under Section 173 of MotorVehicle Act, 1988 (for short “the Act”) by Original Respondent No. 3 –Insurance Company taking exception to the judgment and orders dated21.01.2012 passed by MACT, Aurangabad in MACP Nos. 17/2010 &18/2010 respectively.2.On 04.09.2029, at about 18:30 hours, the Original Claimantsalong with others were travelling on a motorcycle bearing registrationNo. MH-20-BB-7435 at a moderate speed from Daulatabad towardsAurangabad. The Original Claimant, Ravindra, was riding the saidmotorcycle. When they reached the place of the incident, a Bajaj TempoTrax bearing registration No. MH-23-C-0423 came from the oppositedirection in a rash and negligent manner and dashed against themotorcycle. As a result of the said impact, the claimants were thrown tothe ground and sustained grievous injuries, including fractures to theright knee and right leg respectively. Immediately after the accident,they were shifted to Ghati Hospital, Aurangabad, where they receivedmedical treatment. It is the case of the claimants that, due to the saidaccident, they have suffered permanent disability.Page 2 of 8 FA-563-2012+.odt3.Though Original Respondent Nos. 1 and 2, driver and ownerof the vehicle, were served, they failed to causes appearance. Hence,Petitions proceeded against them ex parte. Respondent No. 3 –Insurance Company contested the claim Petitions and filed writtenstatements at Exhibits 14 & 15 respectively denying all contentions andbreach of conditions of insurance policy.4.After framing of the issues at Exhibits 24 & 26, Claimantsled their evidence and evidence of Dr. Jaiswal and Dr. Jadhav. Tribunalby judgment and award dated 21.01.2012 allowed the claim petitions.5.Insurance company is primarily disgruntled and dissatisfiedby non consideration of its plea of contributory negligence on the part ofboth driver of the tempo as well as rider of the motorcycle, and secondly,compensation awarded to be exorbitant.6.Learned Counsel for Appellants/Insurance company wouldsubmit that, accident has taken place between a tempo and two wheeler,which was admittedly occupied by three persons. He pointed out that,accident took place on the very middle of the road and it is so evidentfrom the spot panchnama. According to him, the direction in which thetwo vehicles were proceeding i.e. opposite to each other and taking intoaccount the condition of the road, which was division by way of whitePage 3 of 8 FA-563-2012+.odtstrip, it is clear accident which is head on collusion involving both thevehicles. Thus, according to him, there was 50% contributory negligenceon the part of motorcycle also but according to him, learned Tribunalfixed responsibility solely on the tempo driver. Further, according tohim, there was no evidence to demonstrate that deceased was a masonby occupation. According to him, therefore, Tribunal ought to haveconsidered Rs.3,000/- by way of notional income and not beyond it. Onboth above counts, he seeks indulgence in the Appeals.7.As regards to negligence is concerned, learned Counsel forthe Respondent would support the findings of learned Tribunal that,driver of the offending vehicle to be solely responsible and learnedTribunal correctly appreciating the spot panchnama. However, heseeking indulgence for non consideration of 100% disability of theinjured and instead considering only 16% & 33%. He pointed out that,there was evidence of both treating as well as doctor who issueddisability certificate after its assessment. Consequently, it is hissubmission that, though there is no formal cross-objection filed, in viewof judgment of Hon’ble apex Court in the case of Surekha W/o RajendraNakhate and Ors vs. Santosh S/o Namdeo Jadhav and Ors, Civil AppealNo. 476 of 2020 as well as of this Court in the First Appeal No.655/2010, there is no need for filing cross objection.Page 4 of 8 FA-563-2012+.odtRE-APPRECIATED THE EVIDENCE8.As regards to grounds raised by learned Counsel forAppellants that there was 50% contributory negligence of each of thetwo vehicles involved in the accident, spot panchnama is the only pieceof evidence, which depicts the circumstances in which the accident tookplace, as admittedly there is no distinct eye witness account to theaccident. In cases of suspicion on point involved, obviously spotpanchnama is to be looked into. On re-appreciating the spotpanchnama, it is clear to this Court also that driver of offending tempohad gone to the side of motorcycle and, therefore, accident took place.Observations of Tribunal to this extent are found in paragraph 8. It isnoticed that, learned Tribunal has also carefully appreciated thecircumstances in which the mishap took place for arriving to theconclusion that entire responsibility is of driver of the Bajaj Tempo Trax.Description of the spot and the direction in which the vehicles wereallegedly proceeding, there are reasons to believe that the driver of thetempo had the opportunity to avoid the accident but he did not seem tohave taken care and has erred in going to the side of motorcycle. Merelybecause accident has taken place in the middle of the road, is no goodground to hold contributory negligence of motorcycle rider also alongwith that of tempo driver. Therefore, in view of contents of the spotPage 5 of 8 FA-563-2012+.odtpanchanma and there being no contrary evidence adduced by insurancecompany in support of its contention that there was contributorynegligence, findings of Tribunal to that extent need not be disturbed.9.As regards to objection of consideration of excess income inabsence of evidence of occupation of injured as mason, in the consideredopinion of this Court, there is no reason to disbelieve that injured wasworking as mason. In cases involving accident compensation,requirement of strict proof is dispensed with. Here, on affidavit, it isstated that injured were rendering the work of mason and, therefore,consideration of income as Rs.9,000/- pm also is not said to be excess.On above both counts, appeals of insurance company fails.10.As regards to the cross-objection raised by the claimants isconcerned, also this Court has carefully considered the evidence of PW 2and 3 who are medical experts. PW 2, in his evidence at exhibit 43,testified about examining claimant on 04.05.2009, noticing open injuryto the right knee resulting the fracture and performing operation andputting up wires. He further deposed that, medical board has issueddisability certificate to the extent of 16% and it is total permanentdisability. He testified that, patient would find it difficult in renderingground level activities due to the disability caused to him and it issubmission that, the disability caused to the claimant is 16% of his totalPage 6 of 8 FA-563-2012+.odtworking capacity in view of the nature of work. In cross he merely askedabout his knowledge whether he knew claimant to be a mason, which hedenied. He further denied showing incorrect disability and also deniedthat working capacity of the patient has not been suffered. 11.The above evidence seems to have been taken into accountby learned Tribunal while answering issue no. 3. Now, it is tried to besubmitted that 100% disability ought to have been considered. However,it is the functional disability that matters. The law on the point ofdisability either permanent, partial has elaborately discussed by theHon’ble Apex Court in the case referred by learned Counsel for forAppellants i.e. in the case of Raj Kumar vs. Ajay Kumar and Anr,AIROnline 2010 SC 125. In the said judgment Hon’ble Apex Court hasheld in paragraph 12 that, disability certificate issued by medicalboards may be accepted subject to the evidence regarding genuinenessof the certificate. Here, on the strength of the certificate issued bymedical board above witness has deposed and, therefore, theobservations of the Tribunal to that extent in paragraphs 11 & 12cannot be faulted at. This Court agrees with the view and themethodology adopted for ascertaining the disability by the Tribunal.There is no error in the same so as to interfere. Consequently, though inabsence of cross objection, it is open for this Court to consider thePage 7 of 8 FA-563-2012+.odtgrounds agitated in appeals, as no ground on merit to that extent beingmade out, the same is discarded. Hence, I proceed to pass followingorder:ORDERA.First Appeals stand dismissed.B.Cross objections stand dismissedC.Pending civil application(s), if any, stands disposed of. (ABHAY S. WAGHWASE, J.)MalaniPage 8 of 8