High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD910 FIRST APPEAL NO. 808 OF 2011GANESH SHIVAJI PATILVERSUSTHE NEW INDIA ASSURANCE CO. LTD. AND ORSMr. M. M. Bhokarikar, Advocate for AppellantMr. A. S. Usmanpurkar, Advocate for the RespondentsCORAM: R. M. JOSHI, J.DATE: 4th OCTOBER, 2025P.C. :-1.This Appeal under Section 170 of the Motor Vehicles Acttakes exception to the judgment and award dated 29/12/2010 passedby the Motor Accident Claim Tribunal, Jalgaon in MACP No. 79/2005, forseeking enhancement of the compensation granted by the Tribunal.2.Appellant/Claimant was riding motor cycle bearing No. MH-19-H-0672 while returning from Shendurni to Pimpalgaon Budruk on02/12/2004 at about 12.30 p.m. It is his case that when he reachednear the field of Shri Bhaurao Patil, Sangavi on Pahur Shendurni Road, amatador bearing No. MH-19-4198 coming from the Pahur side gavedash to another matador bearing No. MH-02/T-5995 which was runningahead of him. It is claimed that the matador bearing No. MH-19/4198came in high speed and gave dash to the other matador plying in frontof motorcycle of the claimant and the said matador consequently910 FA 808.2011.odt1 of 8 dashed upon his motorcycle. In the said accident, he sustained injuries.He was admitted to the Civil Hospital and from there shifted toNeurology and Trauma Center of Dr. Rajesh Jain, Jalgaon. He claims tohave sustained fracture to the skull and so also to the shoulder. Heclaims to have been kept in I.C.U. and that to operation were performedupon him. It is claimed by him that at the time of occurrence of theaccident he was about 30 years of age with occupation as anagriculturist and earning approximate income of Rs.6,000/- per month.He claims to have suffered permanent disability and was unable to workas before. It is claimed that both matador vehicles involved in theaccident are insured with New India Assurance Company. Thecomplainant on all accounts claimed compensation of Rupees Four lakhsjointly and severally from the Respondents.3.Respondent No.2 though served failed to remain presentbefore the Tribunal and hence, the proceedings were held ex-parteagainst him. Respondent Nos.1 and 3 i.e. Insurer filed say at Exhibit 19denying the adverse contentions of the claimant. It is claimed that theaccident has occurred due to the negligence of the driver of themotorcycle i.e. claimant himself.4.Learned Tribunal framed issues vide Exhibit 45 and burdenwas cast upon the claimant to substantiate that he sustained injuriesdue to rash and negligence driving of the vehicles of Respondents so910 FA 808.2011.odt2 of 8 also he is entitled to receive compensation.5.Claimant examined himself at Exhibit 48 and placed relianceon documentary evidence such as FIR (Exhibit 53), spot panchnama(Exhibit 54), Doctor’s certificate (Exhibit 55), insurance policy ofmatador No. MH-02/T-5995 (Exhibit 56) and medical bills (Exhibit 59).He also placed on record disability certificate which is marked as Exhibit57 with objection.6.During the evidence it is claimed by the claimant that hewas riding motorcycle in moderate speed and that the accident hasoccurred due to the rash and negligence driving of matador bearing No.MH-19-4198. He placed reliance on the spot panchnama, firstinformation report and other police papers.7.For the purpose of proving the permanent disability causedto the claimant he placed reliance on the disability certificate Exhibit 57.It is necessary to take note of the fact that though the said certificatewas marked as Exhibit 57, it was marked with objection. There is nodispute about the fact that claimant apart from examining himself hasnot examined any other witness and has not examined author of thesaid certificate.8.No other evidence was led by the parties and the Tribunal bypassing impugned judgment and order partly allowed the claim directing910 FA 808.2011.odt3 of 8 compensation of Rs.1,10,000/- to be paid to the claimant jointly andseverally by Respondent Nos.1 and 2 along with the interest at the rateof 7.5% per annum.9.Being aggrieved by the said judgment and order, presentAppeal is filed on the ground that the Tribunal has committed error andnot considering the provisions of the Motor Vehicles Act and theprecedents of the Apex Court while passing impugned order. It is alsosought to be claimed that the Tribunal has failed to take intoconsideration the nature of injuries, the effect of those injuries on thecapacity of claimant to work and on that count future income beingaffected adversely. It is also claimed that the Tribunal has failed to takeinto account the age of claimant and the loss of efficiency caused to theclaimant on account of the injuries sustained in the accident.10.Learned Counsel for the claimant submits that the Tribunalhas committed serious error in not considering the future loss of incomecaused to the claimant on account of the injuries and consequentpermanent disability. It is his submission that the Tribunal has failed totake into consideration the physical limitation and disabilities caused tothe claimant on account of the injuries sustained. It is his submissionthat the Tribunal ought to have accepted the disability certificate placedon record and ought to have granted compensation on various heads.To support his submission he placed reliance on the judgment of the910 FA 808.2011.odt4 of 8 Hon’ble Supreme Court in case of Jithendran V. New India AssuranceCo.Ltd. AIR 2021 SC 5382. A specific reference is made to paragraphNo.16 of the said judgment referring to the heads under which theclaimant should be awarded compensation in injury cases. Similarly, hehas placed reliance on the judgment in case of Jagdish V. Mohan andOrs, AIR 2018 SC 1347 in order to argue that pain and suffering, loss ofincome, inability to lead normal life with amenities, medical expensesand loss of expectation of life ought to have been considered by theTribunal which has not been taken into account. He also placed relianceon the judgment of the Co-ordinate Bench of this Court in First AppealNo. 1670/2017, dated 09/10/2018 to argue that on the heads such asfuture income, loss of actual income, medical expenses, loss ofamenities, loss of expectation of life etc. the compensation ought tohave been granted. Reference is also made to the judgment of thisCourt in case of New India Assurance Company Limited, Through itsAuthorized Signatory/Branch Manager, Branch Ofce At Jalna Road, BeedTq. and Dist. Beed and Anr. Versus Vishal Rameshwar Mote and Anr,2019(6) BCR 487. It is his submission by referring to the judgment ofthe Hon’ble Supreme Court in case of Sunita V. Rajasthan State RoadTransport Corporation, AIR 2019 SC 994 that the strict principles ofproof like criminal case are not attracted to the proceeding under theMotor Vehicles Act and the proof in such cases must be onpreponderance of probability only. He also placed reliance on following910 FA 808.2011.odt5 of 8
Legal Reasoning
judgments:(i)Pappu Deo Yadav Vs. Naresh Kumar, AIR 2020 SC 4424(ii)Jagdish V. Mohan and Ors., AIR 2018 SC 1347(iii)Raj Kumar V. Ajay Kumar, AirOnline 2010 SC 125(iv)Smt. Pushpa Bajirao Thorat and Ors. Vs. DnyaneshwarKondaji Auti Died and Ors., 2019(2) Mh.L.J. 418(v)Oriental Insurance Co.Ltd., V. Smt. Nanjamma, 2003 AirKant, H.C.R. 309811.Learned Counsel for the Insurer opposed the Appeal bycontending that in order to decide the entitlement, at the outsetclaimant is required to prove that permanent disability has been causedto him. By referring to the record before the Tribunal it is argued thatthe permanent disability certificate has not been proved by theappellant and hence, there is no question of granting any compensationto the claimant on that count. It is his submission that the Tribunal hasrightly taken into consideration the age and nature of injuries andgranted compensation of Rs.30,000/- towards pains and suffering whichis just and reasonable in the facts of the case. He further drew attentionof the Court to the additional compensation of Rs.80,000/- granted bythe Tribunal towards medical expenses without examining any otherwitness by the claimant.12.There cannot be dispute made with regard to the propositionsought to be canvassed by the learned Counsel for the claimant that theprinciples of strict proof of a fact as in criminal case would not attract tothe proceedings under the Motor Vehicles Act and the proof of the fact is910 FA 808.2011.odt6 of 8 required on preponderance of probability. This, however, does mean toabsolve burden on the claimant to substantiate his claim includingfactum of permanent disability by leading cogent evidence. Herein thiscase, the initial burden was on claimant to prove the occurrence of theaccident and the rash and negligence on the part of the respondents inthe same. The claimant has led evidence to that effect. Apart from hisoral evidence, he placed reliance on the first information report andother police papers which indicate that the accident in question hasoccurred not due to the negligence of the claimant but it is negligenceof the driver of matador in question.13.Thereafter the claimant was required to establish that in thesaid accident on account of the injuries caused therein, he has sufferedpermanent disabilities. In this regard though claimant has examinedhimself and also has sought to place on record disability certificate.Admittedly, no witness is examined by claimant to prove the certificateof disability and as such it cannot be read in evidence since it has notbeen proved. This Court, finds no substance in the contention of thelearned Counsel for the Appellant/claimant that even without provingthe certificate, the contends thereof could be read in evidence. Thoughclaimant is not required to prove the said fact by strict proof but onprobability it ought to have been established.14.Thus, admittedly the claimant has failed to substantiate that910 FA 808.2011.odt7 of 8 permanent disability was caused to him. As against this, evidence onrecord i.e. discharge card indicates that he was hospitalized for threedays i.e. 02/12/2004 to 05/12/2004 and did not undergo any surgery.This evidence clearly indicates that the contentions of the claimant withregard to the having undergone operation etc., can not be accepted.15.Pertinently, though the claimant has not examined anywitness, the Tribunal has accepted the medical bill to the extent ofRs.80,000/-. In the facts of the case and having regard to the period ofhospitalization, this Court finds the said assessment to be just andreasonable.16.Since the claimant has failed to substantiate his claim ofpermanent disability, question of Tribunal requiring to decide any otherissue does not arise. There is no evidence placed on record to indicatethat there was loss of income to the claimant. Moreover, for want ofproof of permanent disability, it cannot be said that his future earningcapacity was hampered. Having regard to the case sought to be madeout by the claimant and the evidence led before the Tribunal, thecompensation granted by the Tribunal needs to be accepted as just andreasonable. Hence, there is no case made out by the appellant to causeinterference in the order impugned. Hence, Appeal stands dismissed.(R. M. JOSHI, J.)ssp910 FA 808.2011.odt8 of 8