High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 4364 OF 2023Branch Manager,The New India Assurance Co. Ltd.,3rd Party Claims Hub, 3rd Floor,Rushiraj Regency, Near Vidya Vikas Circle,Gangapur Road, NashikThrough its In-charge (Legal Hub),The New India Assurance Co.Ltd.,D.O. No.1, Adalat Road, Aurangabad, Dist. Aurangabad … APPELLANT(Ori. Respondent No.3)VERSUS1.Rahul Janardhan KadamAge : 33 Years, Occ. Medical Practitioner &Agriculturist, R/o Bhende,Tq. Newasa, Dist. Ahmednagar At present resident of Belapur,Tq. Shrirampur, Dist., Ahmednagar 2.Bapusaheb Kachru Todmal,Age : 45 years, Occu : Agriculturist,R/o. Newasa (Bk), Tq. Newasa,Dist. Ahmednagar 3.Arun Sambhaji Gonjari,Age : 50 years, Occu. : Business,R/o. Yadav Vasti, Bahirwadi,Tq. Newasa, Dist. Ahmednagar.… RESPONDENTS(R-1 Org. Claimant) (R-2 & 3 Ori. R-1 & 2)Mr. S. R. Bobade, Advocate for the AppellantMr. M. A. Jahagirdar, Advocate for the Respondents CORAM: R. M. JOSHI, J.DATE: 8th AUGUST, 2025fa4364.23.odt1 of 11 JUDGMENT :-1.This Appeal is filed under Section 173 of the Motor VehiclesAct (for short ‘MV Act’), 1988, takes exception to the order and awarddated 21/09/2022 passed in M.A.C.P. No. 156/2017 by Motor AccidentClaims Tribunal, Shrirampur.2.By consent of both sides, heard finally.3.Parties are referred to as ‘claimant’, ‘insurer’ and‘owner/driver’ of offending vehicle.4.The insurer filed this Appeal being aggrieved by the grant ofcompensation to the claimant of Rs.18,39,523/- with interest at the rateof 6% p.a. from the date of filing of the Petition i.e. from 13/07/2017 tillrealization of the amount.5.The facts which led the filing of this Appeal can be narrated inbrief as under:-(i) Claimant, MD (Ayurdvedic), a medical practitioner andagriculturist, was riding his motorcycle bearing No. MH 17 BT 3180 andproceeding from Newasa Fata to village Bhende. He claimed that he wasdriving his motorcycle in slow and moderate speed from left side of theroad by observing traffic rules. According to him when he reached onNewasa Shevgaon highway, white colour Maruti Swift Car bearingfa4364.23.odt2 of 11 registration No. Mh 12 JU 2792 gave dash to him from behind. It isalleged that the driver of the said car was driving his vehicle andexcessive speed and in negligent manner. In the said accident, claimantsustained injuries to his head and left hand. It is further claimed by himthat the driver of the offending car did not stop at the stop of accidentand fled away. He was admitted to Nobel Hospital, Ahmednagar andthereafter was shifted to Rubi Hall Clinic at Pune, wherein he was indoorpatient from 08/03/2017 to 17/04/2017. MLC was referred to KoregaonPark Police Station, Pune by the Medical Officer, Rubi Hall Clinic. Sincethe claimant was not in a position to give statement, his statement cameto be recorded on 22/03/2017. A crime came to be registered bearingNo. 280/2017. Police Head Constable Ravindra Pawar conducted theinvestigation. He visited the spot and prepared spot panchnama.Motorcycle as well as offending car were seized under panchnama. Sinceit was revealed during the investigation that the accident in question hasoccurred on account of rash and negligent driving of the driver of the car,charge-sheet came to be filed against him before JMFC, Newasa. Theoffending car is duly insured with the Appellant-insurer.(ii)After framing of the issues, parties led evidence. The Tribunalby impugned order and award granted compensation with interest to theclaimant since the insurer is aggrieved by the same has preferredfa4364.23.odt3 of 11 present Appeal.6.Learned Counsel for the insurer submits that the firstinformation report has been lodged after about 85 days from the allegedoccurrence of the accident and he claims that the reregistration of FIRitself is doubtful. It is argued that no statement of eye witness has beenrecorded and that the Investigating Officer had not brought the casediary along with him at the time of his deposition before the Tribunal. Itis his submission that it ought to have been held by the Tribunal that thefirst information report is false and hence, the claimant is not entitled forany compensation. Without prejudice to this submission it is sought to beargued that since claimant was not wearing helmet, responsible for theoccurrence of the accident and that contributory negligent of theclaimant be held. He further argued that there is no valid and effectivedriving license of the driver placed on record before the Tribunal and assuch there is a breach of condition of the policy and therefore, theinsurer is not liable to pay any compensation.7.On merit of the claim it is contended that the claimant hasobtained the medical certificate from non treating doctor. It is hissubmission that if the claimant has taken treatment from Ruby Hospital,he ought to have obtained permanent disability certificate from the samehospital. It is argued that the hospital refused to grant such certificate asfa4364.23.odt4 of 11
Legal Reasoning
argued that once there is no dispute made with regard to the fact that asthe claimant was indoor patient from 08/03/2017 to 17/04/2017 and hadundergone surgery, the medical bills produced on record are just andresponsible and it was open for the Tribunal to accept the same. It issubmitted that the claimant being Medical Practitioner and agriculturistcertainly would have earned more income than a labourer. It is hissubmission that the notional income of the claimant at the rateRs.15,000/- per month accepted by the Tribunal is reasonable.9.Initial burden was on the claimant to substantiate his case ofthe occurrence of the accident, involvement of the offending vehicle,sustainment of injuries and permanent disability and loss of income. Theclaimant examined himself at Exhibit 25. He narrated the manner inwhich the accident has occurred while he was driving on 07/03/2017 atabout 9.00 a.m. at Nagapur Shivar. He has also placed on record policepapers, his driving license, insurance note and medical bills. Thesedocuments were marked as Exhibit 32 to 156. It is necessary to takenote of the fact that when the documents were exhibited, Respondentsincluding insurer have not objected to the same. In fact no cross-examination was conducted of the claimant on behalf of the owner anddriver of the offending vehicle.fa4364.23.odt6 of 11 10.On behalf of the insurer, claimant was cross-examined,wherein it is brought on record that the claimant has agricultural land.There is no dispute made with regard to the fact that the accidentoccurred on 07/03/2017 involving the offending vehicle. In fact what issuggested to the witness is that in the said accident there was nonegligence of the driver of the car. This suggestion indicates that theinsurer does not dispute the involvement of the offending car in theaccident, however, only denied negligence of the driver. Pertinently thereis no suggestion made to this witness that false a information reportbeing lodged in respect of the said accident. Apart from this it wassuggested that he was not wearing helmet and the said suggestion isdenied by the claimant. A suggestion that the accident occurred onaccount of motorcycle being sleep is also denied. There is no disputemade by the insurer with regard to the fact that the claimant hassustained injury in the said accident and was admitted in Ruby HallClinic, Pune from 08/03/2017 to 17/04/2017 and thereafter from07/06/2017 to 20/06/2017. There is also no suggestion made to thiswitness that he has obtained any false medical certificate indicating thepermanent disability.11.The claimant has also examined Police Head Constable Mr.Pawar who conducted investigation into the crime. He has deposed thefa4364.23.odt7 of 11 manner in which the investigation was done and the investigation papersare duly identified by him. In the cross-examination of this witness it isnot brought on record that no such accident has occurred. It is notsuggested to the Investigating Officer that false first information reportcame to be lodged or that he conducted incorrect investigation of thecrime. Investigating Officer has denied the suggestion that the accidenthas occurred on account of the fall of the claimant from the motorcycle.12.In order to prove the permanent disability caused to theclaimant, he examined Dr. Sandip Kokare, Medical Officer, DistrictHospital, Ahmednagar. On 09/01/2020, claimant was examined by himand the certificate was issued in Form-B. He has narrated the nature ofdisability caused to the claimant and has assessed the said disability atthe rate of 50%. In the cross-examination nothing has brought on recordin order to discredit the testimony of this witness. There is no questionasked in the cross-examination to suggest that the witness is not expertin assessing the permanent disability. It is suggested in the cross-examination that the disability assessed by him is excessive. Thissuggestion in fact shows that the disability caused to the claimant is notin dispute.13.As far as delay in lodging of First Information Report isconcerned, the entire evidence on record indicates that the claimant hadfa4364.23.odt8 of 11 sustained serious injuries and was required long hospitalization.Moreover in absence of any case being made out before the Tribunaleven by asking questions in cross-examination of witnesses of claimants,it can not be held that the report of accident is false and not genuine.This conclusion is inevitable in the facts of the case. It must be held thatowing to health condition, it was not possible for the claimant to givestatement to the Police immediately. Thus, the delay caused in filing ofthe first information report is duly explained. 14.Though it is sought to be argued on behalf of the insurer thatthe claimant was not wearing helmet and therefore, needs to be heldresponsible for contributory negligent. There is, however, no evidence onrecord to indicate so.15.It is further argued on behalf of the learned Counsel for theinsurer that the Tribunal has committed error and accepting the disabilityto the extent of 30%. In this context, the argument is that the theassessment of the disability has not been done by the treating doctor,such assessment cannot be accepted. The assessment of the disabilityneeds to be undertaken by the Doctor competent it is not the law thatthe disability must be assessed by the treating doctor. The assessment ofdisability is to be done by an expert in field and that herein this case theMedical Officer of the Civil Hospital, Ahmednagar has examined by thefa4364.23.odt9 of 11 claimant. Insurer or other Respondents have not raised any challenge tothe expertise of the said witness in assessment of disability. Once hiscompetency is not challenged, the only question arises as to whether hisquantum of disability assessed is correct in the facts of the case andowing to the nature of the injuries caused to the claimant. The Tribunalhas accepted the disability at 30%, and having regard to the injuriescaused and the effect of the injuries on the claimant which arepermanent in nature, the said assessment is found reasonable.16.Tribunal has accepted the income of the claimant atRs.15,000/- per month. Though there was no documentary evidence onrecord to indicate that the income of the claimant, however, havingconsidered the qualification of the claimant coupled with the fact that hewas performing agricultural work, the assessment of income at the rateof Rs.15,000/- per month is reasonable and deserves to be accepted.There is no dispute made with regard to the calculations of compensationfor loss of income made by the Tribunal.17.Finally it is sought to be argued that there is breach of termsand conditions of the insurance policy and as such the insurer is notliable to pay any compensation. Admittedly, the offending vehicle is dulyinsured with the insurer. Insurer led no evidence in order to prove anybreach of terms and conditions of the policy. As such, there is nofa4364.23.odt10 of 11 substance in the said contention sought to be made on behalf of theinsurer. Further from the evidence on record, no enhancement ofcompensation can be granted to the claimant, as argued on his behalf.18.Having regard to the overall facts of case and the evidenceon record, the findings recorded by the Tribunal are just and proper andfor want of any perversity therein, no interference is caused in thisAppeal. Hence, Appeal stands dismissed.(R. M. JOSHI, J.)ssp fa4364.23.odt11 of 11
Arguments
no permanent disability was caused to the claimant. It is further arguedthat the Tribunal has committed error in accepting the disability of theclaimant at 30% when there is no evidence to hold so. On the point ofmedical bills, it is submitted that for want of examination of the personwho has issued the bills, the bills ought not to have accepted by theTribunal. All these amongst other submissions, the impugned order isought to be set aside. 8.Learned Counsel for the claimant supported the impugnedorder. It is his submission that the claimant had sustained serious injuryand therefore, was not in a position to record his statement immediately.His statement came to be recorded only on 22/03/2017 and hence itcannot be said that the delay caused in lodging of the FIR is fatal to thecase of the claimant. It is his submission that in any case during thecross-examination of the Investigating Officer, no suggestions are madein this regard and as such there is no substance in the contention of theinsurer in this regard. He further submits that the claimant has examinedthe Medical Officer of Government Hospital, Ahmednagar who hasassessed the disability of the claimant and accordingly, certificate isissued. It is his submission that in fact the Tribunal ought to haveaccepted the 50% disability as assess by the Medical Officer and heclaims enhancement of the compensation on this count. He furtherfa4364.23.odt5 of 11