High Court
Legal Reasoning
( 1 ) 922 FA 1319 OF 2016IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD922 FIRST APPEAL NO. 1319 OF 2016BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGAL EXECUTIVEVERSUSPRATAP NARAYAN CHAVAN AND ANR...Mr. M. R. Deshmukh, Advocate for AppellantMr. M. M. Bhokarikar, Advocate for Respondent No.1...WITHFIRST APPEAL NO. 1320 OF 2016BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGAL EXECUTIVEVERSUSSURESH NARAYAN CHAVAN AND ANRWITHCIVIL APPLICATION NO. 4109 OF 2016 IN FA/1320/2016BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGAL EXECUTIVEVERSUSSURESH NARAYAN CHAVAN AND ANRWITHCIVIL APPLICATION NO. 4110 OF 2016 IN FA/1319/2016BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGAL EXECUTIVEVERSUSPRATAP NARAYAN CHAVAN AND ANRWITHCROSS APPEAL NO. 2 OF 2018 IN FA/1320/2016SURESH NARAYAN CHAVANVERSUSTHE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGALEXECUTIVE AND ANR... ( 2 ) 922 FA 1319 OF 2016Mr. M. M. Bhokarikar, Advocate for AppellantMr. M. R. Deshmukh, Advocate for Respondent No.1WITHCIVIL APPLICATION NO. 12357 OF 2018 IN X-APL/2/2018SURESH NARAYAN CHAVANVERSUSTHE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGALEXECUTIVE AND ANRWITHCROSS APPEAL NO. 3 OF 2018 IN FA/1319/2016PRATAP NARAYAN CHAVANVERSUSTHE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGALEXECUTIVE AND ANR...Mr. M. M. Bhokarikar, Advocate for Appellant...WITHCIVIL APPLICATION NO. 12354 OF 2018 IN X-APL/3/2018PRATAP NARAYAN CHAVANVERSUSTHE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THR LEGALEXECUTIVE AND ANR…CORAM:AJIT B. KADETHANKAR, J.DATE:16.10.2025PER COURT :-FIRST APPEAL NO. 1319 OF 20161.Feeling aggrieved by the order dated 01.02.2016 passed by thelearned Motor Accident Claims Tribunal, Jalgaon, in Motor Accident Claim ( 3 ) 922 FA 1319 OF 2016Petition No.461/2009, the original respondent no.2/Insurance Company haspreferred the First Appeal under Section 173 of Motor Vehicle Act, 1988.Brief facts of the case :-(i)It was contended that on 08.08.2009 the respondent no.1 was riding ona motorcycle bearing No.MH-19-AT-4645 from Jalgaon towards Pathrad. Itwas further contended that a truck bearing No.MH-29-M-301 gave dash to thebike on which respondent no.1 was riding and it resulted into permanentdisability to respondent no.1.(ii)The claimant/respondent no.1 filed a petition before the Tribunalclaiming compensation of Rs.5 Lakh to be recoverable jointly and severallyfrom the owner and insurer (the appellant herein).(iii)It was a defence of the appellant/Insurance Company that the truckdriver was not holding a valid and effective driving license on the date of theaccident. On this count, besides other defences, the appellant/InsuranceCompany sought exoneration from the liability to indemnify the insuredowner.(iv)During the course of hearing, the Insurance Company examined itsofficial who tendered certain information received from the concerned RTOwherein it was revealed that the copy of the license was placed on record bythe claimant pertaining to driving license of driver was fake. The ( 4 ) 922 FA 1319 OF 2016appellant/Insurance Company made every endeavor to bring on record thatthe said driving license suggested and revealed by the claimant did not standin the name of the driver of the insured vehicle.(v)The appellant/Insurance Company deposed before the learned Tribunalthrough its witness that as per the record of the RTO, Chandrapur, thenumbered license that was shown to have been issued in the name of the truckdriver was in fact issued in the name of one Dipak S. Varutkar and as such itwas proved that the license that was placed on record pertaining to the truckdriver was absolutely fake one. With this, the appellant/Insurance Companysought exoneration from the liability to indemnify the insured owner andprayed to dismiss the claim to the extent of the appellant/Insurance Company.Findings of the Tribunal :-2.After hearing the parties, the learned Tribunal quantified theaward to the tune of Rs.1,85,000/- to be recoverable jointly and severally fromthe owner and insurer.3.So far as the legal defence raised by the Insurance Company wasconcerned, the learned Tribunal discarded such defence holding that in anyevent the Insurance Company was not absolved from the liability to indemnifythe insured owner. As such the Insurance Company is in this Court against thefindings rendered by the learned Tribunal so far as the license of the truck
Legal Reasoning
( 5 ) 922 FA 1319 OF 2016driver is concerned.Submissions in the Appeal :-4.Mr. Deshmukh, learned counsel for the appellant/InsuranceCompany fairly placed on record copy of the judgment rendered by theHon’ble Supreme Court in the case of Rishi Pal Singh vs. New India AssuranceCo. Ltd. And others reported in 2022 SCC Online SC 2119.5.A profitable reference can be made to Paragraph No.11 of the saidjudgment which reads as follow :“11.The owner of the vehicle is expected to verify the drivingskills and not run to the licensing authority to verify thegenuineness of the driving license before appointing a driver.Therefore, once the owner is satisfied that the driver iscompetent to drive the vehicle, it is not expected from the ownerthereafter to verify the genuineness of the driving license issuedto the driver.”Conclusion :-6.In view of the settled position of law laid down by the Hon’bleSupreme Court, it has become trite law that even if the driver of the insuredvehicle might be holding a fake license, the vehicle owner is not expected toverify the genuineness of the driving license before engaging such driver.Therefore, the liability of the Insurance Company is not absolved from its ( 6 ) 922 FA 1319 OF 2016liability to indemnify the insured owner.7.In view of this I do not find any reason to interfere into thefindings rendered by the learned Tribunal. The appeal is devoid of merit anddeserves to be dismissed. Hence I pass the following order :-ORDERA.The First Appeal No.1319 of 2016 is dismissed without anyorder as to costs.B.In view of the dismissal of the First Appeal, the legalrepresentatives of the deceased/claimant are entitled towithdraw the amount deposited by the Insurance Company inthis Court with accrued interest thereon. C.Pending civil applications, if any, also stand disposed of.FIRST APPEAL NO. 1320 OF 20161.Feeling aggrieved by the order dated 01.02.2016 passed by thelearned Motor Accident Claims Tribunal, Jalgaon, in Motor Accident ClaimPetition No.460/2009, the original respondent no.2/Insurance Company haspreferred the First Appeal under Section 173 of Motor Vehicle Act, 1988.Brief facts of the case :-(i)It was contended that on 08.08.2009 the claimant/insured was ridingon a motorcycle bearing No.MH-19-AT-4645 as a pillion rider from Jalgaontowards Pathrad. It was further contended that a truck bearingNo.MH-29-M-301 gave dash to the bike on which the claimant/insured was ( 7 ) 922 FA 1319 OF 2016riding as a pillion rider and it resulted into permanent disability.(ii)The claimant/respondent no.1 filed a petition before the Tribunalclaiming compensation of Rs.5 Lakh to be recoverable jointly and severallyfrom the owner and insurer (the appellant herein).(iii)It was a defence of the appellant/Insurance Company that the truckdriver was not holding a valid and effective driving license on the date of theaccident. On this count, besides other defences, the appellant/InsuranceCompany sought exoneration from the liability to indemnify the insuredowner.(iv)During the course of hearing, the Insurance Company examined itsofficial who tendered certain information received from the concerned RTOwherein it was revealed that the copy of the license was placed on record bythe claimant pertaining to driving license of driver was fake. Theappellant/Insurance Company made every endeavor to bring on record thatthe said driving license suggested and revealed by the claimant did not standin the name of the driver of the insured vehicle.(v)The appellant/Insurance Company deposed before the learned Tribunalthrough its witness that as per the record of the RTO, Chandrapur, thenumbered license that was shown to have been issued in the name of the truckdriver was in fact issued in the name of one Dipak S. Varutkar and as such it ( 8 ) 922 FA 1319 OF 2016was proved that the license that was placed on record pertaining to the truckdriver was absolutely fake one. With this, the appellant/Insurance Companysought exoneration from the liability to indemnify the insured owner andprayed to dismiss the claim to the extent of the appellant/Insurance Company.Findings of the Tribunal :-2.After hearing the parties, the learned Tribunal quantified theaward to the tune of Rs.1,75,000/- to be recoverable jointly and severally fromthe owner and insurer.3.So far as the legal defence raised by the Insurance Company wasconcerned, the learned Tribunal discarded such defence holding that in anyevent the Insurance Company was not absolved from the liability to indemnifythe insured owner. As such the Insurance Company is in this Court against thefindings rendered by the learned Tribunal so far as the license of the truckdriver is concerned.Submissions in the Appeal :-4.Mr. Deshmukh, learned counsel for the appellant/InsuranceCompany fairly placed on record copy of the judgment rendered by theHon’ble Supreme Court in the case of Rishi Pal Singh vs. New India AssuranceCo. Ltd. And others reported in 2022 SCC Online SC 2119.5.A profitable reference can be made to Paragraph No.11 of the said ( 9 ) 922 FA 1319 OF 2016judgment which reads as follow :“11.The owner of the vehicle is expected to verify the drivingskills and not run to the licensing authority to verify thegenuineness of the driving license before appointing a driver.Therefore, once the owner is satisfied that the driver iscompetent to drive the vehicle, it is not expected from the ownerthereafter to verify the genuineness of the driving license issuedto the driver.”Conclusion :-6.In view of the settled position of law laid down by the Hon’bleSupreme Court, it has become trite law that even if the driver of the insuredvehicle might be holding a fake license, the vehicle owner is not expected toverify the genuineness of the driving license before engaging such driver.Therefore, the liability of the Insurance Company is not absolved from itsliability to indemnify the insured owner.7.In view of this I do not find any reason to interfere into thefindings rendered by the learned Tribunal. The appeal is devoid of merit anddeserves to be dismissed. Hence I pass the following order :-ORDERA.The First Appeal No.1320 of 2016 is dismissed without anyorder as to costs.B.In view of the dismissal of the First Appeal, the claimant ispermitted to withdraw the amount deposited by the Insurance ( 10 ) 922 FA 1319 OF 2016Company in this Court with accrued interest thereon. C.Pending civil applications, if any, also stand disposed of.CROSS APPEAL NO. 3 OF 2018 IN FA/1319/20161.Mr. M. M. Bhokarikar, learned counsel for the applicant wouldsubmit that the compensation granted by the learned Tribunal is extremelyinadequate. He would submit that the learned Tribunal has not granted anycompensation on the basis of the loss of earning capacity and the disabilitysustained by the appellant/claimant in the Cross Appeal. He would submitthat an amount of Rs.1,85,000/- is too meagre for the case that was set up bythe claimant in the Trial Court.2.Per contra, Mr. M. R. Deshmukh, learned counsel appearing forthe Insurance Company would submit that the Tribunal has rightly awardedcompensation in accordance with the law prevailing at the relevant time. Hewould further submit that the claimant failed to prove the extent ofpermanent disability and its impact on earning capacity. Therefore, no case forenhancement is made out and the Cross Appeal deserves to be dismissed.3.With the able assistance of the learned counsel for both parties, Ihave perused the Record and Proceeding. Since the appellant in the CrossAppeal seeks enhancement of compensation, a detailed scrutiny of theTribunal’s observations is warranted. ( 11 ) 922 FA 1319 OF 20164.It could be beneficial to refer to the observation of the learnedTribunal at Paragraph Nos.17 to 20 and 33 which are reproduced as follows :“17.It is a settled principle of law, ruled by the Hon’ble ApexCourt, while dealing with the case of Rajesh Kumar Vs. YudhvirSingh and another [2008 ACJ 2131] that, without examiningMedical Officer, who issued medical certificate, it is inadmissiblein evidence. Apart from this, the PDCerificate must be issued inthe prescribed format – Compo B, as per the provisions of MotorVehicles Rules.18.No doubt, in order to prove the contentions raised by theclaimant, he has examined CW-2, Dr.Anil Jagannath Khadke, anOrthopedic Surgeon, practicing at Jalgaon, at Exh.39. Heproduced and proved PDCertificate issued by him under seal ofhis hospital and signature, at Exh.43, show that, claimant hadsustained injury to the right knee joint, to the extent of 45% ofthe part.19.In his cross-examination by the Advocate for respondentNo.2, he admitted that, the injured claimant admitted in hishospital as indoor patient for the period of 1 month, however, therequisite papers are not produced. He is unable to say, due toinjuries sustained towards right knee joint to the claimant, howmuch physical disability would be there. According to him, theremay be some disability due to the injuries sustained.20.Admittedly, the PDC produced in the prescribed formatComp B is not verified by the Medical Board attached to the CivilHospital, at Jalgaon. No doubt, injury certificate previously ( 12 ) 922 FA 1319 OF 2016issued by CW-2, at Exh.27 show that claimant sustained grievousinjuries. So, I have no hesitation to answer issue No.2, partly inthe affirmative.33.Be that as it may, CW-2 under cross-examination,aforementioned admitted that, he cannot estimate the actualdisability sustained to the claimant as well as unable to saywhether inserted rod and screw removed by the claimant inanother hospital or through another dispensary, raising operationor not.”5.In light of the above, it is evident that the claimant failed toestablish through cogent and reliable evidence, the extent of disability and theloss of earning capacity. The Tribunal has rightly observed that in the absenceof any verified disability certificate or medical evidence, no furtherenhancement could be justified. In the light of that, I find that the learnedTribunal has not committed any error in quantifying the award amount ofRs.1,85,000/-.6.Hence, the following order :-ORDERA.The Cross Appeal No.3 of 2018 stands dismissed.B.No order as to costs.CROSS APPEAL NO. 2 OF 2018 IN FA/1320/20161.This Cross Appeal is filed by the original claimant seeking ( 13 ) 922 FA 1319 OF 2016enhancement of the compensation awarded by the learned Motor AccidentClaims Tribunal. Mr. Bhokarikar, learned counsel for the appellant wouldsubmit that the compensation awarded to the claimant by the Tribunal,amounting to Rs.1,75,000/-, is meagre and inadequate and thus cannot beconsidered just and proper.2.Mr. Bhokarikar, learned counsel would submit that the learnedTribunal failed to apply the correct legal parameters while assessingcompensation in an injury claim. He submitted that the Tribunal erred in notgranting appropriate compensation under the head of loss of earning capacity,which was allegedly sustained by the claimant due to the injuries suffered inthe accident.3.Per contra, Mr. M. R. Deshmukh, learned counsel appearing forthe Insurance Company would submit that the Tribunal has rightly awardedcompensation in accordance with the law prevailing at the relevant time. Hewould further submit that the claimant failed to prove the extent ofpermanent disability and its impact on earning capacity. Therefore, no case forenhancement is made out and the Cross Appeal deserves to be dismissed.4.With the able assistance of the learned counsel for both parties, Ihave perused the Record and Proceeding. Since the appellant in the CrossAppeal seeks enhancement of compensation, a detailed scrutiny of the ( 14 ) 922 FA 1319 OF 2016Tribunal’s observations is warranted.5.It could be beneficial to refer to the observation of the learnedTribunal at Paragraph Nos.14 to 18 and 33 which are reproduced as follows :“14.It is a settled principle of law, ruled by the Hon’ble ApexCourt, while dealing with the case of Rajesh Kumar Vs. YudhvirSingh and another [2008 ACJ 2131] that, without examiningMedical Officer, who issued medical certificate, it is inadmissiblein evidence. Apart from this, the PDCerificate must be issued inthe prescribed format – Compo B, as per the provisions of MotorVehicles Rules.15.No doubt, in order to prove the contentions raised by theclaimant, he has examined CW-2, Dr.Anil Jagannath Khadke, anOrthopedic Surgeon, practicing at Jalgaon, at Exh.41. Heproduced and proved PDCertificate issued by him under seal ofhis hospital and signature, at Exh.45, show that, claimant hadsustained injury to the right knee joint, to the extent of 5% of thepart.16.In his cross-examination by the Advocate for respondentNo.2, he admitted that, the said disability likely to be cured afterlapse of time. In fact, pleadings of the claimant show that, he waspermanently disabled under accident (See para No.14(a) (c)),howerver there is variance with the pleadings and evidence, forthe reason best known to the claimant only.17.It is ruled by the Apex Court, in the case ofG.Dhanashekhar vs. M. D. Metropolitan Transport CorporationLtd. (2014(2) ABR 686) that, principle governing fixation of ( 15 ) 922 FA 1319 OF 2016compensation for functional disability, it has to be borne in themind that, it cannot be uniformally applied, it would depend onthe impact cause by the injury on the victim’s profession/career.To what extent, the career of the victim affected, thereby hisregular income is reduced or dried up will depend on the factsand circumstances of each case. There may be even situationswhere the physical disability does not involve any functionaldisability at all.18.Be that as it may, CW-2 under cross-examination clearlyadmitted that, the injury sustained is likely to be cured afterlapse of time. Apart from this, there is no cogent evidence ledthat, claimant, due to the accident, sustained injury, he becomepermanently disable, however injury certificate collected by thepolice issued by CW-2, dated 31-08-2009, show that, under roadtraffic accident, claimant sustained grievous and simple injuries,as described, thereby having considered the evidence led, I haveno hesitation to answer issue No.2, as partly in the affirmativefindings.33.In his cross-examination by the Advocate for respondentNo.2, he admitted that, he is unable to say that, rod and screwinserted by the claimant under operation to the right leg,whether removed in another dispensary or not, while givingestimate bill, dated 05-02-2011, worth Rs.80,000/-, produced atExh.44.6.It is abundantly clear that the claimant miserably failed to provethe quantum of the permanent disability he allegedly sustained, as also failed
Decision
( 16 ) 922 FA 1319 OF 2016to demonstrate how it has affected the loss of earning capacity. The learnedTribunal as taken into consideration the expenses made by the claimanttowards his treatment and adding non-pecuniary damages, the final award ofRs.1,75,000/- has been granted by the learned Tribunal. Had it been the casethat the claimant has had meticulously proved the permanent disability andloss of earning capacity qua such permanent disability, the claimant wouldcertainly have been entitled to receive adequate compensation accordingly forfailure of the claimant to prove his case for seeking compensation under theheading of loss of earning capacity, I do not find that the learned Tribunal hascommitted any error while granting the compensation at Rs.1,75,000/-.7.As such, the judgment and award passed by the learned Tribunaldoes not call for any interference so as to enhance the compensation grantedto the claimant.8.Hence the following order :-ORDERA.The Cross Appeal stands dismissed.B.No order as to costs.[AJIT B. KADETHANKAR, J.]PRW