High Court · 2025
Legal Reasoning
FA-2354.2022-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.2354 OF 2022Sandip S/o. Nanasaheb Shinde,Age : 39 years, Occu. : Agril.,R/o. Ganesh Nagar, Opp. Malpani Lodge, Sakar Plaza, Sangamner,Tq. Sangamner, Dist. Ahmednagar … Appellant(Orig. Claimants) Versus1.Arjun S/o. Damodhar Padekar,Age : Major, Occu. : Agril. & Service,R/o. Dhamangaon Road,Dhumalwadi, Akole, Tq. Akole,Dist. Ahmednagar.2.United India Insurance Co. Ltd.,Hotel Karam Building,Pune Nashik Highway,Opp. S. T. Bus Stand, Sangamner,Tq. Sangamner, Dist. Ahmednagar.… Respondents.(Orig. Opponents) …..Mr. K. N. Shermale, Advocate for Appellant.Mr. Vinodkumar R. Mundada, Advocate for Respondent No.2.…..CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :22 JULY 2025PRONOUNCED ON :30 JULY 2025 JUDGMENT : 1.Original claimant, who preferred M.A.C.P. No.5 of 2014seeking compensation for injury suffered by him by accident dated04.09.2013, dissatisfied by the quantum of compensation as well asfailure to correctly ascertain the disability and non consideration ofmedical bills. FA-2354.2022-2-2.Brief facts giving rise to the accident claim petition arethat, on 04.02.2013, at around 11:00 a.m., appellant, who was apedestrian, walking over Sangamner to Akole Bypass road, who washit from backside by a Jeep bearing registration No. MH-17-AE-2072causing him injuries to leg, back, head, left side rib and back sidebone requiring him hospitalization from 04.09.2013 to 19.09.2013where he was required to spend around Rs.1,10,000/- and he alsosuffered permanent disability. It is his case that, he was anagriculturist and earning around Rs.5,00,000/- to Rs.6,00,000/- perannum from the agriculture as well as milk business. Accidentalinjuries and disability rendered him loss of earning and functionalcapacity and thereby he set up claim of Rs.5,00,000/-. 3.After notice as there was no response from respondentno.1, Tribunal has proceeded ex-parte against him. 4.Respondent No.2 Insurance Company resisted the claimby filing written statement Exh.22 taking up a stand of falseimplication denying involvement of jeep, denying negligence andtaking a stand of breach of policy on account of non availability ofeffective driving licence. FA-2354.2022-3-5.After appreciating the evidence adduced by the claimant,learned tribunal was pleased to partly allow the claim by judgmentand order dated 02.11.2018 awarding compensation to the tune ofRs.95,000/- including the amount of N.F.L. Rs.25,000/- with interest@ 8% per annum. Getting dissatisfied by the same, original claimanthas preferred instant appeal on various grounds mentioned in theappeal memo.6.Learned counsel for original claimant would submit that,there is improper appreciation of oral and documentary evidenceadduced by the claimant in trial court. He submitted that claimanthad proved injuries by examining medical expert and permanentdisability to the extent of 40% was also proved by placing certificateon record. That, even medical bills were placed on record. The sameare not considered and appreciated correctly by the learned trialcourt. He also raised the point that amounts granted under variousheads are meager, and therefore, he expects an enhancement.7.Learned counsel for respondent no.2 supported thejudgment and opposed the appeal on the ground that, there wasfirstly no evidence to show direct involvement of jeep in questionwhich was insured by Insurance Company. Secondly, disabilitycertificate and medical bills are manufactured documents. Therefore,
Legal Reasoning
FA-2354.2022-4-learned tribunal committed no error in not accepting the same.Lastly, he justifies the compensation granted by tribunal and urges todismiss the appeal for want of merits.8.Heard. Re-appreciated the evidence as regards toaccident dated 04.09.2013, on the strength of documents like FIRand spot Exhs.35 and 36, occurrence of accident standsdemonstrated. Learned counsel for respondent no.2 InsuranceCompany would submit that, there is delay in FIR and there is noinvolvement of vehicle. However, considering the above fact and theinvestigation papers which are placed before tribunal, this court doesnot find any reason to doubt the involvement of offending jeepinsured by respondent no.2.9.Close scrutiny of spot coupled with the hand sketch mapshow that dash was given from backside to a pedestrian andtherefore, even question of negligence and rash driving need not bedoubted. Therefore, there is material before the trial Judge to holdthat on 04.09.2013, claimant, who was pedestrian, was given dashfrom the backside of the jeep. As regards to injury is concerned, it isthe claim of appellant - claimant that he had suffered injuries to hisright leg, back, head, left rib and back side bone. He has examinedPW2 Dr. Dange, who claims to have not only treated, but has also FA-2354.2022-5-assessed and issued permanent disability certificate. This medicalexpert has testified about fracture to hip and fracture to four ribs. However, in cross examination he has admitted that, nosurgery was required to be undertaken for the said fracture andminor surgery to remove air and blood from the lungs was requiredto be undertaken.10.Dr. Dange seems to have admitted that, he did notperform any surgery in respect of fracture allegedly suffered by him.However, in cross examination, he has answered that fracture to theribs automatically reunited, but not in every case. Therefore,material placed on record as regards to disability is concerned, thereis no need to doubt doctor’s evidence. Therefore, this court is alsoconvinced about sufficient evidence is available regarding accidentalinjuries resulting into fracture to hip as well to the ribs.11.Learned counsel for appellant has pointed out that aboveaspects are not correctly appreciated by learned tribunal and learnedtribunal has held that there was no permanent disability. In view ofsuch objection, the impugned judgment is visited. It is noticed thatwhile answering issue no.2, there is discussion about allegeddisability and analysis of evidence of medical expert. FA-2354.2022-6-12.In paragraph 26, learned tribunal has held that there isno surgery required to be undergone for the fracture. However,medical expert has specifically though stated that fracture to the ribsreunite automatically, it does not happen so in every case. Inparagraph 27, learned tribunal has held that, in the net result thepetitioner/appellant has not sustained the injuries which can beresulted into permanent disability, which would effect his earningcapacity and has further drawn inference that opinion given bymedical expert is on higher side and disability specially issued to helpthe claimant. But again in paragraph 30, learned tribunal has heldthat, “the fact remains that the petitioner had sustained fractureinjuries to ribs and hip. Therefore, naturally he will find difficulty inmaking movements like normal person.” Therefore, observationsraised in paragraph 24 and 27 are contrary.13.Learned counsel pointed out that, there is nonconsideration of medical bills and papers by the tribunal. On thisissue, there seems to be discussion in paragraph 34 and 35 byanswering issue no.4, wherein Insurance Company has seriouslyquestioned the bills stating that the same are manipulated. Here, it isnoticed that not only PW2 Dr. Dange, but another doctor whose nameappears on medical bills namely Dr. Mhaske has appeared. However,he is not examined. When bills are sought to be relied, it was FA-2354.2022-7-expected of claimant to examine Dr. Mhaske, however, said doctorhas not been examined. Therefore, as held by tribunal, there arereasons to doubt the credibility of the medical papers. 14.Under such circumstances, considering the nature ofinjuries, in the considered opinion of this court and the claim petitionbenevolent legislation, lump-sum amount for medical expenses to thetune of Rs.1,00,000/- is required to be granted, more particularlytaking into account the duration of hospitalization, nature and parts,which are impacted due to the mishap. 15.Though there is nothing to show that because of the saiddisability, claimant is incapacitated permanently from rendering anywork, he is entitled for the distinct compensation under the head ofpain and suffering. Tribunal has granted only Rs.10,000/- and thesame is requires to be enhanced to Rs.25,000/-, more particularly inview of the nature of injuries. 14.Therefore, in addition to the quantum awarded by theTribunal, an amount of Rs. 50,000/- needs to be added to thecompensation for medical expenses so also Rs.15,000/- needs to beadded under the head of ‘pain and suffering’. Hence, I proceed to passthe following order:- FA-2354.2022-8-ORDER(i)The First Appeal is partly allowed with proportionate costs.(ii)Impugned judgment and award dated 02.11.2018, passed bythe Member of M.A.C.T., Sangamner in M.A.C.P. No.05 of 2014 ismodified.(iii)Respondent no.2 - Insurance Company to pay enhancedcompensation of Rs.65,000/- to claimant within 12 weeks from todayalong with interest @ 8% per annum from the date of registration ofclaim petition till its realization.(iv)Modified award be prepared accordingly.(v)Rest of the award is maintained. (vi)Claimant to pay court fees on enhanced compensation as perrules.(vii)On deposit of the amount by Insurance Company,appellant/claimant is permitted to withdraw the same. (ABHAY S. WAGHWASE, J.) Tandale