Mr. Ajit B. Kadethankar, Advocate for AppellantMr v. P. Latange

Legal Reasoning

1 2369-18-FA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO.2369 of 2018National Insurance Company Ltd.A Subsidiary of General InsuranceCompany of India ltd. havingone of its divisional office atStation road Aurangabad ThroughIts authorized signatory… Appellant(Org. R.No.2)Versus(1)Santosh Banshi Kudale,Age 35 yrs, Occ. Service & agr.Through next friendSonali Santosh Kudale,Age 30 yrs, Occ. Householdr/o Narayangavhan,tk. Parner, Dist. Ahemadnagar(2)Bansi Dhanaji Alhat,Age 50 yrs, Occ. Businessr/o Kedar Vasti, Solapur roadAhemadnagar...Respondents (R.No.1- Org.clmt R.No.2- org.R.No.1)…..Mr. Ajit B. Kadethankar, Advocate for AppellantMr. V. P. Latange, Advocate for Respondent No.1Mr. P. H. Sukale, Advocate h/f Mr. N. B. Narwade, Advocate forRespondent No.2….. CORAM : NITIN B. SURYAWANSHI, J. RESERVED ON : 04th SEPTEMBER, 2024 PRONOUNCED ON : 04th OCTOBER, 2024JUDGMENT : 1.Heard.2.Admit. Taken up for final hearing with the consent of theparties.SVH 2 2369-18-FA.odt3.This appeal filed by Insurance Company under Section173 of the Motor Vehicles Act, challenges judgment and awarddated 21/04/2018, passed by the Motor Accident Claims Tribunal,Ahmednagar, in M.A.C.P. No.141/2015.4.Brief facts leading to the appeal can be stated thus:On 26/07/2014, at about 05:00 a.m. claimant SantoshKudale was proceeding from Narayangavhan to Ahmednagar onmotorcycle bearing No.MH-17-L-1960 along with his nephewBhushan Kudale being a pillion rider. When they reached nearvillage Mhasne-Fata on Pune-Nagar road, one Tata Magic bearingNo.MH-16-AT-4079 coming from Nagar to Pune, without giving anysignal suddenly turned to right side from the gap provided in thedivider and proceeded towards petrol pump of opposite side. As theTata Magic suddenly crossed the road, motorcycle of claimantSantosh dashed against said vehicle. He sustained grievous injuryto his head, he also sustained other injuries and becameunconscious. After accident claimant was taken to Omkar Hospital,Supa and from there to City Care Hospital, Ahmednagar. Thereafterhe was shifted to Ruby Hall Clinic, Pune and was admitted therefrom 26/07/2014 to 28/07/2014. He underwent various criticaloperations of brain. After discharge from there, he was admitted inManikchand Hospital, Shirur, on 29/08/2014. He lost control over hisbrain. He was again admitted in Sancheti Hospital, Pune, onSVH 3 2369-18-FA.odt03/09/2014 and underwent surgery of skin grafting and wasdischarged on 08/11/2014. Thereafter he took treatment as outdoorpatient. He filed claim petition claiming compensation ofRs.50,00,000/- including Rs.15,00,000/- towards medical expensesincurred by him.5.Owner of the offending vehicle failed to file writtenstatement. Insurance Company resisted the claim by filing writtenstatement, contending that claimant was rash and negligent indriving the motorcycle and he himself gave dash to Tata Magic atthe end of crossing. Excessive compensation is claimed by claimant.Tribunal allowed the claim and directed the owner andInsurance Company to jointly and severally pay compensation ofRs.77,08,566/- along with 8% interest to claimant. InsuranceCompany is aggrieved by this decision.6.Heard learned advocate for appellant/InsuranceCompany, learned advocate for respondent No.1/claimant andlearned advocate for respondent No.2/owner of the offendingvehicle.7.Learned advocate for appellant/Insurance Companyassailed the findings recorded by Tribunal contending that there isclear-cut contributory negligence on the part of claimant andtherefore, the Tribunal ought not to have fastened the liability onSVH 4 2369-18-FA.odtInsurance Company. Considering the evidence of doctor who isexamined by claimant, this cannot be said to be a case whereclaimant has lost his total earning capacity, as admittedly thedisability certificate shows that claimant has suffered 50% disability.In spite of the fact that as per the material brought on recordclaimant was appointed as Shikshan Sevak and was getting monthlysalary of Rs.8,000/-, Tribunal has erroneously held that aftercompletion of three years continuous service he would haveappointed as regular teacher and his salary would be increased toRs.35,000/- to Rs.40,000/-. He, therefore, submits that excessivecompensation is awarded by the Tribunal and the same is requiredto be reduced. In support of his submissions, he relied on NationalInsurance Co. Ltd. vs. Pranay Sethi and Others, 2017 (16)SCC 680.8.Learned advocate for respondent No.1/claimant, on theother hand, supported the impugned judgment and award. It issubmitted that, but for the accident claimant would have beenappointed as Assistant Teacher and would have earned salary ofRs.35,000/- to Rs.40,000/- per month, which is rightly considered bythe Tribunal. He submits that material on record does not indicateany contributory negligence on the part of claimant. There is nomerit in the appeal and the same deserves to be dismissed. Insupport of his submissions, he relied on V. Krishnakumar Vs.SVH 5 2369-18-FA.odtState of Tamil Nadu and Others, 2016(2) Mh.L.J. 555, andRam Avadh Mahel Pal Vs. Shivdutta Educational Trust andOthers, 2007(6) Mh.L.J. 659.9.Learned advocate for respondent No.2/owner of theoffending vehicle submits that offending vehicle was insured withappellant and therefore, it is liable to pay the compensation.10.Heard learned advocate for appellant/InsuranceCompany, learned advocate for respondent No.1/claimant andlearned advocate for respondent No.2/owner of the offendingvehicle, at length. Perused the record and citations relied upon bythe respective parties.11.It is a matter of record that FIR at C.R. No.I-73/2014 waslodged against driver of the offending vehicle with Supa PoliceStation, which is registered for offence punishable under Sections279, 337, 338, 427 of Indian Penal Code and Sections 184, 177,134(a) and (b) of the Motor Vehicles Act. After completion ofinvestigation charge-sheet is filed against driver of the offendingvehicle. The accident appears to have occurred as the offendingvehicle took sudden turn and crossed the highway. There appearsno material on record to support the contention of InsuranceCompany that there was contributory negligence on the part ofclaimant. Claimant by examining himself in support of the claim hasSVH 6 2369-18-FA.odtbrought on record the fact that offending vehicle without giving anysignal or indicator suddenly took right turn and started crossinghighway for going towards the petrol pump, because of which theaccident has taken place. This material on record is sufficient toindicate that accident had taken place due to rash and negligentdriving on the part of driver of offending vehicle. Therefore, there isno merit in submission of Insurance Company that there wascontributory negligence on the part of claimant.12.Claimant has brought evidence on record to show thathe has completed. M.A., B.Ed. and was appointed as Shikshan Sevakin Vagheshwar Vidyadham of Shirur Shikshan Prasarak Mandal,Mandavgan Farata, Tal. Shirur, District Pune, just before few days ofaccident and he was getting Rs.8,000/- per month by way of salary.After completing three years service as Shikshan Sevak, he wouldhave been appointed as full time teacher in High School and wouldhave earned salary upto Rs.35,000/- to Rs.40,000/- per month. Infuture he could have got promotion and his salary would have beenincreased many times.13.Sub-section (2A) of Section 5 of the MaharashtraEmployees of Private Schools (Conditions of Service) Regulation Act(3 of 1978), provides that,“(2A)Subject to the provisions of sub-sections (3)and (4), Shikshan Sevak shall, on completion of theSVH 7 2369-18-FA.odtprobation period of three years, be deemed to havebeen appointed and confirmed as a teacher.”14.In the light of aforesaid provision and considering theclaimant’s salary certificate placed on record (Exhibit-36), no faultcan be found with the assessment of monthly income of claimant atRs.35,000/-.15.In support of claim, claimant has examined Dr. BharatNaik, who is having M.B.B.S., Mc.P.S.D. (Ortho), D.N.B. (Ortho),M.C.H. (Neurosurgery) and has issued certificate that claimant hassuffered 50% permanent disability. In evidence, he has stated thatclaimant could not lead his normal life due to the grievous injuriesto skull and brain. He cannot go here and there alone. He cannotwalk for some distance. He cannot speak also. He cannot do hisday-to-day work and activities. He is not in a position to do anyintellectual or physical work. Considering this evidence, the Tribunalis justified in holding that there is 100% functional disability sufferedby claimant and awarding compensation of Rs.67,20,000/- plushospital expenses of Rs.8,48,566/-, proved on record by claimant.16.In V. Krishnakumar (supra), it is held,“17. The principle of awarding compensation that can be safelyrelied on is restitutio in integrum. This principle has beenrecognized and relied on in Malay Kumar Ganguly vs. SukumarMukherjee, (2009) 9 SCC 221, and in Balram Prasad Vs. KunalSaha, (2014) 1 SCC 384, in the following passage from thelatter: SVH 8 2369-18-FA.odt“170. Indisputably, grant of compensation involving anaccident is within the realm of law of torts. It is based onthe principle of restitutio in integrum. The said principleprovides that a person entitled to damages should, asnearly as possible, get that sum of money which wouldput him in the same position as he would have been ifhe had not sustained the wrong. (See Livingstone v.Rawyards Coal Co.).” An application of this principle is that the aggrieved personshould get that sum of money, which would put him in the sameposition if he had not sustained the wrong. It must necessarilyresult in compensating the aggrieved person for the financialloss suffered due to the event, the pain and sufferingundergone and the liability that he/she would have to incur dueto the disability caused by the event.”The above observations support the case of claimant.17.Considering the facts of this case, decision in PranaySethi (supra), does not help the case of appellant.18.Tribunal has passed a well reasoned judgment andaward, which is not liable to be interfered with. The appeal beingdevoid of merit is dismissed. (NITIN B. SURYAWANSHI, J.)SVH