Kalani Nagar, Indore (Madhya Pradesh) v. Balbirsingh s
Case Details
{1} FA 2223 OF 2010 1] 2] 1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2223 OF 2010 M/s National Insurance Co. Ltd., Having its ofce at 3 Meddleton Street, Kolkata, Having its Branch Ofce Nagina Ghat, Nanded at Divisional Ofce at Station Road, Aurangabad 431 005 through its’ Divisional Manager & Constituted ..(Orig. Respondent Attorney No.2) Jagdishchandra s/o Bharulal Choudhary Age about 48 years, Occu.: Business, R/o. 368/3, Kalani Nagar, Indore (Madhya Pradesh) VERSUS Balbirsingh s/o Arjunsingh Sahu Age: 38 years, Occu.: Service R/o. Shastri Nagar, Hingoli, Tq. and Dist.Hingoli. ..(Orgl. 1st Respondent) .. Appellants ..Respondent (Orgl. Claimant)
Legal Reasoning
... Advocate for Appellant No.1 : Mr.V.N.Upadhye Advocate for Respondent : Mr.A.P.Deshmukh h/f. Mr.S.S.Deshmukh ... CORAM : S. G. DIGE, J. DATE : 20th October, 2022 ORAL JUDGMENT :- 1. Challenge in this appeal is Judgment and order passed by the Motor Accident Claims Tribunal, Hingoli (for short 'the Tribunal'). The appellant No.1 Insurance Company – original respondent No.2 preferred this appeal. {2} FA 2223 OF 2010 2. Brief facts of the case are as under : On 15-05-2001 respondent – original claimant (for short 'claimant') was going to attend marriage ceremony at Washim in Jeep of his friend. One Motiram Giri was driving the said Jeep. When the Jeep reached near Kalgaon Pati, the Truck bearing registration No.MP-09 KA-9591 came from opposite direction rashly and negligently and gave dash to the Jeep of the claimant. The dash was so severe that almost all the passengers from the Jeep sustained injuries. The ofence was registered against the Truck Driver. The claimant fled claim petition before the Tribunal for getting compensation. The Tribunal has awarded the compensation. Against the said Judgment and order this appeal. 3. It is the contention of the learned counsel for appellant No.1 that the accident was occurred due to sole negligence of the Driver of Jeep. It was head on collision. If sole negligence of Driver of Jeep is not considered then it should be considered as contributory negligence @ 50% - 50% of the Drivers of both the vehicles. The Tribunal has not considered this fact. The learned counsel further submitted that there were fare paying passengers in the said Jeep. The Doctor has issued 14% disability certifcate to the claimant but the Tribunal has considered 100% functional disability, which is improper and {3} FA 2223 OF 2010 illegal. Hence, requested to allow the appeal. 4. It is the contention of the learned counsel for the respondent – original claimant that the accident was happened due to sole negligence of the Driver of the Truck. No witness is examined to prove the negligence of the Driver of Jeep. Though, the claimant has sufered 14% injury, the injury is caused to the brain of the claimant due to which he has sufered 100% functional disability. The claimant has lost his job due to brain injury sufered in the accident. No evidence is led to prove that passengers in the Jeep were fare payer passengers. Hence, requested to dismiss the appeal. 5. I have heard both the learned counsel. Perused the Judgment and order passed by the Tribunal. The issues involved in this appeal are negligence of Jeep Driver and disability of claimant. I deal with the issue regarding negligence of the Jeep Driver. The First Information Report (FIR) is at Exhibit-22. It shows that the ofence was registered against the Driver of the Truck showing his negligence. The spot Panchanama is at Exhibit-23/1 . From this spot Panchanama, it reveals that the Jeep was standing on the side of the road whereas the Truck is standing at the wrong side of the road. The appellant No.1 has {4} FA 2223 OF 2010 not examined the Driver of the Truck to prove contributory negligence of the claimant. Hence, I do not fnd merit in the contention of the learned counsel for appellant No.1 that the accident occurred due to negligence or contributory negligence of the claimant. It is the contention of the learned counsel for appellant No.1 that the said Jeep was carrying fare paying passengers but nothing has come on record to prove that the passengers present in the Jeep were fare paying passengers. 6. In respect of the issue of disability of the claimant, the disability certifcate is at Exhibit-28. It shows 14% permanent disability of the claimant. To prove his disability, the claimant has examined himself at Exhibit-27. The claimant has stated that due to the accident, he has sustained injury to his brain and he has taken medical treatment from the Doctors. Dr.Mangesh Tehare (Medical Ofcer) has given him disability certifcate. To prove his disability, the claimant has examined Dr.Ruturaj Narendrakumar Jadhav at Exhibit-46. He has stated that claimant was admitted in his hospital on 15-05-2001 and was discharged on 20-06-2021. He was having injuries : 1. 2. 3. Right cheak 5 cms. Irrigular. Right front parieto CLW 3 cm. X 2 cm. Right fore arm peaglobbing with ex-post muscle. {5} FA 2223 OF 2010 4. C.T. Scan brain was done which was suggestive of difuses cerebreal edima with Right maxillary multiple fractures in frontal and orbital wall, with crush injury Right fore arm and elbow. 7. Nothing is elicited in his cross-examination. Dr.Mazid Abdul Gafar at Exhibit-59 has stated that he has treated the claimant from 03-01-2008 to 11-01-2008. After seeing C.T. Scan report and MRI report, he came to the conclusion that the injuries are caused to brain of the claimant and these injuries are not recoverable and the claimant requires regular treatment. Claimant will not be in a position to do any work. 8. From the evidence of these medical experts, it reveals that the claimant has permanently disabled due to accidental injuries. Because of this disability, he is not in a position to discharge his duties. 9. Due to this disability, the claimant is terminated from his service on his application. It has come in the evidence of Ramesh Pandurang Ghuge at Exhibit-65, who is working as Clerk in Maharashtra State Electricity Distribution Company (MSEDC), Division Hingoli and Mr.Tukaram Bagaji Khokhle, Junior Engineer (MSEDC) at Exhibit-80 that the claimant is no more in service of {6} FA 2223 OF 2010 MSEDC. From the evidence of medical experts, it reveals that the claimant has sustained injuries to his brain. These injuries are not recoverable, it requires regular treatment. Due to the said injuries to brain, he is terminated from the service. Though there is 14% permanent disability, as the said injury is caused to the brain of the claimant, it is 100% functional disability. In view of this, I do not fnd any infrmity in the observations of the Tribunal. Hence, I pass the following order :
Decision
ORDER (i) Appeal is dismissed. (ii) No order as to costs. (iii) Respondent - Claimant is permitted to withdraw the amount deposited, if any, alongwith interest accrued thereon, if already not withdrawn. (iv) Appeal is disposed of. SPT ( S. G. DIGE ) JUDGE