High Court
Facts
{1} FA-3206-2018IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3206 OF 2018Sudhakar Kalu ParakhAge: 53 years, Occu. Agriculture,R/o. Anturli, Taluka- Muktainagar,District- Jalgaon...APPELLANT[Orig. Claimant]VERSUS1.Jasmansingh MishrilalAge: 53 years, Occu. Business,R/o. C/o. R.K.R.C. Transport,Tatibandh, Raipur, Pin-492 001Dist. Raipur, Chhatisgarh.2.New India Insurance Co. Ltd.,Mandore Market, Behind Ambedkar Market, Jalgaon, Taluka & Dist. Jalgaon....RESPONDENTS [Orig. Respondents] ……… Mr. Girish S. Rane, Advocate for appellantMr. Ajit B. Kadethankar, Advocate for respondent No. 2Respondent No. 1 served through paper publication....….. [CORAM : NITIN B. SURYAWANSHI, J.] RESERVED ON: 11th JULY, 2024 PRONOUNCED ON: 18th JULY, 2024ORDER :1.Appellant/Claimant has filed this appeal challengingthe judgment and award passed by Member, Motor AccidentClaims Tribunal, Jalgaon in M.A.C.P. No. 405/2015, seekingenhancement of compensation.Bhagyawant Punde
Legal Reasoning
{6} FA-3206-2018examining the doctors of the aforesaid hospitals.” 11.It is well settled that the Tribunal is not a Court andhence is not bound by strict rules of pleadings and evidence.Claimant has to prove his case on the basis of preponderance ofprobabilities. In Dattatraya Shinde (supra) the claimant hadproduced voluminous original documents such as medical bills,vouchers and documents evidencing expenditure of medicines,medical treatment, special diet, traveling expenses andresidence of relatives and friends. Insurance company did notadmit these documents. In the examination-in-chief claimantmade reference to all the bills and vouchers. The Tribunal did nottake those bills and vouchers into consideration, on the groundthat they were not proved in accordance with law. In these facts,learned Single Judge of this Court held: “the Tribunal constituted under the said Act is notbound by strict rules of evidence. Therefore, the saidbills and vouchers ought to have taken intoconsideration by the Tribunal in absence of the specificcase made out that the documents were fabricated.”12.In Rekha Jain (supra), the Tribunal had taken intoconsideration the medical bills and vouchers produced on recordby the claimant, which were also referred to in the evidence ofclaimant. The Tribunal marked these documents, in spite ofBhagyawant Punde {7} FA-3206-2018objections from the insurance company and considered themwhile awarding compensation. The High Court interfered in thesaid finding and reduced the compensation of Rs. 17,51,726/- toRs. 7,77,000/-. In these facts, Apex Court observed thus:“This has been very lightly interfered with by thelearned Judge of the High Court without application ofmind and consideration of legal evidence on recordparticularly in the absence of rebuttal evidence andfurther, the Insurance Company was unable to showthat the documents referred to supra produced by theappellant in her evidence are fabricated documents,which have been produced with deliberate intention toprefer a false claim in this regard as contended by thelearned counsel on behalf of the Insurance Company.”13.Both the above rulings support the case of claimantthat the Tribunal erred in ignoring the bills and vouchers ofmedical expenses of Rs. 2,50,225/- in absence of any rebuttalevidence by insurance company. When the claimant hasproduced on record medical bills and vouchers showing that hehad incurred total amount of Rs. 2,50,225/-, the Tribunal haserroneously proceeded to award Rs. 30,000/- towards medicaland hospital bills in lumpsum, on the ground that author of themedical bills are not examined. The Tribunal has drawnunwarranted inference and has based this finding on surmisesand conjecture. This finding is therefore erroneous and same isBhagyawant Punde
Arguments
{2} FA-3206-20182.Claimant is agriculturist and is doing allied business.On 02.05.2015 at about 2.45 pm, claimant was proceeding inBolero jeep No. MH-19-AP-0034 on Jalgaon- Bhusaval highway,on Vaghur river bridge one trailer No. CG-04-HS-8125 camefrom opposite direction and gave dash to the Bolero jeep. In thesaid accident, claimant suffered injuries to his head, chest, lefthand, shoulder, waist and fracture to his neck and face. He wasadmitted in Dr. Ulhas Patil Medical College and Hospital, Jalgaonon 02.05.2015 till 04.05.2017 and thereafter he was admitted atBombay Hospital and Research Centre, Mumbai on 05.05.2015till 17.05.2015. Many operations were performed on theclaimant, for which claimant had incurred Rs. 4,00,000/- towardsmedical expenses. He therefore filed claim petition forcompensation of Rs. 5,00,000/-.3.Respondent No. 1/owner of the trailer, though servedfailed to appear and claim proceeded ex parte against him.4.Respondent No. 2/Insurance Company opposed theclaim by filing written statement, denying all the averments inthe claim petition. It is contended that claim petition is notmaintainable for non joinder of driver and insurance company ofBolero jeep, driver of the jeep had no valid and effective drivingBhagyawant Punde {3} FA-3206-2018license at the time of accident. Hence, liability to paycompensation was denied.5.The Tribunal after recording evidence partly allowedthe claim and awarded compensation of Rs. 60,000/- inclusive ofno fault liability amount of Rs. 25,000/- along with interest @6% per annum. Claimant is aggrieved by the quantum ofcompensation.6.Heard learned advocate for claimant and learnedadvocate for the insurance company. Perused the record.7.Learned advocate for claimant assailed the quantumof compensation awarded by the Tribunal contending that,though, documents of medical treatment and bills were producedon record, Tribunal has ignored them on the ground that authorof documents are not examined by claimant and awardedmeager compensation of Rs. 30,000/- towards medicalexpenses. Claimant was hospitalized for 17 days, however,meager compensation of Rs. 10,000/- is awarded by the Tribunalunder the head of pain and suffering and loss of amenities.Similarly, only Rs. 10,000/- is awarded under the head of loss ofearning for the period of treatment and recovery of the claimant.Bhagyawant Punde {4} FA-3206-2018He therefore submits that compensation awarded by the Tribunalis not just and fair and same is grossly inadequate. In support ofhis case, he has relied on Dattatraya Laxman Shinde v. NanaRaghunath Hire and others, 2011(6) ABR (NOC) 564 (Bom) andRekha Jain v. National Insurance Co. Ltd., AIR 2013, SupremeCourt 3429.8.Learned advocate for insurance company, on theother hand, supported the impugned judgment. He submits thatclaimant has merely produced medical bills and documentswhich are not proved on record, in accordance with law andtherefore, Tribunal has rightly awarded Rs. 30,000/- towardslumpsum medical expenses. He submits that Tribunal hasassigned proper reasons and no case is made out by theclaimant to interfere in the same. He therefore submits that firstappeal may be dismissed.9.Indisputably, claimant has received injuries inaccident dated 02.05.2015. It is a matter of record that FIR waslodged against driver of the trailer which gave dash to theBolero, for rash and negligent driving and causing accident.Claimant is mason and he was earning Rs. 10,000/- per monthfrom the work. He was 50 years of age at the time of accident.Bhagyawant Punde {5} FA-3206-2018The Tribunal has assessed notional income of the claimant at Rs.3,000/- per month. This fact is neither seriously challenged norany rebuttal evidence is brought on record by the insurancecompany. Considering the fact that claimant was skilled worker,Tribunal has erred in assessing his notional income at Rs.3,000/- per month. Considering the prevalent wages of skilledworker, Tribunal ought to have assessed notional income ofclaimant at Rs. 4500/- per month. 10.Claimant has placed on record documents of thetreatment taken by him at Dr. Ulhas Patil Hospital and BombayHospital. Diagnosis of claimant is “RTA C Head Injury”. In theDischarge Summary (Exhibit-21/2) of Bombay Hospital finaldiagnosis is recorded as “RTA C Rt cerebellar contusion, B/cfrontal SDH and D Capital Blood.Ⓛ” Claimant had incurred totalamount of Rs. 2,50,225/- towards medical expenses. The Tribunal held that “the amount under the saidmedical and hospital bills is huge one to the tune of Rs.2,50,225/- and not meager one, therefore, it is obligatory on thepart of the petitioner to examine the author of the saiddocuments. Not only that, the petitioner has also not proved thenature of injuries sustained to him in the said accident byBhagyawant Punde
Decision
{8} FA-3206-2018unsustainable.14.Taking into consideration the diagnosis recorded byDr. Ulhas Patil Medical College and Hospital, Jalgaon and BombayHospital and Research Centre, Mumbai, and in the light of aboveratio, the Tribunal has erred in holding that claimant has notproved nature of injuries suffered by him by examining doctor.The Tribunal has further erred in awarding only Rs. 30,000/-towards medical and hospitalization expenses, Rs. 10,000/-towards loss of earning for the period of his treatment andrecovery and Rs. 10,000/- towards pain and suffering and loss ofamenities. Taking into consideration the injuries suffered by theclaimant, he is entitled for following compensation.Sr.No.Particulars Compensation a.Injuries SufferedRs. 50,000/-b.Medical ExpensesRs. 2,50,225/-c.Pain and Suffering andLoss of AmenitiesRs. 25,000/-d.Loss of EarningRs. 25,000/-TotalRs. 3,50,225/-Compensation awarded by theTribunalRs.60,000/- Total Enhanced Compensation(Rs. 3,50,225 - Rs. 60,000) Rs.2,90,225/-15.In the result following order:Bhagyawant Punde {9} FA-3206-2018ORDER(I)First Appeal is partly allowed.(II)The judgment and award passed by Tribunal is modified.(III)Respondents are jointly and severally liable to payenhanced compensation of Rs. 2,90,225/- to claimant,along with interest @ 6% p.a. till realization.(IV)Respondents shall deposit compensation amount in theTribunal within 12 weeks from today. Claimant will beentitled to withdraw the same.(V)Respondents to pay proportionate costs. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde