High Court
Legal Reasoning
1943-fa-4443-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABADFIRST APPEAL NO.4443 OF 2023The Cholamandalam, M.S. GeneralInsurance Company Ltd., Through:it's Divisional Manager, Shop No.13, Ground floor,Rangalaxmi Niwas, Residence Jalna Road,Beed, Tq. & Dist. Beed.Cholamandalam MS General Insurance Co. Ltd.Shop No.4, Plot No.33, Rokdiya Hanuman Colony,Opp. LMS Jeweller Jalna Road, Aurangabad.Through its Authorized Signatory...APPELLANT [Ori. Resp. No.3]VERSUS1]Govind Ramrao Maykar,Age: 33 years, Occupation : Labour,R/o. Talewadi,Tq. Majalgaon, Dist. Beed.2]Bandu Bajirao Mundhe,Age: 31 years, Occupation : Tractor Owner,R/o. Jahagirmoha,Tq. Dharur, Dist. Beed.3]Shriram Bajirao Mundhe,Age : 33 years, Occupation : Driver,R/o. as above....RESPONDENTS[Resp. No.1 is ori. Claimant & Resp. No.2 and 3 are ori. RespondentNo.1 and 2]...Advocate for Appellant : Mr. A. G. ChoudhariAdvocate for Respondent No.1 : Mr. Kudale Bhagwan S.Advocate for Respondent Nos 2 & 3 :-Mr. Sarvesh J. Naik h/f. Mr. AmarVinayakrao Lavte...WITHCIVIL APPLICATION NO. 11700 OF 2024 IN FA/4443/2023GOVIND S/O RAMRAO MAYKARVERSUS 2943-fa-4443-2023.odtTHE CHOLAMANDALAM M S GENERAL INSURANCE COMPANY LTDTHROUGH ITS DIVISIONAL MANAGER AND ORS.…CORAM :ROHIT W. JOSHI, J.DATE :13th MARCH, 2025ORAL JUDGMENT.:1.The Insurance Company/org. respondent No.3 has filed thepresent appeal under Section 173 of the Motor Vehicle Act, 1988challenging the judgment and award dated 01.12.2022 passed by thelearned Member of Motor Accident Claims Tribunal, Majalgaon inMotor Accident Claim Petition No.11 of 2019.2.Respondent No.1 met with a road accident on 14.03.2019 whilehe was riding his motor cycle bearing MH-44/L-4499 and was hit by atractor owned by respondent No.2 which was driven by respondentNo.3 at the time of accident. It is undisputed that the tractor wasinsured with the appellant/insurance company.3.Respondent No.1 filed a Claim Petition being Motor AccidentClaim Petition No.11 of 2019 under Section 166 of the Motor VehiclesAct,1988 claiming compensation on account of injury suffered in thesaid accident. It is undisputed that left leg of respondent No.1 isamputated above the knee on account of said accident. The appellantand respondent Nos.2 and 3 appeared in the matter and opposed the
Legal Reasoning
3943-fa-4443-2023.odtclaim petition on several grounds, including on the ground ofcontributory negligence on the part of respondent No.1/ org. claimant.It is stated in the written statement that respondent No.1 was plyingthe motor cycle from the wrong side in a rash and negligent mannerresulting a head on collusion with the tractor. The learned Tribunalframed issues on rival pleadings and after recording evidence ofrespondent No.1/Org. claimant and respondent No.3/driver andhearing rival submissions learned Tribunal was pleased to awardcompensation of Rs.23,87,355/- along with interest at the rate of 7%per annum to respondent No.1/claimant vide impugned judgmentdated 01.12.2022.4.Mr. Choudhari, learned Advocate for the appellant/insurancecompany has drawn my attention to the pleadings of the appellant andrespondent Nos.1 and 2 in their respective written statements and hasalso taken me through the cross-examination of respondentNo.1/claimant to contend that respondent No.1/claimant wasprincipally responsible for the accident and as such the claim ought tohave been rejected. He points out that at the relevant time, respondentNo.1 was carrying two bags of silk material with him. He contends thatthe accident has occurred due to the fault of respondent No.1 in asmuch as he was not supposed to carry the bags while plying the motor 4943-fa-4443-2023.odtcycle. The learned Counsel for the appellant further contends that asagainst 65% disability certified by the treating doctor and 80%disability recorded in the certificate issued by the medical board, thelearned Tribunal has erred in awarding compensation treating thedisability as 100% disability or absolute loss earning capacity.5.Per contra, Mr.B. S. Kudale, learned Counsel for respondentNo.1/claimant contends that there is a variance in pleadings and thecase set up by the appellant/insurance company in the cross-examination. He contends that burden of proving negligence as alsocontributory negligence is on appellant/insurance company which theyhave miserably failed to discharge. As regards the injury, the learnedCounsel points out that the treating doctor has been examined andalthough the treating doctor has certified that the disability is to theextent of 65% and the medical board has issued certificate stating thatthe disability is 80%, since respondent No.1 was working as a labour,the disability has to be taken as 100% disability on account of absoluteinability to continue with the work that respondent No.1 was doingprior to the accident. He contends that the learned Tribunal was rightin awarding compensation treating the disability as 100% since loss ofearning capacity is required to be considered and not disability intechnical terms. 5943-fa-4443-2023.odt6.The learned Counsel Mr. Sarvesh J. Naik h/f. Mr. Lavte appearingfor respondent Nos.2 and 3 adopts the arguments made by the learnedCounsel for appellant- insurance company. 7.Having heard the respective submissions, following points arisefor my consideration:(i)Has the appellant proved that the accident was an outcomeof contributory negligence on the part of respondentNo.1/orig. claimant ?(ii)What is the percentage of disability that should be consideredfor awarding compensation to respondent No.1/originalclaimant ?Point No.18.There cannot be any dispute about proposition that the burden ofproving contributory negligence is always on the driver and owner ofthe offending vehicle and the insurance company. It is necessary for therespondents to make appropriate pleadings in the written statementand to prove the case set up in the written statement during the courseof evidence. In the case at hand the pleadings in the written statementdo not go hand in hand with the line of cross-examination that wasadopted during the course of trial of the claim petition. During thecourse of cross-examination it is only suggested that the accident has 6943-fa-4443-2023.odtoccurred because respondent No.1/petitioner was carrying silk bagsalong with him when he met with the accident. This is not thecontention raised in the written statement. Contributory negligencealso cannot be inferred from the perusal of the police papers and moreparticularly in the spot panchnama. In that view of the matter I holdthat the appellant has failed to prove that the accident had occurreddue to negligence or contributory negligence on the part of respondentNo.1/ org. claimant.Point No.29.Legal position with respect to injury cases is now well settled thatit is not the percentage of injury that matters while computingcompensation to be awarded in injury cases, what matters is the loss ofearning capacity of a person who suffers injury in a motor accident. Inthe case at hand, it is not in dispute that respondent No.1 /orig.claimant was engaged as a labour. His left leg is required to beamputated above the knee due to injury suffered in the accident.Having regard to the nature of work of respondent No.1, no fault canbe found with the learned Tribunal in awarding compensation treatingthe disability as 100% disability or 100% loss of earning capacity. Inthat view of the matter, point No.2 is also answered against appellant.
Decision
7943-fa-4443-2023.odt10.In the light of above, in my considered opinion, the appeal lacksmerit and is liable to be dismissed.11.The appeal stands dismissed with no order as to costs. Theamount of compensation deposited by the appellant with this Courtalong with accrued interest is allowed to be withdrawn by respondentNo.1/original claimant.12.In view of the dismissal of the present appeal, pending CivilApplication stands disposed of.[ROHIT W. JOSHI J.] Narwade/