1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 1026 of 2016
Appellant : Pankaj son of Prakash Gudadhe, aged about
27 years, Occ: nil, resident of Anandwadi,
Ward No. 3, Tiosa, District Amravati
Versus
Respondents: 1) Raju Ramprasad Sahu, aged about 30
years, resident of Shashi Nagar, Badnera Road,
Amravati
2) Ramprasad Channu Sahu, aged Major,
Occ: not known, resident of Shashi Nagar,
Badnera Road, Amravati
3) ICICI Lombard General Insurance Co. Ltd.,
through its Officer, ICICI Lombard House,
414, Veer Savarkar Marg, Near Siddhivinayak
Temple, Prabhadevi, Mumbai
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Shri S. S. Alaspurkar, Advocate for appellant Respondents served Coram : S. B. Shukre, J Dated : 13th November 2017 Oral Judgment
1. This is an appeal preferred against the judgment and order dated 25th June 2014 passed by the Motor Accident Claims Tribunal, Amravati in MACP No. 312 of 2011 seeking enhancement in ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 2 compensation.
2. The appellant, claiming himself to be a labourer doing centering work, met with an accident on 18.4.2011 at about 08.45 pm when he was proceeding from his house towards Benam Chowk on his bicycle. When he reached near Junghare Hospital, respondent no. 1 who was coming from opposite direction and driving motorcycle bearing registration No. MH 27-AL-9472 of respondent no. 2, insured with respondent no. 3, in a rash and negligent manner, gave dash to the appellant who was going on a bicycle. As a result of accident, the appellant sustained injuries to both of his arms and fracture of right leg tibia. He was required to be operated upon. An artificial rod and nails were inserted into his leg. Appellant was earning at that time Rs. 6000/- per month. He was required to incur substantial medical expenses. He sustained permanent disablement to the extent of 35%. In order to seek compensation, the appellant filed petition under Section 166 of the Motor Vehicles Act. It was resisted by the respondents.
3. On merits, the Tribunal found that only respondents no. 1 and 2 were liable to pay compensation and exonerated respondent no. 3 of its liability to pay the compensation on the ground that there was breach of the policy as respondent no. 2 had no driving licence to drive ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 3 the vehicle. The Tribunal granted compensation of Rs. 32,364/- to the appellant together with interest @ 8% per annum from the date of petition till its realization. Not being satisfied with the same, the appellant is befor this Court in this appeal.
4. Now, the following points arise for my determination:
(1) Whether respondent no. 3 has proved that it is not liable to pay compensation on the ground of fundamental breach of policy conditions ?
(2) Whether the compensation granted by the Tribunal is just and proper ?
5. In the present case, although the Tribunal has found, by relying upon the evidence of the officer from Regional Transport Office, Amravati, that no driving licence was issued to respondent no. 1, there is no finding recorded by the learned Chairman of the Tribunal that the motor-cycle was driven by respondent no. 1 with the knowledge of respondent no. 2 and that respondent no. 2 allowed respondent no. 1 to drive the motor-cycle knowing fully well that respondent no. 1 was not holding any valid licence. In order that the insurance company is exonerated of its liability, it must be found that there is a fundamental ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 4 breach of the condition of the insurance policy by the insured. The fundamental breach of the policy would lie in the fact that something illegal has been allowed to be done by the insured. If a person not holding a valid driving licence takes away vehicle and the owner of the vehicle does not know that the person so taking away the vehicle is not possessed of a valid driving licence, the owner of such vehicle would not be in fundamental breach of the terms and conditions of the insurance policy. The Tribunal ought to have recorded specific finding in this regard. But, it has not done so. So, now it is left to this Court to consider whether or not there is any fundamental breach of the policy.
6. The Insurance Company in order to prove that there is a fundamental breach of the policy, must lead evidence regarding knowledge of the owner of the offending vehicle. It must bring on record the relevant circumstances as well. I could not come across in the instant case good evidence or relevant circumstances avalable on record in this regard. There is no one on behalf of the insurance company (respondent no. 3) to point out presence of any such evidence or relevant circumstances to enable this Court to accept the defence of the Insurance Company. That being so, I am of the view that the Insurance Company has failed to prove that there has been a fundamental breach of the terms of the policy by the insured, respondent no. 2 in the present case and, ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 5 therefore, finding recorded by the Tribunal that the Insurance Company is not liable to pay the compensation to the claimant is now held to be perverse and not based upon the evidence available on record. This finding is quashed and it is held that in the present case the insurance company was also liable to pay compensation along with respondents no. 1 and 2. The first point is answered accordingly.
7. In the present case, there is no dispute about the fact that the appellant was required to undergo compound fracture to tibia bone and that he suffered injuries to both arms. His leg was operated during the treatment by inserting artificial rod and nails into the fractured leg. The Tribunal has not granted any amount under the head of permanent disability. Under Section 142 of the Motor Vehicles Act, permanent injury involves, inter alia, destruction or permanent impairing of the power of any member or joint or organ of human body. In the present case, there is no question of permanent impairment of power of any member or organ of human body. The evidence of P.W. 2 Dr Ramdas Beltare discloses that the appellant suffered 25% of the permanent disability because of the injuries that he suffered to his right leg. But, the evidence of this witness sofar as the explanation of permanent disability is concerned, cannot be accepted for the reason that admissions given by him during the course of his cross-examination taken on behalf of ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 6 respondent no. 3 show that he did not minutely examine the appellant. He has admitted that he did not minutely examine the appellant. He has admitted that he did not examine any previous X-Ray reports of the appellant. He further admits that on his own he did not take X-Ray of the appellant. He also admits that the appellant did not undergo any physiotherapy post operation. Even the appellant admits that he did not take any physiotherapy even for a day after recovery from the injury. A person who has not taken any physiotherapy post injury, cannot stake any claim that he has suffered particular percentage of permanent disability. In order to establish permanent disability, there must be demonstrable evidence of the certifying doctor, PW 2 Dr Beltare in this case. Such evidence could be in the nature of X-Ray Report; report of physiotherapy etc as well as conclusion drawn by examining doctors after his clinical examination. But, in the present case, there is a clinical examination and not the data revealed by X-ray report and report of physiotherapy. He was also not the treating Doctor. Therefore, percentage of permanent disability determined by P.W. 2 Dr Beltare cannot be accepted.
8. As regards his opinion about permanent disability, however, I do not see any reason to disagree with the same. This doctor after all had clinically examined the appellant and formed an opinion about the disability permanently suffered by the appellant. His such an opinion ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 7 cannot be doubted only because the other relevant data is not available. The other data would throw light upon the extent of permanent disability and would also fortify the opinion formed on the permanent disability. But, for that reason, opinion of an experienced doctor like P. W. 2 cannot be discarded as his experience would enable him to know on just clinical examination as to whether or not his patient has suffered permanent disability. Added to this evidence, there are also admitted facts which if read together would enable this Court to conclude that the opinion of the doctor about permanent disability suffered by the appellant is correct. The proved facts are about insertion of artificial rod and nails into the right leg of the appellant in an operation carried upon him. When a foreign object like rod is inserted within the main body, it can be reasonably presumed that the condition of such a person after the operation would not be completely normal and there would always be some or the other deficiency in the functioning of the body part which can be considered to be a permanent loss or impairment of the member or joint as considered under Section 142 of the Motor Vehicles Act. This is what has happened in the present case. In view of this, I am of the opinion that the appellant having suffered permanent disability in the accident, ought to have been granted compensation for the same. As it has not been granted by the Tribunal, this Court declares that the appellant is entitled to receive compensation of Rs. 25,000/- under the ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 8 head of "permanent disability".
8. The next question would be, as to whether or not the permanent disability has resulted into loss of earning of the appellant and this issue must be answered in the negative looking to the nature of evidence brought on record by the appellant. The appellant himself has not stated about the functional disability in a specific manner. He quite in general terms states that this disablement has adversely affected his ability to perform centering work. But, the appellant has not stated anything about the manner in which the centering work is performed. Some more evidence was required to be adduced in this regard by the appellant. Then, there is also no evidence about the exact percentage of permanent disability suffered by the appellant. The cumulative effect of these lacunae would be that the appellant will not be entitled to compensation for loss of future earning. The appellant, however, would be entitled to receive some enhancement under the head of "pain and suffering" and also some amount under the head of "future medical treatment". The Tribunal has not granted anything for future medical treatment of the appellant. But it can be visualized that the appellant would be required to incur the same, because there is artificial rod implanted in his leg which may be required to be removed/replaced in future or would require some consultation with the doctor in future. Therefore, on this count, an amount of Rs. 25,000/- can be reasonably ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 9 granted to the appellant. As regards pain and suffering, I am of the view that in addition to the amount of Rs. 5000/-, the appellant should be given Rs. 20,000/- more. The appellant would thus be entitled to receive compensation as follows :
(1) Future medical treatment .. Rs. 25,000/-
(2) Pains and sufferings .. Rs. 25,000/-
(3) Loss of income for three months .. Rs. 9,000/-
(4) Attendant charges and diet
money etc. .. Rs. 10,000/-
(5) Permanent disability .. Rs. 25,000/-
Total compnsation payable .. Rs. 94,000/-
9. Accordingly, it is found that the appellant is entitled to receive total compensation of Rs. 94,000/- which shall be payable by the respondents jointly and severally. The points are answered accordingly.
10. In the result, appeal is partly allowed and impugned judgment and order stand modified in terms of observations in paragraphs 8 and 9 above. No order as to costs.
S. B. SHUKRE, J ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 ::: 10 joshi ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 00:36:00 :::