Bombay High Court
Harish vs Ashish on 13 August, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.291 OF 2004
Harish Dhirajlal Bilakhiya,
Aged about 45 years, Occ. Business,
c/o. Nemachand Damodardas,
r/o. Tilak Road, Akola, Tq. and
Distt. Akola. .......... APPELLANT
// VERSUS //
1. Ashish Jagdish Upadhya,
Aged Adult, Ridhisiddhi
Apartment, Sahakar Nagar,
Akola.
2. Harish Ramswarup Upadhye,
Aged Adult, r/o. Bhagwati
Sadan, Behind Khemka Mension
Gorakshan Road, Akola.
3. National Insurance Co. Ltd.,
through its Manager, Akola,
Tq. and Distt. Akola. .......... RESPONDENTS
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Mr.J.B.Gandhi, Adv. for the Appellant.
Mr.S.C.Mehadia, Adv. with Mr.R.A.Jain, Adv. for
Respondent nos. 1 and 2.
Mrs.S.P.Deshpande, Adv. for Respondent No.3.
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Date of reserving the Judgment : 24.7.2015.
Date of pronouncing the Judgment : 13.8.2015.
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CORAM : A.P.BHANGALE, J.
JUDGMENT :
1. This appeal is preferred against the Judgment and
Award passed by the learned Member, Motor Accident
Claims Tribunal, Akola in M.A.C.P. No.266 of 2001 decided
on 26.8.2003.
2. The brief facts are as under :
The claimant was engaged in the business of selling
metal articles and was having a shop at Tilak Road, Akola.
On 27.2.2000, when the claimant namely Harish Dhirajlal
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Bilakhiya was going by his motor cycle from his shop
towards his residence at Jatharpeth, Akola, a Maruti Car
bearing registration no.MH-30B/7984 dashed the claimant
injuring him in his leg, back, shoulder etc. The claimant
was rushed to the hospital of Dr. Murarka. It is claimed that
he sustained permanent disability of 18% and was required
to spend a sum of Rs.92,000/- towards medical treatment
etc. According to the claimant, the offending motor vehicle
was driven by one Ashish Jagdish Upadhay while one girl
Guddi was sitting beside him. When inquiry was made
with the R.T.O., it revealed that the motor vehicle bearing
registration no.MH-30 B-6139 was, in fact, one Premier
Padmini 118NE while coloured car and not a Maruti Car.
When inquiry was made with Harish to clarify that wrong
number was displayed on the Maruti car, it was clarified
that number of the Maruti Car was MH-30 B-7984.
Accordingly, the claim was made for sum of Rs.4,00,000/-
as compensation for the motor vehicle accident caused by
Maruti car bearing registration no.MH-30 B-7984. The
learned Member of the Tribunal allowed the claim on
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26.8.2003 as against respondent nos. 1 and 2/ owner and
driver of the offending motor vehicle. However, the
Tribunal dismissed the claim as against the Insurance
Company (respondent no.3). The learned Member of the
Motor Accident Claims Tribunal by the impugned Judgment
and Award dt.26.8.2003 found that the driver of the
offending motor vehicle i.e. Maruti Car bearing Registration
no.MH-30 B-7984 driven rashly and negligently caused
motor vehicle accident on 27.2.2000 which resulted in the
injuries sustained by the claimant. In other words, it was
found that wrong registration number was displayed by the
offending motor vehicle as MH-30 B-6139 in stead of MH-
30 B-7984. The Award was passed in the sum of
Rs.1,61,000/- in lumpsum payable by respondent no.1
Ashish and respondent no.2 Harish together with 9 % p.a.
interest thereupon from 17.10.2001 till realisation of the
amount. At the same time, National Insurance Co. Ltd.,
Akola was exonerated from liability to pay compensation.
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3. The learned Counsel for the appellant/claimant
submitted in support of the appeal that evidence of eye
witness who is independent witness was sufficient to prove
that there was involvement of Maruti vehicle in the
accident and that there was genuine mistake on the part of
respondent no.2 to display number given on the receipt of
tax Authority. According to the learned Counsel for the
appellant, the Tribunal erred in not relying upon the
evidence of appellant regarding involvement of the Maruti
car. The learned Tribunal erred to hold that principle of
Vicarious liability of Insurer would come into play only
when involvement of the vehicle is undisputed. It also erred
to fix responsibility for the accident upon the Insurance
Company. Hence, it is prayed that the impugned Judgment
and Award be set aside and the claim of the claimant
against all respondents jointly be allowed to fix liability
upon them to pay compensation jointly and severally.
4. It appears that claimant Harish Bilakhiya was
examined in the Tribunal. According to him, on 27.2.2000,
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at about 1.00 p.m. when he was crossing Ratanlal Plot
square towards Tower by his motor vehicle bearing no.2892
driven at a moderate speed by left side of the road, one
Maruti car hit him exactly in the midst of the square and
the claimant was thrown in the air. Due to heavy jerk of
that maruti car driven in negligent manner, the injured fell
down and the motor cycle also fell on him. He was taken to
Murarka hospital. At the relevant time, he was not in a
position to notice registration number of the offending
motor vehicle, but he came to know that it was a Maruti car
with registration number displayed as MH-30 B-6139.
When the claimant gave notice to owner of the car
(Exh.27), the owner replied through his Advocate at Exh.28
and gave exact registration number of Maruti car which
gave dash to the claimant. Police had registered F.I.R in
respect of accident (copy Exh.29); spot panchanama
(Exh.30) was drawn. The injured underwent surgery and
was hospitalised for 12 days and remained bed ridden for
seven months and spent the sum of Rs.1,40,000/- towards
medical treatment. Exh.31 to 35 are medical papers. In the
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result, the claimant was unable to walk and was limping
while walking. The claimant got Disability Certificate
(Exh.40) and after about seven months from the date of
accident, he started attending his shop with crutches. He
had to engage auto @ Rs.1,500/- p.m. for about seven
months. He was earning monthly income of Rs.25,000/-
p.m. Thus, according to the claimant, he had claimed
compensation in the sum of Rs.4,00,000/-.
5. Learned Counsel for the appellant argued that the
claimant had to send notice through Advocate to the owner
of the offending motor vehicle on 6.3.2001, of which reply
was given on behalf of owner of the offending motor
vehicle. The Owner did not dispute that his Maruti 800 car
was involved in the accident on 27.2.2000 at Ratanlal Plot
square. It was driven by Ashish Upadhyay and Ku. Suchita
@ Guddi was sitting by his side. According to owner, he
had displayed registration no.MH-30 B-6139 at the time of
the accident. It was bona fide mistake as owner came to
know subsequently that registration number of his car is,
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in-fact, MH-30 B-7984 and not MH-30 B-6139. Thus,
according to owner of the offending motor vehicle, the
Maruti car number was wrongly displayed at the time of the
accident. On behalf of the appellant, it is submitted that it
was not disputed by owner of the offending motor vehicle
that his Maruti car bearing registration no.MH-30 B-7984
caused accident and number of the same was by mistakenly
displayed as MH-30 B-6139 at the time of accident. The
Tribunal found that the claimant was entitled to recover a
sum of Rs.1,61,000/- in lumpsum from respondent nos. 1
and 2 and not from respondent no.3 National Insurance
Company. The Tribunal exonerated Insurance Company on
the ground that owner of the offending motor vehicle
admitted liability. It is submitted on behalf of the appellant
that the Insurance Company ought not to have been
exonerated as there was no dispute about involvement of
the offending motor vehicle Maruti, of which registration
number was wrongly displayed at the time of accident.
Learned Counsel for the appellant contended that
compensation ought to be enhanced in favour of the
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claimant for loss of earning capacity during medical
treatment and afterwards for his 18% earning disability.
On behalf of respondent, on the other hand, it is submitted
that compensation awarded is excessive for 18% permanent
disability.
6. On behalf of the appellant, reference was made to the
ruling in the case of Mallikarjun .vs. Divisional Manager,
National Insurance Company Limited reported in 2013
(6) Bom.C.R. 69 to argue that damages for inconvenience,
hardship, discomfort, disappointment ought to be granted
for injured victim. In the ruling cited, compensation was
granted in the sum of Rs.3,75,000/- with 6 % interest p.a.
on account of pain and suffering, discomfort, inconvenience
and loss of earning, medical and incidental expenses,
hospitalisation for 58 days etc. Reference is also made to
the case of Raj Kumar vs. Ajay Kumar and another
reported in (2011) 1 SCC 343 regarding principles to grant
compensation in such cases. Learned Counsel for the
Insurance Company opposed the appeal on the ground that
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Form AA was not produced on record and notice was not
issued to Insurance Company by the owner as well as the
insured. It is submitted that compensation granted is
excessive. While on behalf of respondent nos. 1 and 2, it is
contended that Insurance Company should not have been
exonerated. According to the learned Counsel for the
claimant, the aspect with regard to conveyance allowance
during medical treatment, loss of earnings during medical
treatment, pecuniary damages on account of pain and
suffering, loss of expectancy and prospects of marriage
ought to be considered.
7. After hearing the submissions on record and on
perusal of the impugned Judgment and Award, in the light
of evidence on record, it appears that the claimant was
treated by Dr.Murarka of Akola. He was hospitalised for 12
days and he had also undergone surgery and remained bed
ridden for seven months. The claimant was a shopkeeper
and suffered disability of 18 %. Dr.Kailash Murarka
deposed in support of the claimant that Harish was his
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patient for two years. He had sustained two fractures in his
left leg. He remained hospitalised during the period
between 27.12.2000 to 23.12.2000 and there were two
fractures on the leg of the claimant. Harish also deposed
that, in the receipt Exh.42, Maruti vehicle no. was given as
6139, while receipt Exh.42 mentioned that number really
was MH-30 B-2984. In other words, registration no.MH-30
B-6139 was wrongly displayed. According to the claimant,
he was a shop keeper and suffered 18 % permanent
disability. Considering his age of about 45 years and
assuming for the sake of argument that he was a
businessman having a shop and underwent medical
treatment by incurring expenses of Rs.92,000/-, the learned
Tribunal considered the fact that even unskilled person
below 18 years of age can claim annual income of
Rs.15,000/- for grant of compensation. The Tribunal holds
yearly income of Rs.30,000/- and considering the age of 45
years, applied multiplier 15 and then considered 18 %
permanent disability. The Tribunal also considered loss of
future income and granted sum of Rs.1,61,000/- inclusive
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of no fault liability along with interest @ 9 % p.a. from the
date of Claim Petition till realisation of the amount. The
quantum of compensation considering permanent disability
of 18 % suffered by the claimant appears just and
reasonable in the facts and circumstances of the case. The
Insurance Company was also exonerated in view of clear
admission by owner of the vehicle about involvement of
Maruti Car. Owner had also admitted that registration
number of the car was wrongly displayed at the time of
accident. In the facts and circumstances, therefore,
compensation was payable by owner of the offending motor
vehicle as owner was responsible for display of mistaken
number at the time of accident. He was responsible to
display correct registration number plate of Maruti car.
Having considered the facts and circumstances of this case,
owner of the offending motor vehicle was liable to pay
compensation as awarded by the Tribunal. In the facts and
circumstances of the case, the Insurer was rightly
exonerated from liability to pay compensation. Form AA
was not produced on record. Notice to pay compensation
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was not issued by the claimant to the Insurer company.
Therefore, Insurance Company was exonerated. Looking to
the claim that the claimant was in the business of selling
metal articles as a hawker, compensation that was awarded
was just and proper as against owner of the offending
vehicle and the driver thereof. The Insurer was exonerated
from liability to pay as the Insurer had not received any
notice from the claimant regarding the claim. Existence of
binding insurance contract must be established qua the
insurer to hold insurer liable to pay compensation. There
was no documentary evidence to support the claim in
respect of income of the claimant as a shopkeeper.
Considering all these factors, therefore, no interference is
warranted in the impugned Judgment and Award. The
appeal is, therefore, dismissed with costs.
JUDGE
jaiswal
