Ashok Baliramji Bramhne vs Sudhir Baburao Landge And Others
2016 Latest Caselaw 1160 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                                                     
                                                             
                                   FIRST APPEAL NO. 06 OF 2016 


                Ashok Baliramji Bramhne,




                                                            
                aged 45 years, Occ. Nil,
                R/o. Behind Gadge Baba Temple,
                Jarud, Tq. Warud, Distt. Amravati.                             APPELLANT




                                            
                                       ...VERSUS...

     1]
                             
                Sudhir Baburao Landge,
                aged 45 years, Occ. Truck Owner,
                R/o. Jarud, Tq. Warud,
                            
                District-Amravati.

     2]         Syed Asrar Syed Altaf,
                aged 48 years, Occ. Truck Owner,
      

                R/o. Naya Dayra, Warud,
                Tq. Warud, District Amravati.
   



     3]      United India Insurance Co. Ltd.,
             through its Divisional Manager,
             Badnera Road, Amravati,





             Tq. And Distt. Amravati.                                        RESPONDENTS
     -------------------------------------------------------------------------------------------
     Shri S.R.Charpe, Advocate for appellant.
     Shri B.Lahiri, Advocate, for Respondent No.3
     None for other respondents.





     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 4 APRIL, 2016 .

     ORAL JUDGMENT


                1]             On 05.01.2016, this Court issued notice for final





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disposal of the matter. The Respondents are served. Shri

B.Lahiri, the learned counsel appears for respondent No.3.

None appeared for other respondents.

In view of the fact that the notice for final

disposal of the matter was issued, it is not necessary to issue

fresh notice to the Respondents who are not present before

this Court.

Hence, Admit.

The learned counsel appearing for Respondent

No. 3 waives service of notice.

Heard the learned counsels appearing for the

parties.

2] In M.A.C.P. No. 243 of 2012, decided on

20.08.2015, the Motor Accident Claims Tribunal, Amravati,

has directed payment of compensation of Rs. 72,400/-,

inclusive of 'no fault liability' along with interest at the rate of

8% per annum from the date of filing of the petition till its

realization, on account of disability which the claimant is said

to have suffered as a result of an accident in question which

occurred on 22.03.2012. The claimant is before this Court

claiming enhancement of compensation on the ground that

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the permanent disability suffered by him was to the extent of

50% and accordingly, he is entitled to get compensation.

3] The Tribunal has held that the claimant has

neither produced any document on record nor examined

Dr.Belsare to prove the disability certificate placed on record

as Article "A". But taking into consideration the injury

certificates at Exh. 27 and 36 and the present physical

condition of the claimant, it is held that at the most it can be

said that the claimant has suffered physical disability to the

extent of 10% only. On the basis of this, the calculations of

compensation has been done.

4] Shri Charpe, the learned counsel appearing for

the claimant has urged that the claimant could not examine

Dr. Belsare for the reason that he was not well during the

pendency of the trial and subsequently he expired and

therefore, the certificate of permanent disability placed on

record as Article "A" could not be proved. He further submits

that the claimant should be given an opportunity to prove the

permanent disability to the extent of 50% by examining the

doctors and producing on record the other material.

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5] The point for determination is,;

Whether the matter should be remanded back to the Tribunal for

redetermination by affording an opportunity to the claimant to prove the permanent physical disability to the

extent of 50%?

6] Two questions need to be addressed by the

Tribunal -

1] Whether the claimant proved the

permanent disability to the extent of 50%? and

2] Whether the permanent disability is suffered by him, was as a result of the accident occurred on 22.03.2012?

7] On the first aspect, as pointed out by the

learned counsel for the appellant-claimant, Dr. Belsare could

not be examined. If the claimant proposes to examine the

Doctors who treated him after the accident in question, the

ends of justice would meet by permitting him to produce on

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record the evidence of permanent disability. The second

aspect of connection of permanent disability with the accident

in question has not been gone into by the tribunal.

Accordingly the Tribunal is required to frame such issue so

that the parties can lead evidence in support of their rival

contentions. The matter can be remanded back to the

Tribunal for its redecision in accordance with law.

8] In the result, the first appeal is allowed. The

judgment and order dated 20.08.2015 passed by the Motor

Accident Claims Tribunal, Amravati, in Motor Accident Claim

Petition No. 243 of 2012 is hereby quashed and set aside.

The matte is remitted back to the Tribunal to decide it afresh

in the light of the observations made by this Court after

affording the parties concerned an opportunity to lead

evidence in support of their rival stand. The parties to appear

before the Tribunal on 13.06.2016. R & P be sent back

immediately to the Tribunal. No order as to costs.

JUDGE

Rvjalit