Bombay High Court
Cholamandalam Ms General ... vs Sanjay Bhaguji Darkunde And Anr on 7 April, 2016
Bench: V.K. Jadhav
fa642.10
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 642 OF 2010
Cholamandalam MS General
Insurance Company Limited
Through its Manager
Kapil Tower, "C" Wing,
6th floor, Dr. Ambedkar Road,
Near R.T.O. Office, Pune ...Appellant
versus
1.
Sanjay s/o Bhaguji Darkunde
Age 27years, Occ. Electrician,
R/o. Village Maka, Talauka Newasa
district Ahmednagar
2. Malhari s/o Arjun Phatangare
Age major, Occ. Driver & Business
R/o. Bhatkudgaon, Tq. Shevgaon
District Ahmednagar
(Owner of Minidoor Pick-up
No. MH-16-Q-1787). ...Respondents
...
Advocate for Appellants : Mr. Mohit Deshmukh h/f Mr. Chapalgaonka S.G.
Advocate for Respondents : Mr. D.R. Jayabhar
.....
CORAM : V. K. JADHAV, J.
DATED : 7th APRIL, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 27.11.2009
passed by the learned Chairman, M.A.C.T. Ahmednagar in M.A.C. P.
No. 234 of 2005, the original respondent No.2-insurer has preferred
this appeal.
fa642.10
2. Brief facts, giving rise to the present appeal, are as follows:-
a) On 8.2.2005, at about 6.00 p.m. the claimant was returning
from Shrirampur to his village Maka by Kukana Dedgaon road on his
motorcycle bearing registration No. MH-17-R-9506. He was riding
the motor cycle and one Subhash Kande was pillion rider. On the
way, within the limits of village Jeur, one rickshaw bearing
registration No. MH-16-Q-1787 came from the opposite direction in
high speed and gave a dash to the motorcycle driven by the
claimant. In consequence of which, the claimant fell down on the
road and sustained injuries, causing fracture to his right hand and
right leg. After the accident, he was admitted in the hospital at
Kukana and thereafter shifted to another hospital at Ahmednagar.
He was operated in the hospital and a steel rod was also fixed in his
right leg. He had incurred medical expenses for his treatment.
Furthermore, the injuries sustained by him on his right leg resulted
into permanent disablement to the extent of 25%. Thus, the claimant
had filed a petition for grant of compensation before the Chairman,
M.A.C.T. Ahmednagar. The original respondent No.1 has strongly
resisted the petition mainly on the ground that the accident had taken
place due to the negligence on the part of claimant himself. The
appellant insurer has resisted the claim by filing written statement.
The appellant-insurer has raised defence that the driver of auto
fa642.10
rickshaw was not having valid and effective driving licence and thus
there is breach of the specified condition of policy. The learned
Chairman of the Tribunal, by impugned judgment and award dated
27.11.2009 partly allowed the claim petition with proportionate costs
and thereby directed the respondents jointly and severally to pay
Rs.1,05,741/- to the claimant with interest. Being aggrieved by the
same, the original insurer has preferred this appeal.
3.
Learned counsel for the appellant submits that the appellant
insurer has examined one Arvind Sawant D.W. 1, a clerk from the
R.T.O. Office and he has deposed before the Tribunal that
respondent No.1 driver Malhari was not having valid and effective
driving licence. He has further deposed that the driving licence
produced by said respondent Malhari on record was fake driving
licence. In fact, the said driving licence has been issued in the name
of one Sethurajan. Learned counsel submits that even then the
learned Chairman of the Tribunal has not considered the said
evidence of D.W.1 Arvind Sawant and saddled the liability on the
appellant-insurer. Learned counsel further submits that P.W.2 Dr.
Mahesh Mulay, who has issued certificate showing 25% permanent
disablement sustained by the claimant, has admitted in his cross
examination that after the second operation, the rod, wiring and
screws came to be removed for the reason that fracture were united.
fa642.10
He has further deposed that after removal of rod and screws, the
disablement of claimant was not assessed. Learned counsel submits
that in view of this evidence that the fracture is united, there is no
permanent disablement sustained by the claimant. Learned counsel
submits that even Tribunal has considered permanent disablement to
the extent of 10% and accordingly calculated the compensation.
Learned counsel submits that there is no evidence at all to show that
in what way the said disablement has affected the earning capacity
of the claimant. Learned counsel submits that the Tribunal has
erroneously applied the multiplier and awarded the compensation of
Rs.64,800/- as loss of future income.
4. Learned counsel for the respondent original claimant submits
that the Tribunal has rightly saddled the liability on the appellant
insurer to pay compensation alongwith respondent No.1 jointly and
severally. Learned counsel submits that even though P.W.1 Dr.
Mahesh Mulay has admitted in his cross examination about the fact
that fracture are united, however, he has further clarified in the cross
examination that there is no bifurcation so far as the permanent
disablement sustained by the claimant as certified by him is
concerned. Learned counsel submits that the claimant has deposed
about the effect of permanent disablement sustained by him and the
manner in which his earning capacity is affected. Learned counsel
fa642.10
submits that there is no positive evidence to show that respondent
No.1 was not having valid and effective driving licence at the time of
accident and the licence produced on record is fake licence.
Learned counsel in the alternate submits that if it is accepted that the
licence produced on recodes is fake licence, then in view of the
authoritative pronouncement of Supreme Court in the case of S.
Iyyapan vs. United India Insurance Company Limited, dated
01.07.2013 in Civil Appeal No. 4834 of 2013, it is for the appellant
insured to satisfy the judgment and award passed against the insurer
and the amount then may be recovered from the insured. Learned
counsel submits that there is no merit in the appeal and the appeal is
liable to be dismissed.
5. It is not disputed that the accident had taken place on account
of rash and negligent driving of auto rickshaw bearing registration
No. MH-16-Q-1787 owned and driven by the insured and claimant is
not responsible for the same.
6. So far as holding of valid and effective driving licence by
respondent No.1 at the time of accident by the owner/driver is
concerned, the Tribunal for no reason has discarded the evidence of
D.W.1 Arvind Sawant, a clerk from R.T.O. Office. D.W.1 Arvind
Sawant has deposed before the Tribunal on the basis of record
fa642.10
available with R.T.O. Office. It appears from his evidence that the
licence produced on record marked at Exh.61 is issued in the name
of Sethurajan having same registration number as shown in the
licence at Exh. 54. It is to be mentioned that licence at Exh.54 is
driving licence produced on record by the respondent owner/driver
before the Tribunal to show that at the time of accident, he was
having valid and effective driving licence.
7.
In view of the judgment in the case of S. Iyyapan vs. United
India Insurance Co. Ltd. (supra), relied upon by learned counsel for
the respondent-claimant, the appellant insurer is to satisfy the
judgment and award and may recover it from the insured in the given
circumstances. The Hon'ble Supreme Court in the said case in para
12 made the following observations:-
"12. The heading "Insurance of Motor Vehicles against Third
Party Risks" given in Chapter XI of the Motor Vehicles
Act,1988 (Chapter VIII of 1939 Act) itself shows that intention
of the legislature to make third party insurance compulsory and
to ensure that the victim of accident arising out of use of motor
vehicles would be able to get compensation for the death or
injuries suffered. The provision has been inserted in order to
protect the persons travelling in vehicles or using the road from
the risk attendant upon the user of the motor vehicles on the
road. To overcome this ugly situation, the legislature has made
it obligatory that no motor vehicle shall be used unless a third
fa642.10
party insurance is in force.
Reading the provisions of sections 146 and 147 of the Motor
Vehicles Act, it is evidently clear that in certain circumstances
the insurer's right is safeguarded but in any event the insurer
has to pay compensation when a valid certificate of insurance
is issued notwithstanding the fact that the insurer may proceed
against the insured for recovery of the amount. Under Section
149 of the Motor Vehicles Act, the insurer can defend the
action inter alia on the grounds, namely, (i) the vehicle was not
driven by a named person, (ii) it was being driven by a person
who was not having a duly granted licence, and (iii) person
driving the vehicle was disqualified to hold and obtain a driving
licence. Hence, in our considered opinion, the insurer cannot
disown its liability on the ground that although the driver was
holding a licence to drive a light motor vehicle but before
driving light motor vehicle used a commercial vehicle, no
endorsement to drive commercial vehicle was obtained in the
driving licence. In any case, it is the statutory right of a third
party to recover the amount of compensation so awarded from
the insurer. It is for the insurer to proceed against the insured
for recovery of the amount in the event there has been
violation of any condition of the insurance policy."
8. So far as the quantum in the present case is concerned, it
appears that the claimant has deposed that prior to the accident, he
was doing motor winding work. He has further deposed that due to
permanent injury sustained by him in the accident, which resulted in
permanent disablement, he is not able to do any work because he
fa642.10
cannot bend his leg completely. He has further deposed that for
motor winding work, weight is to be lifted and it is a standing job. He
has further deposed that he constrained to discontinue the winding
work. P.W.2 Dr. Mahesh Mulay has also deposed that due to
disability, the claimant will not be able to do any hard work but he can
do the light work. P.W.2 Dr. Mahesh Mulay admitted in his cross
examination that after removal of rod and screws, the disability of
the claimant is not assessed. In the same para, he clarified that
there is no bifurcation so far as the permanent disablement sustained
by the claimant is concerned. The learned Chairman of the Tribunal
however, considered that the fracture is united, and also considered
that there is stiffness to the right knee and movements are restricted
to some extent. I do not find any fault in the impugned judgment and
award passed by the Tribunal to treat the permanent disablement of
the claimant to the extent of 10% and award the compensation by
applying the multiplier method. In the light of above discussion, I
proceed to pass the following order:-
ORDER
I. The appeal is hereby partly allowed.
II. The judgment and award dated 27.11.2009 in M.A.C.P.
No. 234 of 2005 passed by the Chairman, M.A.C.T.
fa642.10
Ahmednagar is modified to the following effect:-
The opponent No.1 Malhari Arjun Phatangare, shall pay
the compensation of Rs.1,05,741/- to the claimant
Sanjay Bhaguji Darkunde with interest at the rate of
7.5% p.a. from the date of application i.e. 27.4.2005 till
realization of amount.
However, the appellant-opponent No.2 insurer shall pay
the entire amount under award to the claimant and
recover the same from the opponent No.1 Malhari Arjun
Phatangare. Needless to say that for that purpose
independent proceeding need not be initiated.
III. Award be drawn up accordingly.
IV. In the circumstances, there shall be no order as to costs.
Appeal is accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
