Bombay High Court
Subhash Bhaurao Jadhav vs Vishwanath Bajrang Fulpagar And ... on 24 August, 2016
Bench: A.V. Nirgude
1 FA 1589/2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL NO. 1589 OF 2015
Subhash S/o Bhaurao Jadhav, Aged 18 APPELLANT
Years, Occupation Labour/Waiter, Resident
of Sonkhed, Taluka Loha, District Nanded
V E R S U S
1 Vishwanath S/o Bajrang Fulpagar, Aged RESPONDENTS
Major, Occupation Business, Resident of
Magdoom Nagar, Ambedkar Nagar, Nanded,
Taluka and District Nanded
2 The Oriental Insurance Co. Ltd., Through its
Branch Manager, Parbhani, Taluka and
District Parbhani
3 The Oriental Insurance Co. Ltd., Through its
Branch Manager, Nanded, Taluka and
District Nanded
Mr. Devanand Y. Nandedkar, Advocate for the Appellant
Mr. R.F. Totala, Advocate for Respondent Nos. 2 and 3
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2 FA 1589/2015
CORAM : A.V. NIRGUDE, J.
DATE : 24th August, 2016
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. By consent of the learned counsel appearing for the parties,
taken-up for final hearing. Heard learned counsel for the parties.
4. This Appeal challenges Judgment and Award dated 19th
January, 2015, passed by the learned Member of Motor Accident Claims
Tribunal, Nanded, in M.A.C.P. No. 362 of 2010, awarding a sum of
Rs.5,35,400/- to the appellant as compensation under Section 166 of the
Motor Vehicles Act which included no-fault-liability amount. The appellant
felt aggrieved because of this amount, as according to him, the amount
should have been Rs.7 Lac.
5. I perused the Judgment. I have also heard the submissions
at bar. I also went through the record of the lower Court. The question
that arose for my consideration in this Appeal is, whether the appellant
could prove that he suffered 60% permanent disability.
3 FA 1589/2015
6. It is common ground that after the accident, the appellant
underwent lengthy medical treatment. It is also common ground that his
medical treatment was handled mostly by Dr. Katruwar, who was
examined as Witness No. 2 for the appellant.
7. Dr. Katruwar opined that the appellant / his patient has
suffered 60% permanent disability due to the injuries he suffered in the
accident. In the cross-examination, Dr. Katruwar admitted that he did not
refer any orthopedic manual for calculating the percentage of permanent
disablement. What appears from his deposition is that Dr. Katruwar's
opinion about percentage of disablement is his guesswork and probably
was not based on any manual/book.
6. On the other hand, the learned counsel for the respondent -
Insurance Company brought to my notice another Disability Certificate that
came on record of the lower Court again from the appellant's side. This
Certificate is at Exhibit - 42 and was issued by the Medical Officer of the
Government Hospital. In this Certificate, permanent disability is shown to
be 40%. We have thus two separate Certificates on record. But the
learned Member apparently did not use both these Certificates for
recording a finding that the appellant suffered 40% permanent disability.
From the contents of the Judgment, it appears to me that for arriving at
such conclusion, the learned Judge also made wild guess. He saw the
appellant and his condition. He also placed reliance on certain
observations made by his predecessor and came to this conclusion. In
my view, the correct method of calculating percentage of disability is either
to believe the deposition of Dr. Katruwar or to place reliance on the other
4 FA 1589/2015
Medical Certificate (Exhibit - 42), which indicated that the appellant
suffered permanent disability to the extent of 40%.
7. I am now trying to appreciate the evidence. I have two
options. Either to accept the option indicated above or to discard the
Certificate (Exhibit - 42). I would rather discard the Certificate (Exhibit -
42), for which there are two reasons. The appellant had not place reliance
on this document at all. Had he placed reliance on this document, he
would have examined the Medical Officer of the Government Hospital to
substantiate the Certificate. In my view, in absence of deposition of the
Doctor who had issued the Certificate (Exhibit - 42), it looses its probative
value. In other words, since this document is not properly proved, this
document deservs to be discarded. I am aware that the documents
produced before the Tribunal in such case are not required to be proved
with formal evidence. The document in question was exhibited and I
cannot finding fault in exhibiting this document. But, in the peculiar
circumstance, when there are two Certificates, this Certificate looses its
probative value because author of the Certificate did not come before the
Court.
8. Now the question is, whether I should believe the deposition
of Dr. Katruwar. I am inclined to believe him mainly because he is an
expert in this field. He has treated the appellant throughout and therefore
his opinion, though appears to be empirical, has more probative value. I
therefore hold that the appellant proved 60% permanent disability. The
amount of compensation would be increased in the following manner.
5 FA 1589/2015
6. The compensation under the head of permanent disability
would be Rs.3,84,000/- instead of Rs.2,30,400/-. Remaining part of the
Award of the learned Judge of the Tribunal will remain unchanged. Award
be drawn up accordingly.
( A.V. NIRGUDE, J. )
srm/24/8/16
