Bombay High Court
The Reliance General Insurance ... vs Jitendra Ramesh Badgujar And ... on 8 June, 2016
Bench: V.K. Jadhav
1 FA 2830.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2830 OF 2015
WITH
CA/4704/2015 IN FA/2830/2015
The reliance General Insurance Company,
570, Rectifier House, Nigam Cross Road,
Near Royal Industrial Estate, Wadala (W),
Mumbai - 400 031.
Through It's Managar/Authorized Signatory,
C-9-10, 2nd Floor,
Aurangabad Business Center,
Adalat Road, Aurangabad, ... Appellant
(Orig. Resp. No.3)
Versus
1) Jitendra S/o Ramesh Badgujar,
Age : 30 years, Occu: Nil,
R/o. At Post Kapadane,
Taluka and District Dhule.
2) Prakash S/o Bhaidas Borse,
Age : Major, Occu: Driver,
R/o. Bhadne, Taluka Shindkheda,
District Dhule.
3) Ravindra S/o. Krushnaji Aghav,
Age : Major, Occu. Business,
R/o. House No.65, Galli No.1,
June Dhule,
Taluka & District Dhule. ... Respondents
(Rspdt. No.1-Org. Claimant
Rspdt. No.2 & 3-Org. Rspdt. No.1 & 2)
...
Advocate for Appellant : Mr S G Chapalgaonkar
Advocate for Respondents : Mr. C.V. Bhadane
...
::: Uploaded on - 17/06/2016 ::: Downloaded on - 30/07/2016 04:43:23 :::
2 FA 2830.2015.odt
...
CORAM : V.K. JADHAV, J.
Dated: June 08, 2016
...
ORAL JUDGMENT :-
1. With the consent of learned counsel for parties,
heard finally.
2. Being aggrieved by the judgment and award
passed by the Member, Motor Accident Claims Tribunal,
Dhule dated 14.11.2014 in MACP No.705/2012 the
original respondent no.3 Insurer has preferred this
appeal.
3. Brief facts giving rise to the present appeal are as
follows :-
a]. On 28.1.2012 respondent/original claimant was
travelling in a tempo bearing registration no. MH-18/AA-
2373 alongwith his goods i.e. vegetables for selling the
same in the market at Shahada. On way, within the
limits of village Dhondaicha, another vehicle i.e. tempo
trax bearing registration no. MH-18/E-8818 gave dash
to the tempo in which respondent/original claimant was
trvelling. In consequence of which, he had sustained
3 FA 2830.2015.odt
injuries on various parts of his body which resulted into
permanent disablement as alleged. Thus, the
respondent/original claimant filed claim petition before
the Motor Accident Claims Tribunal, Dhule for grant of
compensation under various heads.
b]. The matter was proceeded ex-parte against
respondents no.1 and 2, however, the appellant/original
respondent no.3 has strongly resisted the claim petition
by filing written statement. It has contended that the
driver of the vehicle involved in the accident was not
holding valid and effective driving licence at the time of
accident. The learned Member of the Tribunal, by its
impugned judgment and award dated 14.11.2014,
allowed the claim petition and thereby directed
respondents no.1 to 3 jointly and severally to pay
compensation amount of Rs.7,01,489/- including the
amount under No Fault Liability to the
respondent/original claimant alongwith interest. Being
aggrieved by the same, the original respondent no.3-
Insurer has preferred this appeal to the extent of
quantum.
4 FA 2830.2015.odt
4. Learned counsel for the appellant-insurer submits
that, the original claimant was treated by Dr. Patil and
PW 2-Dr Patil has admitted in his cross examination
that the operation of the respondent original claimant
has been successful and fracture caused to him may be
united within 3-4 months. He had come for follow up
treatment continuously for three months and
accordingly fracture injuries have been united. Learned
counsel submits that, respondent-original claimant has
examined Dr Patil mainly on the point of the medical
expenses. Respondent/original claimant has produced
on record permanent disablement certificate issued by
the medical board of the Government Hospital, Dhule.
However respondent/original claimant has not proved
said permanent disablement certificate by examining
the Medical Officer who has signed the said certificate.
Learned counsel submits that the appellant-insurer has
also disputed the genuineness of the said certificate.
Learned counsel submits that, even though, alleged
permanent disablement certificate is not duly proved
before the Tribunal, the learned Member of the Tribunal
has referred said certificate in the judgment and
5 FA 2830.2015.odt
without any expert's opinion, in this regard made
observations that permanent disablement as mentioned
in the said certificate affects earning capacity of the
respondent/original claimant to the extent of 50%.
Learned counsel submits that there is no basis for such
observation and the Tribunal has thus awarded
exorbitant amount of compensation.
5.
Learned counsel for respondent/original claimant
submits that, the claimant has examined Dr. Lalit Patil
as PW 2 and he has given all the details of the injuries
sustained by the claimants. The certificate giving details
of the injuries issued by Dr. Patil is marked as Exh.76.
Furthermore, discharge cards are also produced on
record and same are marked as Exh.77 and 78,
respectively. Learned counsel submits that, the
claimant has produced on record permanent
disablement certificate in form comp 'B' issued by the
Medical Board of the Government Hospital and
considering the same, the Tribunal has rightly exhibited
the said permanent disablement certificate and
accordingly assessed the compensation.
6 FA 2830.2015.odt
6. Learned counsel submits that, the injuries
sustained by the claimant resulted into permanent
disablement to the extent of 50% as mentioned in the
said certificate and since the permanent disablement
sustained by the claimant affected his earning capacity,
learned Member of the Tribunal has rightly assessed the
quantum of the compensation. Learned counsel submits
that, so far as medical expenses incurred by the
claimant are concerned, the Tribunal has rightly
awarded the compensation. Learned counsel in the
alternate submits that, the claimant may be given an
opportunity to prove said certificate Exh. 29 issued by
the Medical Board of Civil Hospital, Dhule by
remanding the matter to the Tribunal.
7. It appears from paragraph no.12 of the Judgment
that, the learned Judge of the Tribunal has considered
the medical certificate issued by PW 2 Dr Patil, marked
at Exh.76 and admissions given by him in cross
examination, however, further expressed opinion that,
the claimant has sustained 50% loss in his earning
capacity as a result of such permanent disability caused
7 FA 2830.2015.odt
to him in the accident. It further appears from the
observations in paragraph no.12 of the impugned
judgment that, the Tribunal has considered the
permanent disablement certificate Exh.29 issued by the
Civil Surgeon and one another Member of the panel on
the ground that said certificate has been issued by them
while discharging their official duties and further
observed that said certificate cannot be thrown away
only on account of non examination of said medical
officer.
8. In a case of Rajkumar Vs Ajay Kumar and
another, reported in 2011(2) Mh.L.J. 569, in paragraph
no.11 and 12 of the order, the Supreme Court has made
following observations :-
"11. The Tribunal should not be a silent spectator
when medical evidence is tendered in regard to
the injuries and their effect, in particular the
extent of permanent disability. Sections 168
and 169 of the Act make it evident that the
Tribunal does not function as a neutral umpire
as in a civil suit, but as an active explorer and
seeker of truth who is required to 'hold an
enquiry into the claim' for determining the 'just
8 FA 2830.2015.odt
compensation'. The Tribunal should therefore
take an active role to ascertain the true and
correct position so that it can assess the 'just
compensation'. While dealing with personal
injury cases, the Tribunal should preferably
equip itself with a Medical Dictionary and a
Handbook for evaluation of permanent physical
impairment (for example the Manual for
Evaluation of Permanent Physical Impairment
for Orthopedic Surgeons, prepared by American
Academy of Orthopedic Surgeons or its Indian
equivalent or other authorized texts) for
understanding the medical evidence and
assessing the physical and functional disability.
The Tribunal may also keep in view the first
schedule to the Workmen's Compensation Act,
1923 which gives some indication about the
extent of permanent disability in different types
of injuries, in the case of workmen. If a Doctor
giving evidence uses technical medical terms,
the Tribunal should instruct him to state in
addition, in simple non-medical terms, the
nature and the effect of the injury. If a doctor
gives evidence about the percentage of
permanent disability, the Tribunal has to seek
clarification as to whether such percentage of
disability is a functional disability with reference
to the whole body or whether it is only with
9 FA 2830.2015.odt
reference to a limb. If the percentage of
permanent disability is stated with reference to
a limb, the Tribunal will have to seek the
doctor's opinion as to whether it is possible to
deduce the corresponding functional permanent
disability with reference to the whole body and
if so the percentage.
12. The Tribunal should also act with caution, if it
proposed to accept the expert evidence of
doctors who did not treat the injured but who
give 'ready to use' disability certificates, without
proper medical assessment. There are several
instances of unscrupulous doctors who without
treating the injured, readily give liberal disability
certificates to help the claimants. But where the
disability certificates are given by duly
constituted Medical Boards, they may be
accepted subject to evidence regarding the
genuineness of such certificates. The Tribunal
may invariably make it a point to require the
evidence of the Doctor who treated the injured or
who assessed the permanent disability. Mere
production of a disability certificate or Discharge
Certificate will no be proof of the extent of
disability stated therein unless the Doctor who
treated the claimant or who medically examined
and assessed the extent of disability of
10 FA 2830.2015.odt
claimant, is tendered for cross-examination with
reference to the certificate. If the Tribunal is not
satisfied with the medical evidence produced by
the claimant, it can constitute a Medical Board
(from a panel maintained by it in consultation
with reputed local Hospitals/Medical Colleges)
and refer the claimant to such Medical Board for
assessment of the disability."
9. It is observed by the Supreme court that the
Tribunal does not function as a neutral umpire as in a
civil suit, but as an active explorer and seeker of truth
who is required to 'hold an enquiry into the claim' for
determining the 'just compensation'. It is further
observed that the tribunal should therefore take an
active role to ascertain true and correct position so that
it can assess 'just compensation'. It is also observed
that, tribunal may invariably make it a point to require
the evidence of the Doctor who treated the injured.
10. In the case in hand, even though PW 2 Dr Patil
has admitted in his cross examination that, the injuries
sustained by the claimant have been united, tribunal
has considered permanent disability certificate Exh.29
11 FA 2830.2015.odt
issued by the medical board of Civil Hospital, Dhule.
Furthermore, in absence of any expert evidence in this
regard, Tribunal has formed an opinion that, percentage
of permanent disablement as specified in the said
certificate Exh. 29 and nature of the permanent
disablement as specified, affected earning capacity of
the claimant to the extent of 50%. Even though fracture
injuries are united in some cases, deformity may remain
in the nature of shortening of leg, restriction of the
movements, loss of the power of joints to some extent,
however, same is not possible to be considered unless
and until the expert is examined in this regard. Even
though, claimant failed to examine the author of the
certificate Exh.29, the Tribunal should have taken care
to call the author of the said certificate to satisfy itself
about the nature of the permanent disablement
sustained by the claimant and its remote consequences
in future for arriving at a just and reasonable
compensation.
11. In view of the above discussion and in view of the
facts and circumstances of the present case, in my
12 FA 2830.2015.odt
considered opinion, this is a fit case to be remanded to
the Tribunal to the extent of examination of author of
the certificate Exh.29. Needless to say that, the
appellant-insurer, owner and driver, if any, are at liberty
to cross examine the said witness.
12. In the light of the above discussion, and more
particularly, in view of the observations made by the
Apex Court in case of Rajkumar (supra), I proceed to
pass the following order.
O R D E R
I. The appeal is hereby partly allowed.
II. The judgment and award passed by the
Member, Motor Accident Claims Tribunal,
Dhule dated 14.11.2014, in MACP No.705 of
2012 is hereby quashed and set aside.
III. Matter is remanded to the Tribunal with the
following directions :-
a] Re-admit MACP No.705 of 2012 (Jitendra
Ramesh Badgujar Vs. Prakash Bhaidas Borse)
to its original number and proceed to decide
the same.
13 FA 2830.2015.odt
b] The evidence (if any) recorded during the
course of the original trial, would be subject to
all just exceptions, be evidence during the trial
of claim petition after remand.
c] The claimant is permitted to examine the
Doctor to prove the contents of certificate in
form 'Comp'.'B' Exh.29 and the
respondents/owner, driver and
appellant/insurer are at liberty to cross
examine the said witness.
IV. Matter is remanded to the extent of
examination of said witness as directed above.
V. Learned Member of the Tribunal shall decide
the MACP No.705 of 2012 afresh, after giving
an opportunity of hearing to both the sides, on
its own merits, in accordance with law.
VI. Needless to add that the observation made by
this court while disposing of the present appeal
would not cause any prejudice to the trial of
MACP 705/2012 after remand.
VII. The amount deposited by the appellant insurer
before this court be transferred to the Motor
Accident Claims Tribunal, Dhule and the
14 FA 2830.2015.odt
Tribunal may take an appropriate decision in
respect of the same after deciding the matter
on its own merits.
VIII. Record and proceeding be sent to the tribunal
forthwith.
IX. The appellant and respondent/original owner
shall appeal before the Tribunal on 30.6.2016.
X.
The Tribunal shall dispose of the matter within
three months (03) after receipt of the record
and proceedings to it.
XI. Appeal is accordingly disposed of. CA also
stands disposed of.
sd/-
( V.K. JADHAV, J. )
.....
aaa/-
