Bombay High Court
Malhari Bajirao Dhande Power Of ... vs Ramhari Suresh Kadam And Another on 9 June, 2016
Bench: V.K. Jadhav
fa2211.15
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2211 OF 2015
Malhari Bajirao Dhande
Age 67 years, Occ. Agriculturist,
R/o. Dhandewadi, Tq. Karjat,
District Ahmednagar
through his Power of Attorney holder
Shri Baliram Pralhad Dhande
Age 29 years, Occ. Agriculturist,
R/o. Dhandewadi, Tq. Karjat
District Ahmednagar. ig ...Appellant
(Ori. Applicant)
Versus
1. Ramhari Suresh Kadam,
Age 47 years, Occ. Agriculturist,
R/o. Baradgaon Dagdi, Tq. Karjat
District Ahmednagar.
2. The Manager,
Royal Sundaram Allianz Insurance Col Ltd.,
Sundaram Tower, 45/46,
Whites Road, Chennai 600 002. ... Respondents
(Ori.Non-applicants)
.....
Advocate for Appellants : Mr. Nimbalkar Aniruddha A
Advocate for Respondent No. 2 : Mr. Avinash S. Deshpande
.....
CORAM : V. K. JADHAV, J.
DATED : 9th JUNE, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 28.04.2015
passed by the learned Member, Motor Accident Claims Tribunal,
Ahmednagar in M.A.C.P. No. 213 of 2013, the original claimant has
preferred this appeal.
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2. Brief facts giving rise to the present appeal are as under : -
a. On 19.09.2012 at about 5.00 p.m. when the claimant was
cleaning the area in front of his house at village Dhandewadi, Taluka
Karjat, at that time one tractor bearing registration No. MH-16-AM-
6796 was standing there. The said tractor is owned by opponent
No.1 Ramhari Suresh Kadam. At the relevant time, driver of the said
tractor had started taking the said tractor in reverse direction. The
driver of the tractor, while taking said tractor in reverse direction, was
required to take due care and precaution. However, the said tractor
gave dash to the appellant-claimant when he was cleaning the area
in front of his house. In consequence of which, the appellant-
claimant had sustained grievous injuries on neck Lt., Lt. Femur. The
injuries sustained by him also resulted in permanent disablement to
the extent of 40% and now he is unable to perform his day to day
activities. He was hospitalized for a considerable period and had
undergone surgery on his left knee in the hospital. He had to incur
expenses for medical treatment, purchase of medicine etc.
Furthermore, as a result of permanent disablement sustained by him,
the appellant/claimant cannot stand, walk, sit properly and he is
almost bed ridden. Furthermore, he is not able to do agriculture
work. Thus, the claimant preferred claim petition before the Motor
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Accident Claims Tribunal, Ahmednagar bearing M.A.C.P. No. 213 of
2013 for grant of compensation under various heads.
b. The respondent-owner has resisted the said claim petition by
filing his written statement at Exh.22. It is contended that driver of
the tractor was taking the tractor in reverse direction in slow speed at
the relevant time and the appellant-claimant, all of a sudden, came
on the backside of the tractor. Thus, the driver of the tractor was not
at fault. It is also denied that the injuries sustained by the claimant
resulted into permanent disablement.
c. Respondent No.2 insurer has also strongly resisted the claim
petition by filing written statement Exh.17. It is denied that the
appellant-claimant has become permanently disabled on account of
injuries sustained by him in the alleged accident. It is also contended
that the complaint was file belatedly and crime was registered in the
concerned police station in collusion with the police authorities and
respondent No.1-owner. Respondent No.2-insurer has denied
involvement of vehicle in the alleged accident.
d. Learned Member of M.A.C.T., Ahmednagar, by its impugned
judgment and award dated 28.4.2015, dismissed the claim petition.
Hence, this appeal.
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3. Learned counsel for the appellant submits that in the F.I.R.,
name of owner of the tractor is mentioned. The said tractor was
purchased recently, prior to accident and therefore, registration
number was not mentioned on the tractor on the date of accident.
However, in the F.I.R. name of owner is clearly mentioned and
manner in which accident took place is also mentioned. On the basis
of complaint lodged with concerned police station, crime No. 212 of
2012 came to be registered in Karjat police station against driver of
the tractor. Respondent No.1-owner has not denied the happening
of accident, however, has denied the rash and negligent driving of
the tractor by its driver in reverse direction. It is simply contended in
the written statement filed by respondent No.1 that the appellant-
claimant, all of a sudden came behind the tractor when it was being
taken in reverse direction and thus, driver of the tractor was not at
fault. On 19.09.2012 itself, the appellant/claimant was taken to Sai
Hospital at Karjat. He came to be examined on the same day at
about 7.00 p.m. The said injury certificate is placed on record and
marked Exh.30 The history of giving dash by the tractor is clearly
mentioned in the said injury certificate. Learned Member of the
Tribunal has erroneously observed and held the story narrated in
F.I.R. and the contents of spot panchnama are suspicious in nature.
Registration certificate of tractor shows that it was purchased in the
month of April 2012, however, as to why the registration number was
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not displayed on the tractor is a matter within the knowledge of
respondent No.1-owner. The tribunal has given unnecessary
weightage to this aspect and arrived at the erroneous conclusion that
possibility of false involvement of tractor in the accident in collusion
with the owner and the police authorities cannot be ruled out. There
is satisfactory evidence placed on record to show that the appellant-
claimant has sustained injuries out of use of tractor and the injury
sustained by him resulted into permanent disablement.
ig The
appellant-claimant is entitled for compensation on account of loss of
future income, for medical expenses, conveyance charges, pains and
sufferings, future medical treatment, etc.
4. Learned counsel for the respondent-insurer submits that there
is no explanation given for lodging of complaint belatedly. Even
though accident had taken place on 19.09.2012, the complaint came
to be lodged on 23.09.2012 without any explanation. The distance
between the house of complainant and the police station is very
short. Even though registration number of vehicle-tractor is not
mentioned in the F.I.R., on the same day, spot panchnama was
drawn by the police after registration of crime wherein registration
number of the tractor is clearly mentioned. Age of the appellant-
claimant, though shown as 65 years in the title cause of claim
petition, however, in the medical certificate, his age is shown in
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between 80 to 85 years. The appellant claimant is not likely to carry
out day to day operations in agriculture land and at the most
supervisory charges can be considered in case of death claim when
agriculture is the main source of income. In the case in hand, the
appellant-claimant can supervise the agriculture operations and there
is no loss in income as such. Learned counsel submits that in
absence of expert's opinion about future medical expenses, no
compensation can be awarded under the said head.
ig Learned
counsel submits that considering all these aspects the Tribunal has
rightly dismissed the claim petition.
5. On careful perusal of complaint Exh.28 and spot panchnama at
Exh.29, it appears that in the F.I.R., name of owner of the tractor and
make of the tractor is clearly mentioned. It appears from the
contents of F.I.R. that the accident had taken place on 19.09.2012 at
about 5.00 p.m. It is specifically mentioned in the complaint that the
appellant/claimant was cleaning the front portion of his house at the
time of accident, and at the time, one tractor, without displaying
registration number, of Swaraj Company owned by Ramhari Suresh
Kadam was coming in the reverse direction. It is alleged in the
complaint that driver of the said tractor took the said tractor in
reverse direction in speed and gave dash to the appellant-claimant
while he was cleaning front portion of his house. On perusal of injury
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certificate Exh.30, it appears that on 19.09.2012 at about 7.00 p.m.
appellant-claimant Malhari was examined by Dr. Sandeep Kaldate in
Sai Hospital at Karjat. The said hospital is private hospital and the
history is recorded in the injury certificate itself. The history is
recorded that "due to dash given by a heavy object and patient fall
down (tractor with vator)". The claimant has examined Dr. Mahesh
Madhavrao Mulay, an Orthopedist attached to Bhagirathi Hospital,
Ahmednagar. He has deposed that the appellant/claimant was
referred to him by Sai Hospital, Karjat, where he was admitted till
25.09.2012. It is further deposed by witness No.2-Dr. Mahesh Mulay
that he had performed surgery on lift knee joint of the
appellant/claimant and further explained that the appellant/claimant
had sustained permanent disablement to the extent of 40%.
6. Even though the accident had taken place on 19.09.2012, it
appears from the evidence of Dr. Mahesh Mulay that the
appellant/claimant was remained as indoor patient in Sai Hospital,
Karjat till 25.09.2012 and thereafter shifted to Bhagirathi Hospital,
Ahmednagar where he was operated to his left knee joint. In the
backdrop of this evidence, I do not find that delay in lodging
complaint is not explained. The appellant-claimant was not in a
position to approach the police station for lodging the complaint. His
grandson had accordingly lodged the complaint on 23.09.2012 with
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the concerned police station and accordingly, crime came to be
registered. Spot panchnama was drawn on the same day i.e. on
23.9.2012 and registration number found displayed on the tractor.
Thus, possibility cannot be ruled out that anticipating the complaint,
the owner displayed the registration number on tractor as the passing
of the vehicle-tractor by R.T.O. took place long back. Even assuming
that there is delay in lodging the complaint, I am of the firm opinion
that same is reasonably explained by the appellant/claimant. It also
appears that the Tribunal has given unnecessary weightage to the
fact that the registration number of tractor was not displayed on the
tractor at the time of accident. In fact, name of owner is mentioned in
the F.I.R. and accordingly crime came to be registered against the
driver of the tractor. Furthermore, the owner of tractor has not
denied the accident.
7. Learned Member of the Tribunal has neither considered the
history recorded in injury certificate, nor considered the owner's
name which is clearly mentioned in the F.I.R. The claimant has
proved that he has sustained injuries due to the dash of tractor
bearing No.MH-16/AM-6796 on account of rash and negligent driving
of driver of the said tractor, which resulted into permanent
disablement. The Tractor driver should have taken due care while
taking the tractor in reverse direction. It is very easy for the tractor
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driver to look at the backside while taking tractor in reverse direction.
From the evidence on record, only irresistible inference could be
drawn that the driver of the tractor was rash and negligent while
taking the tractor in reverse direction at the time of accident and he
alone is responsible for the accident. Further, respondent No.1 has
not examined driver of the tractor to substantiate his
contentions/pleadings. By any stretch of imagination, it cannot be
inferred that the appellant-claimant was responsible for the accident
when he was cleaning the front portion of his house.
8. Since the Tribunal has dismissed the claim of the
appellant/claimant, the quantum is not discussed and considered.
Though the age of claimant is shown as 65 years at the time of
accident, however, in the injury certificate, his age is shown in
between 80 to 85 years. It is difficult to believe that in such old age
the appellant claimant was personally cultivating his agriculture land.
At the most, it can be said that he was supervising the agriculture
activities by using his experience and skill. However, the same is
also possible now and there cannot be any future loss in agriculture
income.
9. The appellant/claimant has sustained injuries on his hip joint
and in his old age, it is difficult for him to carry out his day to day
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activities in the same manner as prior to accident. Dr. Mahesh
Mulay, P.W.2 has issued medical certificate in form COMP "B" and
the same is marked Exh.39. He has opined that appellant claimant
has sustained physical disability in the form of destruction or
permanent impairing of the power of his hip joint to the extent of
40%.
10. In view of the above, the claimant is entitled for lump sum
amount of compensation for the injury sustained by him in the
accident, which resulted into permanent disablement. Thus, the
claimant is entitled for Rs.50,000/- lump sum compensation on
account of permanent disablement sustained by him to the extent of
40%. The witness No.2-Dr. Mahesh Mulay has deposed that he has
issued medical bills for treatment given to the appellant/claimant and
the bills/receipts are marked at Exh.36, 37 and 38 respectively.
Furthermore, there are printed medical bills showing that the
appellant-claimant had purchased the medicines from medical stores
at Karjat as prescribed to him by Dr. Sandeep Kaldate, attached to
Shri Sai Hospital at Karjat. The said bills of purchase of medicine are
about Rs.40,000/-. In view of this,the claimant is entitled for the
amount of Rs.40,000/- towards medical expenses. The grandson of
the appellant/claimant, who is power of attorney, has deposed that
on account of permanent disablement sustained by his grandfather,
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the claimant i.e. grandfather is not able to do the routine work and he
is almost bedridden and one attendant is required for his routine
work. As deposed by witness No.2 Dr. Mahesh Mulay, the
appellant/claimant was operated in Bhagirathi Hospital at
Ahmednagar on his left hip joint. In view of this, the appellant-
claimant is entitled for amount of Rs.25,000/- towards pains
and sufferings. Furthermore, the appellant-claimant is entitled for
amount of Rs.10,000/- for loss of amenities in future life and also for
amount of Rs.5,000/- towards conveyance charges since he was
shifted to Bhagirathi hospital, Ahmednagar during the course of
treatment. Learned counsel for the respondent-insurer has rightly
pointed out that in absence of any expert's opinion, no amount of
compensation can be awarded towards future medical treatment.
11. In view of the above discussion, the break-up of compensation
which can be broadly categorized is as under :-
i) Lump-sum compensation on account Rs. 50,000.00
permanent disablement sustained by
the appellant-claimant.
ii) Medical expenses Rs. 40,000.00
iii) Pains and sufferings Rs. 25,000.00
iv) Loss of amenities in future life Rs. 10,000.00
v) Conveyance charges Rs. 5,000.00
--------------------
Total Rs.1,30,000.00
--------------------
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12. Thus, the appellant/claimant is entitled for Rs.1,30,000/-
(Rupees One lac thirty thousand only) and the respondents are
jointly and severally liable to pay the same. Hence, I proceed to pass
the following order:-
ORDER
I.
The appeal is hereby partly allowed and disposed of.
II. The judgment and award dated 28.04.2015 passed by the
learned Member, M.A.C.T. Ahmednagar in M.A.C.P.
No.213 of 2013 is hereby quashed and set aside.
III. The M.A.C.P. No.213 of 2013 (Malhari Bajirao Dhande vs.
Ramhari Suersh Kadam and another) is hereby partly
allowed with proportionate costs and the respondents are
jointly and severally liable to pay an amount of
Rs.1,30,000/- (Rupees One Lac Thirty Thousand only)
inclusive of N.F.L. Amount already awarded and paid to the
claimant, with interest @ 9% p.a. from the date of
application till realization of entire amount.
IV. Award be drawn up accordingly.
( V. K. JADHAV, J.)
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