Subhash Ramu Rajput vs Dadasaheb Gangadhar Taskar And ...
2016 Latest Caselaw 303 Bom

                                                             FA No. 2259/2010
                                          1




                                                                           
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                             FIRST APPEAL NO. 2259 OF 2010

              Subhash s/o. Ramu Rajput,
              Age 41 years, Occu. Nil.,
              R/o. Kelwad, Tq. Rahata,




                                                  
              Dist. Ahmednagar.
              At present R/o. Ghogargaon,
              Tq. Newasa, Dist. Ahmednagar.                 ....Appellant.
                                                            (Ori. Claimant)




                                        
                      Versus


     1.
                             
              Dadasaheb Gangadhar Taskar,
              Age Major, Occu. Agril & Business,
                            
              R/o. Kelwad, Tq. Rahata,
              Dist. Ahmednagar.

     2.       Haribhau s/o. Sopan Rajput,
              Age Major, Occu. Business,
      

              R/o. kelwad, Tq. Rahata,
              Dist. Ahmednagar.
   



     3.       Branch Manager,
              The Oriental Insurance Co. Ltd.,
              Branch Shrirampur,





              Shivaji Cross Road, Tq. Shrirampur,
              Dist. Ahmednagar.                   ....Respondents.
                                                  (Ori. Respondents)

     Mr. R.A. Tambe, Advocate for appellant.
     Mr. M.A. Jahagirdar, Advocate for respondent Nos. 1 and 2.





     Mr. A.S. Deshpande, Advocate for respondent No. 3.

                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 3rd March, 2016.

     JUDGMENT :

1) The appeal is filed by original claimant of Claim

FA No. 2259/2010

Petition No. 263/2005, which was pending before the Claims

Tribunal, Shrirampur, District Ahmednagar. The proceeding was

filed under section 163-A of the Motor Vehicle Act and the

decision is challenged on the point of quantum of compensation

and also due to the fact that Insurance Company is not made

liable to pay compensation.

2) The accident took place on 30.4.2004 at about 8.00

p.m. within local jurisdiction of Manmad City Police Station.

Claimant - Subash Rajput has contended that he was working as

a driver with respondent No. 1 - Dadasaheb Taskar and on that

day, at the relevant time, when one dog ran across the road, he

applied break, but the auto-rickshaw did not stop, it turned

turtled. It is contended that he sustained fracture injuries to his

right hand and even after the treatment, he is not fully

recovered. Under various heads, he had claimed compensation

of Rs. four lakh.

3) It is the case of claimant that though the vehicle was

standing in the name of respondent No. 1, respondent No. 2 was

doing partnership business with respondent No. 1 and due to

that, the claimant is entitled to get compensation from

respondent No. 2 also. The vehicle was insured with respondent

FA No. 2259/2010

No. 3, at the relevant time.

4) Respondent No. 1 did not file written statement and

exparte order was made against respondent No. 2. Insurance

Company filed written statement and contested the matter by

contending that in the past, proceeding was filed before

Commissioner of Workmen's Compensation bearing W.C.

Application No. 62/2004 at Ahmednagar and this fact is

concealed by the claimant. Insurance Company contended that

there has been breach of conditions of policy and due to that, it

cannot be made liable to pay the compensation. It is contended

that at the relevant time, 3 to 4 passengers were being carried

in auto-rickshaw when there was no permission for carrying

passengers. Insurance Company contended that the amount of

only Rs. 15,000/- can be awarded in favour of plaintiff, that too

for the medical expenses u/s. 163-A of M.V. Act.

5) To substantiate the claim, the claimant examined

himself and gave evidence which is as per aforesaid contentions.

Only the learned counsel for Insurance Company cross examined

the claimants. It is not disputed that it was a goods carrier. In the

cross examination, he has admitted that persons like Babu Aher,

Santoshi Mali and Bajirao Pawar were in the auto, but he has

FA No. 2259/2010

given evidence that they were labours, they were expected to

load tiles in the auto-rickshaw. He has denied that they were

travelling as fair paying passengers.

6) The claimant has placed reliance on the copies of

police papers which are at Exhs. 27 to 28. The police papers

show that the vehicle was proceeding for loading tiles in the

vehicle and at that time, the accident took place. The crime was

registered on 9.6.2004 when the accident had taken place on

3.6.2004, but the fact of the accident is not disputed. Police

prepared the panchanama of the auto-rickshaw also and found

that damage was caused to the auto-rickshaw as it had turned

turtled. The police papers are as per the aforesaid contentions

made in the petition and evidence given by the claimant. This

evidence is sufficient to prove that the aforesaid vehicle was

involved in the accident and the claimant was on driver's seat at

the relevant time.

7) The claimant has examined Dr. Bapusaheb Gade to

prove that he had sustained injuries in the accident and he is

suffering from permanent disability. The evidence of the doctor

shows that the right hand of the claimant below elbow was

required to be amputated. According to the doctor, due to this

FA No. 2259/2010

injury, there is permanent disability to the extent of 69%. The

certificate is duly proved as Exh. 41.

8) Copy of insurance policy is produced at Exh. 46 and

it shows that it was insured as goods carrier. U/s. 147 of the M.V.

Act, statutory liability in respect of driver needs to be covered.

Two persons could have been carried in the vehicle. In view of

the nature of evidence given by the claimant, this Court holds

that no fundamental breach of conditions of policy was there and

so, the Insurance Company cannot be absolved from the liability

to pay the compensation. It appears that the Insurance Company

was exonerated by holding that vehicle was not insured with

respondent No. 3. The other reason is given that there has been

breach of conditions of policy. No nexus was established

between the respondent No. 2 and registered owner and for that

reason, matter was dismissed as against respondent No. 2.

9) Exh. 47 shows that the vehicle was insured by

Dadasaheb Taskar, respondent No. 1 with respondent No. 3 for

the period from 12.6.2003 to 11.6.2004. Copy of R.C. book is

also produced to show that respondent No. 1 was registered

owner of the vehicle. In view of these circumstances, the

Tribunal ought to have fasten liability on Insurance Company.

FA No. 2259/2010

10) The Tribunal has awarded compensation of Rs.

1,00,755/-. Amount of Rs. 69,000/- is awarded under the head of

permanent disability, amount of Rs. 6,755/- is awarded under the

head of amount spent on treatment and medicine, amount of Rs.

10,000/- is awarded under the head of pain and suffering,

amount of Rs. 5,000/- is awarded under the head of special diet

and amount of Rs. 10,000/- is awarded under the head of loss of

amenities of life. The Tribunal has not calculated the

compensation amount to ascertain the loss of future income.

Even if it is presumed that by working as a driver in the year

2005, the claimant was earning Rs. 3,000/- p.m. it could have

been presumed that due to loss of right hand, earning capacity

is reduced to the extent of 50%. In such a case, it could have

been easily presumed that there is permanent total disablement,

he can no more work as a driver. As per the schedule the

amount of Rs. 2,70,000/- could have been given as

compensation under the head of loss of future earning. This

Court holds that amount of Rs. 2,70,000/- can be given under

this head. There are bills of medicines produced and in view of

the nature of injury, amount of Rs. 15,000/- could have been

given under the head of amount spent on treatment and

medicines. Under the head of pain and suffering amount of Rs.

FA No. 2259/2010

5,000/- could have been given. In view of the bills actually

produced and facts and circumstances of the present case, this

Court holds that total amount of Rs. 3,06,755/- needs to be given

as the compensation. Considering the nature of injury and

occupation of claimant, the Tribunal could have even presumed

that there is permanent total disablement. In the result,

following order is made.

ig ORDER

The appeal is allowed. The judgment and award of

the Tribunal is modified to make the total compensation as RS.

3,06,755/- (Rupees three lakh six thousand seven hundred fifty

five). Interest at the rate of 9% p.a. will be payable on the entire

amount. Respondent Nos. 1 and 3, owner and Insurance

Company are jointly and severally liable to pay the

compensation. If Insurance Company has already paid

compensation amount under the principle of no fault, that

amount needs to be deducted.

[ T.V. NALAWADE, J. ]

ssc/