Bombay High Court

Ravindra Alias Chhotu Dhondu ... vs United India Insurance Co Ltd And ... on 5 May, 2016

Bench: V.K. Jadhav

                                                                                   fa611.10
                                               -1-




                                                                                
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                        
                                   FIRST APPEAL NO. 611 OF 2010

     Shri Ravindra @ Chhotu Dhondu Badgujar
     Age : 29 years, Occu. : At present nil,
     R/o. Kadholi, Taluka Erandol,




                                                       
     District Jalgaon.                                           ... Appellant
                                                                 (Orig. Claimant)

              Versus




                                             
     1.       United India Insurance Company Ltd.
              9, LIC Colony, Ring Road, Jalgaon.
                             
              Through Manager
              Mansingh Market, Navi Peth,
              Jalgaon.
                            
     2.       Shri Gulab Sitaram Tayade
              Age : 35 years, Occu.: Business,
              R/o. Kadholi, Taluka Erandol,
              District Jalgaon.                                  ... Respondents
                                            .....
      


              Mr. M. M. Bhokarikar, Advocate for the appellant
              Mr. S. V. Kulkarni, Advocate for respondent No.1
   



     Mr. Anudeep Sanap h/f Mr. V. B. Patil, Advocate for respondent No.2
                                     .....

                                                     CORAM : V. K. JADHAV, J.

DATED : 5th MAY, 2016

ORAL JUDGMENT:-

1. Being aggrieved by the judgment and award dated 6.11.2009

in M.A.C.P. No. 415 of 2000, the original claimant has preferred this

appeal to the extent of quantum.

2. Brief facts, giving rise to the present appeal, are as under:-

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On 25.2.2000 between 1.00 p.m. to 2.00 p.m. the claimant

was travelling in 307-seater vehicle bearing registration No. MH-19-

L-1207 from village Paldhi to village Kadholi and on way, within the

limits of village Dharangaon, driver of the said vehicle lost his control

over it, due to which, accident had occurred. In consequence of

which, the claimant suffered fracture injury on his right leg and he

was required to be operated. Furthermore, the injuries sustained by

him on his right leg resulted into permanent disablement. The

claimant has also spent huge amount on his medial treatment. He

was 29 years old at the time of accident and he was earning

Rs.3500/- per month from his business. The claimant, therefore, filed

M.A.C.P. before the Motor Accident Claims Tribunal, Jalgaon for

grant of compensation under various heads. The respondent-insurer

contested the claim petition on the ground that driver of the said

vehicle was not at fault and claimant has not suffered any injury in

the accident etc. Learned Member of the Tribunal, by its impugned

judgment and award dated 6.11.2009, partly allowed the claim

petition with proportionate costs and thereby directed the

respondents jointly and severally to pay an amount of Rs.1,50,000/-

to the claimant with interest @ 7.5% per annum from the date of

claim petition till realization of entire amount. Being aggrieved by the

same, the original claimant has preferred this appeal to the extent of

quantum.

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3. Learned counsel for the appellant submits that the Tribunal has

not considered the disability certificate Exh.37 issued by the civil

Surgeon, Jalgaon. It is specifically mentioned in the said certificate

that the claimant suffered post traumatic stiffness of right ankle joint

with shortening of right leg by one-half inch and permanent disability

is shown to have been suffered to the extent of 13%. Furthermore,

the Tribunal has awarded Rs.1,00,000/- towards medical expenses,

though the claimant has produced on record the medical bills issued

by registered medical shop of Sancheti Hospital, Pune. Furthermore,

the Tribunal has not awarded compensation under the heads of

pains and sufferings, loss of amenities in future life and even for the

shortening of leg. It is practically impossible for the claimant to prove

each and every medical bill issued by the medical shop and to claim

compensation as per the proved medical bills only. In order to

substantiate his submissions, learned counsel for the appellant

placed reliance on the judgment in the case of Prakash s/o

Mahadeorao Nirmal vs. Rajesh Ramfer Yadav, reported in 2014

(3) Mh.L.J. 415.

4. Learned counsel for the respondent-insurer submits that,

considering the facts and circumstances of the case, the Tribunal has

awarded just and reasonable compensation. Even though medical

bills are produced before the Tribunal, the same are not proved by

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the claimant and therefore, the Tribunal has awarded compensation

towards medical bills to the extent of Rs.1,00,000/- only.

Furthermore, in absence of any loss in future income and considering

the nature and percentage of disablement, the Tribunal has awarded

lump sum compensation of Rs.50,000/- for loss of earning during the

period of treatment, which is just and reasonable.

5. The claimant has deposed before the Tribunal that prior to the

accident, he was doing business of selling chilly power and was

earning Rs.3500/- per month. However, he has not substantiated his

contention that because of the permanent disablement, which is to

the extent of 13% only, he is not able to carry on his business. Even

the claimant has not examined the concerned Medical Officer, who

has issued the disablement certificate, to substantiate his contention

that said disablement has affected his earning capacity substantially.

In absence of expert opinion and considering the fact that the

claimant is running business of selling dry chilly powder, I do not

think that there is any loss in future income as such.

6. So far as compensation on account of medical expenses

incurred by the claimant is concerned, in my opinion, the Tribunal

has awarded less amount of compensation compared to the medical

bills submitted before the Tribunal.

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7. This Court, in the case of Prakash s/o Mahadeorao Nirmal

(supra), relied upon by learned counsel for the appellant, has

observed that if the medical papers corroborate nature of injury

sustained by the claimant, the same can be read in evidence. The

evidence is required to be judged upon preponderance of

probabilities and not on basis of principle of proof beyond reasonable

doubt. This Court further held that the Tribunal is not justified in not

considering the said medical papers in evidence.

8. In the present case also, the Tribunal has not considered the

medical bills, though issued by the registered medical shop of

Sancheti Medical Hospital, Pune. Considering the medical bills

placed on record, it would be just and proper to award Rs.50,000/- in

addition to Rs.1,00,000/- as awarded by the Tribunal for medical

expenses.

9. On perusal of the medical certificate Exh.37 issued by Civil

Surgeon, Jalgaon, it appears that the claimant has suffered post

traumatic stiffness of right ankle joint with shortening of right leg by

one-half inch. The claimant was 29 years of age at the time of

accident. It appears that the Tribunal has not awarded any

compensation for the said permanent disablement. It would be just

and proper to award Rs.50,000/- for the injury sustained by the

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claimant which has resulted into permanent disablement as

aforesaid. Furthermore, the Tribunal has not awarded any

compensation for pains and sufferings and loss of amenities in future

life. It appears from the medical papers and the medical bills

produced on record that for a long period, the claimant remained in

hospital as indoor patient and thereafter, as outdoor patient for

follow-up treatment. He was also operated in Sancheti Hospital at

Pune. In view of this, the claimant is entitled for amount of

Rs.40,000/- for pains and sufferings due to shortening of right leg by

one-half inch. The claimant, who is a young man, has lost future

amenities in life. In view of this, the claimant is entitled for amount of

Rs.25,000/- more.

10. In view of the above discussion, the breakup of compensation,

which can be broadly categories under various heads, is as under:-

              i)      Loss of actual income                      Rs.     50,000.00
                      due to injury sustained by





                      the appellant

              ii)     Medical expenses                           Rs. 1,50,000.00

              iii)    Pains and sufferings                       Rs.     40,000.00

              iv)     Loss of amenities                          Rs. 25,000.00
                                                                 --------------------
                                                                 Rs. 2,65,000.00
                                                                 ===========

                      (Rupees two lacs sixty five thousand only)



                                                                                 fa611.10

11. In light of the above, I proceed to pass the following order:-

ORDER

I. The appeal is hereby partly allowed with proportionate costs.

II. The judgment and award dated 6.11.2009 passed by learned Member, Motor Accident Claims Tribunal, Jalgaon

in M.A.C.P. No. 415 of 2000 is hereby modified in the following manner:-

"The respondents jointly and severally do pay an

amount of Rs.2,65,000/- (Rupees Two lacs sixty five thousand only) to the claimant with interest @ 7.5% per annum from the date of application till realization of the

amount, including the N.F.L. amount."