Bombay High Court
Jijaba Dattatraya Gunjal vs Anil Jugulal Jiaswal And Ors on 24 April, 2017
Bench: V.K. Jadhav
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THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
FIRST APPEAL NO. 451 OF 2002
Jijabai w/o Dattatraya Gunjal,
Age : 43 yrs, Household and Agril,
R/o Talkudgaon, Tq. Newasa,
Dist. Ahmednagar, R/o S.P. Darandale,
N-11, K-8/6, Navjivan Colony,
HUDCO AURANGABAD. ... APPELLANT
V E R S U S
1. Anil s/o Jugulal Jaiswal,
Age- 33 yrs. Occ- Driver and owner (R 1 - dismissed as per
of Tempo No.194-2-A-7588 Court's order dt. 5/5/09.)
M/s N-7, A-A17, Tirupati Permit,
Room No.7, CIDCO, AURANGABAD.
2. The Branch Manager,
United India Insurance Co. Ltd.,
Aurangabad. ... RESPONDENTS
(Original Respondents)
...
Mr. D. G. Nagode, Advocate for Appellant.
...
CORAM : V. K. JADHAV, J.
DATE : 24th April, 2017.
ORAL JUDGMENT:
. Being aggrieved by the judgment and award passed by
the learned Member of the Motor Accident Claims Tribunal,
Aurangabad dated 18th July, 2001 in MACP No.101 of 1998, the
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original Claimant has preferred this appeal to the extent of quantum of
compensation.
2 The learned counsel for Appellant / Claimant submits that
the Appellant / Claimant is suffering from dislocation of right hip. The
Claimant has also deposed about the pains in her hip joint and also
deposed that she is unable to walk. The Claimant has examined
Witness Dr. Bhagwat Murade to prove the contents of the permanent
disablement certificate Exhibit 36. The learned counsel submits that
Witness Dr. Murade has issued the certificate Exhibit 36 about the
permanent disablement and stated therein that the Claimant has
suffered from disablement to the extent of 30%, which is permanent in
nature. Witness Dr. Murade has also deposed about the future
medical expenses required to be incurred by the Claimant. However,
the Tribunal has not awarded any separate compensation to the
Claimant for having sustained the permanent disablement to the
extent of 30% as certified by Witness Dr. Murade. The Tribunal has
also awarded meager amount towards the medical expenses. The
learned counsel submits that the Appellant / Claimant was looking
after her agricultural land prior to the accident. However, after the
accident, she is not in a position to cultivate her agricultural land
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personally and as such, there is a loss in the income from the
agricultural source.
3 During the pendency of appeal, the appeal came to be
dismissed against Respondent No.1 by order dated 5th May, 2009 for
want of steps. The Appellant / Claimant has not taken steps against
Respondent No.1 / owner. None present for Respondent No.2 /
Insurer.
4 On careful perusal of the evidence and the judgment and
award passed by the Tribunal, it appears that though Witness
Dr.Murade has issued the certificate Exhibit 36 specifying therein the
percentage of permanent disablement, he has deposed that now the
dislocation is reduced but there was destruction of joint surface. He
has, therefore, referred the patient to Sancheti Hospital, Pune.
Referring letter is also placed on record and the same is marked as
Exhibit 35. Witness Dr. Murade has issued the permanent
disablement certificate Exhibit 36 in the year 1999. However, in his
oral evidence he failed to give any reference to the treatment taken by
the Appellant / Claimant in Sancheti Hospital, Pune in pursuant to his
referring letter and further the consequences of the said treatment. In
the permanent disablement certificate Exhibit 36, Witness Dr. Murade
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has simply mentioned that the disability is due to pain, stiffness of
right hip and inability to walk. It, thus, appears that even though
Witness Dr. Murade has stated in his examination-in-chief that
dislocation is reduced, he has failed to substantiate as to why there
was a pain and stiffness in the right hip and inability to walk. So far as
destruction of joint surface is concerned, Witness Dr. Murade has not
stated so in his certificate Exhibit 36. Even in the reference letter
Exhibit 35, Witness Dr. Murade has not given any reference to
destruction of joint surface, according to him, for which, he referred
the patient to Sancheti Hospital, Pune.
5 The learned counsel for Appellant / Claimant has
vehemently submitted that the Claimant was required to incur the
expenses for future medical treatment and she had also incurred
accordingly subsequent to the award passed by the Tribunal.
However, on careful perusal of the record, I do not find any single
receipt of payment of medical expenses issued by Sancheti Hospital,
Pune. Even then the Tribunal has considered the same and awarded
Rs.30,000/- for medical treatment. It is a part of record that the
Appellant / Claimant has produced the medical bills worth Rs.3,674/-.
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6 The Appellant / Claimant has also admitted in her cross-
examination that her husband is looking after the agricultural land and
her son is also major. The Tribunal has therefore, awarded lump sum
amount of compensation under the other heads since there was no
loss of income as such. The Tribunal has awarded Rs.11,000/- for
travelling expenses as the Appellant / Claimant has produced the bills
of travelling expenses incurred by her. Further the Tribunal has also
awarded Rs.10,000/- for pains and sufferings and Rs.25,000/- for loss
of amenities, enjoyment taking into consideration the permanent
disablement and the consequences thereof. In my considered
opinion, the Tribunal has awarded just and reasonable compensation.
No interference is required. I do not find any merit in the appeal.
Hence, the following order:
O R D E R
I) The appeal, is hereby dismissed. In the
circumstances, there shall be no order as to
the costs.
II) The appeal is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
