Milind S/O.Sharad Pendharkar vs The Principal Chief Conservator ...
2017 Latest Caselaw 5197 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR

                        FIRST APPEAL NO.1286 OF 2008

              Milind S/o Sharad Pendharkar
              Aged 41years, Occ: Service
              Presently R/o Flat No.12, 
              Shriram Apartment Vivek Nagar, 
              Akurdi, Pune-411 035.         .......                                    APPELLANTS

              ...V E R S U S...

1]            The Principal Chief Conservator of Forest, 
              Jaika Building, Civil Lines, Nagpur.

2]            Pisaram s/o Hudhoji Gahane, 
              R/o Kanhal, Tah. Arjuni Morgaon, 
              District- Bhandara

3]             United Insurance Company Limited
               Through its Manager, 
               Opp. Saraf Chambers, Mount Road,
               Sadar, Nagpur.                               .....RESPONDENTS
-------------------------------------------------------------------------------------------
         Mrs Mrunal Naik H/f Shri S. M. Puranik, Advocate for Appellant.
         Shri S. N. Dhanagare, Advocate for Respondent No. 3. 
-------------------------------------------------------------------------------------------

              CORAM :  SMT. DR. SHALINI PHANSALKAR-JOSHI, J. 

              DATE    :  28 th
                               JULY, 2017.

ORAL JUDGMENT

Appellant is the original claimant, whose Claim Petition No.

99 of 1995 was allowed by the Motor Accident Claims Tribunal, Nagpur

vide its judgment and award dated 26.6.2006 to the extent of interim

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compensation to the tune of Rs.12,500/- only as against the No Fault

Liability. Being aggrieved thereby he has preferred this appeal.

2] Brief facts of the appeal can be stated as follows:-

On 11.6.1993 at about 9.00 a.m., Appellant was proceeding

on his Bajaj M-80 bearing No. MZH-8386 from home to his office. At the

relevant time, he was serving with Bajaj Auto Limited as Service

Engineer and drawing salary of Rs.5,730/- per month. When he came on

his Bajaj M-80 on West High Court Road, the jeep belonging to

respondent- Forest Department bearing No. MH-31/G-4121 came in

high speed. It was driven in rash and negligent manner and it dashed to

the Bajaj M-80 of Appellant. As a result, Appellant fell down and was

badly injured. He was given urgent medical treatment in the hospital of

Dr. Vivek Gadge as indoor patient till 21.6.1993. Thereafter, he took

treatment in the hospital of Dr. Kale from 19.7.1993 to 2.8.1993. He

spent near about 40,000/- for his medical treatment and still was

required to take further treatment. Hence, he claimed amount of

Rs.20,000/- for future medical treatment. According to him, considering

his nature of duty as service engineer, he was deprived from work and

his future prospectus of promotion were also hampered due to deformity

caused to his leg and therefore, he calculated and claimed the amount of

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Rs.30,000/- towards the loss of pay, Rs.30,000/- towards future loss of

salary, Rs.5,000/- towards the loss of bonus and Rs.75,000/- towards

non-pecuniary losses due to mental shock etc., thus, total amount of

compensation claimed by him in the petition is Rs.2,00,000/- on all the

relevant heads.

3] He claimed this amount from respondent no.1 who is the

owner of the jeep, respondent no.2, who was driving the jeep at the

relevant time and respondent no.3 with whom the jeep was insured.

4] This claim petition came to be resisted by respondent no.1

denying his liability for accident on count that it was the Appellant who

was driving his moped in rash and negligent manner and the jeep driver

was not at fault at all. Respondent no.3- Insurance Company also

resisted the petition raising the same contention and further submitting

that Appellant had not filed disability certificate, therefore, he is not

entitled for the amount as claimed by him. It was submitted that the

amount of compensation claimed by Appellant was exorbitant. Appellant

has not sustained any permanent disability and hence, there was no

question of granting the claim as made by him. Even his claim for N.F.L.

of Rs.12,500/- was denied by respondent no.3.

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5] On the basis of these respective pleadings of both the parties,

the Tribunal framed necessary issues at Exh.24. In support of his case,

Appellant examined himself vide Exh.32 and also led the evidence of

Dr. Sudhir Shandilya to prove the permanent disability certificate

Exh.45.

6] On appreciation of this evidence, the learned Tribunal was

pleased to hold that cause of accident was the rash and negligent driving

of the offending vehicle, the jeep. The learned Tribunal was, however,

pleased to hold that the Appellant had failed to prove the alleged

permanent disability and also the other heads of loss; Appellant has also

failed to prove the medical bills and the expenditure incurred for his

medical treatment and hence, the learned Tribunal was pleased to hold

that in the absence of any cogent and reliable evidence on record and

also in absence of evidence to prove the ownership of the jeep and the

link of the Insurance Company with the offending vehicle, whatever

amount of compensation which is awarded to the Appellant towards

N.F.L., of Rs.12,500/- was sufficient. As a result, the rest of the claim of

the Appellant came to be dismissed by the Tribunal.

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7] This judgment of the Tribunal is challenged in this appeal by

the learned counsel for Appellant by submitting that Tribunal has not at

all properly appreciated the evidence on record, even as regards the

aspect of rash and negligent driving. It is submitted that driver of the

offending vehicle has not examined himself though the police have

registered offence against him. Therefore, the tribunal has committed an

error in holding this point as partly proved. Secondly, it is submitted that

despite the evidence of Dr. Shandilya proving that Appellant has

sustained permanent disability of 30%, the Tribunal has not awarded

any amount towards loss of income or even towards pain, suffering etc.

It is submitted that the impugned judgment and order, therefore, needs

to be quashed and set aside.

8] Respondent nos. 1 and 2, though served remained absent.

Learned counsel for respondent no.3 has also remained absent at the

time of hearing of the appeal. Therefore, on the basis of the submissions

advanced by learned counsel for Appellant and on perusal of the record

and proceedings of the Tribunal, including the depositions and the

documentary evidence produced in the case, this appeal is being

decided.

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9] The first and foremost point which is arising for my

consideration in this appeal is whether the Appellant proves that cause

of accident was rash and negligent driving of the jeep owned by

respondent no.1 Forest Department and insured with respondent no.3?

10] In this respect, the evidence of the Appellant is sufficient as

being an injured, he is also an eye-witness to the accident. According to

his evidence, it was the jeep which came in fast speed from opposite

direction, took 'U' turn and dashed him from behind. There is no

effective cross-examination of the Appellant on this aspect as regards the

cause of accident. His evidence is also supported and corroborated from

the FIR (Exh.33) and the spot panchnama (Exh.34). It is pertinent to

note that the police had, after carrying out necessary inquiry registered

the offence under Sections 279, 338 of the Indian Penal Code, against

the driver of the jeep. Spot panchnama (Exh.34) also goes to show the

damage caused to Bajaj M-80 by the jeep from the back side. Moreover,

the evidence of the Appellant that the jeep has given dash from the

backside is sufficient to prove that the sole cause of accident was

rash and negligent driving of the jeep. It is also pertinent to note that

jeep driver has not entered into the witness box and has not filed his

written statement denying the cause of accident as rash and negligent

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driving on his part. Neither respondent no.2 nor respondent no.3 have

also examined any other eye-witness to prove the manner in which the

accident has taken place. Hence, whatever evidence available on record

proves the case of the Appellant that it was rash and negligent driving of

the jeep which has resulted in the accident.

11] As a result, the liability of respondent no.1 the Forest

Department, which is the owner of the said jeep has to be held as proved

to pay compensation to the Appellant. However, as regards the

insurance of the said jeep, Appellant himself admitted that on the date

of accident, the jeep was not insured. He has also not produced on

record the insurance policy of the jeep. Hence, respondent no.3 is

required to be exempted from the liability of paying compensation.

12] Now the real question for consideration which is second point

for my consideration in this appeal, is the quantum of compensation to

which Appellant can be entitled. As per the evidence of the Appellant,

after the accident he became unconscious and he was taken to the

hospital of Dr. Gadge, where he was admitted for 10 days. He had

sustained compound fracture to right leg. Thereafter, he was admitted in

the hospital of Dr. Kale and there he had undergone the surgery. He was

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admitted there from 19.7.1993 to 2.8.1993 as an indoor patient for 21

days and he was also bed-ridden for total period of six months.

According to his further evidence, in the said accident he has suffered

30% permanent disability as due to the fracture his right leg is shorten

by half inch. He cannot walk more and also cannot kick the vehicle.

13] To support his case, Appellant has examined Dr. Sudhir

Shandilya, who has issued disability certificate after examining the

Appellant on 25.3.1998. According to evidence of Dr. Shandilya, on

examination of Appellant, he found that Appellant had a ruptured

interior cruciate ligament of right knee. He also had a varus deformity of

his right knee. His fracture tibia was treated by V nail and he had a

shortening of right leg by one inch. According to him, Appellant has

suffered permanent disability of 30%. He had issued certificate vide

Exh.45. Further he has deposed that due to disability, Appellant has lost

strength of his right leg and he would not stand on his right leg for long

time.

14] It is true that Dr. Shandilya is not cross-examined by any of

the respondents and therefore, his evidence has remained unchallenged

on record. Hence, submission of learned counsel for Appellant is that the

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Tribunal should have placed implicit reliance thereon;at least should not

have discarded his evidence altogether, to reject the claim of Appellant

for compensation. It is urged that when Dr.Shandilya has deposed that

Appellant has sustained 30% permanent disability and had shortening of

right leg by one inch, then the compensation has to be assessed on the

basis of loss of income of Appellant, to the extent of 30%. Reliance is

placed by learned counsel for Appellant on the judgment of Raj Kumar

vs. Ajay Kumar & Anr. IV (2010) ACC 815 (SC), to submit that

claimant should be compensated not only for physical injury, but also for

loss, which he suffered on account of pecuniary damages, loss future of

earning, medical expenses, damages for pain, suffering and trauma, loss

of amenities and loss of future prospects etc. It is submitted that here in

the case there was evidence of Dr. Shandilya who has examined the

Appellant and also considered his medical record and thereafter issued

the disability certificate, which has remained unchallenged and hence,

this court should accept the same and assess the compensation towards

the pecuniary loss of Appellant at the rate of 30% permanent disability.

15] On the face of it, submission advanced by learned counsel for

the Appellant, appears to be persuasive, that as there is no cross-

examination Dr. Shandilya, this Court should accept his evidence that

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Appellant has suffered 30% permanent disability. However, on closure

and legal scrutiny, this Court can not accept the same because ultimately

it is the duty of the Court to make realistic assessment of the injuries

suffered by the claimant and loss of income which can arise from those

injuries. It depends on the particular facts of each case and the evidence

which is adduced in that case. Herein the case, it is pertinent to note

that the treatment taken by the Appellant immediately after the accident

was of Dr. Gadge, in whose hospital, he was admitted for 10 days.

Thereafter from 19.7.1993 to 2.8.1993 Appellant was admitted in the

hospital of Dr. Kale, who has conducted surgery on his right leg. Thus

two Doctors who had treated the Appellant were the best persons to

depose that on account of accident, Appellant has suffered permanent

disability, that too, to the extent of 30%. However, for the reasons best

known to him, Appellant has not examined either these of two doctors

who were available in the Nagpur and who had given requisite medical

treatment to him.

16] Appellant has however examined Dr.Shandilya,who has never

treated him at any time. Appellant has not got himself examined from

the Handicapped Medical Board or any Doctor or the Member from the

Panel of Medical Officers which is constituted in each government

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hospital for the purpose of assessing the correct disability of the injured.

Appellant has led evidence of Doctor Shandilya, who has not treated the

Appellant nor examined him when claim petition was filed in the year

1995, but has examined Appellant three years thereafter during

pendency of the petition. Therefore, this disability certificate cannot be

taken ipse dixit for holding that Appellant has suffered 30% disability. As

deposed by Dr.Shandilya, the only disability suffered by the Appellant

was that he has lost strength of his right leg and he could not stand on

right leg for long time. Whether this disability of Appellant being not

able to stand on his right leg for long time, can be assessed to be 30%

permanent disability? Answer is obviously "No".

17] It is pertinent to note that that as per the Appellant, his right

leg is shortened by half inch, whereas Dr.Shandilya has gone further and

stated that it was shorten by 1". Therefore, there is no consistency on

this aspect also.

18] The submission of learned counsel for Appellant is that

Appellant was Service Engineer in Bajaj Auto and therefore, his job

required him to be on legs and due to shortening of leg, he is unable to

kick the vehicle. However, Dr. Shandilya has not stated that Appellant

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cannot kick the vehicle. He has also not stated in the evidence that

Appellant cannot stand on legs for long. Hence, the case put up by the

Appellant that he has suffered 30% permanent disability cannot be

accepted at all. At the most, having regard to the case of the Appellant

that he was working as Service Engineer in Bajaj Auto Limited and there

was shortage of right leg by half inch, as he was unable to stand for long

on the strength of right leg alone, in my considered opinion, the

permanent disability can be assessed to the extent of 10% only.

Therefore, if one considers the salary of Appellant, as per the averments

made in the petition as Rs.5,730/- p.m., considering his age of 31 years,

Appellant becomes entitled to get amount of Rs.1,02,000/- towards loss

of income. The Appellant has claimed amount of Rs.40,000/- towards

medical expenses. However, medical certificate to that effect is neither

proved by examining Dr. Kale or Dr. Gadge. Even the medical treatment

is also not proved by examining any of the two Doctors. However, as the

x-ray produced on record by the Appellant shows that he has sustained

fracture, the amount of Rs.20,000/- can be awarded towards medical

expenditure, plus Rs.10,000/- towards pain and suffering. Thus, total

comes to Rs.1,32,000/- which is inclusive of the amount of Rs.12,500/-

which Appellant has already received towards N.F.L.

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    19]          Thus, the appeal is allowed. 



    20]          The   impugned   judgment   and   award   of   the   Tribunal   is

modified to the extent that Appellant is held entitled to get

compensation of Rs.1,32,000/- inclusive of NFL amount of Rs.12,500/-

with interest @ 7.5% per annum from respondent no.1 alone. Claim

against respondent nos. 2 and 3 stands dismissed.

21] In the circumstances of the case, there is no order as to costs.

JUDGE RGIngole