Subhash Vitthalrao Yede vs Hiraman D. Bhalerao And Ors
2017 Latest Caselaw 2588 Bom

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Ladda

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CIVIL APPELLATE JURISDICTION

                         FIRST APPEAL No. 1248 of 2001

        Subhash Vitthalrao Yede,
        age 40 years, Occupation
        Service, R/at Sangamner,
        District Ahmednagar
                                     ..Appellant/Orig.Claimant.

                        Vs

        1)     Hiraram Dipaji Bhalerao, adult,
               Adult, Occupation Agriculture,
               Residing at Bhalerao Sadan, Near
               Marathi School, Ulhasnagar,
               District Thane.

        2)     Siddharatha Sahaji Ahire,
               adult, Occupation Driver,
               residing at Manori, Taluka Sinnar,
               District Nashik.

        3)     The Manager, Oriental
               Insurance Co. Ltd.
               Merchant Chambers, Shalimar,
               Nashik.

        4)     The President of Sangamner Nagar
               Parishad, Sangamner, District
               Ahmednagar.

        5)     Ansar Yakub Shaikh,
               Occupation Driver, R/o Naikwadipura




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             Sangamner, District Ahmednagar.

     6)      The Manager, The New India
             Assurance Co. Ltd.
             Near Wasan Automobiles, New Bombay
             Agra Road, Nashik           ..Respondents.

                                      ____

     Ms. Madhura Deshmukh h/f Mr. S.S.Kulkarni, Advocate
     for the Appellant.
     Ms. Minal Chaudhari h/f Mr. J.S.Chandnani for
     Respondent No.3.
                              ____

                               CORAM : C.V. BHADANG, J.

DATE : 22 nd May, 2017.

ORAL JUDGMENT:

1) The appellant/claimant in MACT Petition No.

528 of 1990 before the Motor Accident Claims Tribunal,

Nashik ("Tribunal" for short), is seeking enhancement

of compensation. The Tribunal by the impugned award

has granted compensation of Rs.5000/- to the appellant

along with interest @ 12% per annum.

2) The brief facts necessary for the disposal of

the petition may be stated thus :

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At the relevant time, the appellant was

working as a storekeeper with the Sangamner

Municipal Council. On 31.5.1990 a truck bearing No.

MTD-4074 belonging to the Municipal Council was taken

to Nashik for collecting iron sheets, which the Municipal

Council had purchased. The appellant was one of the

occupants of the truck. When the truck reached near

village Malewadi on the Nashik Pune road, at about 9:00

p.m. it met with an accident involving a jeep bearing No.

MXV-7551. In the accident the appellant suffered injury

to his head, face and the left scapula. According to the

appellant, the injuries have resulted into permanent

partial disability to the extent of 50%. It is contended

that the appellant was a "lefty" and used to write by his

left hand and thus on account of the injury to the left

scapula has suffered permanent partial disability. The

appellant had restricted his claim for compensation to

Rs. 1 lakh.

     3)               Before the Tribunal the appellant examined





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himself along with one Ramesh who was a clerk working

in the Health Department of the Municipal Council. The

appellant neither examined any Medical Officer nor

produced the disability certificate/medical certificate,

showing the nature of the injuries.

4) The Tribunal decided MACP No 528 of 1990

along with other connected petitions by a common

judgment and award dated 25th June, 1999 holding that

the driver of the jeep was negligent. Be that as it may, in

the present appeal we are only concerned with the

quantum of compensation awarded to the appellant.

5) I have heard the learned counsel for the

appellant and the learned counsel for the respondent

no.3. With the assistance of the learned counsel for the

parties, I have gone through the record and the

impugned judgment.

6) It is submitted by the learned counsel for the

appellant that the appellant has produced the disability

certificate dated 15th September, 1992 showing that the

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appellant has suffered fracture of the clavicle left side

and to the effect that the appellant has restricted

movement on account of same. The disability certificate

is issued by the Medical Officer, Municipal Dispensary

Municipal Council at Shrirampur. It is submitted that

the Tribunal thus erred in awarding meagre

compensation of Rs. 5,000/-. It is submitted that the

appellant is suffering inconvenience in life on account of

the injury and has difficulty in writing by his left hand

and had also suffered in so far as his service career is

concerned.

7) On the contrary, it is submitted by the

learned counsel for the third respondent that the

appellant has not demonstrated that he has suffered

any actual or future loss of earning capacity. It is

submitted that the evidence of the appellant, in fact,

shows to the contrary as he had earned increments. It

is submitted that in the absence of the examination of

the medical officer, no reliance can be placed on the

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injury certificate and as such compensation granted is

reasonable and proper.

8) I have carefully considered the rival

circumstances and submissions.

9) At the out set, it is necessary to mention that

although the appellant has produced the injury

certificate, the medical officer who is the author of the

said certificate is not examined. The accident had

occurred on 31st May, 1990 while the injury certificate

shows that the appellant was examined in the OPD,

more than two years thereafter i.e. on 15th September,

1992. Although the injury certificate mentions that the

appellant had suffered fracture of the clavicle left side,

the said certificate does not make any reference to any

x-ray report either obtained immediately after the

occurrence of the accident or at the time when the

injury certificate is issued.

     10)              The learned counsel for the appellant has

     pointed         out       the   medical     certificate       dated        14 th





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September, 1990 issued by Dr. Pathak from Sangamner

who is a private practitioner in order to submit that the

certificate shows the appellant having sustained

fracture clavicle (left) with blunt injury to the left

shoulder and disfiguration on his forehead due to

lacerated wounds. The submission cannot be accepted.

The appellant has not examined the said doctor in order

to substantiate the medical certificate. The medical

certificate dated 14th September, 1990 also does not

refer to any x-ray report or x-ray examination

conducted. None of these medical certificates have been

formally "exhibited" before the Tribunal. I am conscious

of the fact that the strict rules of procedure and

evidence may not apply to the Tribunal. However, the

Tribunal would expect some material on which the

Tribunal can act while determining the extent of

disability. In my considered view, no reliance can be

placed on the medical certificate so produced.

     11)              It has come in the evidence of the appellant





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that, he had sustained injuries to the left side scapula

head and face. The appellant had also claimed that his

writing capacity has been affected on account of the

fracture to the left scapula. He further claimed that he

was in the Sangamner Hospital for about one and half

months and had spent Rs.12000/- to Rs. 15000/- for

purchase of medicine from outside. He further claimed

that he is suffering from pain due to the injuries. In

Paragraph 5 of the evidence the appellant claims that he

was getting gross salary of Rs.2200/- per month in the

year 1990 and at the time when he gave evidence i.e. on

24th September, 1998 he was getting Rs.6,000/- per

month. In the cross-examination on 25th September,

1998 the appellant claimed that he is getting Rs.9000/-

per month towards salary. Thus, it cannot be accepted

that the appellant suffered any loss of earning capacity.

However, the evidence does show that the appellant had

suffered injuries to his left scapula and head and face in

the course of the accident. It has also come on record

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that the appellant was all along treated in the

Government Hospital. Although the appellant claims

that he was required to purchase certain medicines

from outside, no such bills of purchase of the medicines

are produced. It further appears that there is no

evidence that the appellant was required to take leave

without pay or had suffered actual loss of salary. There

is no evidence in this regard which is forthcoming on

record. There is clear evidence that the appellant was

drawing gross salary of Rs.2200/- per month in the year

1990, while he was getting gross salary of Rs. 9,000/- in

the year 1998.

12) The Tribunal has refused to accept the case of

the appellant that his writing capacity is affected as he

is lefty on the ground that the appellant has not pleaded

in the petition that he is a "lefty". The learned Counsel

for the appellant has pointed out in the claim petition

that the appellant had pleaded that he is a "lefty". The

Tribunal has awarded compensation only on account of

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mental shock and agony. In my considered view,

looking to the nature of injuries which the appellant has

stated in evidence and the fact that the appellant has

pleaded and deposed that he is a "lefty" and thus has

suffered in terms of writing capacity by his left hand,

compensation of Rs.10,000/- can be awarded towards

pains and suffering and another Rs.10,000/- towards

the loss of convenience in life. Thus, the appeal is partly

allowed. The Judgment and award of the Tribunal is

modified. The appellant shall be entitled to get

compensation of Rs.20,000/- along with interest as

awarded. The rest of the Award is hereby confirmed.

The appeal is partly allowed to the aforesaid extent,

with no order as to costs.

(C.V. BHADANG,J)