Bombay High Court
Sanjay Madhavrao Shinde vs Kailash Nathuji Paikrao & 2 Ors on 24 May, 2017
Bench: B.P. Dharmadhikari
Judgment. fa560.07
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 560 OF 2007.
Sanjay s/o Madhavrao Shinde,
Aged about 34 years,
Occupation - Cultivator,
(Original Claimant). ..... APPELLANT.
VERSUS
1. Kailash Nathuji Paikrao,
Aged about 30 years,
Occupation - Driver, resident of
Azad Ward, Bedki, Tahsil Pusad,
District Yavatmal.
2.Madhukar Manikrao Thakre,
Aged about major, resident of
Sambhaji Nagar, Tahsil Pusad,
District Yavatmal.
(Appeal dismissed against
respondent nos. 1 and 2).
3.The New India Insurance Company
Limited, Branch at Amravati
through its Divisional Manager,
Amravati. ..... RESPONDENTS.
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Judgment. fa560.07
2
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Shri K.S. Narwade, Advocate for the Appellant.
None for Respondent No.3.
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CORAM : B.P. DHARMADHIKARI,
J.
DATE : MAY 24, 2017.
ORAL JUDGMENT :
Heard Shri K.S. Narwade, learned Counsel for the
appellant/victim. He states that respondent nos.1 and 2 i.e.
owner of the offending vehicle (Jeep) and its driver were ex-
parte before the Motor Accident Claims Tribunal and in present
appeal, though steps were taken to complete service upon
them, appellant could not succeed and hence appeal has been
dismissed for want of prosecution against them. However,
respondent no.3 Insurance Company contested the matter
before the Claims Tribunal and though it is served in the
present appeal, it has chosen not to appear.
2. His grievance is that the Motor Accident Claims
Judgment. fa560.07
Tribunal has adopted too technical approach and assertion on
oath by the appellant, who has sustained 60% disability, has
not been accepted. He submits that appellant most probably
went as per the legal advice then received and therefore claim
was also not properly drawn. However, the documents placed
on record and exhibited before the Claims Tribunal itself reveal
medical expenditure in excess of Rs.98,000/- and considering
the proved disability of 60% and young age of the appellant,
grant of compensation of Rs. 30,000/- only under the heads
like pain, loss of amenity, loss of expectancy is too meager. He
argues that both the legs (thigh portion) got fractured and as
such appellant could not have driven the truck and earned
livelihood. Similarly, though he was supervising the
agricultural operations, because of 60% disability, the extent of
supervision or efficiency therein is also adversely affected. He
submits that considering the material available on record an
appropriate amount could have been worked out under these
heads and compensation ought to have been awarded. He
argues that even when a lady in the family is injured and she is
not earning anything, her notional earning capacity is worked
Judgment. fa560.07
out. In this situation, according to him, as truck could not be
driven by the appellant, arrangement may have been made for
driver and for agricultural operations also some other alternate
arrangement may have been evolved. He is placing reliance
upon a judgment of Hon'ble Supreme Court reported at 2013
All SCR 2566 (G. Ravindranath @ R. Chowdary .vrs. E.
Srinivas and another), to point out various heads of damages.
He further contends that erroneous drafting of claim petition
does not absolve the Claims Tribunal from its obligation to
extend the benefit of welfare legislation to the ignorant and
illiterate person like the appellant.
3. As already noted supra, the impugned adjudication
by the Claims Tribunal has attained finality as against the
owner of the offending vehicle and its driver. The Claims
Tribunal has in its judgment dated 08.12.2006, directed all
three to jointly and severally pay Rs. 1,03,277/- to present
appellant with interest @ 6% from the date of application till
realization.
Judgment. fa560.07
4. Effort of Shri Narwade, learned Counsel appearing
for the appellant is to urge that this amount of Rs. 1,03,277/- is
inadequate.
In this situation, following points arise for
determination.
(1) Whether the Appeal can be proceeded
further and amount of compensation
awarded by the Motor Accident
Claims Tribunal can be altered to the
prejudice of respondent nos. 1 and 2 ?
(2) Whether there is any error apparent
in the impugned judgment ?
5. The fact that owner of jeep and its driver did not
participate in the proceedings before the Claims Tribunal and
Claims Tribunal was required to proceed ex-parte by passing
order on 18.07.2005, is apparent from record. In this situation,
when the impugned judgment finds them jointly and severally
responsible along with the Insurance Company, if the
Judgment. fa560.07
entitlement of appellant is to be enhanced, mere fact that they
are not appearing and contesting the present proceedings
would have been sufficient and this Court could have
proceeded further to adjudicate the controversy.
6. However, here in appeal they are joined as
respondent nos. 1 and 2 and the appellant has not completed
service upon them, with the result if order already passed in
their favour is to be varied to their prejudice, necessary
opportunity stands denied to them.
7. Perusal of records show that the Claims Tribunal has
accepted amount of Rs. 98,277/- towards medical charges. Not
only this, but, Medical Board and Doctor have independently
ascertained and certified permanent disablement to the extent
of 60%. This 60% disablement and its impact on earning
capacity of appellant does not find any mention and
consideration in the impugned judgment. The appellant has
claimed that he was owning a truck and was driving it.
Whether because of this permanent disability he is not in a
Judgment. fa560.07
position to undertake driving, is the moot question. No
evidence has been adduced in that connection. Similarly, if he
was supervising the agricultural operations, effect of this
permanent disability upon that supervision is also not
considered.
8. Exh.35, a certificate issued by Dr. Phadke shows that
the appellant was indoor patient from 14.08.2003 till
20.11.2003 and then an outdoor patient from 21.11.2003 to
07.04.2004. He has certified permanent disability to be 60%.
Exh. 36 is the certificate of Medical Board. Said certificate
dated 07.04.2004 declares appellant physically handicaped
permanently to the extent of 60%. Thus, disability suffered by
the appellant has come on record sufficiently. However, its
impact has not been gone into.
9. If impact of this disability is to be evaluated, it is
apparent that the amount of compensation awarded by the
Claims Tribunal would be required to be revised upwards. Not
only this, the Claims Tribunal has awarded amount of
Judgment. fa560.07
Rs.30,000/- only under four heads i.e. Mental agony, pain,
traveling, diet etc. This treatment given by the Claims Tribunal
also does not appear to be correct. If this part is to be
modified, again opportunity of hearing needs to be extended
even to respondent nos. 1 and 2.
10. In this situation, when the appeal is already
dismissed as against respondent nos. 1 and 2, I find that behind
their back no enhancement can be awarded only against
respondent no.3 Insurance Company. Hence, I find it not
possible to grant any relief in this appeal. First Appeal is,
therefore, dismissed. Rule discharged.
11. At this stage, Shri Narwade, learned Counsel invites
attention of the Court to a judgment delivered by the learned
Single Judge of this Court reported at 2008 (4) Mh.L.J. 793
(Bismilla Abidulla Ansari and another .vrs. Kishorkumar N.
Shah and another), particularly paragraph no.17. Findings
and observations in paragraph no.17 show that the insured was
party respondent in appeal and when matter was being heard
Judgment. fa560.07
by the learned Single Judge, the appeal was very much pending
against that insured owner. Here, the appeal against the
insured owner and driver of the vehicle is already dismissed
vide order dated 25.06.2013. Therefore, the said judgment has
no application in present facts.
JUDGE
Rgd.
