Pankaj S/O Prakash Gudadhe vs Raju Ramprasad Sahu And 2 Others
2017 Latest Caselaw 8643 Bom

                                                  1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



First Appeal No. 1026 of 2016 

Appellant :              Pankaj son of Prakash Gudadhe, aged about
                         27 years, Occ: nil, resident of Anandwadi, 
                         Ward No. 3, Tiosa, District Amravati

                         Versus

Respondents:             1)   Raju Ramprasad Sahu, aged about 30
                         years,  resident of Shashi Nagar, Badnera Road,
                         Amravati

                         2) Ramprasad Channu Sahu, aged Major, 
                         Occ: not known, resident of Shashi Nagar,
                         Badnera Road, Amravati

                         3) ICICI Lombard General Insurance Co. Ltd.,
                         through its Officer,  ICICI Lombard House, 
                         414, Veer Savarkar Marg, Near Siddhivinayak
                         Temple, Prabhadevi, Mumbai 

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Shri S. S. Alaspurkar, Advocate for appellant Respondents served

Coram : S. B. Shukre, J

Dated : 13th November 2017

Oral Judgment

1. This is an appeal preferred against the judgment and order

dated 25th June 2014 passed by the Motor Accident Claims Tribunal,

Amravati in MACP No. 312 of 2011 seeking enhancement in

compensation.

2. The appellant, claiming himself to be a labourer doing

centering work, met with an accident on 18.4.2011 at about 08.45 pm

when he was proceeding from his house towards Benam Chowk on his

bicycle. When he reached near Junghare Hospital, respondent no. 1 who

was coming from opposite direction and driving motorcycle bearing

registration No. MH 27-AL-9472 of respondent no. 2, insured with

respondent no. 3, in a rash and negligent manner, gave dash to the

appellant who was going on a bicycle. As a result of accident, the

appellant sustained injuries to both of his arms and fracture of right leg

tibia. He was required to be operated upon. An artificial rod and nails

were inserted into his leg. Appellant was earning at that time Rs. 6000/-

per month. He was required to incur substantial medical expenses. He

sustained permanent disablement to the extent of 35%. In order to

seek compensation, the appellant filed petition under Section 166 of the

Motor Vehicles Act. It was resisted by the respondents.

3. On merits, the Tribunal found that only respondents

no. 1 and 2 were liable to pay compensation and exonerated respondent

no. 3 of its liability to pay the compensation on the ground that there was

breach of the policy as respondent no. 2 had no driving licence to drive

the vehicle. The Tribunal granted compensation of Rs. 32,364/- to the

appellant together with interest @ 8% per annum from the date of

petition till its realization. Not being satisfied with the same, the

appellant is befor this Court in this appeal.

4. Now, the following points arise for my determination:

(1) Whether respondent no. 3 has proved that it is not

liable to pay compensation on the ground of fundamental

breach of policy conditions ?

(2) Whether the compensation granted by the Tribunal

is just and proper ?

5. In the present case, although the Tribunal has found, by

relying upon the evidence of the officer from Regional Transport Office,

Amravati, that no driving licence was issued to respondent no. 1, there is

no finding recorded by the learned Chairman of the Tribunal that the

motor-cycle was driven by respondent no. 1 with the knowledge of

respondent no. 2 and that respondent no. 2 allowed respondent no. 1 to

drive the motor-cycle knowing fully well that respondent no. 1 was not

holding any valid licence. In order that the insurance company is

exonerated of its liability, it must be found that there is a fundamental

breach of the condition of the insurance policy by the insured. The

fundamental breach of the policy would lie in the fact that something

illegal has been allowed to be done by the insured. If a person not

holding a valid driving licence takes away vehicle and the owner of the

vehicle does not know that the person so taking away the vehicle is not

possessed of a valid driving licence, the owner of such vehicle would not

be in fundamental breach of the terms and conditions of the insurance

policy. The Tribunal ought to have recorded specific finding in this

regard. But, it has not done so. So, now it is left to this Court to consider

whether or not there is any fundamental breach of the policy.

6. The Insurance Company in order to prove that there is a

fundamental breach of the policy, must lead evidence regarding

knowledge of the owner of the offending vehicle. It must bring on record

the relevant circumstances as well. I could not come across in the instant

case good evidence or relevant circumstances avalable on record in this

regard. There is no one on behalf of the insurance company (respondent

no. 3) to point out presence of any such evidence or relevant

circumstances to enable this Court to accept the defence of the Insurance

Company. That being so, I am of the view that the Insurance Company

has failed to prove that there has been a fundamental breach of the terms

of the policy by the insured, respondent no. 2 in the present case and,

therefore, finding recorded by the Tribunal that the Insurance Company is

not liable to pay the compensation to the claimant is now held to be

perverse and not based upon the evidence available on record. This

finding is quashed and it is held that in the present case the insurance

company was also liable to pay compensation along with respondents no.

1 and 2. The first point is answered accordingly.

7. In the present case, there is no dispute about the fact that the

appellant was required to undergo compound fracture to tibia bone and

that he suffered injuries to both arms. His leg was operated during the

treatment by inserting artificial rod and nails into the fractured leg. The

Tribunal has not granted any amount under the head of permanent

disability. Under Section 142 of the Motor Vehicles Act, permanent injury

involves, inter alia, destruction or permanent impairing of the power of

any member or joint or organ of human body. In the present case, there

is no question of permanent impairment of power of any member or

organ of human body. The evidence of P.W. 2 Dr Ramdas Beltare

discloses that the appellant suffered 25% of the permanent disability

because of the injuries that he suffered to his right leg. But, the evidence

of this witness sofar as the explanation of permanent disability is

concerned, cannot be accepted for the reason that admissions given by

him during the course of his cross-examination taken on behalf of

respondent no. 3 show that he did not minutely examine the appellant.

He has admitted that he did not minutely examine the appellant. He has

admitted that he did not examine any previous X-Ray reports of the

appellant. He further admits that on his own he did not take X-Ray of the

appellant. He also admits that the appellant did not undergo any

physiotherapy post operation. Even the appellant admits that he did not

take any physiotherapy even for a day after recovery from the injury. A

person who has not taken any physiotherapy post injury, cannot stake any

claim that he has suffered particular percentage of permanent disability.

In order to establish permanent disability, there must be demonstrable

evidence of the certifying doctor, PW 2 Dr Beltare in this case. Such

evidence could be in the nature of X-Ray Report; report of physiotherapy

etc as well as conclusion drawn by examining doctors after his clinical

examination. But, in the present case, there is a clinical examination and

not the data revealed by X-ray report and report of physiotherapy. He was

also not the treating Doctor. Therefore, percentage of permanent

disability determined by P.W. 2 Dr Beltare cannot be accepted.

8. As regards his opinion about permanent disability, however, I

do not see any reason to disagree with the same. This doctor after all had

clinically examined the appellant and formed an opinion about the

disability permanently suffered by the appellant. His such an opinion

cannot be doubted only because the other relevant data is not available.

The other data would throw light upon the extent of permanent disability

and would also fortify the opinion formed on the permanent disability.

But, for that reason, opinion of an experienced doctor like P. W. 2 cannot

be discarded as his experience would enable him to know on just clinical

examination as to whether or not his patient has suffered permanent

disability. Added to this evidence, there are also admitted facts which if

read together would enable this Court to conclude that the opinion of

the doctor about permanent disability suffered by the appellant is correct.

The proved facts are about insertion of artificial rod and nails into the

right leg of the appellant in an operation carried upon him. When a

foreign object like rod is inserted within the main body, it can be

reasonably presumed that the condition of such a person after the

operation would not be completely normal and there would always be

some or the other deficiency in the functioning of the body part which can

be considered to be a permanent loss or impairment of the member or

joint as considered under Section 142 of the Motor Vehicles Act. This is

what has happened in the present case. In view of this, I am of the

opinion that the appellant having suffered permanent disability in the

accident, ought to have been granted compensation for the same. As it

has not been granted by the Tribunal, this Court declares that the

appellant is entitled to receive compensation of Rs. 25,000/- under the

head of "permanent disability".

8. The next question would be, as to whether or not the

permanent disability has resulted into loss of earning of the appellant and

this issue must be answered in the negative looking to the nature of

evidence brought on record by the appellant. The appellant himself has

not stated about the functional disability in a specific manner. He quite

in general terms states that this disablement has adversely affected his

ability to perform centering work. But, the appellant has not stated

anything about the manner in which the centering work is performed.

Some more evidence was required to be adduced in this regard by the

appellant. Then, there is also no evidence about the exact percentage of

permanent disability suffered by the appellant. The cumulative effect of

these lacunae would be that the appellant will not be entitled to

compensation for loss of future earning. The appellant, however, would

be entitled to receive some enhancement under the head of "pain and

suffering" and also some amount under the head of "future medical

treatment". The Tribunal has not granted anything for future medical

treatment of the appellant. But it can be visualized that the appellant

would be required to incur the same, because there is artificial rod

implanted in his leg which may be required to be removed/replaced in

future or would require some consultation with the doctor in future.

Therefore, on this count, an amount of Rs. 25,000/- can be reasonably

granted to the appellant. As regards pain and suffering, I am of the view

that in addition to the amount of Rs. 5000/-, the appellant should be

given Rs. 20,000/- more. The appellant would thus be entitled to receive

compensation as follows :

(1) Future medical treatment                    ..      Rs.  25,000/-

(2) Pains and sufferings                        ..      Rs.  25,000/-

(3) Loss of  income for three months ..                 Rs.   9,000/-

(4) Attendant charges and diet

      money etc.                                ..      Rs. 10,000/-

(5)  Permanent disability                       ..      Rs.  25,000/-

       Total compnsation payable                ..      Rs.  94,000/-

9. Accordingly, it is found that the appellant is entitled to

receive total compensation of Rs. 94,000/- which shall be payable by the

respondents jointly and severally. The points are answered accordingly.

10. In the result, appeal is partly allowed and impugned

judgment and order stand modified in terms of observations in

paragraphs 8 and 9 above. No order as to costs.

S. B. SHUKRE, J

joshi