Bombay High Court
Bharti Axa General Insurance ... vs Gautam S/O Ramesh Balvir And ... on 12 September, 2017
Bench: S.B. Shukre
(Judgment) 1209 FA 698-2017 1/15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 698/2017
Bharti Axa General Insurance Company Ltd.,
5th Floor, Nikhalas Tower, Ramdaspeth,
Nagpur, Tah. and District - Nagpur,
through its Regional Office located at
1st Floor, B Block, Vishnu Vaibhav Complex,
Palm Road, Civil Lines, Nagpur - 440001,
through its Manager (Legal),
Shri Idris Zahid Khanwala. APPELLANT
.....VERSUS.....
1] Gautam S/o Ramesh Balvir,
Aged about 28 years, Occu: Nil,
R/o. Siddharth Nagar, Ward No.2,
Nachangaon, Tah. Deoli, Distt. Wardha.
2] Vinod S/o Narayan Kholade,
Aged - Adult, Occu: Business,
R/o. Sonaro Dhok, Tah. Deoli,
Distt. Wardha.
3] Amol S/o Sudhakar Gajbhe,
Occu: Driver, R/o. Nachangaon,
Tah. Deoli, Distt. Wardha. RESPONDENTS
Shri R.D. Bhuibhar, counsel for appellant.
Smt. S.S. Banerjee, counsel for respondent no.1.
Shri N.R. Tekade, counsel for respondent no.3.
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(Judgment) 1209 FA 698-2017 2/15
CORAM: S.B. SHUKRE, J.
DATE : SEPTEMBER 12, 2017.
ORAL JUDGMENT :
Heard Shri Bhuibhar, learned counsel for the
appellant, Mrs. Banerjee, learned counsel for respondent
no.1 and Shri Tekade, learned counsel for respondent
no.3. None appears for respondent no.2, though duly
served on final disposal.
2] ADMIT.
3] Heard finally by consent of the learned
counsel for the appellant, respondent no.1 and
respondent no.3 and also in terms of the order passed by
this Court on 29/08/2017.
4] Perused the paper book of the appeal,
privately prepared by the appellant and placed on record
of this appeal, with the permission of this Court. Now
following points arise for my determination :
(Judgment) 1209 FA 698-2017 3/15
"(i) Whether unexplained delay occurred in
filing of the F.I.R. by the respondent no.1, has proved to
be fatal to the case of the respondent no.1 regarding
occurrence of the accident due to rash and negligent
driving of the offending vehicle?
(ii) Whether the compensation awarded by
the Tribunal is just and proper?"
5] On 08/03/2012, at about 4:30 p.m., when
the respondent no.1 was proceeding from Pulgaon to
village Nachangaon on his motorcycle, he came across
one Tata Magic vehicle bearing registration no. MH-
32/C-6593 (offending vehicle), which was, in the
opinion of the respondent no.1, being driven in a rash
and negligent manner. Soon thereafter, the offending
vehicle collided head on, with the motorcycle driven by
the respondent no.1. The respondent no.1 fell down on
the road and sustained grievous injuries in the accident.
Initially he was taken to Kasturba Hospital for immediate
treatment and thereafter he was shifted to other
hospital. The left arm of the respondent no.1 sustained
fracture and in order to set right the fracture, the
(Judgment) 1209 FA 698-2017 4/15
respondent no.1 was required to be operated upon for
insertion of steel rod. The operation was carried out by
Dr. Ajit Phadke. About five months thereafter, the
respondent no.1 was again examined by Dr. Ajit Phadke
and as it was apprehended by that time that the
respondent no.1 may not recover fully from the injuries
of his left arm, on examination, the Doctor opined that
the respondent no.1 sustained permanent disability of
his left arm to the extent of 34%. The respondent no.1
by that time had also incurred substantial expenditure
for treatment of his injuries.
6] In order to get his loss indemnified, which he
suffered in the accident, respondent no.1 filed the claim
petition under Section 166 of the Motor Vehicles Act. It
was resisted by the respondent nos.2 and 3, the owner
and the driver of the offending vehicle, who filed the
common written statement. They, however, did not deny
the occurrence of the accident and involvement of the
offending vehicle in the accident. They also admitted
that the offending vehicle was insured with the
appellant. The appellant too denied the claim of
(Judgment) 1209 FA 698-2017 5/15
respondent no.1 by filing a separate written statement.
7] Upon consideration of the evidence adduced
by both sides and arguments of the contesting parties,
the Tribunal came to the conclusion that accident
occurred only due to rash and negligent driving of the
offending vehicle, in which the respondent no.1
sustained permanent disability to the extent of 34%.
But, the Tribunal also found that the suffering of 34% of
the permanent disability by the respondent no.1, did not
equally reduce his earning capacity and by resorting to
some guess work, the Tribunal further found that
reduction of earning capacity was only to the extent of
20%. Accordingly, the Tribunal partly allowed the claim
petition and granted compensation of Rs.3,86,000/-
together with interest at the rate of 9% per annum from
the date of petition till actual realization, to the
respondent no.1 and it was made payable jointly and
severally by the appellant and the respondent nos.2
and 3, by the impugned award passed on 17/02/2017.
This appeal is preferred against this award by the
appellant, not being satisfied with the findings so
(Judgment) 1209 FA 698-2017 6/15
recorded by the Tribunal.
8] According to learned counsel for the
appellant, there has been an unexplained delay in filing
of the F.I.R., which was filed about 21 days after the
occurrence of the accident. He submits that while the
accident occurred on 08/03/2012 at 4:30 p.m., F.I.R.
was filed by the respondent no.1 on 29/03/2012 and
that too, without giving any explanation for belated
filing of the F.I.R. The learned counsel for the
respondent no.1, however, differs. She submits that if
one looks at the evidence available on record, one would
find that the assertions made by the respondent no.1 in
this regard, have not been disputed by the insurance
company, which is appellant herein. The learned counsel
for respondent no.3 is also of the same opinion.
9] Upon going through the evidence available on
record, particularly that of the claimant i.e. PW-1
Gautam (respondent no.1), one would find that
assertion made by him that accident occurred only due
to rash and negligent driving of the offending vehicle by
(Judgment) 1209 FA 698-2017 7/15
it's driver (respondent no.3), has not been disputed by
the appellant. There is not a single suggestion of denial
given to PW-1 Gautam during the course of his cross-
examination taken on behalf of the appellant. Even
otherwise, respondent nos.2 and 3, the owner and the
driver of the offending vehicle, after having filed their
written statement in the petition, the defence that there
was no rashness and negligence on the part of
respondent no.3, was not available to the insurance
company i.e. appellant. Therefore, I am of the view that
the Tribunal has rightly found that the accident occurred
only due to rashness and negligence shown by the
respondent no.3 in driving the offending vehicle and
that was the cause for sustaining of grievous injuries by
the respondent no.1. So, belated filing of the F.I.R. in
this case, has not been proved fatal to the case of the
respondent no.1. The point no.1 is accordingly answered
in the negative.
10] Shri Bhuibhar, learned counsel for the
appellant, further submits that even though the
respondent no.1 had approached the committee
(Judgment) 1209 FA 698-2017 8/15
constituted at Wardha General Hospital for examination
of the patients, claiming to be suffering with permanent
disability and for issuing disability certificate, the
certificate, if any, issued by such committee showing
suffering of permanent disablement of respondent no.1
was not produced by him. He also submits that, on the
contrary, there is a clear cut admission given by the
respondent no.1 that this committee of Wardha General
Hospital refused to issue permanent disability certificate
to respondent no.1. Thus, he submits that, the certificate
issued by PW-2 Dr. Ajit Phadke, allegedly showing
suffering of 34% permanent disability, cannot be relied
upon. The learned counsel for the respondent no.1 and
respondent no.3 submit that even though the committee
at Wardha General Hospital refused to issue permanent
disability certificate, the permanent disability certificate
was indeed issued by the doctor, who treated the
respondent no.1 and unless and until it is shown that the
certificate issued by the treating doctor is not founded
upon the medical evidence, such certificate cannot be
discarded from consideration by the Court.
(Judgment) 1209 FA 698-2017 9/15
11] It is true that PW-1 Gautam, in his cross-
examination taken on behalf of the appellant, has
admitted that though he had asked for issuance of
permanent disability certificate from the committee
constituted at Wardha General Hospital, it was not
issued to him. But, we have before us a permanent
disability certificate issued by Dr. Ajit Phadke, who is the
second witness of the respondent no.1 in the present
case. Now, the question would be just because
competent committee at Wardha General Hospital
refused to issue permanent disability certificate to the
respondent no.1, could it be said that the permanent
disability certificate (Exh.85) issued by PW-2 Dr. Ajit
Phadke, is not genuine or is based upon no medical
evidence, and I think answer would have to be given as
in the negative. The reason being that, PW-2 Dr. Ajit
Phadke, without any dispute, was a doctor who actually
treated the respondent no.1 for the injuries that he
suffered in the nature of fracture to the left arm.
Admittedly, none of the doctors on the committee of
Wardha General Hospital had any opportunity to treat
respondent no.1 for his such injuries at any point of
(Judgment) 1209 FA 698-2017 10/15
time. Of course, that committee had clinically examined
the respondent no.1 as is seen from the evidence of
PW-1 Gautam. But that committee, it is further seen
from the evidence of PW-1 Gautam, refused to take
radiological report of the respondent no.1 by making
him undergo the x-ray examination.
12] The reason for refusal of the constituted
committee at Wardha General Hospital, to take
radiological report has not appeared in the evidence of
PW-1 Gautam, though there may be a reason for it. The
admissions regarding clinical examination of respondent
no.1 by Wardha General Hospital committee and its
refusal to issue certificate appear in the cross-
examination of the respondent no.1 taken on behalf of
the appellant. Therefore, if further question had been
put to him in order to elicit the reason for not issuing the
permanent disability certificate by Wardha General
Hospital committee, perhaps some useful material for
appreciating the impact of these admissions would have
surfaced. But, no further questions were put to
respondent no.1. The respondent no.1, it appears, also
(Judgment) 1209 FA 698-2017 11/15
did not voluntarily give any reasons for non-issuance of
permanent disability certificate by the constituted
committee at Wardha General Hospital and that may be
because of his inexperience in appearing before the
courts and tendering the evidence. Therefore, only
because respondent no.1 has not clarified by giving any
explanation regarding non-issuance of permanent
disability certificate by Wardha General Hospital
committee, it would not mean that the only reason for
such none-issuance was that respondent no.1 was not
suffering from any permanent disability. There could be
several other reasons and unless and until existence of
those other reasons is not ruled out, no inference can
be drawn that the non-issuance of certificate by the
committee was because respondent no.1 had no
permanent disability and as such no significance to these
admissions could be given. It would then follow that
evidence of PW-2 Dr. Ajit Phadke, on the point of
permanent disability of respondent no.1 cannot be
discarded, rather, requires consideration, he being the
treating doctor.
(Judgment) 1209 FA 698-2017 12/15
13] Now, if one considers the evidence of PW-2
Dr. Ajit Phadke, one would found that no doubt about
the issuance of the disability certificate has been
expressed in his cross-examination taken on behalf of the
appellant. What has been suggested to him is that the
disability certificate was issued by him without
consideration of the requisite parameters. It has been
suggested to him that the mentioning of those
parameters, which relate to muscular end feel, ligament
end feel and bone end feel, is essential in the permanent
disability certificate, which suggestions have been clearly
denied by him. Then, PW-1 Gautam i.e. respondent no.1
himself in his evidence, has stated that because of the
grievous injuries suffered by him in this accident, he
developed a permanent disability which made it
impossible for him to perform heavy tasks. This assertion
of PW-1 Gautam has not been disputed in any manner
by the appellant, if one takes a hard look at his cross-
examination taken on behalf of the appellant. The
cumulative effect of evidence of PW-2 Dr. Ajit Phadke
and the evidence of PW-1 Gautam, would be that the
respondent no.1 succeeded in proving his case that in
(Judgment) 1209 FA 698-2017 13/15
the present accident he suffered a permanent disability
of his left arm and it is to the extent of 34 %. The finding
recorded by the Tribunal, in this regard, cannot be
faulted with.
14] The next question would be, whether the
permanent disability of 34 % could also be equally
linked to the loss of earning capacity in the present case
or not. According to the Tribunal, it cannot be equally
linked and there has to be a practical view taken of the
whole issue. Accordingly, the Tribunal found that the
loss of earning capacity was only to the extent of 20 %
and this has been determined by the Tribunal by doing
some guess work. I could not find any reference point for
making such guess work by the Tribunal. Nevertheless,
what is more important now is the fact that such
reduction in the percentage of the loss of earning
capacity has not been challenged by the respondent
no.1. That apart, on a closer scrutiny of evidence, I am
able to discover a faint hint in this regard. It is about the
ability of respondent no.1 to perform at least some of the
tasks by using his left arm. If this is the case, one may as
(Judgment) 1209 FA 698-2017 14/15
well say, the reduction in earning capacity here is not
coextensive with percentage of permanent disability and
the reduction in earning capacity could be about half of
the percentage of disability, which by rounding off
exercise, would come to 20%. I think these could be
reasons enough for us to uphold the finding recorded by
the Tribunal to the effect that so far as loss of earning
capacity is concerned, it is only to the extent of 20%.
Once this is done, I do not think that the calculations
carried out by the Tribunal in determining the final
amount of compensation, payable to the respondent
no.1, could be found to be erroneous.
15] In the circumstances, I am of the opinion that
the final amount of compensation awarded by the
Tribunal to the respondent no.1, is just and proper.
There is no scope for making interference in the
impugned award. Second point is answered in the
affirmative.
16] Thus, I find no merit in the appeal. It
deserves to be dismissed.
(Judgment) 1209 FA 698-2017 15/15
17] Appeal stands dismissed.
18] Parties to bear their own costs.
JUDGE
Yenurkar
