Bombay High Court
United India Insurance Co. Ltd. ... vs Namdeo Suryabhan Jiddewar & 2 Ors on 29 September, 2017
Bench: I.K. Jain
fa.280.08.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.280 OF 2008
United India Insurance Co. Ltd.,
Through its Divisional Manager,
Badnera Road, Amravati. .... Appellant
-- Versus -
01] Namdeo Suryabhan Jiddewar,
Aged about 38 years, Occ: Contractor,
C/o Mahesh Xerox, Tahsil Chowk,
Pandharkawada, Tah. Kelapur,
District Yawatmal.
02] G. Shriniwasan B. Venkataroyappa,
Aged about 30 years, Occ: Driver,
R/o Gundu Hully, Sidloghotta,
Kolutdul (A.P.)
03] M. Basheer Khan s/o Mohd. Imran Khan,
Aged major, Occ: Transportation,
R/o D-No.6-85A, Kolimyapps, Swami Street,
Hindapur, Dist. Anantpur (A.P.) .... Respondents
Shri M.R. Kalar, Advocate for the Appellant.
None for the Respondents.
CORAM : KUM. INDIRA JAIN, J.
DATE : SEPTEMBER 29, 2017.
ORAL JUDGMENT :-
This appeal takes an exception to the judgment and
award dated 04/12/2007 passed by the Motor Accident Claims
Tribunal, Pandharkawada (Kelapur), District Yavatmal in Motor
Accident Claim No.344/2005. By the said judgment and order,
Tribunal awarded compensation of Rs.7,26,000/- along with
interest at the rate of Rs.7.50% per annum from the date of
application till its realization including the amount of 'no fault
liability'.
02] For the sake of convenience, parties are referred in
their original status as they were referred before the Tribunal.
03] The facts giving rise to the appeal may be stated in
nutshell as under :
i. Respondent no.1 is claimant, respondent no.2 is driver
and respondent no.3 is owner of the vehicle involved
in the accident. Appellant is an insurer of Truck No.AP-
02/V-3358 (hereinafter referred to as 'offending
vehicle' for short).
ii. On 12/05/2001, insured along with his friend had been
to Patanbori to supervise the work of contract. After
the work was over, applicant and his friend were
returning to Pandharkawada on motorcycle. Applicant
was riding motorcycle. Near Ganpati Deosthan, Forest
Rest House at Pandharkawada-Adilabad Road, near
village Sunna, Truck No.AP-02/V-3358 came from the
opposite direction and gave dash to motorcycle of the
applicant. According to applicant, the truck was in a
high speed and as it's driver was driving the same in a
rash and negligent manner, he lost the control, which
resulted into a violent dash. Both applicant and his
friend were thrown away from motorcycle and
sustained severe injuries. Applicant was admitted to
Government Hospital, Nagpur.
iii. It is the case of applicant that at the time of accident,
he was 35 years old and working as a contractor. Due
to accident, he lost his working and earning capacity.
He claimed compensation of Rs.10.00 lacs from the
owner and insurer of the offending vehicle on account
of permanent disability suffered due to vehicular
accident.
iv. The owner and driver of the vehicle remained absent
though duly served with the summons. Petition
proceeded ex parte against them.
v. Insurance company resisted the claim vide written
statement [Exh.16]. According to the Insurance
Company, accident took place due to rash and
negligent riding of motorcycle by the applicant. It was
submitted that applicant was not having a valid and
effective driving licence. The brother of applicant
lodged a false report though applicant himself
contributed to the accident. It was submitted by the
insurer that insurance company of motorcycle was a
necessary party and application deserves to be
dismissed for non-joinder of necessary party.
vi. Considering the rival pleadings raised by applicant
and insurer, Tribunal framed issues at Exh.30.
Applicant examined himself as PW-1 and Dr. Deepak
Dabhere as PW-2 in support of his case. In addition to
oral evidence, reliance came to be placed on police
papers, permanent disability certificate and the
medical bills. On the scrutiny of evidence, Tribunal
considering monthly income of the applicant as
Rs.5,000/- and taking permanent disability as 60%,
applied multiplier of 16 and awarded compensation of
Rs.7,26,000/- including medical expenditure of
Rs.1,50,000/-. It is this order, which is the subject
matter of challenge in the present appeal.
04] Heard Shri M.R. Kalar, learned Counsel for appellant.
With the assistance of learned Counsel, this Court has minutely
perused the impugned judgment and award passed by the
Tribunal. Appellant has raised two fold contentions in the appeal
- (i) Though spot-panchnama indicates that motorbike was lying
in the middle of the road, Tribunal did not consider the same and
weighing the evidence one sided, held that driver of the truck
was responsible to cause accident. The submission is that
applicant substantially contributed to the negligence and
considering the plea of contributory negligence raised by the
appellant, Tribunal ought to have reduced the liability imposed
on the appellant. (ii) The second contention is regarding
quantum of compensation. According to the appellant, income
tax return submitted by claimant indicates yearly income as
Rs.21,985/-. The Tribunal instead of relying upon the
documentary evidence, placed reliance on the oral testimony of
claimant and wrongly took Rs.5000/- as monthly income. It is
submitted that considering the annual income as per income tax
return, claimant was entitled to amount of Rs.3,61,056/- at the
most. Learned Counsel submitted that medical bills [Exh.37/1 to
Exh.37/33] would clearly indicate that they are not in the name
of claimant. Still the medical expenditure towards those bills
came to be awarded without ascertaining that the expenditure
was incurred by claimant. It is submitted that Tribunal has not
recorded any reason for not considering the documentary
evidence regarding income of claimant and for not rejecting the
claim towards medical expenses particularly under the bills
[Exh.37/1 to Exh.37/33], which are not in the name of the
applicant. According to the learned Counsel, in view of the
documentary evidence, guesswork was not permissible, but
Tribunal travelled beyond its jurisdiction and ignoring income tax
return, considered monthly income of claimant as Rs.5,000/-,
even though claimant has no where stated that his monthly
income was Rs.5,000/-. It is submitted that the documentary
evidence needs to be properly appreciated and the impugned
order passed in a mechanical way needs to be set aside.
Learned Counsel submits that it is a fit case to remand the
matter to Tribunal for its decision afresh.
05] So far as the plea regarding contributory negligence is
concerned, in written statement [Exh.16], insurance company
has specifically stated that accident occurred due to rash and
negligent driving of motorcycle by the applicant himself. The
plea of contributory negligence though raised in written
statement has not been considered by Tribunal. No issue was
framed on the defence raised by the insurance company.
06] So far as quantum of compensation is concerned,
Tribunal in paragraph 13 of the judgment, in one line brushed
aside the income tax return produced by claimant showing that
his annual income for the relevant year was Rs.21,985/-. No
reason has been assigned by Tribunal for not considering the
annual income of claimant shown in the return filed by claimant.
The guesswork regarding monthly income as Rs.5,000/- is
neither supported by oral evidence nor by the documentary
evidence.
07] So far as medical bills are concerned, on perusal of
medical bills [Exh.37/1 to Exh.37/33], it is apparent that most of
the bills are in the name of Shri Annaji Mahajan. The name of
claimant is Namdeo Suryabhan Jiddewar. There is no whisper
either in the petition or in the evidence that claimant is also
known as Shri Annaji Mahajan.
08] In view of these facts apparent on record, Tribunal
was not justified in awarding medical expenditure incurred vide
Exh.37/1 to Exh.37/33 to the claimant. This clearly indicates that
without considering the evidence in its proper perspective,
compensation was awarded mechanically. This Court, therefore,
finds substance in the submission of learned Counsel for
appellant that matter needs to be remanded to the Tribunal for
its fresh decision. Hence, the following order :
ORDER
I. Impugned judgment and award dated 04/12/2007
passed by the Motor Accident Claims Tribunal,
Pandharkawada (Kelapur) in M.A.C. No.344/2005 (Old
No.123/2002) is quashed and set aside.
II. Matter is remitted to the Tribunal for its fresh decision
in accordance with the law.
III. Since the accident is of the year 2001, Tribunal is
expected to decide the petition as expeditiously as
possible and in any case within a period of six months
from the date of receipt of this order.
IV. There shall be no order as to costs.
V. First Appeal No.280/2008 stands disposed of in the
above terms.
*sdw (Kum. Indira Jain, J)
