Bombay High Court
The New India Assurance Co.Ltd vs Shri. Vijay Devraj Jadav And Anr on 4 January, 2021
Bench: C.V. Bhadang
22 fa 663-19=
Sneha N. IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Chavan CIVIL APPELLATE JURISDICTION
Digitally signed by
Sneha N. Chavan FIRST APPEAL NO. 663 OF 2019
Date: 2021.01.05
16:53:35 +0530
The New India Assurance Co. Ltd. .. Appellant
V/s.
Vijay Devraj Jadhav and Anr. ..Respondents
----
Mr. D.R. Mahadik for the Appellant.
Mr. T.J. Mendon, for the Respondent No.1.
----
CORAM : C.V. BHADANG, J.
DATE : 04th JANUARY, 2021
: JUDGMENT :
1. By consent of parties, appeal is taken up for final disposal.
2. The appellant/insurance company is challenging the judgment
and award dated 19.01.2013 passed by the Motor Accident Claims
Tribunal, Mumbai in Claim Application No. 3308 of 2006. By the
impugned award, the first respondent (claimant) has been granted
compensation of Rs.1,83,370/- alongwith interest at the rate of
7.5% per annum from the date of application till realisation.
Sneha Chavan page 1 of 6
22 fa 663-19=
3. On 12.10.2006 at about 21.00 hrs, the first respondent was
proceeding on foot on the LBS Marg, Kurla (west). When the first
respondent reached opposite Night Girl CHS, the second respondent
came on a motorcycle bearing No. MH-01-TA-3186 and gave a dash
to the first respondent, as a result of which, the first respondent
sustained injuries resulting into permanent partial disablement to
the extent of 48%.
4. The first respondent filed Claim Application No. 3308 of 2006
before the Motor Accident Claims Tribunal, Mumbai. The appellant
resisted the claim. It was denied that the accident occurred due to
rash and negligent driving of the second respondent. It was the
material defence that the second respondent was not holding a valid
and effective driving licence on the date of the accident.
5. Before the Tribunal, the first respondent examined himself
alongwith Dr. Naresh Khanna (AW No.2) and produced copy of FIR
and spot panchnama as well as disability certificate and the copy of
the insurance policy. The appellant did not adduce any evidence in
support of its defence.
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22 fa 663-19=
6. The Tribunal by the impugned award has granted
compensation of Rs.1,83,370/- alongwith interest at the rate of
7.5% per annum from the date of application till realisation.
7. I have heard the learned counsel for the appellant and the
learned counsel for the respondent No.1. Perused record.
8. It is submitted by the learned counsel for the appellant that
there is no evidence to show that the accident occurred solely due to
the rash and negligent driving of the second respondent. It is
submitted that on his own saying, the first respondent was in an
attempt to cross the road, when the accident occurred and thus,
possibility of the accident having occurred due to the
negligence/carelessness of the first respondent, cannot be ruled out.
Secondly, it is submitted that the first respondent has not proved
that the second respondent was holding a valid and effective driving
licence. Lastly, the learned counsel also questioned the quantum of
compensation granted.
9. The learned counsel for the respondent No.1 has supported
the impugned award. It is submitted that the appellant has not led
any evidence to prove its defence.
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22 fa 663-19=
10. I have considered the circumstances and the submissions
made. It is undisputed that during the course of investigation, it was
found that the accident was a result of rash and negligent driving of
the second respondent and the second respondent was
chargesheeted for an offence punishable under Section 279, 337 and
338 of the IPC. The first respondent has examined himself stating
that the accident was a result of rash and negligent driving of the
second respondent. The appellant has not led any evidence in
rebuttal. It is now well settled in a claim petition, negligence can be
proved on the basis of preponderance of probability. The Tribunal
after appreciating the evidence of the first respondent/claimant and
record produced, has come to the conclusion and to my mind rightly
so that the accident occurred due to the rash and negligent driving
of the second respondent.
11. Insofar as the defence of the second respondent not holding a
valid and effective driving licence is concerned, here again, the onus
lay on the appellant to prove its defence which the appellant has
failed to establish.
12. Coming to the issue of quantum, the Tribunal has considered
that the first respondent was the proprietor of M/s. D.V. Engineering
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22 fa 663-19=
and was having his own lathe machine and was in the business of
manufacturing of spare parts and was earning Rs.10,000/- per
month. The first respondent has produced the copies of the income
tax returns for the year 2003-04, 2004-05 and 2005-06. His income
for three years is shown to be Rs.64,842/-, Rs.84,521/- and
Rs.94,721/- respectively. The Tribunal has taken the average
income at Rs. 78,737/- per annum and has given a deduction of
50% as according to the first respondent, he was doing the business
along with his son. The medical evidence produced on record shows
that the first respondent had suffered permanent disability to the
extent of 48%. The Tribunal after considering the evidence
regarding medical expenses on treatment and special diet and
conveyance, has granted total compensation of Rs.1,83,368/- as set
out in paragraph 24 of the impugned judgment. It appears that the
Tribunal has granted general damages towards pain and suffering to
the extent of Rs.1,00,000/- although, the Tribunal has not granted
any separate compensation towards the permanent disability
suffered. Thus, taking an over all view of the matter, I do not find
that the compensation of Rs.1,83,370/- granted is on a higher side.
The compensation granted appears to be just and proper.
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22 fa 663-19=
13. In that view of the matter, no case for interference is made
out. The appeal is hereby dismissed with no order as to costs.
14. The amount lying before the Tribunal along with interest, if
any, shall be paid to the first respondent on proper identification
after a period of four weeks.
C.V. BHADANG, J.
Sneha Chavan page 6 of 6
