Bombay High Court
The Oriental Insurance Co. Lt vs Hemant Nivrutti Bhoi And Anr on 16 September, 2021
Bench: R. G. Avachat
FA-3595-2011.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3595 OF 2011
The Oriental Insurance Co. Ltd.,
Divisional Office, Aurangabad,
Through its Divisional Manager,
Aurangabad ..Appellant
Vs.
1. Hemant s/o. Nivrutti Bhoi,
Age:26 years, Occ. Nil,
r/o. Dandekar Nagar,
Near Milk Federation,
Jalgaon
2. Gokul s/o. Waman Patil,
Age : 39 years, Occ. Business,
r/o. Laadli, Tq. Tharangaon,
Dist. Jalgaon ..Respondents
----
Mr.A.G.Kanade, Advocate for appellant
Mr.M.M.Bhokarikar, Advocate for respondent no.1
Mr.V.P.Patil, Advocate for respondent no.2
----
AND
CROSS-OBJECTION ST. NO.6741 OF 2017
IN FIRST APPEAL NO.3595 OF 2011
Hemant s/o. Nivrutti Bhoi,
Age:26 years, Occ. Nil,
r/o. Dandekar Nagar,
Near Milk Federation,
Jalgaon ..Appellant
::: Uploaded on - 25/09/2021 ::: Downloaded on - 13/10/2021 02:21:24 :::
2 FA-3595-2011
Vs.
1. The Oriental Insurance Co. Ltd.,
Divisional Office, Aurangabad,
Through its Divisional Manager,
Aurangabad
2. Gokul s/o. Waman Patil,
Age : 39 years, Occ. Business,
r/o. Laadli, Tq. Tharangaon,
Dist. Jalgaon ..Respondents
----
Mr.M.M.Bhokarikar, Advocate for appellant
Mr.A.G.Kanade, Advocate for respondent no.1
Mr.V.P.Patil, Advocate for respondent no.2
----
CORAM : R.G. AVACHAT, J.
RESERVED ON : AUGUST 10, 2021
PRONOUNCED ON : SEPTEMBER 16, 2021
ORDER :-
This appeal is directed against the judgment and
order dated 08.10.2010 passed by Motor Accident Claims
Tribunal, Jalgaon, in Motor Accident Claim Petition No.67 of
2005, granting compensation of Rs.2,30,000/- with interest at
the rate of 7.5% per annum from the date of the claim petition
i.e. 21.02.2005 till realisation thereof, for injuries and
permanent disability suffered in an accident involving motor
vehicle. The insurance company of the vehicle involved in the
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accident has filed present appeal. The original claimant has
preferred cross-objection for enhancement of compensation.
FACTS :
2. Rickshaw bearing registration no.MH-19-S-2074 is a
goods carriage. It belonged to respondent no.2 herein. The
claimant claimed to have been serving as a Cleaner on the said
goods carriage. It is his case that on 30.08.2004 by 07:30 in
the morning, he was travelling in the said goods carriage in the
capacity as Cleaner thereof. It was being driven in rash and
negligent manner by its driver. The rickshaw, all of a sudden,
turned turtle. The claimant thereby suffered multiple injuries
and permanent disability as well. He, therefore, preferred claim
petition for compensation of Rs.Four Lakhs.
3. Mr.A.G.Kanade, learned counsel for the appellant -
insurance company, reiterated its case that the claimant was
travelling as a gratuitous passenger, the policy of insurance
does not cover risk of said passenger, etc. He placed on record
a copy of the policy of insurance and ultimately, urged for
allowing the appeal.
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4. Mr.M.M.Bhokarikar, learned counsel for the claimant,
would, on the other hand, submit that the Tribunal has not
awarded just compensation. The claimant suffered 35%
disability. He thereby suffered loss of earning capacity to the
extent of 80%. According to him, the claimant was working at
a pay of Rs.4,000/- per month. Nothing has been awarded by
the Tribunal towards future prospects. No compensation has
been granted towards medical expenses incurred and expected
to be incurred. He, therefore, urged for enhancement of
compensation to little over Rs.Ten Lakhs.
5. Considered rival submissions. Perused the impugned
award. Admittedly, the goods carriage (MH-19-S-2074) met
with an accident on 30.08.2004. The claimant was travelling
therein. As a result of the accident, the claimant suffered
injuries and disability as well. It is the case of the claimant that
he was serving as Cleaner on the goods carriage. He was
travelling therein in his such capacity. Before the Tribunal, a
cover note of the insurance policy came to be tendered in
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evidence. From perusal thereof, it is not clear as to whether
risk of an employee engaged on the goods carriage has been
covered. The appellant-insurance company ought to have
produced policy of insurance before the Tribunal in support of
his claim. For the first time, in appeal, a photocopy of the
policy of insurance has been produced. The same cannot be
read in evidence. Even for the sake of the appellant-insurance
company, if we read the terms of the policy of insurance, it
does indicate to have charged Rs.25/- towards premium to
cover the risk under legal liability of employee or driver.
6. It appears that before the Tribunal, the claimant has
not been cross-examined on behalf of the owner of the vehicle.
He did not participate in the proceedings before the Tribunal.
As such, it is taken that he did not dispute the case of the
claimant. As such, the Tribunal was right in accepting the case
of the claimant that he was travelling in the goods carriage as
Cleaner thereof.
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QUANTUM:-
7. For want of evidence as to income of the claimant,
the Tribunal considered it notionally at Rs.3,000/- per month.
Applying multiplier of 17 for the age of the claimant and
considering his 35% disability, the Tribunal awarded sum of
Rs.2,14,000/- besides Rs.15,000/- towards the expenditure
incurred for medical treatment, pains and diet.
8. The injury certificate (Exh.42) indicates the claimant
to have had suffered injuries as under :-
(i) Abrasion over right scapular region;
(ii) lacerations over right knee and upper
leg;
(iii) laceration over left knee;
(iv) Deglowing injury over left foot and
ankle;
(v) 1st 2nd 3rd metatarsal with left ankle
dislocation
The disability certificate (Exh.44) indicates the nature of
disability as under:-
" 35% (thirty five percent) only permanent
disability"
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There is nothing to indicate the claimant to have suffered
permanent disability resulting into permanent loss of earning
capacity. The Tribunal appears to have awarded just
compensation. No interference with the impugned award is,
therefore, called for.
9. In view of the above, the appeal as well as the
cross-objection fail and stand dismissed.
[R.G. AVACHAT, J.]
KBP
