Bombay High Court
Reliance General Insurance ... vs Mrs.Akshata Swapnil Gawade ... on 5 May, 2022
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.691 OF 2018
WITH
CROSS OBJECTION (ST) NO.9650 OF 2019
Reliance General Insurance Co. Ltd. .. Appellant
through it's Mumbai Corporate Offce
Versus
Akshata Swapnil Gawade through .. Respondents
her husband and next friend Swapnil
Balchandra Gawde & Anr.
...
Mr.Rahul Mehta i/b KMC Legal Venture for the Appellant.
Mr.Saumen S. Vidyarthi for the Respondent No.1/Applicant in
the Cross-Objection.
...
CORAM: BHARATI DANGRE, J.
DATED : 05th MAY 2022
P.C:-
1. In an Appeal fled by the Insurance Company, calling in
question the Judgment & Award dated 12/07/2017 passed by
the M.A.C.T., Mumbai awarding compensation in favour of the
claimant for the injuries sustained by her, the applicant has
also fled the cross-objection through her husband and next
friend, seeking enhancement of the compensation awarded by
the M.A.C.T., Mumbai in her favour.
M.M.Salgaonkar
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The applicant, who was travelling in Innova car bearing
No.MH-04-DR-7931 alongwith her husband and next friend on
29/05/2013, sustained serious injuries when Motor Trailer
bearing No.MH-04-FJ-6990 suddenly applied brakes and took
turn from right to left side, as a result, the Innova car in which
the applicant was travelling smashed into the Trailer and
injured all the persons, in the car. The applicant sustained
head injury and became unconscious. From the place of the
accident, she was removed to Bhagwati Hospital, where she
was administered preliminary treatment, but on account of
seriousness of the injuries, was shifted to Nanavati Hospital,
Mumbai.
The accident resulted in registration of the crime and
during investigation, the spot panchanama came to be
conducted and it was revealed that the Motor Trailer belong to
opposite party and was insured with the insurer at the time of
accident.
2. The applicant, at the relevant time, was working with
'M/s. Ramkay Infrastructure' as Engineer and was earning
handsome salary and was newly married. On account of the
disability incurred by her, she had to discontinue her job and
she suffered tremendous mental pain, shock and agony. Her
marital life was also badly affected due to the injuries and she
had to incur huge expenses on medical treatment and
conveyance.
She instituted a claim before the M.A.C.T., Mumbai,
claiming compensation of Rs.50,00,000/- with interest and
M.M.Salgaonkar
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cost. The Tribunal, while determining the claim, accepted the
case of the applicant that she suffered injuries in the accident,
which took place on account of rash and negligent driving of
the Motor Trailer bearing No. MH-04-FJ-6990 and holding that
the insurer had failed to prove that the accident took place due
to the negligence on the part of the driver of the Innova car, in
which she was travelling.
3. It is to be noted that the husband of the applicant also
suffered injury in the said accident and his claim was settled
by the Insurance Company. He deposed on behalf of the
applicant and narrated the true account of the accident, when
he stated that the Motor Trailer driver lost control over the
vehicle and suddenly took vehicle to the left direction, without
operating any signal and forcibly dashed against the Innova
car. In the cross-examination, his testimony remained
unchallenged. The Tribunal arrived at the conclusion that the
accident took place on account of rash and negligent driving of
the Motor Trailer driver and the applicant was held entitled
for compensation.
The applicant remained in coma for 11 days and her
husband/next friend narrated her sufferings and ordeal
throughout the period of treatment.
4. In support of the claim, the claimant examined other
witnesses, which included Dr.Vijay Mahajan (A.W.5) attached
to Dr.Balabhai Nanavati Hospital as Clinical Associate-
Neurosurgery, who produced true certifed copies of indoor
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treatment. Dr.Priyanka Khuje, an Occupational Therapist ,
was examined as A.W.3, who deposed about the expenses
incurred in offering physiotherapy treatment to the applicant.
Another Occupational Therapist, Dr.Charmie Dave came to be
examined as A.W.4, who proved the expenses of Rs.24,500/-
incurred in the therapy session. One Mr.Maheshwar Gouda,
Accounts Offcer from Kokilaben Dhirubhai Ambani, was also
examined for bringing on record the expenses incurred while
the applicant was admitted in the said hospital. Dr.Sushil
Tandel, M.D.(Medicine) and D.M.(Neurology) and working as
Consulting Neurophysician, was examined as A.W.8 for
proving the permanent disability certifcate of the applicant
issued on 13/06/2014. The certifcate (Exh.58) was proved
through the testimony of the said doctor and he deposed that
he had examined the applicant for assessing the permanent
partial disability and after referring to the injuries suffered by
her through her medical treatment papers and based on the
discharge cards from Nanavati Hospital and Kokilaben
Dhirubhai Ambani Hospital as well as the C.T.Scan reports,
assessed her partial disability in the certifcate.
Worth to note that he is not a doctor, who treated the
applicant, but he only assessed her disability based on the
treatment offered to her in the Nanavati Hospital and
Kokilaben Dhirubhai Ambani Hospital. He certifed the
disability of the applicant to the tune of 60% of the whole body
and diagnosed her injury to be an axonal injury, which was
explained by him as the injury caused to the whole brain
affecting all modalities of brain function. He gave the
symptoms and after effects of the said injury, which included a
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Cognetive defcit in understanding, writing, reading etc. and
also in speaking.
5. The Tribunal recorded that Dr.Sushil Tandel was not a
treating doctor and his role is restricted only to issuance of the
disability certifcate.
The learned counsel Mr.Mehta would strenuously submit
that A.W.8 is a family doctor of the applicant and the
certifcate issued by him cannot be accepted, as he never
treated the applicant nor had consulted the doctors, who had
treated the applicant.
6. On hearing the respective parties and on perusal of the
impugned judgment, what is strikingly absent is examination
of any treating doctor and it not the case of the applicant that
the treating doctors were not available for deposing in her
favour. Before the compensation is awarded for the disability,
the effect of the injury upon the life of the victim has to be
ascertained. In the present case, relying upon the said
certifcate, the disability was computed and the submission of
the learned counsel of the applicant is, looking to the nature of
the injuries and the disability which she suffered, it would
amount to 100% functional disability, but the Tribunal has
failed to take into account the same and awarded a meager
amount of Rs.57,47,071/-.
On the last occasion, I asked the learned counsel for the
applicant, whether the treating doctors are still available to
depose in favour of the applicant/claimant and today, the
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learned counsel has submitted the list of the following doctors,
who had actually treated the applicant.
1. Dr.Suresh Sankhla, Neurosurgeon;
2. Dr.Abhishek Srivastava, Neuro Physiatrist;
3. Dr.Jayanti Mani, Available Neurologist;
4. Dr.Mohit Shah, Psychiatrist;
5. Dr.Raju Bapat, Dentist and
6. Dr.Sanika Wad, Speech Therapist
7. From the certifcate issued by A.W.8, it can be seen that
the injuries sustained by the applicant are of wide impact. The
next friend of the applicant has stepped into the witness box
and narrated the suffering and the misery of the applicant.
She was an independent woman, working as Engineer in a
private company and enjoying the bliss of a newly wedded
couple, but the fateful blow deprived her of everything and
changed her world.
She, therefore, deserve a fair and just compensation and
only due to the fault of her counsel, or since she was not
advised to examine the material witnesses, she should not be
made to suffer.
In the wake of the aforesaid circumstances, I deem it
appropriate to remand the matter back to the Tribunal for
permitting the applicant to lead additional evidence, by
examining the doctors, who had actually treated her, in
absence of whom the actual pain and sufferings of the
applicant cannot be brought on record. Further, her physical
M.M.Salgaonkar
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and mental impairment can only be demonstrated by the
treating doctors.
Upon an application, being fled before the Tribunal to
lead additional evidence of these witnesses, the Tribunal shall
grant the application and summon the witnesses and examine
them. Needless to state that the Insurance Company shall be
entitled to cross-examine the said witnesses.
Upon consideration of the additional evidence, which will
be brought on record, the Tribunal shall re-work the amount of
compensation and at the end of the entire exercise, may either
maintain the amount of compensation which it has awarded or
may enhance the compensation in the light of the evidence,
which would be brought before it.
The entire exercise shall, however, be carried out on or
before 31/08/2022.
The order/judgment passed by the Tribunal, upon
completion of the exercise, shall be placed before this Court in
the present Appeal.
8. List the Appeal for further hearing on 12/09/2022.
( SMT. BHARATI DANGRE, J.)
M.M.Salgaonkar
