Bombay High Court
Shri. Raosaheb Sakharam Shinde vs Shri. Gourav Govind Mundada And Anr on 10 January, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
2024:BHC-AS:6382
FA-111-2017.doc
N THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.111 OF 2017
WITH
CIVIL APPLICATION NO.2815 OF 2017
IN
FIRST APPEAL NO.111 OF 2017
RAOSAHEB SAKHARAM SHINDE )
Age - 54 years, Occupation - Service )
Residing at : Manikdoh Colony, Khamgaon )
Taluka - Junnar, District - Pune. )...APPELLANT
V/s.
1. GOURAV GOVIND MUNDADA )
Residing at Gangadham Bunglow )
Phase No.1, Bunglow No.46, )
Market Yard, Pune. )
)
2. ICICI LOMBAR HOUSE )
414, P. Balu Marg, Off Veer Sawarkar Marg )
Near Siddhivinayak Temple, Prabhadevi )
Mumbai 400 025. )...RESPONDENTS
Mr.D.J.Dalal, Advocate for the Appellant / Applicant.
Mr.Rajesh Kanojia a/w. Ms.Nikita Singh i/by, Res Juris, Advocate for the
Respondent No.2.
CORAM : ABHAY AHUJA, J.
RESERVED ON : 18th JULY, 2023
PRONOUNCED ON : 10th JANUARY, 2024
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::: Uploaded on - 08/02/2024 ::: Downloaded on - 09/02/2024 21:58:09 :::
FA-111-2017.doc
JUDGMENT :
1. This is an Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, (the "M. V. Act") by the injured Appellant in Motor Accident
Claim Petition No.87 of 2010 filed before the Motor Accident Claims
Tribunal, Pune, seeking compensation denied by the Tribunal.
2. The background facts are that on 18 th June 2009, at 4.30 p.m.,
the Appellant and his friend Ganesh Dhantrao were proceeding towards
Pune on motorcycle bearing Registration No.MH-14-S-2111 at Bota
Shivar on Pune Nashik Road driven by the Appellant, when one Santro
car bearing Registration No.MH-12-DE-371 came from opposite
direction and dashed the motorcycle of the Appellant. The Appellant
and his friend sustained injuries and the Appellant was admitted
initially in Om Chaitanya Hospital and later shifted to Ruby Hall Clinic,
at Pune.
3. It is the case of the Appellant that at the time of the accident, the
Appellant was 46 years and serving in the Irrigation Department of the
Government drawing a salary of Rs.11,865/- per month. That, the
injuries sustained by the Appellant in the accident decreased the ability
of the Appellant to work in the manner he used to work earlier thereby
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affecting the earning capacity of the Applicant. The Applicant preferred
a Claim Application under Section 166 of the M. V. Act for an amount
of Rs.5,00,000/- as compensation under various heads.
4. The Respondent no.1, owner of the Santro car, opposed the
Claim Application and filed a written statement denying that he was
driving his Santro car in rash and negligent manner as alleged in the
Application and that Appellant suffered permanent disability and was
unable to work as earlier. It is stated by Respondent No.1 that one
other person, who was not having driving license, was driving the
motorcycle and that the Appellant falsely stated that he was driving the
motorcycle and therefore the Appellant is not entitled for compensation
as claimed under various heads. The age and income of the Appellant
was denied. That the claim was not maintainable for non-joinder of
necessary party as the Appellant had not joined the Insurance
Company which had insured the motorcycle and thus for all above
reasons the Respondent No.1 prayed for dismissal of the Claim
Application. Without prejudice, the Respondent No.1 submitted that
the Santro car was insured with the Respondent No.2 Insurance
company at the time of the accident.
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5. The Respondent no.2, the Insurance company of Santro car, also
filed its written statement admitting that the alleged car involved in the
accident was insured with it. However, Respondent No.2 denied that
any accident took place as claimed by the Appellant. The Respondent
no.2 also denied that the driver of the car, so also the Appellant, had
driving license to drive their respective vehicles, stating that it
amounted to breach of the terms and conditions of the Insurance policy.
The age, income and permanent disability of the Appellant was also
denied. It was, accordingly, prayed that the Application be dismissed.
6. The Tribunal, after going through the police papers, the evidence
as well as the testimony of the witnesses, held that it was partly proved
that the accident took place due to the rash and negligent driving of the
driver of the owner of the Santro car bearing registration no. MH-12-
DE-371 at Bota Shivar on Pune Nashik road. The Tribunal also held
that the Appellant admitted that he was not holding driving license and
and thus he contributed to the accident by driving the motorcycle in
the middle of the road without driving license. The Tribunal therefore
held that the Appellant's contributory negligence was to the extent of
25%. That, the Appellant did not prove his permanent disability
certificate by examining either the treating doctor or Medical Officer
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who issued the certificate. It was recorded that the doctor who issued
certificate stated in his evidence that the Appellant had visited him for
post operative treatment and he was not the doctor who had treated
the Appellant. On the issue of compensation, the Tribunal held that the
Appellant had not proved that the injuries suffered by the Appellant in
the said accident resulted in permanent disability affecting his future
income and that the Appellant was still in government service and his
salary was also increased from Rs.12,365/- to Rs.20,000/- per month
and there was nothing on record that promotion was denied to him due
to the injuries sustained by the Appellant. Therefore, there was no loss
of future earning and the Tribunal held that the Appellant was not
entitled for compensation under the head "future loss of earning." On
the issue of compensation under other heads like hospital, medicine
charges, pain and sufferings, transportation charge, leave encashment
and future medical treatment charges, the Tribunal held that (i) the
Appellant had not filed original bills of hospitalization and discharge
card as they were lost for which he lodged report of missing of those
documents in 2014. However, the certificate from police regarding
lodging of report is dated 2nd April 2014 whereas the case is filed in the
year 2009 which showed that the reason for non-filing of original bills
did not appear to be correct and the same was an afterthought; (ii) that
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it was not proved that the Appellant was admitted in Ruby Hospital at
Pune for treatment of injuries sustained by him in the road traffic
accident on 18th June, 2009 by Santro car of Respondent No.1 and
therefore the Respondents No.1 and 2 were not liable to pay the
hospital bill of Ruby Hospital incurred by the Appellant; (iii) that the
Appellant had filed xerox copies of discharge card, bills of medicine,
hospital but those were not shown to the witness to prove them by
secondary evidence and hence the same could not be relied upon;
(iv) that the Appellant was not entitled to hospital/medicine charges,
leave encashment, future expenses, pain and sufferings, conveyance
allowance and special diet allowance, loss of earnings in future etc.,
since basic requirements for grant of above compensation were not
proved by the Appellant.
7. On the issue of breach of insurance policy, the Tribunal held that
the burden to prove breach of policy was on the Respondent no.2 but
since neither the Appellant nor the Respondents No.1 and 2 filed the
copy of the driving license of the driver of the Santro car and the
Appellant did not join the driver of the Santro car as party to this
proceeding though he was proper party (though not necessary party),
as per settled law, his contributory negligence could not be decided.
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The Tribunal further held that since the Respondent No.1 did not file
the driving license of the driver of the Santro car despite being directed
to do so, adverse inference was drawn against the Respondent No.1
and hence Respondent No.2 Insurance company had proved that there
was a breach of the terms and conditions of the insurance policy by
Respondent No.1. Therefore, in the event that the Claim Application
would be allowed, then the Respondent No.1 only would be liable to
pay compensation and not Respondent No.2 Insurance company. The
Tribunal thus held that it was not proved that the Appellant suffered
permanent disability due to the injuries suffered by him in the accident
and also did not prove that he was entitled to compensation. That, the
Respondent No.2 Insurance company proved that there was breach of
the terms and conditions of the insurance policy by the Respondent
No.1, car owner and thereby dismissed the Claim Petition.
8. Aggrieved by the judgment and award, the Appellant has filed
this Appeal.
9. The Appellant also submitted a copy of the Judgment and Award
in Motor Accident Claim Petition No. 8 of 2011 dated April 26, 2012
passed by the Motor Accident Claims Tribunal, Latur, filed by one Mr.
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Ganesh s/o Sambhaji Dantro who was the pillion rider with the
Appellant at the time the accident took place. In the said case the
Tribunal had held that the claimant had proved that the accident
occurred due to the rash and negligent driving of the driver of the
Santro car bearing registration No. MH-12-DE-371 viz. the same Santro
car as involved in the accident in question in this Appeal and that the
claimant had suffered permanent disability due to the said accident.
The Tribunal had also held in that case that the Respondent No.2
Insurance company could not prove the alleged breach of the terms and
conditions of the insurance policy by Respondent No.1, owner of Santro
car. The Tribunal held that the Respondent No.1, owner and the
Respondent No.2 Insurance company, were jointly and severally liable
to pay the claimant a compensation of Rs.3,68,212/- along with 6%
simple interest per annum from the date of the Petition till realization
of awarded amount.
10. It is pertinent to note that, the Appellant had filed Civil
Application No. 2815 of 2017 for production of the driving license of
the Appellant issued on 28 th March, 2002 and to accept the same as
additional evidence. The Appellant stated that the reason for filing the
said Civil Application was that the Tribunal vide paragraph 13 of its
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Judgment and Award dated 2nd November, 2016, came to an erroneous
conclusion that the Appellant was not holding a driving license and was
driving the motorcycle without a license.
11. Mr. D.J. Dalal, learned Counsel for the Appellant, submits that
the Tribunal also erred in holding that the Appellant failed to prove
permanent disability as there was a clear admission in the cross
examination of Dr. Shashikant Thorat that after removal of implants the
Appellant would suffer about 15-20% disability and also the medical
certificate issued by B.J. Medical and Sassoon General Hospital clearly
states that the Appellant has permanent disability of 16%. On this
issue, Mr. Dalal has relied on the decision of Raj Kumar v. Ajay Kumar
and Another1. On the issue of the Appellant's driving license, Mr. Dalal
submits that in his cross examination, the Appellant stated that he had
a valid driving license but the same was not filed in the proceedings
before the Tribunal but he has filed Civil Application No. 2815 of 2017
for production of the driving license of the Appellant issued on 28 th
March, 2002 and to accept the same as additional evidence. Mr. Dalal
further submitted without prejudice, that as per the decision of this
Court in the case of Shubhash Waman Baviskar and others v. Adinath
1 (2011) 1 SCC 343.
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Hambirrao Budhwant and Another2, not holding an effective and valid
driving license cannot be a ground to deny compensation. On the issue
of compensation, Mr. Dalal referred to the deposition of witness no.4,
Smt. Manjusha Somnath Kulkarni, administrator and legal adviser at
Ruby Hall Clinic, that the Appellant was in hospital from 19 th June,
2009 to 2nd July, 2009 and the total hospitalization bill was Rs.70,398/-
which was uncontroverted and uncontested. On the issue of the non-
joinder of the driver of the Santro car, Mr. Dalal relies on the decision
in the case of New India Assurance Company Ltd. v. Sitaram Devidayal
Jaiswal and others3 where it was held that the claimant is under no
obligation to add proper and necessary parties.
12. Mr. Rajesh Kanojia, learned Counsel for the Respondents No.1
and 2 relied upon the Judgment and Award of the Tribunal and
reiterated that the Appellant did not hold a valid driving license. Mr.
Kanojia also submitted that the permanent disability was not proved as
the doctor who issued the disability certificate was not the treating
doctor and also that the Appellant did not submit original bills which
were required to prove the expenditure incurred by the Appellant. Mr.
Kanojia also submitted that the deposition was completely silent on the
2 First Appeal No. 410 of 2016 dated 18th April, 2023.
3 2012(2) Mh.L.J. 710.
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permanent impact on his job prospects. Mr. Kanojia thus submitted that
this Appeal be dismissed.
13. I have heard Mr. Dalal, learned Counsel for the Appellant and Mr.
Kanojia, learned Counsel for the Respondents Nos. 1 and 2 and with
their able assistance, I have perused the papers and proceedings in the
matter and considered the rival contentions.
14. On the issue of whether the accident was caused due to the rash
and negligent driving of the Santro car bearing registration no. No.
MH-12-DE-371, the Tribunal has held that the Appellant has
contributed to the accident by driving motorcycle without driving
license and that his contributory negligence was to the extent of 25%.
It is noted that vide Civil Application No. 2815 of 2017 the Appellant
has produced his driving license issued on 28 th March, 2002. Upon
examination of the driving license attached as Exhibit "A" to the Civil
Application, it emerges that the same was issued on 20 th March, 2002
and was valid till 2nd February, 2020 i.e. valid and effective at the time
of the accident on 18th June 2009. No contrary evidence has been
brought on record by the Respondents No.1 and 2 that the said driving
license was not valid and effective. Therefore the only ground on which
the Tribunal held that the Appellant has contributed to the accident
FA-111-2017.doc
has turned out to be erroneous and therefore there cannot be
contributory negligence attributed to the Appellant.
15. I have also examined copy of the Judgment and Award in Motor
Accident Claim Petition No. 8 of 2011 dated April 26, 2012 passed by
the Motor Accident Claims Tribunal, Latur, filed by one Mr. Ganesh s/o
Sambhaji Dantro, who was the pillion rider with the Appellant at the
time the accident took place where the Tribunal after examining the
evidence on record has held that the claimant being the pillion rider
behind the Appellant, had proved that the accident occurred due to the
rash and negligent driving of the driver of the Santro car bearing
registration No. MH-12-DE-371 . Therefore on the principle of parity,
comity and amity laid down by the Hon'ble Supreme Court in the case
of Machindranath Kernath Kesar v. D.S. Mylarappa and Others 4, this
Court is of the view that the accident took place due to the rash and
negligent driving of Santro car bearing registration no. MH-12-DE-371
by driver of Respondent No.1 on 18 th June, 2009 at 4:30 p.m. at Bota
shivar on Pune Nashik road and in view of the fact that the Appellant
was holding a valid driving license at the time of the accident, in my
view, there is no contributory negligence on the part of the Appellant.
4 (2008) 13 SCC 198
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16. On the issue of whether the Appellant suffered permanent
disability on account of the accident, from the evidence recorded by Dr.
Shashikant Thorat before the Court Commissioner and his cross
examination by Advocate for Respondent No.2 that even after removal
of implant, the Appellant will suffer about 15 to 20% disability and the
Form Comp. 'B' issued by the Medical Officer Incharge, B.J. Medical and
Sassoon General Hospital, that the Appellant has 16% permanent
disability, it emerges that there is permanent disability of 16% on
account of the accident. The Respondents No.1 and 2 have argued that
the Appellant did not prove his permanent disability certificate by
examining either the treating doctor or Medical Officer who issued the
certificate and the Appellant had visited Dr. Thorat who certified his
disability percentage, for post operative treatment and he was not the
doctor who had treated the Appellant. On this issue, paragraph 24 of
the decision of the Hon'ble Supreme Court in the case of Raj Kumar v.
Ajay Kumar (supra) is usefully reproduced as under:
"24. In this case, the Tribunal acted on the disability
certificate, but the High Court had reservations about its
acceptability as it found that the injured had been treated
in the Government Hospital in Delhi whereas the disability
certificate was issued by a District Hospital in the State of
Uttar Pradesh. The reason given by the High Court for
rejection may not be sound for two reasons. Firstly, though
the accident occurred in Delhi and the injured claimant
was treated in a Delhi hospital after the accident, as he
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hailed from Chirori Mandi in the neighbouring district of
Ghaziabad in Uttar Pradesh, situated on the outskirts of
Delhi, he might have continued the treatment in the place
where he resided. Secondly, the certificate has been issued
by the Chief Medical Officer, Ghaziabad, on the assessment
made by the Medical Board which also consisted of an
orthopaedic surgeon. We are therefore of the view that the
High Court ought not to have rejected the said disability
certificate."
17. I have perused the examination-in-chief of Dr. Shashikant Thorat
who was a qualified M.S. (Ortho) whom the Appellant visited for post-
operative treatment, wherein Dr. Thorat has clearly deposed that the
implants in the Appellant's leg will have to be removed by operation in
future. I have also perused Dr. Thorat's cross examination by Advocate
for Respondent No.2 where Dr. Thorat has stated that even after
removal of implant surgery the Appellant will suffer 15 to 20%
disability. Since Dr. Thorat was a treating doctor whom the Appellant
had visited for post-operative treatment, in the light of the discussion in
paragraph 24 of the decision in the case of Raj Kumar v. Ajay Kumar
(supra), his evidence ought to be considered.
18. I have also examined the Medical Certificate (Form Comp B)
issued by the Medical Officer Incharge, B.J. Medical College & Sassoon
General Hospital, Dr.S.S. Shintre also being qualified as M.S. (Ortho)
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wherein Dr. Shintre has certified that the Appellant has final permanent
disability of 16%. Therefore, Appellant's 16% permanent disability on
account of the accident cannot be disputed.
19. Now coming to the issue of the compensation, the Tribunal held
that the Appellant had filed xerox copies of discharge card, bills of
medicine, hospital but those were not shown to the witness to prove
them by secondary evidence and hence the same could not be relied
upon and that the Appellant was not entitled to hospital/medicine
charges, leave encashment, future expenses, pain and sufferings,
conveyance allowance and special diet allowance, loss of earnings in
future etc., since basic requirements for grant of above compensation
were not proved by the Applicant. The Tribunal, in my view, had
erroneously rejected the deposition of witness no.4, Smt. Manjusha
Somnath Kulkarni, administrator and legal adviser at Ruby Hall Clinic
with respect to the hospitalization of the Appellant from 19 th June,
2009 to 2nd July, 2009 in respect of the total hospitalization bill being
Rs.70,398/-. Her examination- in-chief as well as her cross-examination
have been perused and the same is uncontroverted. Therefore this
Court is of the view that the Appellant is entitled to reimbursement of
the hospitalization bill.
FA-111-2017.doc
20. In the light of the above discission, it is clear that the Appellant
has suffered permanent disability to the extent of 16% on account of
the accident which was caused by the rash and negligent driving of the
driver of Santro car bearing registration no. MH-12-DE-371 owned by
Respondent No.1 and insured with Respondent No.2. The Appellant is
entitled to compensation in accordance with the principles laid down
by the Hon'ble Supreme Court in the cases of Sarla Verma v. Delhi
Transport Corporation and others5, National Insurance v. Pranay Sethi6
and Kajal v. Jagdish Chand and others 7 and therefore this Court is of
the view that the Tribunal will have to compute the compensation
payable to the Appellant in accordance with the above and the same
will be payable jointly and severally by the Respondents No.1 and 2.
21. The judgment and award of the Tribunal is, accordingly, set aside
to the above extent. The Tribunal is directed to recompute the total
compensation in accordance with the aforesaid discussion and pass an
award within a period of eight weeks from the date of the uploading of
this order. Let the compensation as computed above be deposited in the
Motor Accident Claims Tribunal, Pune, by the Respondents No. 1 and 2
within a period of eight weeks from the date of order of the Tribunal
5 2009 ACJ 1298 (Supreme Court).
6 2017 (16) SCC 680
7 (2020) 4 SCC 413
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and the Tribunal to make the payment to the Appellant within two
weeks of a request made in this behalf.
22. The Appeal and the Civil Application stand allowed and disposed
in the above terms. No order as to costs.
(ABHAY AHUJA, J.)
