[Cites 2, Cited by 0]
Bombay High Court
Reliance General Insurance Company ... vs Bharat Mulchand Jain And Anr. on 5 December, 2025
2025:BHC-AS:53906
FA722.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 722 OF 2022
Reliance General Insurance Company Limited,
570, Rectified House,
Next to Royal Industrial Estate,
Naigaon, Cross Road,
Wadala (West), Mumbai 400 031. ... Appellant
VERSUS
1. Bharat Mulchand Jain
Age : 49 years,
Residing at Room No.2,
New Collector Compound,
Plot No.24, Malwani Colony,
Malad (West), Mumbai 400 095
2. Maruti Saibanna Dhotre
Gala No.2, Amina, Chavindra,
Taluka Bhiwandi,
Thane 421 302. ... Respondents
Mr. Pandit Kasar, Advocate for the Appellant,
Ms. Ketki Gokhale h/f Mr. Avinash M. Gokhale, Advocate for the
Respondents.
CORAM : R. M. JOSHI, J.
DATE : 05th DECEMBER, 2025
Oral Judgment :-
1. This Appeal under Section 173 of the Motor Vehicle Act (for
short 'MV Act') takes exception to the judgment and award dated
SHUBHADA
18/03/2021 passed in MACP No. 62/2017, whereby the injury claim filed
SHANKAR
KADAM by the original claimant came to be allowed directing payment of
Digitally signed by
SHUBHADA
SHANKAR KADAM
Date: 2025.12.10
10:05:02 +0530
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compensation of Rs.29,96,310/- with interest at the rate of 7% per
annum.
2. It is the case of the Appellant- Insurer that the Tribunal has
failed to take into consideration, objections raised by the Insurer to the
grant of compensation on the ground that the driver of the offending
vehicle was not holding valid and effective license on the date of
accident and therefore, the Insurer is not liable to pay compensation. It is
further claimed that due to the negligence of the rider of the motorcycle
bearing No. MH 02 DP 8113 accident occurred and hence, no liability can
be fastened upon the Insurer to pay the compensation to the claimant. It
is further claimed that since the motorcycle which was rode by victim is
also involved in the accident, only Appellant/Insurer cannot be held liable
for the same. It is further claimed that the victim has failed to establish
his income and hence, only notional income at the most could have been
considered by the Tribunal. It is also claimed that the victim has failed to
establish the injuries caused to him. On other grounds exception is taken
to the impugned judgment and award.
3. Learned Counsel for the Appellant Insurer submits that from
the police papers it can be seen that the claimant has contributed to the
occurrence of the accident. It is his further submission that on the basis
of the salary certificate it cannot be accepted that the claimant was
drawing salary of Rs.32,000/- and even the income accepted by the
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Tribunal to the extent of Rs.18,000/- is excessive. He also argued that for
want of any evidence in order to prove the medical expenses so also
disability, the claim is not sustainable.
4. Learned Counsel for the claimant opposed the Appeal and
sought enhancement of the compensation. To support her submission she
placed reliance on the judgment in case of Pappu Deo Yadav v. Naresh
Kumar & Others, AIR 2020 SC 4424 which permits grant of
enhancement of compensation to the claimant without filing separate
Appeal or cross objection. It is contended that there is evidence led
before the Tribunal with regard to the expenses required for processes. It
is argued that having regard to the age of claimant, and considering the
average lifespan, higher amount than the one granted by the Tribunal is
entitled to the claimant under this head. It is also claimed that the
Tribunal has failed to take into consideration future prospects/income
while determining the amount of compensation. It is also claimed that
the Tribunal has erred in accepting the disability of the claimant to the
extent of 50% when the said disability has been assessed by Dr. Lokare
to the extent of 70%. On this submission, enhancement of the
compensation is sought. The Insurer has raised number of issues in the
written statement for denial of the liability to pay compensation but there
is no evidence led before the Tribunal to substantiate the same. The
burden upon the Insurer to prove that the driver of the offending vehicle
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was not having a valid and effective license, however, since there is no
evidence led before the Tribunal to prove the said fact, the contention of
the Appellant does not deserve acceptance.
5. As far as the claimant is concerned, he stated into the
witness box and depose about the manner in which the accident has
occurred. From the cross examination nothing is elicited in order to
discard his testimony. In absence of any contrary evidence being led,
there no reason to accept any negligence on the part of the claimant in
occurrence of the accident. Furthermore, the charge-sheet has been filed
against the driver of the offending vehicle and there is nothing on record
to indicate that the said charge-sheet has been challenged by the driver
at any point of time. Thus, the evidence on record is sufficient to hold
that the driver of the offending vehicle was solely responsible for causing
the accident.
6. In so far as the employment and income of the claimant is
concerned, apart from examining himself on oath, he led evidence of
Bhimraj Jain, partner of Maniratna Jewellers. Learned Tribunal however,
has not accepted the said case of the claimant and restricted his income
to the extent of Rs.18,000/- per month. In the facts of the case and
having regard to the nature of evidence on record, this Court finds no
reason to cause interference therein. In view of the judgment in case of
National Insurance Company Limited Vs. Pranay Sethi and
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Ors.,AIR 2017 SC 5157, the Tribunal was required to take into
consideration future prospects which has not been taken into
consideration herein this case.
7. In view of the judgment in case Pappu Deo Yadav v.
Naresh Kumar & Others (supra) it is settled position of law that even
without filing appeal or cross objection, it is open for the claimant to seek
enhancement of the compensation. In view of the same, and following
judgment in case of Pranay Sethi and Ors. (supra) the claimant is
entitled for compensation by adding future prospects.
8. As far as the nature of injury and disability caused to the
claimant is concerned, he suffered amputation of left leg. The medical
evidence on record substantiates the nature of injury, medical expenses
and the disability caused to the claimant. The objection raised to the
testimony of Dr. Lokare is that he was not treating doctor, however,
merely because the doctor who had assessed the disability has not
treated the injured, the disability assessment cannot be rejected. There is
nothing brought on record for the cross examination of Dr. Lokare that he
is not expert in assessing the disability. The learned Tribunal has not
accepted the disability as assessed by the doctor only on the ground that
he is not the treating doctor. This ground for reducing the assessed
disability is wholly unjustified. In absence of any challenge to the
expertise of the doctor in assessment of the disability, it was not open for
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the Tribunal to not to accept the same. Having regard to the nature of the
injury which has resulted into amputation of the leg it is held that the
claimant sustained 70% of permanent disability.
9. It has come on record that the claimant has spent
Rs.1,65,000/- towards artificial leg (prosthesis). There cannot be any
dispute with regard to the fact that the artificial leg has life time of about
five years maximum. Having regard to the age of the claimant at the
time of occurrence of the accident, he would require at least 3 prosthesis
legs. The claimant, therefore, is entitled to receive a sum of Rs.1,65,000
x 3 = 4,95,000/-.
10. Having regard to the above discussion, appeal stands
dismissed. However, the judgment and award passed by the Tribunal is
modified in the following terms.
Particulars Amount
Monthly income Rs.18,000/- + 40% Rs. 21,16,800.00
future prospects = Rs.25,200/- x 12 =
3,02,400/- (-) 50% disability
Rs.1,51,200/- x 14 multiplier = Rs.
21,16,800/-
Medical bills and expenses Rs. 14,34,310.00
Pain and suffering Rs. 30,000.00
Special diet and conveyance Rs.20,000.00
3 prosthesis legs (Rs.1,65,000.00 x 3) Rs. 495,000.00
Total Rs.40,96,110.00
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12. In view of this, following order is passed.
ORDER
(a) Appeal is disposed of. Impugned judgment and award dated
18/03/2021 passed in M.A.C.P. No. 62/2017 is modified. Total
compensation is determined to the tune of Rs.40,96,110/-
along with interest @ 7% per annum.
(b) Rest of the judgment and award to remain unchanged.
(c) Modified award be prepared accordingly.
(d) Original claimant is permitted to withdraw remaining amount,
if any.
(e) Appellant- Insurance Company to deposit balance amount
within a period of eight (08) weeks from today.
(f) Claimant is permitted to withdraw remaining amount.
(g) Claimant shall pay deficit court fees on enhanced amount,
if any, as per Rule.
(h) Record and Proceedings be sent back to the Tribunal.
13. In view of disposal of Appeal, pending applications if any, stand
disposed of.
(R. M. JOSHI, J.)
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