Bombay High Court
Bajaj Allianz General Insurance Co. ... vs Gangadhar Bhimrao Giri And Ors on 10 July, 2025
2025:BHC-AUG:17791
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2449 OF 2019
WITH
CIVIL APPLICATION NO.5667 OF 2019 IN FA/2449/2019
Bajaj Allianz General Insurance
Company Limited
Through its Authorized Signatory /
Branch Manager,
ABC Complex, MIDC Chikalthana,
Near Prozone Mall, Aurangabad
Tq. & Dist. Aurangabad - 431 001. ... Appellant
(Orig. Respondent No.2)
Versus
1. Gangadhar Bhimrao Giri,
Age: 58 years, Occu.: Nil,
R/o. Chaudhary Colony,
Near Hanuman Mandir,
Chikalthana, Aurangabad.
2. Kachru Hirachandra Bhagure,
Age: 35 years, Occu.: Driver-cum-owner,
R/o. NR Water Tank, Naregaon,
Aurangabad.
3. Nandkishor Narayan Shimhi,
Age: Major, Occu.: Private owner of
rickshaw No.MH-20-BT-5781
R/o. N-9, R-261, M-3/4,
Raigad Nagar, Hudco,
Aurangabad.
4. Ramnath Pandharinath Tangde,
Age: 51 years, Occu: Business,
R/o. Rajendra Nagar, Naregaon,
Aurangabad.
5. Sunil Keshav Gaikwad,
Age: 47 years, Occu.: Driver,
R/o. Galli No.13 Vitthalnagar,
Naregaon, Aurangabad. ... Respondents
(R. No.1- Orig. Claimant,
R.No.2 Orig. Respdt. No.1,
R. Nos.3 to 5 - Original
respondents)
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......
Mr. Mohit R. Deshmukh, Advocate for Appellant
Mr. R.B. Dhakane, Advocate for Respondent No.1
Ms. Pooja H. Tayde, Advocate for Respondent No.4
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 23 JUNE 2025
PRONOUNCED ON : 10 JULY 2025
JUDGMENT :
-
1. Present first appeal is an offshoot of the judgment and
award passed by the Motor Accident Claims Tribunal,
Aurangabad in M.A.C.P. No.491 of 2013.
2. The original claimant (present respondent no.1), namely
Gangadhar Bhimrao Giri had filed claim petition against the
respondents before the Motor Accident Claims Tribunal at
Aurangabad on account of injuries suffered by him in a road
traffic accident dated 11.09.2022, seeking compensation to the
tune of Rs.5,00,000/- by invoking section 166 of the Motor
Vehicles Act. He set up an accident claim on the premise that, he
was traveling in auto rickshaw bearing No. MH-20-F-4412 and
was proceeding towards Naregaon. At that time, another auto
rickshaw bearing No. Mh-20-BT-5781 came from the opposite
direction in wrong side and gave dash to the rickshaw occupied
by the claimant causing an accident and fracture injuries to the
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claimant. He was required to get treatment for the fractures to
his ribs. Because of the accidental injuries, he lost his job as a
porter and also expended for treatment and given his as 52
years, he set up a claim of Rs.5,00,000/-.
3. Above claim was resisted by respondents including the
present appellant/insurance company. Insurance company
(original respondent no.2) contested and resisted the claim on
the grounds that, though the offending rickshaw was insured
with it, however, the driver of the said rickshaw was not holding
a valid driving licence. Secondly, stand was taken by the
insurance company that, there was contributory negligence of
drivers of both auto rickshaws, and therefore, there should be
composite and joint liability.
4. The Tribunal, after appreciating the evidence of PW-1
Claimant and PW-4 doctor, reached to a finding that respondents
no.2 and 3 i.e. insurance company and owner of the offending
rickshaw to jointly and severally pay the compensation of
Rs.7,84,600/- along with interest @ 7% p.a. out of total
compensation of Rs.9,80,600/-.
The above judgment is now assailed herein by the
insurance company by filing the instant appeal.
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5. Heard both the sides.
6. Learned counsel for the insurance company pointed out
that, only one of the two auto rickshaws was insured with that
insurer. According to the learned counsel, there was concrete
evidence suggesting involvement of both vehicles to be
indulging in rash and negligent driving. Secondly, percentage of
disability applied by the Tribunal had no basis and it is
exorbitant, even when it was at the most to the 18%. He
pointed out that, claimant was Mathadi Kamgar.
7. Inviting attention of this Court to paragraphs no.14 and
15 of the impugned judgment, he would submit that, there is no
evidence suggesting permanent loss of income or work. He
pointed out that, when there was contributory negligence, the
Tribunal ought to have saddled equal contribution to both
vehicles. However, he concedes that under the head of future
prospects, claimant is entitled to get at the most 18%, which was
asserted and claimed by him. He also submitted that, while
assigning loss of earning capacity, decision of the Hon'ble Apex
Court in the case of Rajkumar Vs. Ajay Kumar & others 2011(1)
SCC 343, ought to have been adopted. That, there was no
evidence to award 80% functional disability as is observed by
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the Tribunal, more particularly, in absence of any evidence
indicating inability to render work in future. Thus, he questions
the findings of the Tribunal to the extent of holding 80%
functional disability.
8. He also pointed out that evidence of doctor does not
suggest any permanent loss of earnings in view of the nature of
injuries suffered by claimant. He also questions the finding of
Tribunal on the point of negligence and it is his case that, when
there was collision between two vehicles, who were approaching
each other from opposite direction, there ought to have been
equal contribution rather than carving out percentage of
negligence. Thus, in substance, it is his case that contribution
saddled on both rickshaw drivers ought to have been equal. In
support of his submissions, he has placed reliance on T.J.
Parameshwarappa v. Branch Manager, New India Assurance
Company Ltd and others (2022) 17 SCC 51; Sanjay Kumar v.
Ashok Kumar and another (2014) 5 SCC 330; Prakash Velip v.
Servito Fausto and others 2023 SCC OnLine Bom 466 and
Sayed Mohaseen Sayed Jalal v. Maharashtra State Road
Transport Corporation, Aurangabad and another (2023) 5 Mah
LJ 481.
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9. In answer to above, apart from keeping written notes of
arguments on record and relying on several rulings viz. Pappu
Deo Yadav v. Naresh Kumar and Ors. AIR 2020 SC 4424; Lalan
D alias Lal and Anr. v/ Oriental Insurance Company. Ltd. AIR
202 SC 4508; Erudaya Priya v. State Express Transport
Corporation Ltd. Air 2020 SC 4284; K.S. Murlidhar v. R.
Subbulakshmi and Another AIR 2025 SC 70; Kajal V. Jagdish
Chand and Others (2020) 4 SCC 413; Reliance General
Insurance Co. v. Manju wd/o Vikram Choudhary & Ors. 2021 (6)
ALL MR 171; Notification by central government under payment
of wages act, 1936, came into force from 11.09.2012 ;
Mahalakshmi v. krishnaraj 2024 ACJ 2244; Syed Sadiq ETC. V.
Divisional Manager, United India Ins. co. AIR 2014 SC 1052 and
Chandramma v. Manager, Regional Office, NCC Limited and
Another (2023) 2 SCC 144, learned counsel for respondent
no.1/claimant submits that, though claimant has not set up
cross objection, in view of judgment of this Court in Reliance
General Insurance co. v. Manju wd/o Vikram Choudhary
(supra), even in absence of cross objection or cross appeal,
claimant is entitled for just compensation. He pointed out that,
in fact in suitable cases, the claimant is also entitled for
enhanced compensation. As regards to negligence, disability and
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loss of income is concerned, learned counsel supports the
findings of the Tribunal.
10. Before adverting the merits of the case, it would be
fruitful to refer to the evidence of PW4 Dr. Bedmutha, who
issued disability certificate. He deposed at Exhibit 74 as under:
"I am M.S. Ortho. I am having Sahyadri Multi Specialty
Hospital, Mukundwadi, Aurangabad.
2. The patient Gangadhar Bhimrao Giri was brought to my
hospital for evaluation of assessment on 08.10.2015. On that
day, I examined him clinically and radiologically and found that
he had the malunited fractured of 3rd, 4th, 6th rib resulted in
the vehicular accident dated 11.09.2012 as per history disclosed
by him. He had taken treatment in Ghati Hospital, Aurangabad.
So according to McBride scale I assessed the percentage of his
permanent disability. It was 18%. I issued the disability
certificate, which is now shown to me. Contents of the same are
correct. It bears my signature. It is at Exh.75.
3] Because of the above kind of disability and its percentage
the petitioner can not do any hard work for his whole life.
Cross-examination: For respondent no.1 Sk. Anil Adv.
Absent. No W.S. Hence, no cross.
Cross-examination: For respondent no.2 Mr. S. A. Adhav, Adv.
5] Since last 9 years I am doing private practice. I did not
give treatment to said patient. I had checked the entire medical
papers including discharge card of the petitioner. In my opinion
there was malunion of fracture of 3rd to 6th ribs of the
petitioner because of fracture and its treatment. The said
malunion fractures of at the said ribs shall remain for whole life
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in the body of the he petitioner. I have x-rays which I had taken
at the time of his examination regarding said malunion. Even if
the CT scan is got done of the said ribs today then also said
malunion position will be disclosed at said ribs. The petitioner
undergone the surgical treatment in Ghati Hospital. I never did
it. In said surgical treatment no rib of the petitioner was
removed. But intracostal tube are inserted in his ribs at Ghati
Hospital at the time of surgery.
6] It is not true to say that I have assessed the percentage of
disability to higher side. It is not true to say that the petitioner
has no permanent disability as no rib was removed in surgical
treatment. It is not true to say that to support the petitioner I
deposed falsely in his favour and issued false certificate".
11. Here, as submitted by learned counsel for the insurance
company, and it is also indisputably appearing that, the doctor
who treated the injured and derived percentage of disability, has
reached to a finding that injured had suffered 18% permanent
disability, but this Court cannot lose sight of the fact that
injured, who was Mahtadi worker was primarily involved in
lifting loads, carrying it from one place to another and that was
his primary source of earnings. The impact of accident was
indisputably fracture to 3rd, 4th, 5th and 6th ribs. Though,
fractured ribs were on the front part, considering the nature of
claimant's work, even if any load is taken on the back, it directly
or indirectly impacts the very capacity of a person to carry the
load, more particularly, who is in advancing age over 50 years. It
is common knowledge that, by virtue of advancing age, there is
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degeneration of bones making bones and ribs more fragile,
thereby weakening its strength and capacity. Therefore, with this
view in mind, though the medical expert has arrived at a
conclusion that injured has suffered 18% permanent disability,
this Court does not find error on the part of Tribunal in
considering it 80% disability.
12. Further, the rickshaw which was primarily involved and
responsible for rash and negligent driving was indisputably
insured with the present appellant and the finding of the
tribunal to that extent cannot be faulted at, because the
offending rickshaw insured with the present appellant had gone
to the wrong side, and therefore, responsibility of the insurance
company and owner of the offender rickshaw is 80% which
cannot be said to be misplaced or erroneous.
13. There being no distinct evidence on the part of appellant
about non availability of a valid driving licence or specific
breach of its condition. Even the submissions made to that
extent cannot be allowed to frustrate the entitlement of the
claimant/respondent no.1 who was working as Mathadi Kamgar
i.e. Hamal.
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14. In view of the above discussion, I proceed to pass the
following order:
ORDER
(I) First Appeal stands dismissed.
(II) Pending civil application, if any, also stand disposed of.
ABHAY S. WAGHWASE,
JUDGE
S P Rane
