Bombay High Court
Bajaj Alliainz General Insurance ... vs Shri. Sagar Haribhau Dumbre And Anr on 4 March, 2025
2025:BHC-AS:11756
WAKLE
MANOJ Manoj 1-FA-1043-2015.doc
JANARDHAN
Digitally signed by
WAKLE MANOJ
JANARDHAN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2025.03.13
14:30:21 +0530
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1043 OF 2015
WITH
CROSS OBJECTION (ST) NO. 33998 OF 2024
IN
FIRST APPEAL NO. 1043 OF 2015
Bajaj Allainz General Insurance Company
Limited, Vardhaman Building 7 Love's
Chowk, Shankar Seth Road, Swargate,
Pune .... Appellant
Vs.
1. Shri Sagar Haribhau Dumbre
Age- 44 years, Occupation- Nil.
Residing at Otur, Taluka- Junnar,
District- Pune.
2. Ravindra Balashiram Phapale
Age- Adult, Occupation- Owner
Residing at Dhokeshwar, Takali,
Taluka Parner, District- Ahmednagar. .... Respondents
Ms. Yogita Deshmukh for the Appellant.
Mr. Yogesh Pande for the Respondent No.1.
CORAM : SHYAM C. CHANDAK, J.
DATED : 4th MARCH, 2025.
JUDGMENT :
-
. Aggrieved with the Judgment and Order dated 17.04.2015,
in M.A.C.P. No.1077 of 2010, passed by the Motor Accident Claims
Tribunal, at Pune the Appellant/Original Opponent No.2 has
preferred the instant Appeal. The Respondent No.1/Original Claimant
Manoj 1-FA-1043-2015.doc
filed the aforesaid Cross-Objection challenging the same Judgment
and Order on the ground of inadequacy of the compensation. Hence,
the Appeal and the Cross-Objection are being disposed of together by
this common Judgment.
2) Despite notice none appeared for Respondent No.2, who
was owner of the offending vehicle.
3) Heard Ms.Deshmukh, the learned counsel for Appellant
and Mr.Pande, the learned counsel for Respondent No.1. Perused the
record.
4) The Respondent No.1 filed the aforesaid M.A.C.P. No.1077
of 2010 therein he averred that on 14.08.2010, at about 17:00 p.m.,
he was working in his agricultural land at Dumbaremala. At that time,
a tractor bearing regn. No.MH-17/N-9576 was working in the land.
While taking a turn, the driver of the tractor drove the same in a rash
and negligent manner. As a result the driver lost his control over the
tractor and a wheel of the tractor ran over the right leg of Respondent
No.1, causing him serious injuries. Immediately, the Respondent No.1
was removed to Dhande Hospital, at Ale Phata, Pune. There, he was
inpatient from 14.08.2010 to 25.09.2010 and undergone an operation
etc. However, the injury resulted in amputation of his right leg below
the knee.
5) On receiving information of the accident, police registered
Manoj 1-FA-1043-2015.doc
an offence against the driver of the tractor. It is averred that, the
Respondent No.1 was earning Rs.10,000/- per month from milk &
poultry businesses and agricultural. Respondent No.2 was registered
owner of the tractor and it was validly insured with the Appellant, at
the time of accident. Therefore, the Respondent No.1 prayed to award
a compensation of Rs.10,00,000/- under all heads.
6) Despite notice, the Respondent No.2 did not file his
appearance, therefore, the claim proceeded ex-parte against him.
7) The Appellant appeared and filed written statement. The
Appellant has not admitted and specifically denied each and every
material allegation, averment and submission made in the claim
including the manner of the accident. The Appellant contended that
the driver of the tractor was not holding valid and effective driving
license at the time of accident. The tractor was used for commercial
purpose by hiring the same. Thus, there was breach of the policy
terms and conditions. As such, the claim be rejected.
8) In order to prove the claim, the Respondent No.1 adduced
his evidence on Affidavit (CW1/Exh.18) and examined Dr. Santosh
Shivajirao Kokane (CW2/Exh.35). Besides, the Respondent No.1 has
relied upon certain documents in evidence. In rebuttal, the Appellant
adduced the evidence on Affidavit of its Senior Executive Officer, Mr.
Sukhprit Singh Durai (RW1/Exh.54).
Manoj 1-FA-1043-2015.doc
8.1) On appraisal of said evidence, the Tribunal held that the
accident occurred due to rash and negligent driving of the tractor. The
Respondent No.1 had sustained the injury as above; that, the injury
resulted in the loss of six months' income, the injury caused him 70%
disability; that, and the said disability resulted in the loss of the 70%
income capacity as the Respondent No.1 cannot do the agriculture
work as before. The Tribunal therefore, awarded the compensation
Rs.16,04,005/-. The Tribunal held that, even though the subject
policy of insurance was a 'Farmer's Package Policy', the risk of
Respondent No.1 was covered and hence, directed the opponents to
pay the compensation amount.
9) Insofar as the cause of the accident is concerned, the oral
evidence of Respondent No.1 coupled with the F.I.R. clearly indicate
that at the time of accident the tractor was working in the agricultural
land of Respondent No.1. But while taking a turn, the tractor ran over
the right leg of Respondent No.1. Said oral and documentary evidence
did not meet sufficient challenge in the cross-examination. The
Appellant has not examined the driver of the tractor in the rebuttal. It
is well-settled that in the proceedings of Section 166 of the Act, the
issue of negligence has to be decided on the basis of preponderance of
probabilities and that standard of proof beyond reasonable doubt
cannot be made applicable in such cases. Hence, I hold that the
Manoj 1-FA-1043-2015.doc
accident occurred due to rash and negligent driving of the tractor.
10) The evidence of Respondent No.1 and CW2-Dr. Santosh
Kokane is that the Respondent No.1 had sustained following injuries
due to the accident :-
1] Crush Injury over right foot with all bones of (R)
foot fractured and muscles crushed with skin loss.
2] Crush injury over right leg lover 3 rd with ankle joint
exposed with crushed muscles with skin loss.
10.1) CW2-Dr. Santosh Kokane stated that the crush injury also
involved a neuro vascular injury to the leg. The Respondent No.1 and
CW2 stated that the former was inpatient in the latter's hospital from
14.08.2010 to 25.09.2010. The said evidence is corroborated with the
Injury/Medical Certificate (at Exh.36) issued by CW2. The said oral
and documentary evidence did not meet any challenge in the cross-
examination of the witnesses. Hence I hold the injury, accordingly.
Further, the evidence of the Respondent No.1 along with the evidence
of CW2-Dr. Santosh Kokane and the Disability Certificate (at Exh.37)
clearly established that the said injuries resulted in amputation of the
right leg below the knee and it led to 70% disability. In view of this
evidence the Tribunal held that the Respondent No.1 has sustained
the 70% disability. However, the evidence of the Respondent No.1 and
Manoj 1-FA-1043-2015.doc
CW2 is not clear as to whether the said disability was with reference
to the injured leg or with reference to the whole body. The Disability
Certificate only mentions that the Respondent No.1 has suffered
"Destruction or permanent impairing of the powers of any member or
joint." That apart, in his evidence CW2 did not inform exactly what
activities or functions the Respondent No.1 is unable to do on account
of the 70% disability. The Disability Certificate is also silent on this
aspect. Therefore, I hold that the said disability is with reference to
the injured right leg only.
11) Now turning to the quantum of the compensation. Based
on the evidence of Respondent No.1, CW2-Dr. Santosh Kokane, the
injury, bills of the hospital and pharmacy etc., the Tribunal awarded
Rs.80,005/-under the head 'medical expenses'. This amount appears
justifiable considering the evidence on record. Therefore, it need not
be enhancement.
12) The Tribunal awarded Rs.8,000/- as travelling expenses
and Rs.10,000/- as special diet. In this regard the Tribunal noted that
Respondent No.1 had to go to the doctors, surgeons, physiotherapist
for early recovery. However, looking at the injury sustained by the
Respondent No.1, it is safe to presume that post amputation, said
injury must have taken a considerable time to recover. During that
time, the Respondent No.1 must have visited the doctor/s frequently
Manoj 1-FA-1043-2015.doc
and taken special diet for early recovery. Hence, in my considered
view Respondent No.1 deserves to receive total Rs.25,000/- under the
heads 'travelling expenses' and 'special diet'.
13) Now about the loss of income and the loss of the future
income. The evidence of Respondent No.1 is that, at the time of
accident he was doing agricultural work, milk business and poultry
business thereby he was getting total monthly income of Rs.10,000/-.
To strengthen this evidence the Respondent No.1 produced the 7/12
extracts and 8A extract, which show that the family has some land.
Respondent No.1 also produced a Certificate dated 18.10.2010, issued
by the Village Development Officer. Said Certificate mentions that the
father of the Respondent No.1 had the poultry farm and after him, the
Respondent No.1 succeeded the same. The Tribunal held that nothing
has come on record to disbelieve the aforesaid evidence outright. It is
noted that, the evidence as to the agricultural work and running the
poultry farm was not challenged even by way of a suggestion of
denial. The Tribunal observed that, the Respondent No.1 was aged 39
years and young. Such a young person can earn Rs.250 per day by
doing unskilled labour. However, the Tribunal noted that,
Respondent No.1 was cultivating the land with his brother. Therefore,
the Tribunal held that the monthly income of the Respondent No.1
was Rs.8,000/- at the time of accident.
Manoj 1-FA-1043-2015.doc
13.1) In this context, I have noted that the cross objection does
not specifically claim that the monthly income of Rs.8,000/- has been
held on lower the side. That apart, the Respondent No.1 has not
stated the numbers of cattle he was having at the time of the accident
nor he informed the per day milk produced by his cattle. Therefore, I
am in agreement with the Tribunal that the notional monthly income
of the Respondent No.1 was Rs.8,000/- at the time of the accident.
14) The crush injury sustained by the Respondent No.1 also
involved a vascular injury, as stated in the evidence of CW2-Dr.
Santosh Kokane. As such, the Tribunal held that the Respondent No.1
could not attend his work and earn for at least for six months and
accordingly, awarded Rs.48,000/- under the head of 'loss of income'
which is justifiable.
15) The Tribunal held that, the aforesaid disability resulted in
the loss of 70% income capacity of the Respondent No.1. Accordingly,
the Tribunal calculated the compensation i.e., 8000 X 12 X 15 =
Rs.14,40,000/- and 70% thereof Rs.10,08,000/-.
15.1) As noted above, the Respondent No.1 can walk and do his
daily pursuits with the help of an artificial limb. However, it cannot be
denied that, the amputation of the leg resulted in loss of the future
income/income capacity. In the cross-examination CW2-Dr. Santosh
Kokane has denied that if one's leg is amputed, his disability would be
Manoj 1-FA-1043-2015.doc
50% with reference to his whole body. CW2 has denied that if an
artificial limb is used, then such a disability would reduce to 30% of
the particular limb. Considering this denial and nature of the work
that Respondent No.1 has been doing to earn, I am in agreement with
the finding recorded by the Tribunal that the disability resulted in the
loss of 70% income capacity.
15.2) However, as submitted by Mr. Pande, the learned counsel
for Respondent No.1, no compensation has been awarded towards the
future prospects. In view of a decision in National Insurance Co. Ltd.
vs. Pranay Sethi and others.1, some amount shall be added to the
actual loss of the income of the Respondent No.1. As per the oral and
documentary evidence on record, Respondent No.1 was aged 39 years
at the time of accident. However, his income was not regular. Hence,
the addition towards his future prospects should be 40% of the loss of
the future income of Rs.10,08,000/- as held above. On such addition,
the actual loss of the future income of Respondent No.1 comes to
Rs.14,11,200/- (1008000 + 403200).
16) The Tribunal held that, the Respondent No.1 had been in
need of an artificial foot/limb. Such a limb is required to be replaced
every three years. Therefore, the Tribunal awarded Rs.1,00,000/- for
an artificial limb. However, Mr. Pande,the learned counsel, submitted
1. 2017 ACJ 2700 (SC).
Manoj 1-FA-1043-2015.doc
that the artificial limb which the Respondent No.1 has been using is
costing Rs.1,50,000/- to Rs.2,00,000/- per unit. He submitted that,
the Respondent No.1 has to replace that limb every three years.
Therefore, the award of Rs.1,00,000/- under this head is on the lower
side and, it may be reasonably enhanced. He submitted that the
Tribunal awarded Rs.2,00,000/- towards 'pain and sufferings' and
Rs.1,50,000/- towards 'discomfort and loss of enjoyment of life'.
However, looking at the injury and nature of the disability it caused,
the said compensation is not just and reasonable. He therefore,
submitted that an adequate compensation may be awarded under the
aforesaid heads. To support the said submissions, Mr. Pande has
relied upon following reported decisions.
i) Mohd. Sabeer vs. Regional Manager, U.P. State Road
Trans. Corpn.2. In this reported case, the claimant aged 37 years, had
suffered an amputation of right lower limb below the knee. The
Hon'ble Supreme Court accepted the permanent disability as 70% due
to the said injury. Accordingly, the loss of the future earning capacity
was calculated at 60%. In view thereof, the Hon'ble Supreme Court
awarded Rs.12,80,000/- as cost of artificial limb and its maintenance.
Rs.2,00,000/- has been awarded towards pain and suffering and Rs.
Rs.2,00,000/- has been awarded towards loss of amenities of life. In
2. 2023 ACJ 1.
Manoj 1-FA-1043-2015.doc
addition to a compensation of Rs.11,34,000/- towards loss of earning
capacity due to functional disability, Rs.2,00,000/- has been awarded
towards loss due to disability and disfigurement.
ii) G. Vivek vs. National insurance Co. Ltd. and another 3. In
this case the injured aged 12 years suffered amputation of right leg.
The permanent disability was 97 % with reference to the his right leg.
In this background and considering the evidence on record, the
Hon'ble Supreme Court awarded Rs.26,00,000/- towards cost and
maintenance of prothesis.
16.1) In the case in hand, the Respondent No.1 in his evidence
has not specifically stated that on recovery of the injury post surgery,
he spent certain amount to purchase an artificial foot/s. However, it
cannot be ignored that he has claimed the compensation under all the
admissible heads. In the cross-examination of CW2-Dr. Santosh
Kokane it has come that he had advised the Respondent No.1 to have
a below knee prosthesis (artificial limb). He can walk with such a limb
and do his daily pursuits. Thus, Appellant has conceded the need of
an artificial limb. However, there is no evidence as to the nature and
cost of the artificial limb which the Respondent No.1 has been using.
Today, Mr. Pande, the learned counsel produced a coloured
photograph of the Respondent No.1 alongwith the artificial limb. Said
3. 2023 ACJ 585.
Manoj 1-FA-1043-2015.doc
photograph is taken on record. The photograph indicates that, the
artificial limb that Respondent No.1 has been using, is simple. It is
settled law that each case has be to decided on its own merits. In view
thereof, considering the age of Respondent No.1 at the time of the
accident, the nature of the amputation he suffered and that the
artificial limb is required to be changed every three years, the
Respondent No.1 is entitled to receive total Rs.5,00,000/- towards
the cost and maintenance of prothesis.
17) The Tribunal has not awarded an 'attendant charges'. It is
common experience that in such cases of amputation, without an
attendant, an injured person cannot even have his daily simple
morning routine until sufficient recovery from the injury. The
Respondent No.1 was earning lesser income. Therefore, it is probable
that the he was attended by someone in the family, skipping on
her/his earnings. I, therefore, deem it appropriate to award
Rs.25,000/- under this head. Considering the facts of the case in
hand and, the decision in Mohd. Sabeer (supra), Respondent No.1 is
entitled to get Rs.1,00,000/- towards the loss due to the disability and
disfigurement. Sufficient compensation is awarded for 'discomfort',
'pain and suffering' and 'loss of enjoyment of life'.
18) Thus, the Respondent No.1 is entitled to receive total
Rs.24,91,205/-. The Appellant has deposited the entire amount of
Manoj 1-FA-1043-2015.doc
compensation awarded by the Tribunal. Therefore, the Respondent
No.1 is entitled to receive only the enhanced compensation as under :-
Total compensation amount : Rs.24,91,205 /-
Minus the compensation amount : - Rs.16,04,005/-
awarded by the Tribunal and paid. ----------------
Enhanced compensation amount : = Rs. 8,87,200/-
----------------
19) Now as to the liability to pay the compensation. There is
no dispute that, the tractor was validly insured with the Appellant at
the time of the accident. However, it is the defense of the Appellant
that the insurance policy of the tractor does not cover a risk if the said
tractor was used for hire.
20) To prove the said defense, the Appellant has presented the
evidence of OW1-Sukhprit Gurai, Senior Executive Legal Officer. His
evidence is that, the Respondent No.1 had hired the services of the
tractor at the time to accident. Thus, there was wilfull breach of the
insurance policy terms and conditions (Exh.57). In the cross-
examination, Respondent No.1 admitted that he had hired the tractor
for agricultural work.
20.1) In the cross-examination OW1-Sukhprit Gurai admitted
that a clause having heading "avoidance of certain terms and right of
recovery" missing from the policy document (Exh.57); that, IMT
endorsement Nos.21, 37 and 39 were not attached with the policy
Manoj 1-FA-1043-2015.doc
(Exh.56); that, the policy (Exh.57) was "Farmer's Package Policy";
that, Farmer's Package Policy is having cover of other policies; that,
the tractor was insured under a "Commercial Vehicle Package Policy"
subject to fulfilment of all the terms and conditions of a Farmer's
Package Policy; and that, commercial vehicle can be given on hire. He
has denied that, he has deliberately produced the wrong policy
(Exh.57) on record. He has denied that, there was no breach of the
policy terms and conditions.
20.2) In view of the aforesaid evidence the Tribunal held that,
the Appellant has filed an incomplete policy (Exh.57). It is held that,
the tractor was insured under the commercial vehicle package policy
subject to the fulfillment of all the terms and conditions of the
Farmer's Package Policy. Tribunal also held that, since the subject
policy (Exh.57) was the Farmer's Package Policy', the tractor was to
be used in agricultural lands only. Therefore, the Tribunal held that,
even if it is presumed that the Respondent No.1 had hired the tractor
as above and, the tractor was used in the private agricultural land, the
Respondent No.2 cannot be held to have committed the breach of
policy terms and conditions. Therefore, the Tribunal rejected the
contention that there was breach of the policy terms and conditions
and to absolve the Appellant from compensation liability.
21) The Compilation of Documents produced by Respondent
Manoj 1-FA-1043-2015.doc
No.1 contains the policy schedule, the Certificate-cum-Policy
Schedule, and the Policy Document. The Certificate-cum-Policy
Schedule contains a condition i.e., "Limitation as to Use". As per this
condition the use of the tractor was limited to 'Agricultural and
Forestry purposes'. However, said condition does not specify that
such use is limited to the agricultural purposes of the owner of the
vehicle. As such it is safe to presume that, use of the tractor in the
private agricultural land of Respondent No.1 was not prohibited by
that condition.
21.1) The said limitation clause further states that, the said
policy does not cover use for hire. This gives rise to an inference that,
the tractor was not permitted to be used for hire. As noted above, in
the cross-examination the Respondent No.1 has admitted that he had
hired the tractor for agricultural work. This admission supports the
evidence of OW1. However, it must be noted that, 'Cover 7 : Tractors'
stated in the Policy Document provides that,
i. Cover is provided for the Insured's Tractors on the same terms
as if they were vehicles covered under the Company's Standard
Commercial Vehicle Package Policy (which is deemed to be
incorporated into this Policy for the purposes of this Cover only)
but the cover provided is:
a) for the Policy Period only, and
b) is subject to the same terms, conditions, exclusions and
warranties as the Company's Motor Policy in all respects.
Manoj 1-FA-1043-2015.doc
21.2) As noted above, OW1-Sukhprit Gurai admitted that the
tractor was insured under a "Commercial Vehicle Package Policy"
subject to fulfillment all the terms and conditions of a Farmer's
Package Policy; and that, commercial vehicle can be given on hire. It
is common experience that in village areas, farmers holding small
lands hire tractors of others from same or other villages, to expedite
their agricultural operations. The Appellant or OW1-Sukhprit Gurai
have not explained as to how the codition 'policy does not cover use
for hire' would run contray to the use permitted under the said 'Cover
7 : Tractors'. As noted by the Tribunal, a complete policy document
was not produced before the Tribunal by the Appellant. In this
background, the Appellant cannot escape the liability to pay the
compensation quantified as above.
22) In view thereof, the Appeal is liable to be dismissed and
the Cross Objection partly succeeds. Hence, following Order.
-ORDER-
(a) First Appeal is dismissed with proportionate costs.
(a-1) The Cross-Objection is partly allowed.
(b) The impugned Judgment and Order dated 17.04.2015, in
M.A.C.P. No.1077 of 2010, passed by the Motor Accident
Claims Tribunal, at Pune is modified.
Manoj 1-FA-1043-2015.doc
(c) Appellant and Respondent No.2 shall jointly and severally
pay the compensation of Rs.24,91,205/- (inclusive of NFL
amount) together with interest thereon at the rate of 7.5%
per annum from the date of the Claim Petition till
realisation of the amount.
(d) Appellant and Respondent No.2 are directed to comply
with this Judgment and Order within a period of four
months from today, by depositing the amount in the
Tribunal.
(d-1) On deposit of the amount the Tribunal shall immediately
inform about the deposit to Respondent No.1.
(f) The Respondent No.1 is permitted to withdraw the
deposited amount from the Tribunal within a period of
eight weeks from the date of the deposit, subject to
payment of a deficit Court fees, if any.
(g) The amount deposited in the Tribunal shall not be
invested for a period of eight weeks from the date of
deposit. In the event the amount is not withdrawn within
a period of eight weeks from the date of deposit the same
shall be invested by passing appropriate directions by the
Tribunal.
Manoj 1-FA-1043-2015.doc
(h) Appellant/insurance company will be entitled to
adjustment of the amount against the already paid under
the impugned Award.
(SHYAM C. CHANDAK, J.)
