Bombay High Court
The Manager,Future Generali India ... vs Salim Ahmed Shaikh And Anr on 12 March, 2025
HEMANT
2025:BHC-AS:12818
CHANDERSEN
SHIV
H C Shiv fa1392.24.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2025.03.19
19:13:25 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1392 OF 2024
WITH
INTERIM APPLICATION NO.11902 OF 2024
IN
FIRST APPEAL NO.1392 OF 2024
The Manager,
Future Generali India
Assurance Co. Ltd.
104 and 105, 1st Floor,
R.B. Mehta Road,
Near Ghatkopar (E),
Mumbai - 400 075 ...Appellant/Applicant
vs.
1. Salim Ahmed Shaikh
Age 29 years,
Residing at Cen No.10
Jan Seva Society,
Near Ahale Hadis Masjid,
Ganesh Nagar, Kandivali (W)
Mumbai 400 067 ...
2. Ramchandrarao Durgarao Akula
Residing at Bldg. No.124/3612,
Kannamwar Nagar No.02,
Vikhroli (East)
Mumbai 400 083 ...Respondents
WITH
INTERIM APPLICATION NO.1441 OF 2025
IN
FIRST APPEAL NO.1392 OF 2024
Salim Ahmed Shaikh
Age 29 years,
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H C Shiv fa1392.24.doc
Residing at Cen No.10
Jan Seva Society,
Near Ahale Hadis Masjid,
Ganesh Nagar, Kandivali (W)
Mumbai 400 067 ...Applicant
In the matter between
The Manager,
Future Generali India
Assurance Co. Ltd.
104 and 105, 1st Floor,
R.B. Mehta Road,
Near Ghatkopar (E),
Mumbai - 400 075 ...Appellant/Applicant
vs.
1. Salim Ahmed Shaikh
Age 29 years,
Residing at Cen No.10
Jan Seva Society,
Near Ahale Hadis Masjid,
Ganesh Nagar, Kandivali (W)
Mumbai 400 067 ...
2. Ramchandrarao Durgarao Akula
Residing at Bldg. No.124/3612,
Kannamwar Nagar No.02,
Vikhroli (East) Mumbai 400 083 ...Respondents
Mr. Rajesh Kanojia i/b Res Juris for the Appellant and Applicant in
IA No.11902/2024.
Mr. T. J. Mendon for the Respondent No.1 in Appeal and for the
Applicant in IA No.1441/2025.
CORAM : SHYAM C. CHANDAK, J.
DATED : 12th March, 2025
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H C Shiv fa1392.24.doc
JUDGMENT :
. Present Appeal is directed against the Judgment and Order
dated 26.02.2024, in M.A.C.P. No.407 of 2021, passed by the learned
Member, Motor Accident Claims Tribunal, Mumbai thereby said
claim filed under Section 166 of the Motor Vehicles Act, 1998 ("the
Act") has been partly allowed with proportionate costs and the
Appellant/Insurer and Respondent No.2/Opposite party have been
directed to jointly or severally pay the Respondent No.1/Claimant a
compensation of Rs.8,44,793/- alongwith interest @ 7% p.a.
2) Mr. Kanojia, the learned Advocate for Appellant, at the outset,
stated that no statutory defence was available to the Appellant in so
far as the policy of insurance and risk cover are concerned.
Therefore, both the learned Advocates submitted that the Appeal be
heard finally at the admission stage, dispensing with notice to the
Respondent No.2, who otherwise was ex-parte before the Tribunal.
Hence, heard the learned Advocates for the parties, finally. Perused
the record.
3) Facts in brief are that on dated 11.10.2020, at about 14:oo
hours, the claimant was riding his motor cycle ("M/cycle") and
proceeding towards Kandivali direction. When he reached near Two
Tanks chowk, the offending Motor Taxi bearing No.MH-03-AT-3362
("the taxi") came from opposite side driven in a rash and negligent
H C Shiv fa1392.24.doc
manner and, gave a forcible dash to the M/cycle. As a result the
claimant fell down and sustained grievous injuries. Therefore, the
claimant filed the claim and prayed to award a compensation of
Rs.15,00,000/- along with interest at the rate of 12% per annum,
against the Appellant and the Respondent No.2.
4) The Appellant filed the written statement and resisted the
claim. The Appellant admitted that the taxi was duly covered under
the policy of Insurance issued by the Appellant. However, the
Appellant contended that there was no negligence on the part of
driver of the taxi; that, the accident occurred due to contributory
negligence; that, the claim application is vague and incomplete in
material particulars. For these and other reasons the Appellant
prayed to dismiss the claim.
5) The claimant adduced his evidence on Affidavit (AW1/Exh.20).
He examined Dr.Rajesh Raman Desai (AW2/Exh.27) to prove his
disability and Nishad Ahmed Chaudhary (AW3/Exh.31) t0 prove his
occupation and the income. Besides, the claimant relied upon FIR
Exh.21, spot panchnama Exh.22, Insurance policy Exh.23, Discharge
Summary Exh.24, deposit receipts Exh.26, Disability Certificate
Exh.28, Registration Certificate of National Timber and Plywood
Exh.32 and employment-cum-salary certificate Exh.34. No evidence
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was presented in the rebuttal by the Appellant.
6) Mr. Kanojia, the learned Advocate vehemently submitted that,
the evidence as to the rash and negligent driving of the taxi is not
sufficient. The evidence relating to the claimant's occupation and
income is not adequate and it is also suffering from inconsistencies.
Hence, said evidence is not reliable. Therefore, the Tribunal declined
to hold the claimant's occupation as 'delivery agent' and monthly
income as Rs.24,00/-. However, the Tribunal conclude that the
claimant's notional monthly income was Rs.15,000/-, which is not
correct. He submitted that, the claimant also failed to prove the
disability. Hence, the impugned Judgment and Order be set aside.
7) In contrast, Mr. Mendon, the learned Advocate submitted there
is sufficient evidence by the claimant which has proved that, the
accident occurred due to rash and negligent driving of the taxi; and
that, it caused grievous injury and disability to the claimant. He
submitted that, there is sufficient and reliable evidence to accept the
occupation and income of the claimant as above, yet, the Tribunal
rejected it without just reason and awarded the compensation on
lower side by holding the notional monthly income as Rs.15,000/-
only. In the alternative, he submitted that there are no infirmities in
the impugned Judgment to reduce the compensation. Hence, he
H C Shiv fa1392.24.doc
submitted that, the Appeal be dismissed.
8) The evidence of the claimant is that at the relevant time and
place, the taxi came from opposite direction, driven in a high speed,
without taking any precaution and gave forcible dash to his M/cycle.
This evidence is corroborated with the FIR, which was promptly filed
by the claimant himself within 3 to 4 hours after the accident. The
spot panchnama clearly indicates that the road where the accident
occurred was 40 ft. in breadth. As such, it is safe to infer that the taxi
could have easily passed over the M/cycle without obstruction.
However, it dashed against the M/cycle. This indicates that the
driver of the taxi did not keep proper look out at the road. Driving a
four wheelers in such a manner is dangerous. This danger was
ignored by the taxi driver and, it ultimately resulted in the accident.
Therefore, the finding recorded by the Tribunal that the accident
occurred due to rash and negligent driving of the taxi, is correct and
need not be interfered with.
9) The evidence of the claimant coupled with the evidence of AW2
Dr. Desai, Discharge summary Exh.24 and the Disability Certificate
Exh.28 clearly show that the claimant had sustained fracture of the
neck of right taller bone with right ankle dislocation. Said fracture
was fixed with cannulated cancellous screws through certain surgical
H C Shiv fa1392.24.doc
procedure, performed at J. J. Hospital. The claimant was inpatient
for 7 days for the said medical treatment. Thus, it is apparent that the
injury was grievous and it took considerable time to heal and recover.
10) AW2 Dr. Desai deposed that he examined the claimant on
dated 01.05.2023 to assess his disability. He Perused the relevant
medical papers and noted the injury as stated above. He took fresh x-
ray of the injury. He deposed that, as per the x-ray, the fracture was
united but showed changes of 'A Vascular Necrosis' (AVN), therefore,
the area of the particular bone was dying. As per his clinical
examination, the claimant has suffered painful restriction of his right
ankle movement, resulting in difficulty in walking and climbing
stairs, inability to run and squat. He deposed that the claimant has
suffered chronic swelling of his right ankle and weakness in the right
leg muscles. In view thereof, he assessed the permanent partial
disability at 51% with reference to the right lower limb. Accordingly
he issued the said Disability Certificate. He deposed that the future
surgery to remove the implant will cost the claimant approximately
Rs.80,000. This evidence did not see sufficient challenge in the
cross-examination.
11) In view of the aforesaid evidence of the claimant and AW2-Dr.
Desai, the Tribunal awarded Rs.8,44,793/-. The break up of the
H C Shiv fa1392.24.doc
compensation is as under :-
Sr.No. Particulars Amount
1 Medicine expenses Rs.17,193/-
2 Special Diet & Conveyance Rs.20,000/-
3 Loss of Income Rs.90,000/-
4 Loss due to disability Rs.6,42,600/-
5 Pain and suffering Rs.50,000/-
6 Future medical expenses Rs.25,000/-
Total Rs.8,44,793/-
12) The claimant was present before this Court on 12.02.2025 and
he produced his latest x-ray report with x-ray plate (Exh.-"X"),
through Mr. Mendon, the learned Advocate. The said report clearly
noted that the claimant had suffered the said fracture. The implant is
present at the fractured site. The claimant has been advised to plan
for the implant removal. The claimant stated that still he has pain on
account of the fracture. At present the claimant is aged 33 years. As
such, he has to tolerate the disability for a long long period.
13) Considering the aforesaid evidence of the claimant and AW2-
Dr.Desai, the award under the heads 'medical expenses', 'Special Diet
& Conveyance' and 'Pain and suffering' is reasonable. Compared to
the medical expenses awarded, the award of Rs.25,000/- towards
'Future medical expenses' is not on higher side. After the future
H C Shiv fa1392.24.doc
surgery, the claimant will have to incur on special diet to recover
early. Therefore, said award of Rs.25,000/- is proper.
14) The claimant's evidence is that at the time of the
accident he was gainfully employed as "delivery agent" with M/s.
National Timber and Plywood, thereby he was getting monthly salary
of Rs.24,000/-. The nature of work was serving at the shop and
delivery of heavy goods articles on motor cycle. However, he is not
able to work and earn as before due to the disability. Therefore, he
has been adjusted as a '0ffice boy', on a meager salary of Rs.7,000/-
per month.
15) The supportive evidence of AW3-Nishad Chaudhary is that he
has been doing a business in the name and styled as 'M/s.National
Timber and Plywood'. This evidence is corroborated with the
Registration Certificate (Exh.32), issued by Ministry of Micro, Small
and Medium Enterprise. He deposed that since 2015 the claimant
has been working in his shop. Initially, the claimant was doing
delivery of goods to customers. At that time he was paying the
claimant Rs.800 per day. After about 1 - 1½ year of the accident, the
claimant resumed on work. But he was unable to work as before.
Therefore, has given him a table work and paying Rs.250/- per day.
H C Shiv fa1392.24.doc
In this regard AW3 relied upon the Employment-salary-Certificate.
15.1) In the cross-examination AW3 admitted that he has not placed
on record any challan to show that the claimant was working with
him as the delivery agent; that, he has not produce any document to
show that he was paying cash Rs.24,000/- p.m. to the claimant; that,
he did not obtain signature of the claimant on payment vouchers.
Therefore, the Tribunal held that the evidence of AW3 was not
supported by any reliable document. In the FIR the claimant stated
that he was doing a business of sliding windows. In view of this
evidence, the Tribunal declined to accept that at the time of the
accident, the claimant was working as the delivery agent and thereby
he was getting income of Rs.24,000/- per month. However,
considering the nature of the work of the claimant as stated in the
FIR, the Tribunal held that the notional monthly income of the
claimant was Rs.15,000/- per month. Such a first version as to one's
occupation and income in an FIR related to accident case is generally
a natural response and answers to police inquiries.
15.2) That apart, at the time of accident, the claimant was residing
and working in Kandivali, Mumbai. The personal and living expenses
of a person residing in Mumbai are higher compared to a person
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residing in a smaller District or Taluka. All kinds of skilled and
unskilled labour are easily available in Mumbai. The claimant was
able bodied before the accident. As such, it is probable that the
claimant was doing the work stated in the FIR to earn his livelihood.
Moreover it was a skilled work. Therefore, I am in agreement with
the aforesaid finding and conclusion of the Tribunal as to the
occupation and monthly income of the claimant as Rs.15,000/-.
16) Considering the nature of the fracture it is obvious that it was a
grievous injury. Ankle part in human body helps to balance the body
in different actions. Therefore, and considering the nature of the
work of the claimant, it is probable that the claimant was not able to
work and earn for 6 months. Therefore, the Tribunal is right in
awarding Rs.90,000/- as loss of six months income.
17) Considering the evidence of AW2-Dr. Desai, The Tribunal held
that the claimant has sustained functional disability to the extent of
15% on account of the said fracture. There is nothing in the evidence
to disagree with this finding. Therefore, the award of Rs.6,42,600/-
towards 'loss of the future income' is just and reasonable.
18) In view of the above discussion, the Appeal is liable to be
dismissed.
H C Shiv fa1392.24.doc
18.1) Hence, following Order is passed :-
(i) The Appeal is dismissed.
(ii) The parties shall bear their own costs.
(iii) The statutory deposit shall be transferred to the
Tribunal and it shall be disbursed in accordance with law.
(iv) In view of disposal of the Appeal, Interim Application
No.11902 of 2024 stands disposed of.
(v) As a result, Interim Application No.1441 of 2025 for
permission to withdraw the award amount is allowed in
terms of prayer clause (a).
(SHYAM C. CHANDAK, J.)
