Bombay High Court
Reliance General Insurance ... vs Shri.Amol Ulhas Kasar And Anr on 17 March, 2025
2025:BHC-AS:13973
WAKLE
MANOJ
JANARDHAN Manoj 6-FA-219-2022.doc
Digitally signed by
WAKLE MANOJ
JANARDHAN
Date: 2025.03.26
19:18:56 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 219 OF 2022
WITH
CROSS OBJECTION (ST) NO. 28684OF 2024
IN
FIRST APPEAL NO. 219 OF 2022
Reliance General Insurance Co. Ltd.,
Through Divisional Manager,
570, Naigaon Cross Road, Ahead of Royal
Industrial Estate, Vadala (W), Mumbai 400031,
106-107-108 First Floor, Space Cosmos,
Ashok Stumbh Panchavati, Nashik,
Through their office at 4th Floor,
Chintamani Avenue,
Opp. Western Express Highway,
Next to Virwani Industrial Estate,
Goregaon (E), Mumbai- 400 063. .... Appellant
Vs.
1. Shri. Amol Ulhas Kasar,
Age- 33 years,
Occu- Agriculture and Milk Business
R/o. At Kasarwadi, Post Chas, Tal. Sinner,
Dist. Nashik.
2. Shri Sanjay Dagadu Pawar,
Age- 44 years,
Occu- Owner, R/o. At Post Dhondvir Nagar,
Post Manegaon, Tal. Sinnar, Dist. Nashik .... Respondents
Ms. Poonam Mital for the Appellant.
Mr. Yogesh Pande for the Respondent No.1.
CORAM : SHYAM C. CHANDAK, J.
DATE : 17th March, 2025.
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Manoj 6-FA-219-2022.doc
JUDGMENT :
-
. The instant Appeal filed under Section 173 of the Motor
Vehicles Act of 1988 ("the Act") mounted a challenge to a Judgment
and Order dated 23.03.2021, passed by the Motor Accident Claims
Tribunal at Nashik, in M.A.C.P. No.326 of 2017 ("the claim"), thereby
said claim under Section 166 of the Act has been allowed and the
Appellant/Original Opponent No.2 (insurer) and Respondent
No.2/Original Opponent No.1 (owner) have been directed to pay the
Respondent No.1/Original Claimant a compensation totalling to
Rs.13,06,600/-.
1.1) The Appeal mainly claims that the compensation is
excessive. The Cross-Objection filed by the Claimant seeking
enhancement of the compensation amount.
2) Facts giving rise to this Appeal are that, the Claimant filed
the said claim therein he averred that on dated 09.10.2016, at about
11:30 p.m., he was proceeding in a Maruti Car bearing regn. No. MH-
04/CJ-4585 ("Car") from Sinner Road towards Dhondvir Nagar.
When the Car arrived at old Dapur Road in Manegaon Shivar, a
'Pickup' vehicle ("offending vehicle") bearing regn. No. MH-15/EG-
7287 came from Manegaon towards Sinner, driven in a rash and
negligent manner and dashed against the Car by coming on a wrong
side. As a result, the Claimant sustained injury to spine and other
Manoj 6-FA-219-2022.doc
parts of the body. On receiving an FIR of the incident, the police
registered the same at Cr. No.200/2016 under Sections 279, 304A,
337, 338, and 427 of the I.P.C. and under Section 184 of the Act,
against driver of the offending vehicle. Therefore, the Claimant filed
the claim and prayed to award compensation of Rs.8,00,000/-.
3) Despite notice Respondent No.2 did not file appearance
before the Tribunal. Hence, he was marked ex-parte.
4) The Appellant resisted the claim by entering its say-cum-
written statement and denied all the material allegations averments
and submissions made against in the claim. The Appellant admitted
that the offending vehicle was duly insured at the time of accident.
However, the Appellant contended that there was no negligence on
the part of the driver of the offending vehicle; and that, the accident
occurred only due to rash and negligent driving of the car. That, the
driver of the offending vehicle was not holding a valid and effective
driving license to drive the said vehicle. Thus, there was willful breach
of the policy the terms and conditions. As such, the Appellant was not
liable to pay the compensation.
5) On considering the evidence adduced by the claimant, the
Tribunal allowed the claim and directed that the Appellant and
Respondent No.2 shall pay compensation of Rs.13,06,600/- with 6%
interest from the date of claim till realization of the compensation.
Manoj 6-FA-219-2022.doc
6) Ms. Mittal, the learned Advocate for Appellant submitted
that the accident occurred in October 2016. At that time, the
minimum wages were less than Rs.100/-. However, the Tribunal held
the monthly income of the Respondent No.1 at Rs.5000/- per month,
which is on higher side compared to the said minimum wages. She
submitted that the driver of the offending vehicle had no licence to
drive the offending vehicle. Therefore, she urged that the
compensation amount may be reduced.
7) Mr. Pande, the learned Advocate for the Respondent No.1,
on the other hand submitted that the evidence on the point of
occupation and income of the Respondent No.1 did not see sufficient
challenge in the cross-examination. No evidence is adduced by the
Appellant to rebut that evidence. Therefore, the annual income of
Respondent No.1 may be easily accepted as Rs.2,00,000/-. In the
alternative, Mr. Pande submitted that looking at the minimum wages
prevailing at the time of the accident, the said annual income may be
taken as Rs.96,000/- at least, i.e., at par with an unskilled labour.
8) Insofar as the manner of the accident is concerned, the
Respondent No.1 in his Affidavit-of-evidence (Exh.19) clearly stated
that at the time of accident he was proceeding in the Car from Sinner
Road towards Dhondvir Nagar. When the Car reached at the spot of
the accident, the offending vehicle came there driven in a rash and
Manoj 6-FA-219-2022.doc
negligent manner and dashed against the Car by coming on a wrong
side. This evidence is corroborated with the FIR (Exh.21) and the spot
panchnama (Exh.22). The FIR was promptly lodged by the co-
passenger in the Car and it resulted in filing chargesheet against the
driver of the offending vehicle. The Appellant has not examined the
driver of the offending vehicle to challenge the aforesaid evidence of
Respondent No.1 and the police papers. There is nothing on record
showing that the offending vehicle was falsely involved in this
accident. As such, the Tribunal was correct in attributing the
negligence to the driver of the offending vehicle.
9) The claimant's evidence coupled with the Discharge
Summaries (Exhs.23, 24 & 37) clearly established that the claimant
had sustained following injuries on account of the accident.
a) Head injury, spinal cord injury, CLW over upper eye lid
and over lower lip.
b) There to D12 to L1 chain fracture dislocation with
complete paraplegia with injury (bruises) to the bladder.
10) The evidence of the claimant, CW2-Dr. Rajendra Gorhe
and the Discharge Summaries indicate that the claimant was
admitted in different hospitals. His injuries were medically treated
with surgical procedure. In view thereof and the hospital plus
pharmacy medical bills (at Exh.27 colly.), the Tribunal awarded total
Manoj 6-FA-219-2022.doc
Rs.2,87,000/- under the head medical expenses. There is nothing to
doubt the genuineness of the said bills. No other medical bills were
produced. Hence, I hold that adequate compensation has been
awarded towards the medical expenditures.
11) Now let us turn to the question as to whether the
compensation awarded under other heads is excessive or it should be
enhanced.
12) Evidence of the claimant is that he has suffered 72%
permanent disability due to the injuries. CW2-Dr. Gorhe deposed that
the claimant has been suffering from bladder and bowel sensation
less, he is unable to sit, walk and do any type of independent activity.
The claimant was admitted in his hospital for about 20 times (vide
Discharge Cards Exh.37 colly). According to CW2, the claimant has
suffered around 70% permanent disability. The Disability Certificate
(Exh.45) issued by the Civil Surgeon, Nashik states that the claimant
is a case of loco-motor disability. He has suffered bilateral paraparesis
with foot drop and he has suffered 70 % permanent disability with
reference to the injured parts of the body. This entire evidence
remained unaffected in the cross-examination. Hence, I hold the
disability, accordingly.
13) The evidence of the Respondent No.1 is that, he was doing
Manoj 6-FA-219-2022.doc
agriculture and milk business thereby he was getting an annual
income of Rs.2,00,000/-. In this regard, the Respondent No.1 has
produced a 7/12 extract. However, the Tribunal held that the said
extract was in the name of the father of the Respondent No.1 and the
father's brothers. Therefore, the Tribunal declined to accept the
annual income as Rs.2,00,000/-. However, considering the nature of
the work of the Respondent No.1, the Tribunal held his income as
Rs.5,000/- p.m. and annually Rs.60,000/-.
13.1) Neither Ms. Mittal, the learned Advocate for the Appellant
nor Mr. Pande, the learned Advocate for Respondent No.1 produced
any record to show that the monthly minimum wages prevailing at
the time of the accident were either less or higher than the monthly
income of Rs.5,000/- as has been held by the Tribunal. The
Respondent No.1's evidence is silent about the number of dairy cattle
through which he was doing the milk business and earning. It is not
the case that the agricultural land claimed by the Respondent No.1
lying uncultivated due to his disability. However, it cannot be ignored
that the claimant's wife died in the same accident. As such it clear that
the claimant was maintaining the family of two, at least. The 7/12
extract shows that the claimant' family possess small agricultural
land. It is generally noticed that agriculturists, having small land, also
do milk business to earn more to support their family. As such, it is
Manoj 6-FA-219-2022.doc
probable that the besides agriculture, the claimant was also doing
milk business. Therefore, and considering the inflation prevailing at
the time of the accident, I deem it appropriate to treat the monthly
income of the claimant as Rs.8,000/- which annually comes to
Rs.96,000/-.
14) Having regard to the nature of the permanent disability
suffered by the claimant, the Tribunal held that there was 70% loss of
the future income/income capacity on account of the said disability.
There is nothing on record to take an exception to the said finding of
the Tribunal. Hence, the claimant deserves to get total Rs.15,99,360/-
towards the loss of the future income/income capacity (Rs.8,000/- +
40 % = Rs.11,200 x 12 x 17 x 70 % disability).
15) The Tribunal did not consider the aspects of 'special diet',
and 'transport charges'. Looking at the injury, its medical treatment
and duration of said treatment, it is obvious that the claimant must
have incurred considerable amount under the aforesaid heads.
Similarly, no amount was awarded towards 'attendant charges'. The
claimant's wife died in the same accident. Therefore, and looking at
the financial condition of the claimant, it is probable that some family
member must have attended the claimant sacrificing his own earning.
Therefore, and considering the present medical condition of the
claimant, he deserves to get total Rs.1,00,000/- under said three
Manoj 6-FA-219-2022.doc
heads. Looking at the injuries of the claimant, the surgical procedures
undergone for that, the treatment period and that the claimant shall
endure the paraplegic condition throughout the life, the claimant is
entitled to receive total Rs.2,50,000/- towards 'pain and suffering'
and 'loss of amenities'.
16) Even though Mr. Pande, the learned Advocate for the
claimant contended that no compensation is awarded towards the
future medical expenses, he has not pointed any evidence which
suggests that, the claimant is continuously taking certain medical
treatment. Therefore, in my considered view no award is possible
under the head 'future medical expenses'.
17) Thus, the claimant is entitled to receive total
compensation of Rs.22,36,360/-. The Appellant has deposited the
entire amount of compensation awarded by the Tribunal. Therefore,
the claimant is entitled to receive only the enhanced compensation as
under :-
Total compensation amount : Rs.22,36,360/-
Minus the compensation amount : - Rs.13,06,600/-
awarded by the Tribunal and paid. ----------------
Enhanced compensation amount : = Rs.09,29,760/-
18) The Claimant is entitled for some interest on the
compensation amount. The rate of such interest is required to suit the
Manoj 6-FA-219-2022.doc
rate of interest prevailing at the time of the accident. This accident
occurred in the year 2016. The Claimant was entitled to get the
compensation amount immediately after the accident. Therefore,
looking at the financial condition of the claimant, his disability, that
his wife died in the same accident and, the average rate of interest
prevailing between 2016-2021, I deem it appropriate to award the
interest @ 7.5% p.a.
19) Insofar as the liability to pay the compensation was
concerned, the Tribunal held that the Respondent No.2 was the
registered owner of the offending vehicle and it was validly insured
with the Appellant. However, the Appellant has not examined any
witness to prove its contention that the driver of the offending vehicle
was not holding valid and effective driving license to driving
offending vehicle at the time of accident. Therefore, the Tribunal
saddled the liability of the compensation on both the Appellant and
the Respondent No.2. The FIR does not mention the charge of driving
without licence. Therefore, the Tribunal is correct in holding that the
Appellant and the Respondent No.2 are jointly and severely liable to
pay the compensation amount.
20) Conspectus of the above discussion is that the Tribunal
failed to consider the evidence on record in its correct perspective and
award just and reasonable compensation. Therefore, the impugned
Manoj 6-FA-219-2022.doc
Judgment and Order needs to be interfered with to modify the same
to enhance the compensation amount.
21) In view thereof, the Appeal is liable to be dismissed and
the Cross Objection partly succeeds.
22) Hence, following Order.
(a) First Appeal is dismissed with proportionate costs.
(a-1) The Cross-Objection is partly allowed.
(b) The impugned Judgment and Order dated
23.03.2021, in M.A.C.P. No.326 of 2017, passed by the
Motor Accident Claims Tribunal at Nashik, is modified.
(c) Appellant and Respondent No.2 shall jointly and
severally pay the compensation of Rs.22,36,360/-
(inclusive of NFL amount) together with interest thereon
at the rate of 7.5% per annum from the date of the Claim
Petition till realization 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.
(e) The Respondent No.1 is permitted to withdraw the
deposited amount from the Tribunal within a period of
Manoj 6-FA-219-2022.doc
eight weeks from the date of the deposit, subject to
payment of a deficit Court fees, if any.
(f) 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.
(g) Appellant/insurance company will be entitled to
adjustment of the amount against the already paid under
the impugned Award.
(SHYAM C. CHANDAK, J.)
