Bombay High Court
Ganesh Shivaji Patil vs The New India Assurance Co. Ltd. And Ors on 4 October, 2025
2025:BHC-AUG:27953
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
910 FIRST APPEAL NO. 808 OF 2011
GANESH SHIVAJI PATIL
VERSUS
THE NEW INDIA ASSURANCE CO. LTD. AND ORS
Mr. M. M. Bhokarikar, Advocate for Appellant
Mr. A. S. Usmanpurkar, Advocate for the Respondents
CORAM : R. M. JOSHI, J.
DATE : 4th OCTOBER, 2025
P.C. :-
1. This Appeal under Section 170 of the Motor Vehicles Act
takes exception to the judgment and award dated 29/12/2010 passed
by the Motor Accident Claim Tribunal, Jalgaon in MACP No. 79/2005, for
seeking enhancement of the compensation granted by the Tribunal.
2. Appellant/Claimant was riding motor cycle bearing No. MH-
19-H-0672 while returning from Shendurni to Pimpalgaon Budruk on
02/12/2004 at about 12.30 p.m. It is his case that when he reached
near the field of Shri Bhaurao Patil, Sangavi on Pahur Shendurni Road, a
matador bearing No. MH-19-4198 coming from the Pahur side gave
dash to another matador bearing No. MH-02/T-5995 which was running
ahead of him. It is claimed that the matador bearing No. MH-19/4198
came in high speed and gave dash to the other matador plying in front
of motorcycle of the claimant and the said matador consequently
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dashed upon his motorcycle. In the said accident, he sustained injuries.
He was admitted to the Civil Hospital and from there shifted to
Neurology and Trauma Center of Dr. Rajesh Jain, Jalgaon. He claims to
have sustained fracture to the skull and so also to the shoulder. He
claims to have been kept in I.C.U. and that to operation were performed
upon him. It is claimed by him that at the time of occurrence of the
accident he was about 30 years of age with occupation as an
agriculturist and earning approximate income of Rs.6,000/- per month.
He claims to have suffered permanent disability and was unable to work
as before. It is claimed that both matador vehicles involved in the
accident are insured with New India Assurance Company. The
complainant on all accounts claimed compensation of Rupees Four lakhs
jointly and severally from the Respondents.
3. Respondent No.2 though served failed to remain present
before the Tribunal and hence, the proceedings were held ex-parte
against him. Respondent Nos.1 and 3 i.e. Insurer filed say at Exhibit 19
denying the adverse contentions of the claimant. It is claimed that the
accident has occurred due to the negligence of the driver of the
motorcycle i.e. claimant himself.
4. Learned Tribunal framed issues vide Exhibit 45 and burden
was cast upon the claimant to substantiate that he sustained injuries
due to rash and negligence driving of the vehicles of Respondents so
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also he is entitled to receive compensation.
5. Claimant examined himself at Exhibit 48 and placed reliance
on documentary evidence such as FIR (Exhibit 53), spot panchnama
(Exhibit 54), Doctor's certificate (Exhibit 55), insurance policy of
matador No. MH-02/T-5995 (Exhibit 56) and medical bills (Exhibit 59).
He also placed on record disability certificate which is marked as Exhibit
57 with objection.
6. During the evidence it is claimed by the claimant that he
was riding motorcycle in moderate speed and that the accident has
occurred due to the rash and negligence driving of matador bearing No.
MH-19-4198. He placed reliance on the spot panchnama, first
information report and other police papers.
7. For the purpose of proving the permanent disability caused
to the claimant he placed reliance on the disability certificate Exhibit 57.
It is necessary to take note of the fact that though the said certificate
was marked as Exhibit 57, it was marked with objection. There is no
dispute about the fact that claimant apart from examining himself has
not examined any other witness and has not examined author of the
said certificate.
8. No other evidence was led by the parties and the Tribunal by
passing impugned judgment and order partly allowed the claim directing
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compensation of Rs.1,10,000/- to be paid to the claimant jointly and
severally by Respondent Nos.1 and 2 along with the interest at the rate
of 7.5% per annum.
9. Being aggrieved by the said judgment and order, present
Appeal is filed on the ground that the Tribunal has committed error and
not considering the provisions of the Motor Vehicles Act and the
precedents of the Apex Court while passing impugned order. It is also
sought to be claimed that the Tribunal has failed to take into
consideration the nature of injuries, the effect of those injuries on the
capacity of claimant to work and on that count future income being
affected adversely. It is also claimed that the Tribunal has failed to take
into account the age of claimant and the loss of efficiency caused to the
claimant on account of the injuries sustained in the accident.
10. Learned Counsel for the claimant submits that the Tribunal
has committed serious error in not considering the future loss of income
caused to the claimant on account of the injuries and consequent
permanent disability. It is his submission that the Tribunal has failed to
take into consideration the physical limitation and disabilities caused to
the claimant on account of the injuries sustained. It is his submission
that the Tribunal ought to have accepted the disability certificate placed
on record and ought to have granted compensation on various heads.
To support his submission he placed reliance on the judgment of the
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Hon'ble Supreme Court in case of Jithendran V. New India Assurance
Co.Ltd. AIR 2021 SC 5382. A specific reference is made to paragraph
No.16 of the said judgment referring to the heads under which the
claimant should be awarded compensation in injury cases. Similarly, he
has placed reliance on the judgment in case of Jagdish V. Mohan and
Ors, AIR 2018 SC 1347 in order to argue that pain and suffering, loss of
income, inability to lead normal life with amenities, medical expenses
and loss of expectation of life ought to have been considered by the
Tribunal which has not been taken into account. He also placed reliance
on the judgment of the Co-ordinate Bench of this Court in First Appeal
No. 1670/2017, dated 09/10/2018 to argue that on the heads such as
future income, loss of actual income, medical expenses, loss of
amenities, loss of expectation of life etc. the compensation ought to
have been granted. Reference is also made to the judgment of this
Court in case of New India Assurance Company Limited, Through its
Authorized Signatory/Branch Manager, Branch Ofce At Jalna Road, Beed
Tq. and Dist. Beed and Anr. Versus Vishal Rameshwar Mote and Anr,
2019(6) BCR 487. It is his submission by referring to the judgment of
the Hon'ble Supreme Court in case of Sunita V. Rajasthan State Road
Transport Corporation, AIR 2019 SC 994 that the strict principles of
proof like criminal case are not attracted to the proceeding under the
Motor Vehicles Act and the proof in such cases must be on
preponderance of probability only. He also placed reliance on following
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judgments:
(i) Pappu Deo Yadav Vs. Naresh Kumar, AIR 2020 SC 4424
(ii) Jagdish V. Mohan and Ors., AIR 2018 SC 1347
(iii) Raj Kumar V. Ajay Kumar, AirOnline 2010 SC 125
(iv) Smt. Pushpa Bajirao Thorat and Ors. Vs. Dnyaneshwar
Kondaji Auti Died and Ors., 2019(2) Mh.L.J. 418
(v) Oriental Insurance Co.Ltd., V. Smt. Nanjamma, 2003 Air
Kant, H.C.R. 3098
11. Learned Counsel for the Insurer opposed the Appeal by
contending that in order to decide the entitlement, at the outset
claimant is required to prove that permanent disability has been caused
to him. By referring to the record before the Tribunal it is argued that
the permanent disability certificate has not been proved by the
appellant and hence, there is no question of granting any compensation
to the claimant on that count. It is his submission that the Tribunal has
rightly taken into consideration the age and nature of injuries and
granted compensation of Rs.30,000/- towards pains and suffering which
is just and reasonable in the facts of the case. He further drew attention
of the Court to the additional compensation of Rs.80,000/- granted by
the Tribunal towards medical expenses without examining any other
witness by the claimant.
12. There cannot be dispute made with regard to the proposition
sought to be canvassed by the learned Counsel for the claimant that the
principles of strict proof of a fact as in criminal case would not attract to
the proceedings under the Motor Vehicles Act and the proof of the fact is
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required on preponderance of probability. This, however, does mean to
absolve burden on the claimant to substantiate his claim including
factum of permanent disability by leading cogent evidence. Herein this
case, the initial burden was on claimant to prove the occurrence of the
accident and the rash and negligence on the part of the respondents in
the same. The claimant has led evidence to that effect. Apart from his
oral evidence, he placed reliance on the first information report and
other police papers which indicate that the accident in question has
occurred not due to the negligence of the claimant but it is negligence
of the driver of matador in question.
13. Thereafter the claimant was required to establish that in the
said accident on account of the injuries caused therein, he has suffered
permanent disabilities. In this regard though claimant has examined
himself and also has sought to place on record disability certificate.
Admittedly, no witness is examined by claimant to prove the certificate
of disability and as such it cannot be read in evidence since it has not
been proved. This Court, finds no substance in the contention of the
learned Counsel for the Appellant/claimant that even without proving
the certificate, the contends thereof could be read in evidence. Though
claimant is not required to prove the said fact by strict proof but on
probability it ought to have been established.
14. Thus, admittedly the claimant has failed to substantiate that
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permanent disability was caused to him. As against this, evidence on
record i.e. discharge card indicates that he was hospitalized for three
days i.e. 02/12/2004 to 05/12/2004 and did not undergo any surgery.
This evidence clearly indicates that the contentions of the claimant with
regard to the having undergone operation etc., can not be accepted.
15. Pertinently, though the claimant has not examined any
witness, the Tribunal has accepted the medical bill to the extent of
Rs.80,000/-. In the facts of the case and having regard to the period of
hospitalization, this Court finds the said assessment to be just and
reasonable.
16. Since the claimant has failed to substantiate his claim of
permanent disability, question of Tribunal requiring to decide any other
issue does not arise. There is no evidence placed on record to indicate
that there was loss of income to the claimant. Moreover, for want of
proof of permanent disability, it cannot be said that his future earning
capacity was hampered. Having regard to the case sought to be made
out by the claimant and the evidence led before the Tribunal, the
compensation granted by the Tribunal needs to be accepted as just and
reasonable. Hence, there is no case made out by the appellant to cause
interference in the order impugned. Hence, Appeal stands dismissed.
(R. M. JOSHI, J.)
ssp
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