[Cites 2, Cited by 0]
Bombay High Court
United India Insurance Co. Ltd Thr ... vs Ravindra Vithal Adgale And Ors on 17 January, 2026
2026:BHC-AUG:1684
FA-563-2012+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 563 OF 2012
United India Insurance Company Ltd.,
Through Its Divisional Manager,
Seven Hills, Jalna Road, ...Appellant
Aurangabad
Versus
1. Ravindra S/o Vithal Adgale,
Age: 31 years, Occu: Mason,
R/o. Phulenagar, Peer Bazaar,
Aurangabad
2. Babarkhan S/o. Umarkhan Pathan,
Age: Major, Occu: Business,
R/o. Pose Neknoor, Tq. & Dist. Beed ...Respondents
WITH
FIRST APPEAL NO. 520 OF 2012
United India Insurance Company Ltd.,
Through Its Divisional Manager,
Seven Hills, Jalna Road, ...Appellant
Aurangabad
Versus
1. Bhagwan S/o. Budhaji Adgale,
Age: 36 years, Occu: Mason,
R/o. Nagsen-nagar, Osmanpura, Galli No. 3,
Osmanpura, Aurangabad
2. Babarkhan S/o. Umarkhan Pathan,
Age: Major, Occu: Business,
R/o. Pose Neknoor, Tq. & Dist. Beed ...Respondents
***
Mr. S. S. Rathi, Advocate for Appellants
Mr. A. P. Khedkar, Advocate for Respondents
***
Page 1 of 8
FA-563-2012+.odt
CORAM : ABHAY S. WAGHWASE, J
RESERVED ON : JANUARY 13, 2026
PRONOUNCED ON : JANUARY 17, 2026
JUDGMENT:
1. These Appeals are preferred under Section 173 of Motor
Vehicle Act, 1988 (for short "the Act") by Original Respondent No. 3 -
Insurance Company taking exception to the judgment and orders dated
21.01.2012 passed by MACT, Aurangabad in MACP Nos. 17/2010 &
18/2010 respectively.
2. On 04.09.2029, at about 18:30 hours, the Original Claimants
along with others were travelling on a motorcycle bearing registration
No. MH-20-BB-7435 at a moderate speed from Daulatabad towards
Aurangabad. The Original Claimant, Ravindra, was riding the said
motorcycle. When they reached the place of the incident, a Bajaj Tempo
Trax bearing registration No. MH-23-C-0423 came from the opposite
direction in a rash and negligent manner and dashed against the
motorcycle. As a result of the said impact, the claimants were thrown to
the ground and sustained grievous injuries, including fractures to the
right knee and right leg respectively. Immediately after the accident,
they were shifted to Ghati Hospital, Aurangabad, where they received
medical treatment. It is the case of the claimants that, due to the said
accident, they have suffered permanent disability.
FA-563-2012+.odt
3. Though Original Respondent Nos. 1 and 2, driver and owner
of the vehicle, were served, they failed to causes appearance. Hence,
Petitions proceeded against them ex parte. Respondent No. 3 -
Insurance Company contested the claim Petitions and filed written
statements at Exhibits 14 & 15 respectively denying all contentions and
breach of conditions of insurance policy.
4. After framing of the issues at Exhibits 24 & 26, Claimants
led their evidence and evidence of Dr. Jaiswal and Dr. Jadhav. Tribunal
by judgment and award dated 21.01.2012 allowed the claim petitions.
5. Insurance company is primarily disgruntled and dissatisfied
by non consideration of its plea of contributory negligence on the part of
both driver of the tempo as well as rider of the motorcycle, and secondly,
compensation awarded to be exorbitant.
6. Learned Counsel for Appellants/Insurance company would
submit that, accident has taken place between a tempo and two wheeler,
which was admittedly occupied by three persons. He pointed out that,
accident took place on the very middle of the road and it is so evident
from the spot panchnama. According to him, the direction in which the
two vehicles were proceeding i.e. opposite to each other and taking into
account the condition of the road, which was division by way of white
FA-563-2012+.odt
strip, it is clear accident which is head on collusion involving both the
vehicles. Thus, according to him, there was 50% contributory negligence
on the part of motorcycle also but according to him, learned Tribunal
fixed responsibility solely on the tempo driver. Further, according to
him, there was no evidence to demonstrate that deceased was a mason
by occupation. According to him, therefore, Tribunal ought to have
considered Rs.3,000/- by way of notional income and not beyond it. On
both above counts, he seeks indulgence in the Appeals.
7. As regards to negligence is concerned, learned Counsel for
the Respondent would support the findings of learned Tribunal that,
driver of the offending vehicle to be solely responsible and learned
Tribunal correctly appreciating the spot panchnama. However, he
seeking indulgence for non consideration of 100% disability of the
injured and instead considering only 16% & 33%. He pointed out that,
there was evidence of both treating as well as doctor who issued
disability certificate after its assessment. Consequently, it is his
submission that, though there is no formal cross-objection filed, in view
of judgment of Hon'ble apex Court in the case of Surekha W/o Rajendra
Nakhate and Ors vs. Santosh S/o Namdeo Jadhav and Ors, Civil Appeal
No. 476 of 2020 as well as of this Court in the First Appeal No.
655/2010, there is no need for filing cross objection.
FA-563-2012+.odt
RE-APPRECIATED THE EVIDENCE
8. As regards to grounds raised by learned Counsel for
Appellants that there was 50% contributory negligence of each of the
two vehicles involved in the accident, spot panchnama is the only piece
of evidence, which depicts the circumstances in which the accident took
place, as admittedly there is no distinct eye witness account to the
accident. In cases of suspicion on point involved, obviously spot
panchnama is to be looked into. On re-appreciating the spot
panchnama, it is clear to this Court also that driver of offending tempo
had gone to the side of motorcycle and, therefore, accident took place.
Observations of Tribunal to this extent are found in paragraph 8. It is
noticed that, learned Tribunal has also carefully appreciated the
circumstances in which the mishap took place for arriving to the
conclusion that entire responsibility is of driver of the Bajaj Tempo Trax.
Description of the spot and the direction in which the vehicles were
allegedly proceeding, there are reasons to believe that the driver of the
tempo had the opportunity to avoid the accident but he did not seem to
have taken care and has erred in going to the side of motorcycle. Merely
because accident has taken place in the middle of the road, is no good
ground to hold contributory negligence of motorcycle rider also along
with that of tempo driver. Therefore, in view of contents of the spot
FA-563-2012+.odt
panchanma and there being no contrary evidence adduced by insurance
company in support of its contention that there was contributory
negligence, findings of Tribunal to that extent need not be disturbed.
9. As regards to objection of consideration of excess income in
absence of evidence of occupation of injured as mason, in the considered
opinion of this Court, there is no reason to disbelieve that injured was
working as mason. In cases involving accident compensation,
requirement of strict proof is dispensed with. Here, on affidavit, it is
stated that injured were rendering the work of mason and, therefore,
consideration of income as Rs.9,000/- pm also is not said to be excess.
On above both counts, appeals of insurance company fails.
10. As regards to the cross-objection raised by the claimants is
concerned, also this Court has carefully considered the evidence of PW 2
and 3 who are medical experts. PW 2, in his evidence at exhibit 43,
testified about examining claimant on 04.05.2009, noticing open injury
to the right knee resulting the fracture and performing operation and
putting up wires. He further deposed that, medical board has issued
disability certificate to the extent of 16% and it is total permanent
disability. He testified that, patient would find it difficult in rendering
ground level activities due to the disability caused to him and it is
submission that, the disability caused to the claimant is 16% of his total
FA-563-2012+.odt
working capacity in view of the nature of work. In cross he merely asked
about his knowledge whether he knew claimant to be a mason, which he
denied. He further denied showing incorrect disability and also denied
that working capacity of the patient has not been suffered.
11. The above evidence seems to have been taken into account
by learned Tribunal while answering issue no. 3. Now, it is tried to be
submitted that 100% disability ought to have been considered. However,
it is the functional disability that matters. The law on the point of
disability either permanent, partial has elaborately discussed by the
Hon'ble Apex Court in the case referred by learned Counsel for for
Appellants i.e. in the case of Raj Kumar vs. Ajay Kumar and Anr,
AIROnline 2010 SC 125. In the said judgment Hon'ble Apex Court has
held in paragraph 12 that, disability certificate issued by medical
boards may be accepted subject to the evidence regarding genuineness
of the certificate. Here, on the strength of the certificate issued by
medical board above witness has deposed and, therefore, the
observations of the Tribunal to that extent in paragraphs 11 & 12
cannot be faulted at. This Court agrees with the view and the
methodology adopted for ascertaining the disability by the Tribunal.
There is no error in the same so as to interfere. Consequently, though in
absence of cross objection, it is open for this Court to consider the
FA-563-2012+.odt
grounds agitated in appeals, as no ground on merit to that extent being
made out, the same is discarded. Hence, I proceed to pass following
order:
ORDER
A. First Appeals stand dismissed.
B. Cross objections stand dismissed
C. Pending civil application(s), if any, stands disposed of.
(ABHAY S. WAGHWASE, J.)
Malani
