Partly allowed

Krushna Shivaji Patil v. Parmanand Rajendra Patil and Anr.

Bombay HC11 Sept 2019FA/1238/2019

Case brief

AI extract

What is this about?

High Court allowed the first appeal partly, enhancing compensation against a motor vehicle accident victim. The court modified the Tribunal's award by increasing no fault liability, adding amounts for pain/suffering and loss of attendance, dismissing claims unsupported by evidence, and retaining deductions for employer reimbursement.

What did the court decide?

Compensation enhanced to Rs. 86,835/- inclusive of no fault liability, increased pain and suffering allowance, and attendance allowance; judgment of Tribunal set aside and modified.

Krushna Shivaji Patil Vs Parmanand Rajendra Patil and… — Motor Accident Claims | Bombay HC (2019)

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(Judgment) (1) F.A. No. 1238 of 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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First Appeal No. 1238 of 2019

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District : Dhule

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Krushna Shivaji Patil,
Age : 60 years,
Occupation : Now Nil,.. Appellant
R/o. Morane-Pra-Laling, (Original
Taluka & District Dhule. applicant)

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versus

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1.Parmanand Rajendra Patil,
Age : Adult,
Occupation : Owner of Vehicle,
R/o. Swatantraya Sainik Colony,
Nagal Road, Chopda,
Dist. Jalgaon.

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2.The Manager,.. Respondents
The Oriental Insurance Company (Original
Ltd., Branch at Dhule. opponents)

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...........

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Mr. Mrigesh D. Narwadkar, Advocate, for the appellant.

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Mr. Prakashsing B. Patil, Advocate, for respondent no.01.

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Mr. Dhananjay P. Deshpande, Advocate, for respondent no.02.

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...........

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CORAM : SMT. VIBHA KANKANWADI, J.

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 DATE : 11TH SEPTEMBER 2019

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(Judgment) (2) F.A. No. 1238 of 2019

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ORAL JUDGMENT :

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01.Present appeal has been filed by the
originalclaimantforenhancementinthe
compensation.

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02. Present appellant - original claimant filed petition under Section 166 of the Motor Vehicles Act, 1988, vide M.A.C.P. No. 592 of 2010 before learned Member of the Motor Accident Claims Tribunal, Dhule, which was decided by the learned Member on 17-042017. The said petition was partly allowed and respondents no.01 and 02 were held jointly and severally liable to pay compensation of Rs. 35,000/-, including the amount under 'no fault liability' together with interest at the rate of 8 % per annum.

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03.Since the appeal is in respect of only
enhancement, the facts giving rise to the original
petition are narrated in short. The claimant
suffered motor vehicle accident on 24-05-2010 at
about 08.30 p.m. When he was crossing the road, he
was hit by Tata Indica Car bearing no. MH-19/AP-2469
owned by respondent no.01 and insured with respondent
no.02 on the date of the accident. The driver of the
Tata Indica car was prosecuted for the said accident.
The claimant had taken treatment at Sudha Hospital.
He had sustained fracture to his leg and injury to
his waist. According to the claimant, he had also

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(Judgment) (3) F.A. No. 1238 of 2019

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sustained head injury. It was contended that he had spent amount of Rs. 1,50,000/- on his medical treatment. The claimant was serving as Cashier with Canara Bank, Branch at Morane-Pra-Laling and was getting salary of Rs. 19,500/- per month. According to the claimant, he has sustained permanent disability and he is unable to work and therefore, he claimed compensation of Rs. 4,00,000/- with interest at the rate of 18 % per annum. Matter proceeded ex parte against respondent no.01. The Insurance Company in its written statement denied all the averments in the petition and it was contended that the accident had taken place due to the negligence of the claimant who had suddenly tried to cross the road.

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04.Taking into consideration rival contentions,
issues were framed. The claimant has led the
evidence. The Insurance Company had examined driver
of the offending vehicle.

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05.After hearing both sides and perusing the
evidence on record, as aforesaid, the learned Member
of the Tribunal had partly allowed the petition.
Being dissatisfied with the same amount of quantum
granted by the Member of the Motor Accident Claims
Tribunal, present appeal has been filed.

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06.It will not be out of place to mention here,

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(Judgment) (4) F.A. No. 1238 of 2019

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that the respondents have not challenged any of the
findings and therefore, it is not necessary for this
Court to go into those aspects. It has been
vehemently submitted on behalf of the appellant, that
the learned Member of the Tribunal failed to consider
that the disability certificate which had been proved
by the claimant at Exhibit 38, by examining author of
the certificate PW 02 Dr. Shinde shows disability to
the extent of 40 %; whereas calculation has been made
for compensation by the Member holding it to the
extent of 15 % only, which is arbitrary. Further,
the non-pecuniary damages have not been properly
considered. It was also submitted that no amount
regarding reimbursement of the medical bills has been
granted.

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07.Per contra, learned Advocate appearing for
respondent no.02 - Insurance Company submitted that
it was brought on record that the medical
reimbursement was claimed by the claimant from his
bank and he has received amount of Rs. 1,41,250/-
towards medical bills reimbursement. Under such
circumstance, the claimant cannot once again claim
that amount. The Doctor who had issued the
certificate has stated that the disability was up to
40 %; however, the learned Member has rightly
considered that since no CT scan was done, it could
not have been decided by the concerned Doctor that
there was forgetfulness or loss of long term memory.

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(Judgment) (5) F.A. No. 1238 of 2019

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It was also noted that after the accident, the
claimant had served in his bank and then took
voluntary retirement in 2012 and at the time of his
retirement, his salary was Rs. 32,000/- per month.
Therefore, there was no loss to the claimant.
Therefore, whatever amount has been awarded by the
learned Member was correct.

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08.At the outset, it is to be noted that the
accident had taken place on 24-05-2010. It appears
that the claimant had not filed the injury
certificate but then he examined the concerned Doctor
who had issued the disability certificate. The
disability certificate was issued on 31-01-2011.
According to PW 02 Dr. Shinde, he had examined the
claimant on 29-01-2011 and he found injuries (1) head
injury (2) fracture occipital bone malunited and (3)
fracture lateral wall of right orbit and on the basis
of these injuries, he assessed the disability up to
40 %. Important point to be noted is that in his
examination in chief, he is totally silent regarding
further observations and contents of disability
certificate Exhibit 38, which were in the nature of
forgetfulness, difficulty in long term memory, pain
during cold weather and severe headache. In his
cross examination, he has admitted that on the say of
the patient, he had given those observations. That
means, he had not assessed the claimant on the point
of forgetfulness or difficulty in long term memory.

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(Judgment) (6) F.A. No. 1238 of 2019

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Interesting point to be noted is that in his
examination in chief, all the details as to how i.e.
the manner in which the accident had taken place has
been given. So, if he had any forgetfulness, he
could not have given those details. He has rather
stated that due to the head injury he was in coma.
But then, there is absolutely no documentary evidence
supported by him. He had not examined the treating
Doctor to support his contention. Therefore, at the
beginning itself, it was stated that no pains were
taken by the claimant to produce the injury
certificate or discharge card on record. Whatever
produced was the photo-copy which was not at all
exhibited. It cannot be taken into consideration at
this stage. Now, the claimant intends to relate his
so called physical disability to his retirement.
However, he has not produced any documentary evidence
in the form of his application for voluntary
retirement or had not examined any other document
than PW 02 Dr. Shinde who had advised him to take
voluntary retirement. The testimony of PW 02 Dr.
Shinde is silent on the point that any such advice
was given by him to the patient.

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09.The claimant was serving as Cashier and it
was not brought on record by him, that after the
accident, he had prayed for change of duty or due to
his own difficulties, the bank authorities had given
him any other duty. When job of the cashier expects

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(Judgment) (7) F.A. No. 1238 of 2019

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attentiveness, able to calculate and even keep the
memory at the work, what has come on record is that
in 2012, he was transferred from Morane to Jalgaon
and at Jalgaon, he worked for 5 - 6 months as
Cashier. Further, he says that for 2 - 3 months, he
was attending his duty by going up and down from
Morane to Jalgaon and thereafter he says that he
started residing at Jalgaon. That means, he was
discharging his duty without any complaint either by
himself or by the employer. Therefore, we cannot say
that there was any nexus between the injuries he had
sustained in the accident to that of his retirement.
When he was able to discharge his duties, then the
disability considered by the learned Member is
perfectly correct.

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10.Now, turning towards the evidence on record,
that the medical bills have been got reimbursed by
the claimant from his employer and in order to prove
the same, the Insurance Company had examined the
Branch Manager of Canara Bank, Morane Branch - RW 01
Bharat Bhaisane. It has come on record that the
claimant had submitted bills amounting to Rs.
1,58,085/- and the bank has granted bills amounting
to Rs. 1,41,250/-. When the claimant has already
received the said amount i.e. by way of
reimbursement, he cannot claim once again the said
amount from the respondents in this case. He ought
to have chosen as to whether he should get it

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(Judgment) (8) F.A. No. 1238 of 2019

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reimbursed from his employer or the respondents.
However, it is to be noted that it has not been got
clarified as to why the amount less than which was
claimed by the claimant was given by the bank i.e.
shortfall of Rs. 16,835/- is required to be
reimbursed in this case though all the bills in
original had not been produced by the claimant. The
said evidence regarding submission of claim to the
extent of Rs. 1,58,085/- was brought on record by the
respondent - Insurance Company itself.

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11.Further, as regards pain and suffering are
concerned, what has come on record is that the
claimant had sustained fracture to his occipital bone
which was malunited and fracture to lateral wall of
right orbit. Taking into consideration this aspect
and the nature of injuries, the amount that has been
granted by the learned Tribunal i.e. Rs. 10,000/-
only appears to be less and therefore, amount of Rs.
30,000/- more is awarded towards pain and suffering.
Further, the record shows that the claimant was
admitted from 24-05-2010 to 07-06-2010 in the
hospital and therefore, he would have incurred
expenditure for attendance. No amount had been
granted under the said head and therefore, said
amount is required to be granted to him. Under the
said head, amount of Rs. 5,000/- is awarded. Thus,
the claimant is entitled to get Rs. 51,835/- more
than that has been awarded by the Tribunal. As the

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(Judgment) (9) F.A. No. 1238 of 2019

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amount which was granted by the learned Member was
meager and the Tribunal is duty bound to award just
and reasonable compensation, the appeal deserves to
be allowed partly.

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12.Hence, the following order :-

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(a) The appeal is hereby partly allowed.

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(b)The judgment and award in M.A.C.P. No.592 of 2010
passed by the learned Member of the Motor Accident
Claims Tribunal, Dhule, on 17-04-2017, is hereby set
aside and modified to the extent of quantum only.
Clause 02 of the operative order of the Tribunal is
hereby deleted and in its place, said clause is
substituted as under :-

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"02. The respondents no.01 and 02 jointly and severally shall pay to the applicant an amount of Rs. 86,835/- [Rupees eighty six thousand eight hundred thirty five only], including amount towards 'no fault liability', from the date of application till actual realization of the entire amount, together with interest at the rate of 8 % per annum."

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(c)The amount already deposited shall be adjusted
towards the modified award.

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(d)The deficit amount be deposited by the

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(Judgment) (10) F.A. No. 1238 of 2019

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respondents, in the Tribunal, within a period of two
months. If the amount is deposited, it be disbursed
to the claimant.

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(e)There shall be no order as to costs.

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( Smt. Vibha Kankanwadi )
 JUDGE

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...........

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puranik / FA1238.19

Krushna Shivaji Patil v. Parmanand Rajendra Patil and Anr.

Case brief

What is this about?

What did the court decide?

Krushna Shivaji Patil v. Parmanand Rajendra Patil and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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