IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

FIRST APPEAL NO.395 OF 2017

Oriental Insurance Company Ltd. Branch Pen, District Raigad, through its Branch Manager, Br. Office Chain Sukh Road, Near Subhash Chowk, Latur ... APPELLANT (Original Respondent No.3)

VERSUS

• 1. Ajinkya s/o Ajay Bhosarekar, Age 25 years, Occu. Student, R/o Meena Apartment, Behind Deshikendra High School, Signal Camp, District Latur.
• 2. Laxman s/o B. Gugale, Age major, Occu. Business, R/o Nilgund, Tq. Mangaon, District Raigad
• 3. Irfan s/o Mohmad Kardekar, Age 36 years, Occu. Driver, R/o Naya Nagar, Masala, Tq. Shrivardhan, Dist. Raigad ... RESPONDENTS

Shri Uday S. Malte, Advocate for appellant Shri Sudhir V. Kulkarni, Advocate for respondent No.1

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CORAM: A.M. DHAVALE, J. DATED : 25th July, 2018.

ORAL JUDGMENT :

1. This is an appeal filed by the Insurance Company against the grant of compensation of Rs.11,72,602/- with interest @ 7.5% p.a. to the respondent No.1 by Member, Motor Accident Claims Tribunal, Latur by judgment dated 18.4.2016 in Motor Accident Claim Petition No.124/2013.

2. Respondent No.1 herein is the original petitioner. Respondent No.2 is owner of the vehicle and respondent No.3 is Driver of the vehicle (respondents No.1 and 2 respectively in original claim) whereas the appellant is Insurance Company. For the sake of convenience, the parties are hereinafter referred to as per their status before the Tribunal.

3. As per the petition, on 17.10.2010 at about 5.30 p.m., the petitioner was riding on his bike MH-24/R-6599 and proceeding towards Sea Beach at Srivardhan along with his friend. When he came near Bodni, respondent No.2 drove Trax Jeep bearing No.MH-06/AG-4073 belonging to respondent No.1 from the opposite side in rash and negligent manner and dashed

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the bike and thereby caused grievous injuries to the claimant. The claimant was shifted to hospital and the Crime was registered at C.R. No.27/2010 at Shrivardhan Police Station against the driver of the Trax Jeep. That time, the petitioner was aged 22 years and was studying in B.Tech. Due to the accident, the petitioner sustained fractures on (1) # pelvis (R), (2) compound # grade-1 tibia-fibula, M-3, (3) displaced # ankle (R), (4) displaced/ angulated bimulleoder ankle (Lt), (5) undisplaced intracondyler # lower and femur (Rt) knee and various other injuries on his person. The claimant underwent surgeries, but still he suffered permanent disability to the extent of 50.63%. The vehicle was insured with respondent No.2. The claimant claimed medical expenses and incidental charges for attendance, special diet etc. and college fees of Rs.3,29,811/-. He claimed future expenses for removal of implants and medicine. He also claimed that he had bright future in I.T. Sector. In view of the disabilities, he would be getting at least 50,000/- rupees salary less per month. He, therefore, calculated the compensation for total losses at Rs.1,16,89,811/-, but restricted the claim to Rs.25,00,000/-.

4. The respondents No.1 and 2 did not contest the petition. The respondent no.3 filed written statement (Exhibit 33) and took following defences :

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5. It denied for want of knowledge the age or occupation of the petitioner and the nature of injuries sustained by him and the rashness and negligence of the jeep driver. It claimed that, the accident took place due to the own negligence of the claimant. It denied the permanent disability and medical expenses as claimed by the claimant. It also claimed that, the driver of the jeep was not holding valid driving licence. It denied that the petitioner lost one year due to the injuries and he was, therefore, entitled for additional compensation for the same. The apprehended loss of income and the percentage of permanent disability are also disputed.

6. The learned Member, Motor Accident Claims Tribunal framed issues at Exh.18. The claimant examined himself and produced number of documents and also examined Dr. Gulwe, who has certified about the permanent disability of 50.63%. The Insurance Company examined its Manager to prove the service of notice on the driver Exh.62 and policy at Exh.64. After hearing the parties, the learned Member, Motor Accident Claims Tribunal held that the petitioner suffered loss of income of Rs.50,000/ p.a. and awarded Rs.9,00,000/- for loss of income, Rs.1,72,602/ for medical expenses and Rs.1,00,000/- for pains and agony (Total Rs.11,72,602/-).

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7. Shri Uday Malte, learned counsel for the appellant submits that, the driver of the vehicle was not holding driving licence and he has been prosecuted under Section 3/181 of the Motor Vehicles Act, which is reflected in the F.I.R. and, therefore, in view of breach of policy, the Insurance Company is not liable to pay the compensation to the claimant. He alternatively argued that, in case the Insurance Company is made to pay the compensation, it may be permitted to recover it from the owner of the vehicle. His second submission is that, the permanent disability to the extent of 50.63% is not proved. There are admissions to show that the bones of the petitioner were reunited, the claimant has got a job on handsome salary of Rs.3,60,000/- p.a. He submitted that, there is no material to infer that the petitioner has sustained loss of income by way of salary on account of the disability. He, therefore, submitted that, the Member of the Tribunal erred in awarding huge compensation of Rs.9,00,000/- on account of loss of income of Rs.50,000/- per month. He also argued that, grant of compensation of Rs.1,00,000/- for pains and agony is on higher side and it should have been only Rs.50,000/-.

8. Mr. Sudhir Kulkarni, learned Advocate for the original claimant supported the judgment. He submitted that, the

9% p.a.

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Insurance Company has not produced any evidence about absence of driving licence with the driver. The driver has not been examined. He referred to the injuries described by Dr. Gulwe and submitted that the permanent disability to the extent of 50.63% has been duly proved. The admission regarding union of bones does not indicate that there was no disability. The petitioner is having restricted movements and several fractures. He has lost one year of the college. The learned Judge has properly appreciated the evidence and no interference is called for in the judgment and award passed by the Tribunal.

9. The points for my consideration with my findings are as under :

POINTS FINDINGS

1	Whether the Insurance Company is<br>absolved of its liability on account of<br>breach of policy in view of absence<br>of driving licence of the driver ?	In the<br>affirmative
2	Whether<br>the<br>compensation<br>of<br>Rs.11,72,602/- with interest @<br>7.5% p.a. awarded by the Tribunal<br>is on higher side. If yes, what could<br>be just and reasonable award ?	In the<br>affirmative
3	What order ?	Compensation<br>reduced to<br>Rs.6,00,000/-<br>with interest @

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10. As to Point No.1 : Learned Advocate Shri Malte has relied on the case of National Insurance Company Limited Vs. Rattani & others, reported in [ (2009) 2 Supreme court Cases 75 ], wherein it is held :

"Ordinarily, allegations made in the F.I.R. would not be admissible in evidence per se but as the allegation made in the F.I.R. had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate Courts would be entitled to look into the same. Furthermore, the admission made in the pleadings is admissible in evidence proprio vigore."

11. In Oriental Insurance Co. Ltd. Vs. Premlata Shukla & ors., reported in 2007 AIR SCW 3591, this view is more clearly stated as follows :-

"13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties

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intended to rely upon them.

14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have not been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.

15. The proceedings before the Tribunal being the summary proceedings, the rules of evidence are not strictly applicable. The copies of F.I.R. and other police papers are usually filed and relied upon by the parties. If the F.I.R. is to be read, it has to be read in its entirety and cannot be read in piecemeal. The F.I.R. in the present case at Exhibit 40 was filed by the friend and pillion rider of the petitioner, wherein he stated how the driver of the jeep was rash and negligent and has given dash to the bike of the petitioner. Thereafter, the police have carried out investigation and have submitted charge sheet. Copy of the charge sheet is at Exhibit 36. It shows that, the driver of the jeep was not holding any driving licence and, therefore, he was prosecuted under Section 3/181 of the Motor Vehicles Act. Besides, the Insurance Company has issued a notice to the driver

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(Exhibit 62). It was duly served as per acknowledgment (Exhibit 63). In spite of service of notice, calling upon the driver to produce the driving licence, the driver has not produced the driving licence. Respondent No.2, owner has not filed written statement to deny the case of Insurance Company that the Driver had no valid licence. In the light of these facts, I accept the contention of learned Advocate Shri Malte that the Insurance Company would not be liable, however, the petitioner being a third party, the Insurance Company should pay the amount and shall recover from the owner.

13. The evidence shows that, the petitioner was aged 27 years and was studying B.Tech. He has sustained the injuries:- (1) # pelvis (R), (2) compound # grade-1 tibia-fibula, M-3, (3) displaced # ankle (R), (4) displaced/ angulated bimulleoder ankle (Lt), (5) undisplaced intracondyler # lower and femur (Rt) knee and various other injuries on his person. and undergone surgeries. He was admitted in Siddhi Orthopedic and Trauma Centre on 19.10.2010 and thereafter to Sushrut Hospital, Solapur from 21.10.2010 to 3.11.2010 and again from 17.1.2011 to 19.1.2011. During this period, he had undergone several surgeries on 24.10.2010, 1.11.2010 and 18.1.2011. The nailing was done on the fractured parts of the claimant. Even physiotherapy was taken from 28.1.2011 to 31.3.2011. He stated that, in spite of the treatment, he was not fully recovered. He was in third year and lost one year due to the accident. He also incurred expenses of Rs.64,120/- on transportation from Mahad to Latur and from Latur to Solapur by ambulance. He claimed that, he would require further expenses of Rs.60,000/ for removal of implants and medication.

14. The petitioner passed out B. Tech. in April 2013 and got a job in March 2014. He is getting salary of Rs.2,50,000/ p.a, but the annexures shows that, with other benefits, he would get salary of Rs.3,60,840/- p.a.

15. The petitioner claimed that, but for the injuries, he could have received package of Rs.6,00,000/- p.a. and there was heavy loss of income by way of salary. There is no material to support this claim of the petitioner. It is the expectation and dream of the petitioner that he would have got a package of Rs.6,00,000/-, but there is no material to show that on account of his injuries he was not considered for any post of higher salary. There is no medical opinion to show that on account of the injury, he was not in a position to perform his duties as a B.Tech. graduate and, therefore, he was required to compromise with a job of lower salary. I, therefore, find that, the calculation of loss of Rs.50,000/- p.m., as made by the Tribunal, is not

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sustainable.

16. However, I find that, the learned trial Judge has not taken into consideration several other heads for grant of compensation. In a case of permanent disability and grievous injuries, the disability certificate Exhibit 55, medical bills and the evidence of Dr. Sudhakar Gulwe shows that though there was union of bone deformity, there were restricted movements. There is also oral evidence of the claimant that he was finding it difficult to lead normal life on account of restrictions in movements. There are no bills of Walker or any Wheel Chair and it can be safely assumed that the claimant may be having difficulty in walking, but he can walk without support. The doctor has opined 31% disability in one leg and 19% in other leg. This appears to be percentage of disability with respect to the relevant organs (legs). Therefore, the disability certificate showing 50.63% cannot be accepted. Considering the evidence on record, I hold that, there was 25% permanent physical disability.

17. Considering the nature of injuries, I find no substance in the contention that compensation of Rs.1,00,000/- on account of pains and sufferings is on higher side.

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18. Besides, the claimant is also entitled for compensation for permanent disability and loss of expectations and enjoyment of life. He is unmarried and he will have certainly restrictions on enjoyment of his life on account of injuries. He may not get a bride of his choice and will have to compromise for the same. Besides, the claimant is also entitled for reasonable claim of Rs.60,000/- towards the future medical expenses inclusive of removal of implants. Considering the evidence on record, and the arguments advanced, I find that, the learned trial Judge committed error in neglecting the other legitimate claims of the claimant. Hence, I award the compensation under various heads as follows :-

(1)	Physical discomfort for<br>Permanent disability	:	Rs.2	Rs.2,00,000/-
(2)	Pains and sufferings	:	Rs.1	Rs.1,00,000/-
(3)	Medical expenses	:	Rs.1	Rs.1,72,600/-
(4)	Loss of one year of education:	on:	Rs.	40,000/-
(5)	Future medical expenses	:	Rs.	60,000/-
(6)	Transport and special diets &	&
	attendant charges	:	Rs.	27,400/-
	Total :	al :	Rs.6	Rs.6,00,000/-

19. In the light of the above facts, the judgment of the trial Court needs modification. Hence the order :-

20. The First Appeal is partly allowed. Original

Respondents No.1 to 3 (present appellant and respondents No.2 and 3) do jointly and sevrally pay to the claimant (present respondent No.1) a sum of Rs.6,00,000/- (Rupees Six Lakhs only) (inclusive of No Fault Liability amount) along with interest @ 9% p.a. from the date of the claim petition till realisation or date of payment/ deposit and proportionate costs.

21. The claimant has received amount of Rs.7,32,193/-. If the claimant has received excess amount, the claimant shall deposit it in the Court and it shall be refunded to the Insurance Company.

22. The respondent No.2 Laxman having committed breach of policy by permitting the driver not holding a valid driving licence, to drive the vehicle, the respondent No.2 is directed to pay the amount and is permitted to recover the same from respondent No.3.

23. An award amounting to decree shall be drawn accordingly.

( A.M. DHAVALE ) JUDGE