Bombay High Court
Bajaj Alliainz General Insurance ... vs Shri. Sagar Haribhau Dumbre And Anr on 4 March, 2025
2025:BHC-AS:11756
WAKLE
MANOJ Manoj 1-FA-1043-2015.doc
JANARDHAN
Digitally signed by
WAKLE MANOJ
JANARDHAN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2025.03.13
14:30:21 +0530
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1043 OF 2015
WITH
CROSS OBJECTION (ST) NO. 33998 OF 2024
IN
FIRST APPEAL NO. 1043 OF 2015
Bajaj Allainz General Insurance Company
Limited, Vardhaman Building 7 Love's
Chowk, Shankar Seth Road, Swargate,
Pune .... Appellant
Vs.
1. Shri Sagar Haribhau Dumbre
Age- 44 years, Occupation- Nil.
Residing at Otur, Taluka- Junnar,
District- Pune.
2. Ravindra Balashiram Phapale
Age- Adult, Occupation- Owner
Residing at Dhokeshwar, Takali,
Taluka Parner, District- Ahmednagar. .... Respondents
Ms. Yogita Deshmukh for the Appellant.
Mr. Yogesh Pande for the Respondent No.1.
CORAM : SHYAM C. CHANDAK, J.
DATED : 4th MARCH, 2025.
JUDGMENT :-
. Aggrieved with the Judgment and Order dated 17.04.2015, in M.A.C.P. No.1077 of 2010, passed by the Motor Accident Claims Tribunal, at Pune the Appellant/Original Opponent No.2 has preferred the instant Appeal. The Respondent No.1/Original Claimant 1/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc filed the aforesaid Cross-Objection challenging the same Judgment and Order on the ground of inadequacy of the compensation. Hence, the Appeal and the Cross-Objection are being disposed of together by this common Judgment.
2) Despite notice none appeared for Respondent No.2, who was owner of the offending vehicle.
3) Heard Ms.Deshmukh, the learned counsel for Appellant and Mr.Pande, the learned counsel for Respondent No.1. Perused the record.
4) The Respondent No.1 filed the aforesaid M.A.C.P. No.1077 of 2010 therein he averred that on 14.08.2010, at about 17:00 p.m., he was working in his agricultural land at Dumbaremala. At that time, a tractor bearing regn. No.MH-17/N-9576 was working in the land. While taking a turn, the driver of the tractor drove the same in a rash and negligent manner. As a result the driver lost his control over the tractor and a wheel of the tractor ran over the right leg of Respondent No.1, causing him serious injuries. Immediately, the Respondent No.1 was removed to Dhande Hospital, at Ale Phata, Pune. There, he was inpatient from 14.08.2010 to 25.09.2010 and undergone an operation etc. However, the injury resulted in amputation of his right leg below the knee.
5) On receiving information of the accident, police registered 2/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc
an offence against the driver of the tractor. It is averred that, the Respondent No.1 was earning Rs.10,000/- per month from milk & poultry businesses and agricultural. Respondent No.2 was registered owner of the tractor and it was validly insured with the Appellant, at the time of accident. Therefore, the Respondent No.1 prayed to award a compensation of Rs.10,00,000/- under all heads.
6) Despite notice, the Respondent No.2 did not file his appearance, therefore, the claim proceeded ex-parte against him.
7) The Appellant appeared and filed written statement. The Appellant has not admitted and specifically denied each and every material allegation, averment and submission made in the claim including the manner of the accident. The Appellant contended that the driver of the tractor was not holding valid and effective driving license at the time of accident. The tractor was used for commercial purpose by hiring the same. Thus, there was breach of the policy terms and conditions. As such, the claim be rejected.
8) In order to prove the claim, the Respondent No.1 adduced his evidence on Affidavit (CW1/Exh.18) and examined Dr. Santosh Shivajirao Kokane (CW2/Exh.35). Besides, the Respondent No.1 has relied upon certain documents in evidence. In rebuttal, the Appellant adduced the evidence on Affidavit of its Senior Executive Officer, Mr. Sukhprit Singh Durai (RW1/Exh.54).
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Manoj 1-FA-1043-2015.doc 8.1) On appraisal of said evidence, the Tribunal held that the
accident occurred due to rash and negligent driving of the tractor. The Respondent No.1 had sustained the injury as above; that, the injury resulted in the loss of six months' income, the injury caused him 70% disability; that, and the said disability resulted in the loss of the 70% income capacity as the Respondent No.1 cannot do the agriculture work as before. The Tribunal therefore, awarded the compensation Rs.16,04,005/-. The Tribunal held that, even though the subject policy of insurance was a 'Farmer's Package Policy', the risk of Respondent No.1 was covered and hence, directed the opponents to pay the compensation amount.
9) Insofar as the cause of the accident is concerned, the oral evidence of Respondent No.1 coupled with the F.I.R. clearly indicate that at the time of accident the tractor was working in the agricultural land of Respondent No.1. But while taking a turn, the tractor ran over the right leg of Respondent No.1. Said oral and documentary evidence did not meet sufficient challenge in the cross-examination. The Appellant has not examined the driver of the tractor in the rebuttal. It is well-settled that in the proceedings of Section 166 of the Act, the issue of negligence has to be decided on the basis of preponderance of probabilities and that standard of proof beyond reasonable doubt cannot be made applicable in such cases. Hence, I hold that the 4/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc accident occurred due to rash and negligent driving of the tractor.
10) The evidence of Respondent No.1 and CW2-Dr. Santosh Kokane is that the Respondent No.1 had sustained following injuries due to the accident :-
1] Crush Injury over right foot with all bones of (R) foot fractured and muscles crushed with skin loss. 2] Crush injury over right leg lover 3 rd with ankle joint exposed with crushed muscles with skin loss.
10.1) CW2-Dr. Santosh Kokane stated that the crush injury also involved a neuro vascular injury to the leg. The Respondent No.1 and CW2 stated that the former was inpatient in the latter's hospital from 14.08.2010 to 25.09.2010. The said evidence is corroborated with the Injury/Medical Certificate (at Exh.36) issued by CW2. The said oral and documentary evidence did not meet any challenge in the cross-
examination of the witnesses. Hence I hold the injury, accordingly. Further, the evidence of the Respondent No.1 along with the evidence of CW2-Dr. Santosh Kokane and the Disability Certificate (at Exh.37) clearly established that the said injuries resulted in amputation of the right leg below the knee and it led to 70% disability. In view of this evidence the Tribunal held that the Respondent No.1 has sustained the 70% disability. However, the evidence of the Respondent No.1 and 5/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc CW2 is not clear as to whether the said disability was with reference to the injured leg or with reference to the whole body. The Disability Certificate only mentions that the Respondent No.1 has suffered "Destruction or permanent impairing of the powers of any member or joint." That apart, in his evidence CW2 did not inform exactly what activities or functions the Respondent No.1 is unable to do on account of the 70% disability. The Disability Certificate is also silent on this aspect. Therefore, I hold that the said disability is with reference to the injured right leg only.
11) Now turning to the quantum of the compensation. Based on the evidence of Respondent No.1, CW2-Dr. Santosh Kokane, the injury, bills of the hospital and pharmacy etc., the Tribunal awarded Rs.80,005/-under the head 'medical expenses'. This amount appears justifiable considering the evidence on record. Therefore, it need not be enhancement.
12) The Tribunal awarded Rs.8,000/- as travelling expenses and Rs.10,000/- as special diet. In this regard the Tribunal noted that Respondent No.1 had to go to the doctors, surgeons, physiotherapist for early recovery. However, looking at the injury sustained by the Respondent No.1, it is safe to presume that post amputation, said injury must have taken a considerable time to recover. During that time, the Respondent No.1 must have visited the doctor/s frequently 6/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc and taken special diet for early recovery. Hence, in my considered view Respondent No.1 deserves to receive total Rs.25,000/- under the heads 'travelling expenses' and 'special diet'.
13) Now about the loss of income and the loss of the future income. The evidence of Respondent No.1 is that, at the time of accident he was doing agricultural work, milk business and poultry business thereby he was getting total monthly income of Rs.10,000/-. To strengthen this evidence the Respondent No.1 produced the 7/12 extracts and 8A extract, which show that the family has some land. Respondent No.1 also produced a Certificate dated 18.10.2010, issued by the Village Development Officer. Said Certificate mentions that the father of the Respondent No.1 had the poultry farm and after him, the Respondent No.1 succeeded the same. The Tribunal held that nothing has come on record to disbelieve the aforesaid evidence outright. It is noted that, the evidence as to the agricultural work and running the poultry farm was not challenged even by way of a suggestion of denial. The Tribunal observed that, the Respondent No.1 was aged 39 years and young. Such a young person can earn Rs.250 per day by doing unskilled labour. However, the Tribunal noted that, Respondent No.1 was cultivating the land with his brother. Therefore, the Tribunal held that the monthly income of the Respondent No.1 was Rs.8,000/- at the time of accident.
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Manoj 1-FA-1043-2015.doc 13.1) In this context, I have noted that the cross objection does
not specifically claim that the monthly income of Rs.8,000/- has been held on lower the side. That apart, the Respondent No.1 has not stated the numbers of cattle he was having at the time of the accident nor he informed the per day milk produced by his cattle. Therefore, I am in agreement with the Tribunal that the notional monthly income of the Respondent No.1 was Rs.8,000/- at the time of the accident.
14) The crush injury sustained by the Respondent No.1 also involved a vascular injury, as stated in the evidence of CW2-Dr. Santosh Kokane. As such, the Tribunal held that the Respondent No.1 could not attend his work and earn for at least for six months and accordingly, awarded Rs.48,000/- under the head of 'loss of income' which is justifiable.
15) The Tribunal held that, the aforesaid disability resulted in the loss of 70% income capacity of the Respondent No.1. Accordingly, the Tribunal calculated the compensation i.e., 8000 X 12 X 15 = Rs.14,40,000/- and 70% thereof Rs.10,08,000/-. 15.1) As noted above, the Respondent No.1 can walk and do his daily pursuits with the help of an artificial limb. However, it cannot be denied that, the amputation of the leg resulted in loss of the future income/income capacity. In the cross-examination CW2-Dr. Santosh Kokane has denied that if one's leg is amputed, his disability would be 8/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc 50% with reference to his whole body. CW2 has denied that if an artificial limb is used, then such a disability would reduce to 30% of the particular limb. Considering this denial and nature of the work that Respondent No.1 has been doing to earn, I am in agreement with the finding recorded by the Tribunal that the disability resulted in the loss of 70% income capacity.
15.2) However, as submitted by Mr. Pande, the learned counsel for Respondent No.1, no compensation has been awarded towards the future prospects. In view of a decision in National Insurance Co. Ltd. vs. Pranay Sethi and others.1, some amount shall be added to the actual loss of the income of the Respondent No.1. As per the oral and documentary evidence on record, Respondent No.1 was aged 39 years at the time of accident. However, his income was not regular. Hence, the addition towards his future prospects should be 40% of the loss of the future income of Rs.10,08,000/- as held above. On such addition, the actual loss of the future income of Respondent No.1 comes to Rs.14,11,200/- (1008000 + 403200).
16) The Tribunal held that, the Respondent No.1 had been in need of an artificial foot/limb. Such a limb is required to be replaced every three years. Therefore, the Tribunal awarded Rs.1,00,000/- for an artificial limb. However, Mr. Pande,the learned counsel, submitted
1. 2017 ACJ 2700 (SC).
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Manoj 1-FA-1043-2015.doc that the artificial limb which the Respondent No.1 has been using is costing Rs.1,50,000/- to Rs.2,00,000/- per unit. He submitted that, the Respondent No.1 has to replace that limb every three years. Therefore, the award of Rs.1,00,000/- under this head is on the lower side and, it may be reasonably enhanced. He submitted that the Tribunal awarded Rs.2,00,000/- towards 'pain and sufferings' and Rs.1,50,000/- towards 'discomfort and loss of enjoyment of life'. However, looking at the injury and nature of the disability it caused, the said compensation is not just and reasonable. He therefore, submitted that an adequate compensation may be awarded under the aforesaid heads. To support the said submissions, Mr. Pande has relied upon following reported decisions.
i) Mohd. Sabeer vs. Regional Manager, U.P. State Road Trans. Corpn.2. In this reported case, the claimant aged 37 years, had suffered an amputation of right lower limb below the knee. The Hon'ble Supreme Court accepted the permanent disability as 70% due to the said injury. Accordingly, the loss of the future earning capacity was calculated at 60%. In view thereof, the Hon'ble Supreme Court awarded Rs.12,80,000/- as cost of artificial limb and its maintenance. Rs.2,00,000/- has been awarded towards pain and suffering and Rs. Rs.2,00,000/- has been awarded towards loss of amenities of life. In
2. 2023 ACJ 1.
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Manoj 1-FA-1043-2015.doc addition to a compensation of Rs.11,34,000/- towards loss of earning capacity due to functional disability, Rs.2,00,000/- has been awarded towards loss due to disability and disfigurement.
ii) G. Vivek vs. National insurance Co. Ltd. and another 3. In this case the injured aged 12 years suffered amputation of right leg. The permanent disability was 97 % with reference to the his right leg. In this background and considering the evidence on record, the Hon'ble Supreme Court awarded Rs.26,00,000/- towards cost and maintenance of prothesis.
16.1) In the case in hand, the Respondent No.1 in his evidence has not specifically stated that on recovery of the injury post surgery, he spent certain amount to purchase an artificial foot/s. However, it cannot be ignored that he has claimed the compensation under all the admissible heads. In the cross-examination of CW2-Dr. Santosh Kokane it has come that he had advised the Respondent No.1 to have a below knee prosthesis (artificial limb). He can walk with such a limb and do his daily pursuits. Thus, Appellant has conceded the need of an artificial limb. However, there is no evidence as to the nature and cost of the artificial limb which the Respondent No.1 has been using. Today, Mr. Pande, the learned counsel produced a coloured photograph of the Respondent No.1 alongwith the artificial limb. Said
3. 2023 ACJ 585.
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Manoj 1-FA-1043-2015.doc photograph is taken on record. The photograph indicates that, the artificial limb that Respondent No.1 has been using, is simple. It is settled law that each case has be to decided on its own merits. In view thereof, considering the age of Respondent No.1 at the time of the accident, the nature of the amputation he suffered and that the artificial limb is required to be changed every three years, the Respondent No.1 is entitled to receive total Rs.5,00,000/- towards the cost and maintenance of prothesis.
17) The Tribunal has not awarded an 'attendant charges'. It is common experience that in such cases of amputation, without an attendant, an injured person cannot even have his daily simple morning routine until sufficient recovery from the injury. The Respondent No.1 was earning lesser income. Therefore, it is probable that the he was attended by someone in the family, skipping on her/his earnings. I, therefore, deem it appropriate to award Rs.25,000/- under this head. Considering the facts of the case in hand and, the decision in Mohd. Sabeer (supra), Respondent No.1 is entitled to get Rs.1,00,000/- towards the loss due to the disability and disfigurement. Sufficient compensation is awarded for 'discomfort', 'pain and suffering' and 'loss of enjoyment of life'.
18) Thus, the Respondent No.1 is entitled to receive total Rs.24,91,205/-. The Appellant has deposited the entire amount of 12/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc compensation awarded by the Tribunal. Therefore, the Respondent No.1 is entitled to receive only the enhanced compensation as under :-
Total compensation amount : Rs.24,91,205 /-
Minus the compensation amount : - Rs.16,04,005/-
awarded by the Tribunal and paid. ----------------
Enhanced compensation amount : = Rs. 8,87,200/-
----------------
19) Now as to the liability to pay the compensation. There is
no dispute that, the tractor was validly insured with the Appellant at the time of the accident. However, it is the defense of the Appellant that the insurance policy of the tractor does not cover a risk if the said tractor was used for hire.
20) To prove the said defense, the Appellant has presented the evidence of OW1-Sukhprit Gurai, Senior Executive Legal Officer. His evidence is that, the Respondent No.1 had hired the services of the tractor at the time to accident. Thus, there was wilfull breach of the insurance policy terms and conditions (Exh.57). In the cross- examination, Respondent No.1 admitted that he had hired the tractor for agricultural work.
20.1) In the cross-examination OW1-Sukhprit Gurai admitted that a clause having heading "avoidance of certain terms and right of recovery" missing from the policy document (Exh.57); that, IMT endorsement Nos.21, 37 and 39 were not attached with the policy 13/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc (Exh.56); that, the policy (Exh.57) was "Farmer's Package Policy"; that, Farmer's Package Policy is having cover of other policies; that, the tractor was insured under a "Commercial Vehicle Package Policy"
subject to fulfilment of all the terms and conditions of a Farmer's Package Policy; and that, commercial vehicle can be given on hire. He has denied that, he has deliberately produced the wrong policy (Exh.57) on record. He has denied that, there was no breach of the policy terms and conditions.
20.2) In view of the aforesaid evidence the Tribunal held that, the Appellant has filed an incomplete policy (Exh.57). It is held that, the tractor was insured under the commercial vehicle package policy subject to the fulfillment of all the terms and conditions of the Farmer's Package Policy. Tribunal also held that, since the subject policy (Exh.57) was the Farmer's Package Policy', the tractor was to be used in agricultural lands only. Therefore, the Tribunal held that, even if it is presumed that the Respondent No.1 had hired the tractor as above and, the tractor was used in the private agricultural land, the Respondent No.2 cannot be held to have committed the breach of policy terms and conditions. Therefore, the Tribunal rejected the contention that there was breach of the policy terms and conditions and to absolve the Appellant from compensation liability.
21) The Compilation of Documents produced by Respondent 14/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 ::: Manoj 1-FA-1043-2015.doc
No.1 contains the policy schedule, the Certificate-cum-Policy Schedule, and the Policy Document. The Certificate-cum-Policy Schedule contains a condition i.e., "Limitation as to Use". As per this condition the use of the tractor was limited to 'Agricultural and Forestry purposes'. However, said condition does not specify that such use is limited to the agricultural purposes of the owner of the vehicle. As such it is safe to presume that, use of the tractor in the private agricultural land of Respondent No.1 was not prohibited by that condition.
21.1) The said limitation clause further states that, the said policy does not cover use for hire. This gives rise to an inference that, the tractor was not permitted to be used for hire. As noted above, in the cross-examination the Respondent No.1 has admitted that he had hired the tractor for agricultural work. This admission supports the evidence of OW1. However, it must be noted that, 'Cover 7 : Tractors' stated in the Policy Document provides that, i. Cover is provided for the Insured's Tractors on the same terms as if they were vehicles covered under the Company's Standard Commercial Vehicle Package Policy (which is deemed to be incorporated into this Policy for the purposes of this Cover only) but the cover provided is:
a) for the Policy Period only, and
b) is subject to the same terms, conditions, exclusions and warranties as the Company's Motor Policy in all respects.15/18 ::: Uploaded on - 13/03/2025 ::: Downloaded on - 15/03/2025 06:20:03 :::
Manoj 1-FA-1043-2015.doc 21.2) As noted above, OW1-Sukhprit Gurai admitted that the
tractor was insured under a "Commercial Vehicle Package Policy"
subject to fulfillment all the terms and conditions of a Farmer's Package Policy; and that, commercial vehicle can be given on hire. It is common experience that in village areas, farmers holding small lands hire tractors of others from same or other villages, to expedite their agricultural operations. The Appellant or OW1-Sukhprit Gurai have not explained as to how the codition 'policy does not cover use for hire' would run contray to the use permitted under the said 'Cover 7 : Tractors'. As noted by the Tribunal, a complete policy document was not produced before the Tribunal by the Appellant. In this background, the Appellant cannot escape the liability to pay the compensation quantified as above.
22) In view thereof, the Appeal is liable to be dismissed and the Cross Objection partly succeeds. Hence, following Order.
-ORDER-
(a) First Appeal is dismissed with proportionate costs. (a-1) The Cross-Objection is partly allowed.
(b) The impugned Judgment and Order dated 17.04.2015, in M.A.C.P. No.1077 of 2010, passed by the Motor Accident Claims Tribunal, at Pune is modified.
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(c) Appellant and Respondent No.2 shall jointly and severally
pay the compensation of Rs.24,91,205/- (inclusive of NFL amount) together with interest thereon at the rate of 7.5% per annum from the date of the Claim Petition till realisation 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.
(f) The Respondent No.1 is permitted to withdraw the deposited amount from the Tribunal within a period of eight weeks from the date of the deposit, subject to payment of a deficit Court fees, if any.
(g) 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.
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(h) Appellant/insurance company will be entitled to
adjustment of the amount against the already paid under the impugned Award.
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