THE UNITED INDIA INSURANCE COMPANY LIMITED, CALCUTTA Vs. ALPESH HARSHADLAL MASHRUWALLA
HIGH COURT OF BOMBAY
The United India Insurance Company Limited, Calcutta
Alpesh Harshadlal Mashruwalla
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KUM.INDIRA JAIN,J. -
(1.) This appeal is directed against the judgment and award dated 20.10.2003 passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No.130/1992. By the said judgment and award, tribunal saddled the insurance company with the liability to pay compensation of Rs. 5,50,000/- along with interest at the rate of 9% per annum from the date of application within 45 days, failing which to pay interest at the rate of 12% from the date of application till its realization. Being aggrieved, insurance company has preferred the present appeal.
(2.) Brief facts of the case may be stated as follows :
(i) Respondent is an injured in vehicular accident. On 28.9.1991, claimant was proceeding with his friend Sagar Gajanan Lakhe on motorcycle bearing No. BTB- 5454. Sagar was riding the motorcycle and injured was pillion rider. They reached near Steel Sales Corporation and stopped the motorcycle due to red signal. That time, truck bearing No.MOT-9277 came from rear side and gave a dash to motorcycle. Both Sagar and claimant fell down. Rider of motorcycle died on the spot. Claimant suffered serious injuries.
(ii) Initially injured was admitted to Government Medical College and Hospital at Nagpur for four days. As he was resident of Bombay, he was shifted to Lincoln Nursing Home at Bombay. His right hand was operated there. Then he was shifted to Jaslok Hospital, Bombay.
(iii) It was the case of claimant that he suffered 90% permanent disability. He was serving as an Electronic Engineer with Weightronic Private Limited, Bombay and getting monthly salary of Rs. 2,500/-. Due to disability, he could not continue his employment and was required to remain without job, as disability has affected his physical capacity to earn. According to claimant, disability was to such an extent that he could not marry. He is being maintained by his old mother. She is doing some petty work. Applicant submitted that permanent physical disability has caused serious inconvenience, disappointment, discomposure, frustration, mental stress and loss of confidence to him. He claimed Rs. 4,50,000/- towards compensation under Section 166 of the Motor Vehicles Act including interest thereon.
(iv) The owner of vehicle was served with the notice. He remained absent and application proceeded ex-parte against him.
(v) Respondent no.3/appellant resisted the petition vide written statement (Exh.14). It was contended that two vehicles were involved in the accident and owner and insurer of another motorcycle were also necessary parties. A plea of non-joinder of necessary parties was raised by insurer. Regarding occurrence of accident and liability of insurance company to pay compensation, defence was of total denial.
(vi) From the rival pleadings of the parties, Tribunal framed issues at Exh.22. Injured examined himself as a solitary witness. Insurance company did not examine any witness in support of its defence. Considering the evidence and documents placed on record, Tribunal came to the conclusion that owner and insurer were liable to pay compensation to the tune of Rs. 5,50,000/- particularized under various heads in paragraph 10 of the Award. Respondent nos.2 and 3 were directed to pay within 45 days with interest at the rate of 9% per annum from the date of application and on failure to deposit within time at the rate of 12% interest per annum from the date of application till its realization.
(3.) Appellant assails the impugned judgment mainly on the ground that compensation awarded as per clauses (iii), (iv) and (v) in paragraph 10 of the judgment is on too higher side. The submission is that Tribunal has relied upon disability certificate (Exh.39) issued by Medical Officer, Nair Hospital, Bombay and the said certificate was not duly proved in accordance with the law. Learned counsel submitted that author of permanent disability certificate was not examined and for failure to examine competent witness, Tribunal ought not to have relied upon disability certificate (Exh.39). In support of contentions, learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in Rajesh Kumar alias Raju v. Yudhvir Singh and another [2008 (6) Mh.L.J. 21].;
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