ICICI Lombard General Insurance Co. Ltd. vs Jayesh Himmatlal Parmar & Anr.

. By consent of both sides heard finally at the stage of admission.

This Appeal is filed under Section 173 of the Motor Vehicle Act, 1988 (‘M.V. Act’ for short) to the judgment and award dated 6^th May 2022 passed in MACP No.20/2015, whereby the injury claim of the Claimant is allowed by directing both the opponents to jointly and severally pay a sum of Rs.32,04,688/- along with interest @ 7.5% per annum. It is the case of Claimant that, he was riding scooter and at the spot of incident an offending vehicle having registration No.MH-01-AL-7477 came in high speed and dashed the scooter. As a result of the same, the Claimant fell on the road and sustained injuries. He was admitted in Saint Elizabeth Hospital. The crime came to be registered with Malbar Hill Police Station with Crime No.101 of 2014. The Claimant claims to be working as a Tilor and earning Rs.33,000/- per month and since he sustained permanent partial disability, compensation is claimed for loss of income.

Owner failed to cause appearance before the Tribunal and the Claim proceeded ex-party against him. Insurer however filed Written Statement at Exhibit-13 denying the contention of the Claimant. It is alleged that, there is breach of Terms of the policy and as such the Insurer is not liable for payment of compensation.

Issues were framed at Exhibit-14. The Claimant examined himself at Exhibit-17 and also led evidence of Dr.Khanna at Exhibit-28, Sangeeta Raikar at Exhibit-33 and Hitesh Mehta at Exhibit39. The Tribunal allowed the claim hence this Appeal.

The learned counsel for the Appellant-Insurer submits that, the Tribunal has failed to take into consideration the Police papers on record which according to him indicate that the accident has occurred due to the negligence of Claimant himself. Without prejudice it is submitted that, in any case, it needs to be held that he has contributed to the occurrence of the accident. It is further argued that, the Claimant has not substantiated the disability and testimony of Dr.Khanna, and therefore it is not sufficient to prove the same. It is further canvased that, the disability certificate is issued by non-treating doctor so also the bifurcation of the disability has not been given in the certificate issued. The objection is raised with regard to the income of the Claimant so also the expenses incurred including the future medical expenses. On these amongst other contentions exception is taken to the impugned judgment and award.

The learned counsel for the Original Claimant supported the impugned judgment and order. It is his submission that the Claimant has examined Dr.Khanna to prove disability certificate and having regard to the nature of injury to the right knee cap joint, the Claimant is unable to work as a tailor and thus he has sustained 100% disability. It is further argued that the employment and income of the Claimant has been proved by examining witness and the acceptance of the income of Rs.18,000/- is not excessive.

The Claimant was riding the scooter. He narrates the manner in which the accident has occurred. His contention gets support from the Police papers. In the cross-examination nothing has come on record to discard his testimony in this regard. After Claimant was successful in proving the factum of accident the onus shifted on the Opponent to prove otherwise. There is absolutely no evidence placed on record to hold so. Apart from this the offence came to be registered against the driver of the offending vehicle and there is nothing to indicate that, there is any challenge raised by the driver to the said report or filing of the charge-sheet, this Court therefore, finds no negligence on the part of the Claimant in the occurrence of the accident.

Insofar as the occupation and income of the Claimant, apart from his own testimony, there is support thereto from evidence of Hitesh Mehta, AW-4 who deposed about the Claimant working with him and salary of Rs.18,000/- being paid to him. Even from the cross-examination of this witness it cannot be said that, the Claimant was not doing tailoring work. The learned Tribunal has accepted income of the Claimant @ Rs.18,000/- per month. It is pertinent to note that, the Claimant is resident of Walkeshwar, Mumbai. Having regard to the cost of living in city like Mumbai, the acceptance of the income of the Claimant @ Rs.18,000/- cannot be said to be excessive.

As far as the disability is concerned, Claimant has narrated the nature of injuries caused to him, so also the same has been proved with assessment of the disability. It is pertinent to note that, though Dr.Khanna is not treating doctor, nothing is brought on record by him in the cross-examination to indicate that he is not expert witness to assess the disability. In the facts of the case the disability accepted by the Tribunal is reasonable and requires no interference therein.

Insofar as the medical expenses and future medical expenses are concerned, the evidence of the Claimant is sufficient to prove the said claim on probability. Having regard to the above discussion, this Court finds no perversity in the impugned judgment and award to cause any interference therein. As a result of the same, the Appeal stands dismissed.

Record and Proceedings be sent back to the Tribunal.

Statutory amount be transmitted to the Tribunal as per Rule.

All pending Applications are disposed of.