United India Insurance Company Ltd. v. Atul Dattaray Wadhane

1 Mr. Sabastain Anthony Pathikulangara, adult, address at B-405, Sea View CHS, Plot No.06, Sector No.08, Kandivali West, Mumbai, PIN 400 067. (Owner of Mini School Bus No.MH-02-BQ-0041) Respondent No.1/ Original

2 United India Insurance Company Ltd., Through its Regional Manager having their office No.2, Motor 3rd Party Claims HUB, Union Co.operative Insurance Building, 5th Floor, Sir P. M. Road, Fort, Mumbai 400 001.

Policy valid from 08.02.2016 to 07.02.2017(Insurer of Mini School Bus No. MH- 02-BQ-0041)

Insurer Ms. Varsha Chavan, Advocate for the Appellant in FA/1006/2022. Ms. Rina Kundu, Advocate for the Appellant in FA/1007/2022 and for Respondent No.1 in FA/1006/2022. CORAM : SHIVKUMAR DIGE, J. DATE : 1st JULY, 2025.

1. The appellant-Insurance Company has preferred appeal against the judgment and order passed by the Motor Accident Claims Tribunal, Mumbai, (for short “the Tribunal”). The claimant has also preferred appeal for enhancement. As both appeals are against the same This judgment is corrected in view of speaking to the minutes order dated 11th August 2025. 2/12 judgment and order, I am deciding them by this common judgment.

2. It is contention of learned counsel for the Insurance Company that the accident occurred due to sole negligence of the claimant as he gave dash to the offending bus, when the offending bus was taking right turn. The driver of the offending bus examined himself to prove the negligence of the claimant and he has stated that the accident occurred due to negligence of the claimant. The sketch map at Exhibit-64 produced on record shows how the accident occurred, but this fact is not considered by the Tribunal. Learned counsel further submitted that the Tribunal has awarded compensation towards medical expenses and attendant charges on higher side, hence, requested to allow the appeal.

3. It is contention of learned counsel for claimant that before the Tribunal the Insurance Company claimed that the offending bus was stationed on road, it was not moving and the claimant dashed it. Learned counsel further submitted that PW[3] is the wife of the driver, she has not witnessed the accident Learned counsel further submitted that the FIR was lodged against the driver of the offending bus. Charge-sheet is filed against him. Due to accidental injuries, the claimant has become paraplegic. The Tribunal has awarded compensation on lower side. Hence, requested to allow the appeal filed by the claimant and dismiss the appeal filed by the Insurance Company.

4. I have heard both learned counsel, perused the judgment and This judgment is corrected in view of speaking to the minutes order dated 11th August 2025. 3/12 order passed by the Tribunal.

5. It is claimant’s case that on 4th July 2016 at about 9.10 am. the claimant was riding his motorcycle and proceeding towards his office at Borivali, when he reached at Pramila Nagar Junction, Dahisar, one mini bus took a sharp turn towards the right side without noticing the oncoming vehicle, without giving any signal or indicator and dashed against the motorcycle of the claimant. As a result, the claimant fell down from his motorcycle and sustained serious injuries. He sustained undisplaced fractures to C[1], C[2], vertebra, linear undisplaced fracture to C[5], linear displaced fracture to C[6] vertebra, comminuted fracture to C[7] veterbra, undisplaced fracture toD[1], D[2] vertebra, fracture right tibia, lacerated wounds over right knee and mid frontal scalp and other injuries. The FIR was registered against the driver of the offending bus.

6. To prove the negligence of the driver of the offending bus, the claimant has examined himself at Exhibit-17. He has stated that the accident occurred due to sole negligence of the offending bus driver. The said bus took right turn without giving any indicator. He further stated that at the time of the accident, the bus was in high and excessive speed and took sharp turn on right without looking for oncoming vehicles and dashed against his motorcycle. Due to the dash, he fell on ground and sustained injuries. In cross-examination, this witness denied the suggestion that his motorcycle was in very fast speed and in fast motion and gave dash to the This judgment is corrected in view of speaking to the minutes order dated 11th August 2025. 4/12 offending bus. This witness denied the suggestion that at the time of the accident, the bus was not running but it in fact it was stopped and it was head-on collision.

7. To prove his defense, the driver of the offending bus- Shri Sabastian Panthikulangara examined himself. He has stated that on the date of the incident, he was heading towards Dahisar from Borivali. He was running his bus at the speed of 21 to 25 k.m.p.h. During that time, when he came across Kandarpada circle, a motorcycle rider was coming in high speed from opposite direction. On noticing the high speed of the two wheeler, he did not venture to proceed with the “U” turn. Within two seconds that two wheeler rider dashed on the front side of his school bus. In cross-examination, he admitted that for the said accident, an offence was registered against him and charge-sheet was filed against him. He further admitted that he did not file written statement before the Tribunal. He further admitted that he did not submit the map of accident spot to the police.

8. The Insurance Company examined DW3-Mrs. Ruby Pathikulangara. She has stated that at the time of accident, she was the cleaner of the said bus. She further stated that at the time of accident, the bus was stationary at the Circle and the speed of bus was 20-21 k.m.p.h.. She further stated that it was rainy season. At that time, the road was slippery. One motorcyclist came from bridge and dashed against their bus and accident occurred due to negligence of the claimant. In cross- This judgment is corrected in view of speaking to the minutes order dated 11th August 2025. 5/12 examination, she admitted that she has no document to show that on the day of the incident, she was working on the bus. She admitted that there was no divider on the road upto a distance of 100 meters from the circle and the bus was not facing the bridge. She further admitted that the bridge was towards left side of the bus. She further admitted that at the time of the accident, the speed of the bus was 20-21 k.m.p.h..

9. While dealing with the issue of negligence, the Tribunal has observed that the driver of the offending bus has been charge-sheeted by the police for rash and negligent driving. Learned Tribunal further observed that the documentary evidence and oral evidence produced in Court show that the accident occurred due to rash and negligent driving of the offending bus. I do not find infirmity in it. In my view, the driver and owner of the offending bus did not file written statement before the Tribunal putting his defense. The driver has given evidence before the Tribunal when he was examined by the Insurance Company. Moreover, the driver has produced Exhibit-64 before the Tribunal but he admitted that it was not produced before the police authority. After the accident, only at the time of giving evidence, Exhibit-64 was produced before the Tribunal. It shows that the defense taken by the driver of the offending bus is after thought to avoid the liability. There are contradictions in the statement of DW[1] and DW[3]. DW[3] has stated that at the time of accident, the speed of the bus was 20-23 k.m.p.h, whereas the driver stated that the bus was stopped at the circle. Though in cross- This judgment is corrected in view of speaking to the minutes order dated 11th August 2025. 6/12 examination, DW[3] denied the suggestion that the bus was not stationary, but earlier she had stated that the speed of bus was 20-21 k.m.p.h. Moreover, the accident occurred at the Circle at 9.10 a.m, so it was impossible for the bus to stop in the circle area, it falsifies the evidence of DW[1] and DW[3]. There is no reason to disbelieve the evidence of the claimant and police papers produced on record, which shows that the accident occurred due to sole negligence of the driver of the offending bus. Hence, I do not find merit in the contention that the accident occurred due to negligence of the claimant.

10. To prove the disability, the claimant has examined Dr. Charan Jadhav at Exhibit-34. He has stated that he is owner of Balaji Hospital at Bhayander. He has treated the claimant from 4th July 2016 till date. He further stated that the claimant has sustained cervical spine fracture with spinal cord rupture at C-7 level and right Tibia fracture. Due to spinal cord injury, he is unble to move his lower limb and has become paraplegic. He had performed surgery on the claimant, the patient was bed-ridden and unable to move due to which he developed bed sore. He has issued discharge card at Exhibit-23. He further stated that the claimant was again admitted on 17th May 2018 for revision surgery of fracture of Tibial. He was discharged on 25th May 2018. The discharge card is at Exhibit-35. The medical bills are at Exhibit-36 collectively. The patient had followed further treatment in his hospital, the spine fracture is healed but the spinal cord injury was as it is. He further stated that the patient was unable to This judgment is corrected in view of speaking to the minutes order dated 11th August 2025. 7/12 move from the bed on his own, his neurological damage remained as it is. He cannot perform his routine activities. All the time, the claimant requires an attendant. According to him, the claimant is having 70% permanent partial disability. The disability certificate is at Exhibit-37.

11. The claimant has examined Dr. Sushil Tandel at Exhibit-32. He is neurologist. He has stated that on 20th March 2018, a patient had come in a wheelchair. He was unable to stand or walk. He was wearing diaper. He had bed sore on the lower back. All these diseases occurred due to head injury and cervical cord injury. According to him, the claimant is having 60% permanent partial disability. He has issued disability certificate at Exhibit-33. He further stated that the patient required continuous physiotherapy, neuro rehabilitation and medication. Nothing elicited in cross-examination of both these witnesses.