MITALI MANOHAR SAWANTversusDATTA MARUTI GHULE AND ORS.

                                                                                         FA-1984-2005.doc


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                                  FIRST APPEAL NO.1984 OF 2005
           Digitally signed
           by SATISH
           RAMCHANDRA
SATISH
RAMCHANDRA
           SANGAR
           Date:
                                     Mrs.Mitali Manohar Sawant,                    ]
SANGAR
           2026.10.08
           10:22:28
           +0530
                                     (Formerly known as Miss Sundar Krishna        ]
                                     Mali, Age : 25 Years, Occupation : Housewife, ]
                                     Residing at : Amale Sadan, Line Ali, Shivaji  ] ...Appellant
                                     Road, Panvel – 410206, Raigad.                ](Ori.Applicant)

                                              Versus
                              1.     Shri Datta Maruti Ghuule,               ]
                                     Adult, Occupation : Transport Business, ]
                                     (Owner–cum–Driver of Tempo Trax         ]
                                     No.MH–2–P–9215), R.O. 168, Somwar Peth, ]
                                     Pune–11.                                ]
                              2.     The New India Assurance Co. Ltd.                ]
                                     Div. Office at Alibag, Behind Alibag S.T.Stand, ]
                                     Alibag, (Raigad).                               ]
                                     (Cover Note No.PN/No.709882,                    ]
                                     Policy No.31/5630319939 issued from             ]
                                     New India Assurance Co. Ltd., Karve Road,       ]
                                     Pune – 411004.                                  ]
                                                                   st
                                     Branch No.150103, Omshri, 1 Floor,              ]
                                     Above Suvarna Sah. Bank, Karve Road, Pune. ]
                                     Valid from 1-11-195 to 31-10-96 in respect of ]
                                     Tempo Trax No. MH-12-P-9215.                    ]
                              3.     Shri Santosh Ramesh Wani,                   ]
                                     Residing at : Kalamboli, Cidco Colony,      ]
                                     Room No. B–17, LIG, Sector No.3, Kalamboli, ]
                                     Taluka : Panvel (Raigad), Owner of Jeep No. ]
                                     MH-06/C-2745.                               ]
                              4.     The Oriental Insurance Co. Ltd.,                ]
                                     Shivram Sadan, 2nd Floor, Shivaji Road,         ] ...Respondents
                                     Panvel–410206, Insurer of MH-06/C-2745.         ](Ori.Opponents)

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====================================================

Mr.T.J.Mendon:-                          Advocate for Appellant.
Mrs.Urmila K. Sanil:-                    Advocate for Respondent No.2 –
                                         New India Assurance Co. Ltd.
Mr.Devendranath S. Joshi:-               Advocate for Respondent No.4 –
                                         Oriental Insurance Co. Ltd.

====================================================
                            CORAM        :          S. M. MODAK, J.
                            RESERVED ON : 29th SEPTEMBER 2026
                            PRONOUNCED ON : 7th OCTOBER 2026
JUDGMENT :-

1.     The Motor Accident Claims Tribunal–Alibag (“Tribunal”) as per

the judgment dated 27th June 2005 passed in M.A.C.P. No.150 of

1997 has dismissed the claim of the Claimant–Appellant. Though the

issue of negligence was answered against the driver of the tempo trax,

finally the Claim Petition was dismissed as the Appellant could not

prove the injury. It is challenged by the Appellant. So, the issue

involved in this Appeal is “whether the Tribunal was justified in

dismissing the Claim Petition in toto without granting compensation

on any head and whether disability is required while granting

compensation under the head ‘injury’.”

2.     On       this   background,   I       have    heard   learned   Advocate

Shri.Mendon for the Appellant, learned Advocate Ms.Sanil for

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Respondent No.2 – New India Assurance Co. Ltd., and learned

Advocate Shri.Joshi for Respondent No.4–Oriental Insurance Co. Ltd.

3.     The owner of tempo trax was held negligent whereas the driver

of jeep was exonerated and consequently, their Insurance Company –

Opponent No.4. The Claimant injured was proceeding towards Jejuri

on 15th July 1996 along with family members in jeep belonging to

Opponent No.3. It was insured with the Opponent No.4 – Oriental

Insurance Company. At Karla phata, the offending tempo trax owned

by Opponent No.1 insured with the Opponent No.2 came from

opposite side. It overtook the truck. By way of precaution, the driver of

the jeep took jeep on one side. The tempo trax driver was rash and

negligent. Instead of going ahead, he gave dash to the back side of the

jeep as said driver could not control the tempo trax. The Appellant was

travelling in that jeep, sustained injuries.

4.     She got a certificate from Dr.Ghodke on 27th February 1997. The

injuries are as follows:-

     (i)        Sutured CLW 2½" in length upper part of ociput
                anteropost essive.
     (ii)       Maematruna Rt. & Left side occipotel region (a) Rt.2"
                x 1 ½" in diemeter (b) Lt. 2" x 1”.
     (iii)      Abrasion marks membrance lower lip ruddle 1 c.m. x
                ½ cm. x mm deep.

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5.     On this background, the Appellant has filed Claim Petition

claiming compensation. Only the Insurer of tempo trax has contested

the Claim Petition. They have denied the allegations. The policy is not

disputed. The trax was used contrary to the terms and conditions of

the Insurance policy. There is breach of those terms. However, this was

not proved. Even the Insurance Company of the jeep has also filed the

Written Statement. The have alleged the misconduct of the tempo

driver.

6.     On this background, the evidence was adduced. The Appellant

herself entered into the witness–box and she was cross-examined only

by Opponent No.2. She relied upon the following documents:-

(a)    Panchnama (Exhibit–31).

(b)    F.I.R. lodged by the Head Constable dated 16th July 1996
       with Lonawala Police Station for the offence under Sections
       279, 337, 427 of IPC and under Section 184 of MV Act.
       The tempo trax driver was negligent.

(c)    Certificate issued by Dr.Ghodke dated 27 th February 1997
       (Exhibit–33).

(d)    Copy of medico legal certificate served by Police.

(e)    School leaving certificate.

(f)    The statement showing the total expenses incurred Rs.1591.35
       paisa along with the bills.



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7.     Though the learned Advocate Ms.Sanil tried to argue that tempo

trax driver was not negligent, for two reasons, I am not accepting her

submission because this issue cannot be raised in Appeal filed by the

Claimant and there is categorical finding arrived after proper

appreciation of evidence.

8.     The findings of the Tribunal are as follows:-

(a)    The Claimant was taken to Lonavala hospital and then to
       Sion hospital for C.T. Scan and further treatment.
(b)    She took treatment for one month at Panvel and incurred
       expenses on medicines and treatment to the tune of
       Rs.5,000/-.
(c)    The certificate issued by Dr.Ghodke at Exhibit–33 is
       referred. The certificate further mentions that the Appellant
       was prevented from attending her normal duties upto 15 th
       August 1996. The date of accident is 15th July 1996. The
       certificate does not mention about permanent disablement.
(d)    The expenses of Rs.5,000/- is not fortified.
(e)    The bills issued by the hospital were not produced. The
       discharge card of Dr.Ghodke is not produced.

(f)    The nature of injury is not of such a nature which will
       enable her to claim compensation. It is not of such a nature
       as contemplated under Sections 140, 142 and 165 of M.V.
       Act.

                          Provisions of M.V. Act

9.     Section 140 of M.V.Act talks about “no fault liability”. It is true,

there is no permanent disablement to Claimant as contemplated in

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Section 140 of the said Act. Section 142 of the M.V. Act lays down

three categories of permanent disablement. They are as follows:-

(a)    Permanent privation of the sight of either eye or the hearing
       of either ear, or privation of any member or joint; or
(b)    destruction or permanent impairing of the powers of any
       member or joint; or
(c)    permanent disfiguration of the head or face.

Sections 140 to 144 are deleted by 2019 amendment.

10.    Whereas, Section 165 empowers the Government to constitute

Motor Accident Claims Tribunal for inquiring into claims. One of the

categories is ‘causing bodily injury’ to person arising out of use of

motor vehicle. In other sense, if bodily injury is there, the Tribunal can

inquire about compensation. This was held by the Tribunal. A bodily

injury means injury of any kind to a person that may be temporary or

permanent. It may attract hospitalization or may not attract. All

injuries are covered. Except denial, there is no cross-examination on

behalf of the Opponent No.2. During chief-examination, she has said

about her hospitalization and the injury certificate issued by

Dr.Ghodke and incurring the expenses of Rs.5,000/-.

11.    We can certainly read the certificate given by Dr.Ghodke because

it is not challenged during cross-examination. There is contused


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lacerated wound to occipital region. Doctors have put sutures. The

sutures can be put only when injury is of such kind and it is for uniting

of parts. Hematoma and abrasion are minor injuries. For one month,

she could not attend her normal duties. This can certainly be said to be

injuries which are described in Section 165 of the M.V. Act. The

Tribunal was wrong in holding that there were no injuries.

12.    In case of R.D.Hattangadi V/s. Pest Control (India) (P) Ltd. 1, the

Supreme Court has bifurcated the damages into pecuniary damages

and special damages. The pecuniary damages are those which can be

calculated in terms of money whereas non-pecuniary damages are

those which are incapable of being assessed by arithmetical calculation.

The pecuniary damages may include expenses and loss of earning.

Whereas, non-pecuniary damages include damages for mental shock,

pain, suffering and loss of amenities, loss of expectation. This is the

consistent view taken by the Supreme Court till the case of Benson

George v. Reliance General Insurance Co. Ltd. 2, & in case of Mohd.

Sabeer Alias Shabir Hussain v. Regional Manager, U.P. State Road

Transport Corporation3.

13.    Admittedly, no disability certificate is there on the basis of which
1   (1995) 1 SCC 551
2   (2022) 13 SCC 142
3   (2023) 2020 SCC 774

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we can assess loss of income. But, on account of expenses, pain and

suffering, compensation ought to have been awarded by the Tribunal.

Other heads cannot be considered because facts do not warrant it on

account of expenses she claims. She has incurred Rs.5,000/-. However,

bills are for Rs.1591.35 paisa. Even as per no fault liability, Rs.25,000/-

can be ordered as per the law then in force. I am inclined to Award the

same amount on all heads to the Claimant along with 7.5% interest

from the date of Petition till realization. Hence the order:-

                              -: O R D E R :-

(a)    The Appeal is allowed.
(b)    The judgment dated 27th June 2005 passed by the Motor
       Accident Claims Tribunal – Alibag is set aside.
(c)    The Respondent Nos.1 and 2 are jointly and severally liable
       to pay Rs.25,000/- along with 7.5% interest within 8 weeks
       from the date of Petition till the realization.

14.    In the light of the above observations, the Appeal is disposed of.

15.    Pending Applications, if any, also stand disposed of.



                                       [S. M. MODAK, J.]




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