FA-563-2012+.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 563 OF 2012 United India Insurance Company Ltd., Through Its Divisional Manager, Seven Hills, Jalna Road, Aurangabad ...Appellant Versus 1. Ravindra S/o Vithal Adgale, Age: 31 years, Occu: Mason, R/o. Phulenagar, Peer Bazaar, Aurangabad 2. Babarkhan S/o. Umarkhan Pathan, Age: Major, Occu: Business, R/o. Pose Neknoor, Tq. & Dist. Beed ...Respondents WITH FIRST APPEAL NO. 520 OF 2012 United India Insurance Company Ltd., Through Its Divisional Manager, Seven Hills, Jalna Road, Aurangabad ...Appellant Versus 1. Bhagwan S/o. Budhaji Adgale, Age: 36 years, Occu: Mason, R/o. Nagsen-nagar, Osmanpura, Galli No. 3, Osmanpura, Aurangabad 2. Babarkhan S/o. Umarkhan Pathan, Age: Major, Occu: Business, R/o. Pose Neknoor, Tq. & Dist. Beed ...Respondents *** Mr. S. S. Rathi, Advocate for Appellants Mr. A. P. Khedkar, Advocate for Respondents *** p. 2 2026:BHC-AUG:1684 FA-563-2012+.odt CORAM : ABHAY S. WAGHWASE, J RESERVED ON : JANUARY 13, 2026 PRONOUNCED ON : JANUARY 17, 2026 JUDGMENT: 1. These Appeals are preferred under Section 173 of Motor Vehicle Act, 1988 (for short “the Act”) by Original Respondent No. 3 – Insurance Company taking exception to the judgment and orders dated 21.01.2012 passed by MACT, Aurangabad in MACP Nos. 17/2010 & 18/2010 respectively. 2. On 04.09.2029, at about 18:30 hours, the Original Claimants along with others were travelling on a motorcycle bearing registration No. MH-20-BB-7435 at a moderate speed from Daulatabad towards Aurangabad. The Original Claimant, Ravindra, was riding the said motorcycle. When they reached the place of the incident, a Bajaj Tempo Trax bearing registration No. MH-23-C-0423 came from the opposite direction in a rash and negligent manner and dashed against the motorcycle. As a result of the said impact, the claimants were thrown to the ground and sustained grievous injuries, including fractures to the right knee and right leg respectively. Immediately after the accident, they were shifted to Ghati Hospital, Aurangabad, where they received medical treatment. It is the case of the claimants that, due to the said accident, they have suffered permanent disability. p. 3 FA-563-2012+.odt 3. Though Original Respondent Nos. 1 and 2, driver and owner of the vehicle, were served, they failed to causes appearance. Hence, Petitions proceeded against them ex parte. Respondent No. 3 – Insurance Company contested the claim Petitions and filed written statements at Exhibits 14 & 15 respectively denying all contentions and breach of conditions of insurance policy. 4. After framing of the issues at Exhibits 24 & 26, Claimants led their evidence and evidence of Dr. Jaiswal and Dr. Jadhav. Tribunal by judgment and award dated 21.01.2012 allowed the claim petitions. 5. Insurance company is primarily disgruntled and dissatisfied by non consideration of its plea of contributory negligence on the part of both driver of the tempo as well as rider of the motorcycle, and secondly, compensation awarded to be exorbitant. 6. Learned Counsel for Appellants/Insurance company would submit that, accident has taken place between a tempo and two wheeler, which was admittedly occupied by three persons. He pointed out that, accident took place on the very middle of the road and it is so evident from the spot panchnama. According to him, the direction in which the two vehicles were proceeding i.e. opposite to each other and taking into account the condition of the road, which was division by way of white p. 4 FA-563-2012+.odt strip, it is clear accident which is head on collusion involving both the vehicles. Thus, according to him, there was 50% contributory negligence on the part of motorcycle also but according to him, learned Tribunal fixed responsibility solely on the tempo driver. Further, according to him, there was no evidence to demonstrate that deceased was a mason by occupation. According to him, therefore, Tribunal ought to have considered Rs.3,000/- by way of notional income and not beyond it. On both above counts, he seeks indulgence in the Appeals. 7. As regards to negligence is concerned, learned Counsel for the Respondent would support the findings of learned Tribunal that, driver of the offending vehicle to be solely responsible and learned Tribunal correctly appreciating the spot panchnama. However, he seeking indulgence for non consideration of 100% disability of the injured and instead considering only 16% & 33%. He pointed out that, there was evidence of both treating as well as doctor who issued disability certificate after its assessment. Consequently, it is his submission that, though there is no formal cross-objection filed, in view of judgment of Hon’ble apex Court in the case of Surekha W/o Rajendra Nakhate and Ors vs. Santosh S/o Namdeo Jadhav and Ors, Civil Appeal No. 476 of 2020 as well as of this Court in the First Appeal No. 655/2010, there is no need for filing cross objection. Page 4 of 8 FA-563-2012+.odt RE-APPRECIATED THE EVIDENCE 8. As regards to grounds raised by learned Counsel for Appellants that there was 50% contributory negligence of each of the two vehicles involved in the accident, spot panchnama is the only piece of evidence, which depicts the circumstances in which the accident took place, as admittedly there is no distinct eye witness account to the accident. In cases of suspicion on point involved, obviously spot panchnama is to be looked into. On re-appreciating the spot panchnama, it is clear to this Court also that driver of offending tempo had gone to the side of motorcycle and, therefore, accident took place. Observations of Tribunal to this extent are found in paragraph 8. It is noticed that, learned Tribunal has also carefully appreciated the circumstances in which the mishap took place for arriving to the conclusion that entire responsibility is of driver of the Bajaj Tempo Trax. Description of the spot and the direction in which the vehicles were allegedly proceeding, there are reasons to believe that the driver of the tempo had the opportunity to avoid the accident but he did not seem to have taken care and has erred in going to the side of motorcycle. Merely because accident has taken place in the middle of the road, is no good ground to hold contributory negligence of motorcycle rider also along with that of tempo driver. Therefore, in view of contents of the spot p. 6 FA-563-2012+.odt panchanma and there being no contrary evidence adduced by insurance company in support of its contention that there was contributory negligence, findings of Tribunal to that extent need not be disturbed. 9. As regards to objection of consideration of excess income in absence of evidence of occupation of injured as mason, in the considered opinion of this Court, there is no reason to disbelieve that injured was working as mason. In cases involving accident compensation, requirement of strict proof is dispensed with. Here, on affidavit, it is stated that injured were rendering the work of mason and, therefore, consideration of income as Rs.9,000/- pm also is not said to be excess. On above both counts, appeals of insurance company fails. 10. As regards to the cross-objection raised by the claimants is concerned, also this Court has carefully considered the evidence of PW 2 and 3 who are medical experts. PW 2, in his evidence at exhibit 43, testified about examining claimant on 04.05.2009, noticing open injury to the right knee resulting the fracture and performing operation and putting up wires. He further deposed that, medical board has issued disability certificate to the extent of 16% and it is total permanent disability. He testified that, patient would find it difficult in rendering ground level activities due to the disability caused to him and it is submission that, the disability caused to the claimant is 16% of his total p. 7 FA-563-2012+.odt working capacity in view of the nature of work. In cross he merely asked about his knowledge whether he knew claimant to be a mason, which he denied. He further denied showing incorrect disability and also denied that working capacity of the patient has not been suffered. 11. The above evidence seems to have been taken into account by learned Tribunal while answering issue no. 3. Now, it is tried to be submitted that 100% disability ought to have been considered. However, it is the functional disability that matters. The law on the point of disability either permanent, partial has elaborately discussed by the Hon’ble Apex Court in the case referred by learned Counsel for for Appellants i.e. in the case of Raj Kumar vs. Ajay Kumar and Anr, AIROnline 2010 SC 125. In the said judgment Hon’ble Apex Court has held in paragraph 12 that, disability certificate issued by medical boards may be accepted subject to the evidence regarding genuineness of the certificate. Here, on the strength of the certificate issued by medical board above witness has deposed and, therefore, the observations of the Tribunal to that extent in paragraphs 11 & 12 cannot be faulted at. This Court agrees with the view and the methodology adopted for ascertaining the disability by the Tribunal. There is no error in the same so as to interfere. Consequently, though in absence of cross objection, it is open for this Court to consider the p. 8 FA-563-2012+.odt grounds agitated in appeals, as no ground on merit to that extent being made out, the same is discarded. Hence, I proceed to pass following order: ORDER A. First Appeals stand dismissed. B. Cross objections stand dismissed C. Pending civil application(s), if any, stands disposed of. (ABHAY S. WAGHWASE, J.) Malani