The assessment of physical disability and its impact on earning capacity is crucial in determining compensation in motor accident claims.

JUDGMENT :

1. Present appeal has been filed by the original respondent No. 2 – insurance company challenging the judgment and award passed by Learned Motor Accident Claims Tribunal, Ahmednagar, in Motor Accident Claims Petition No. 121 of 2013 dt. 30-11-2017; whereby said petition filed under Section 166 of Motor Vehicles Act, 1988 by present respondent No. 1 came to be partly allowed against it.

2. Original claimant had come with a case that he was 26 year old person, serving in a private company and earning Rs.10,000/- p.m. He was proceeding with his friend on motorcycle bearing No. MH-16-AU-8091 from Nagapur MIDC to Pathardi to attend Higher Secondary examination on 19-03-2012. His friend was driving the motorcycle and he was pillion rider. When they reached Karanji Ghat around 9.00 a. m., one Tanker bearing No. MH-12-CH-2435 came from opposite direction in negligent manner. The Tanker came to its wrong side and gave dash to the motorcycle. As a result of which, claimant sustained serious injuries to his leg and other parts of the body. He was admitted to Patil Hospital from 19-03-2012 to 07-04-2012. His right leg was required to be amputated below knee. He has thus, suffered permanent disability. The said accident had taken place due to the sole negligence of Tanker driver, who has then been prosecuted by police. The said Tanker was owned by respondent No. 1 and it was insured with respondent No. 2 on the date of the accident. Claimant has therefore, claimed compensation from the respondents jointly and severally with interest.

3. Matter proceeded exparte against respondent No. 1.

4. Respondent No. 2 filed written statement and contested the claim. It has denied all the averments in the petition. Age, occupation and income of the claimant has been denied. It is denied that he has suffered permanent disability. It is also denied that the said accident had taken place due to the sole negligence on the part of Tanker driver. Statutory defences have been taken and it has been specifically pleaded that the driver of the Tanker was not holding valid and effective driving license on the date of the accident.

5. After the issues were framed, claimant has led oral as well as documentary evidence. No evidence was led by respondent. Taking into consideration the evidence and hearing both sides, the learned Tribunal has come to the conclusion that the accident had taken place due to the sole negligence of Tanker driver. Respondent No. 2 has failed to prove breach of terms of policy and therefore, both the respondents are liable to pay compensation jointly and severally. It has also been held that claimant has sustained permanent physical disability due to the said accident. Respondents have been directed to pay compensation of Rs. 13,00,000/- with interest @ 9% p. a. Insurance company has challenged this award in this appeal.

6. Heard learned Advocate Shri. S. G. Chapalgaonkar for appellant, learned Advocate Shri. N. C. Garud for respondent No. 1 and learned Advocate Shri. Khutwad for respondent No. 2.

7. It has been vehemently submitted on behalf of appellant that appeal has been filed on two grounds. One is that the offending Tanker had no fitness certificate on the date of accident, which was mandatory for it to take before bringing the Tanker on road. The fitness certificate of the Tanker was valid up to 2006 only. Second ground is that the learned Tribunal erred in taking the 50 % permanent physical disability as 100 % loss to the claimant and calculation based on such wrong assumption. It was prayed on behalf of appellant that it may be held that at the most, claimant has sustained 50 % of earning capacity and insurance company should be exonerated from payment of compensation amount on account of breach of terms of policy conditions.

8. Both the learned advocates appearing for respondent supported the reasons given by learned Tribunal.

9. It can be seen from the submissions that the insurance company has not challenged the finding of th