Bajaj Alliance Insurance Co. Ltd. vs Shri Rohidas Ambadas Chavan And Anr

HMK 22. FA-157-2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 157 OF 2015
Digitally
signed by
SAYYED
SAEED ALI
AHMED ALI
Date:
2026.07.07
17:29:12
+0530
SAYYED
SAEED
ALI
AHMED
ALI
Bajaj Alliance Insurance Co. Ltd. )
Thane Divisional Office, )
Gokhale Road, Thane (W). ) ….Appellant
(Org. Opponent No.2)
Versus
1. Rohidas Ambadas Chavan )
Age : 55 years, Occu : Service as Doctor )
R/o. Sayli Apartment, Flat No.1103, )
Vasant Vihar, Lok Puram Pawar Nagar, )
Thane (W). ) ….Respondent
(Org. Claimant)
2. Ramesh Marte Sonawale )
Adult, R/o. Room No.442, Ward No.2, )
Chitalsar, G. B. Road, Manpada, )
Thane. ) .…Respondents
(Org. Owner/Opp. No.1)
__________________________________________________________________
Ms. Yogita Deshmukh Chitnis for the Appellant.
Mr. Shrishailya Deshmukh for the Respondents.
__________________________________________________________________
CORAM : JITENDRA JAIN, J.
th
DATED : 07 JULY 2026
JUDGMENT :
1. By consent, taken up for final hearing.
2. This appeal is filed by the Insurance Company challenging order
th
dated 4 July, 2012 of the Motor Accident Claims Tribunal, Thane
(Tribunal), whereby, Rs.11,71,394/- has been awarded to the claimant on
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HMK 22. FA-157-2015.doc
account of injury sustained because of the accident. The breakup of
Rs.11,71,394/- is at page 14, of the Tribunal's order.
3. The main contention of learned counsel for the Insurance Company is
with regard to Rs.6,60,000/- awarded towards loss of income from private
practice and Rs.3,66,586/- awarded towards loss of income due to absence
from duty.
4. With regard to loss of income due to absence from duty, the Tribunal
has discussed this issue in paragraph 24. The Tribunal refers to the evidence
of Ms. Usha Kanchan and comes to a conclusion that during the 11 months
period when the claimant did not attend his duties, he is entitled for
compensation of Rs.3,66,586/-, being salary for 11 months.
5. In my view, this finding is perverse since the Tribunal has not
considered the evidence of Ms. Usha Kanchan correctly. In the evidence Ms.
Usha Kanchan has admitted in paragraph 2 in cross-examination that the
claimant has taken salary during the leave period. If the employer has
admitted that the claimant was taking salary during the leave period and
that has not been considered by the Tribunal, then in my view, awarding of
compensation on that account is based on a material which is contrary to
the facts on record. Therefore, the compensation awarded towards absence
from duty could not have been granted by the Tribunal in the light of
express admission by the employer that during the leave period the
claimant was drawing salary.
6. The second contention of the learned counsel for the Insurance
Company is with regard to Rs.6,60,000/- awarded on account of loss of
earning from private practice. The claimant was a doctor working with the
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HMK 22. FA-157-2015.doc
government hospital. In the application filed before the Tribunal, there is no
mention that the claimant was earning additional income from private
practice. For the first time in the examination in chief, this claim of private
practice was raised. In the cross examination, the claimant has expressly
admitted that he has not produced any documentary evidence to show that
he was a private practitioner. I fail to understand that if the claimant was
doing private practice and was claiming Rs.10,000/- per month, then why a
single piece of evidence could not have been produced. A private
practitioner needs to have some establishment where the patients come for
the treatment. Nothing has been brought on record to show by any
documentary evidence that the claimant was doing private practice. It is not
even the case of the claimant that this private practice was being done from
his residence.
7. Furthermore, nothing has been shown to indicate that necessary rules
and regulations or permissions were not required from the government for
doing private practice nor anything has been shown which would indicate
that the government permitted him to do private practice. In the absence of
any evidence to show that he was doing private practice, a welfare
legislation cannot be used for profiteering, and moreso by a person who is
engaged in the profession of a doctor and working with the government.
Therefore, the Tribunal's finding of awarding Rs.6,60,000/- towards private
practice is to be quashed and set aside.
8. The learned counsel for the original claimant has relied upon the
decision of the Madras High Court in the case of Mary Immanuvel & Anr.
1
vs. Periyasamy & Ors. to contend that it should be presumed that a
government doctor definitely had a private practice and therefore, the
1
2017 SCC OnLine Mad 37748
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HMK 22. FA-157-2015.doc
Tribunal's order awarding compensation on this ground is sustainable. With
respect, I do not agree with the view taken by the Madras High Court. The
onus is on the person claiming that he is in a private practice to show that
in effect he was doing private practice and was earning from the said
practice. Furthermore, in case of a government doctor, certain compliances
have to be done which also cannot be brushed aside. This Court is
concerned with welfare legislation and a person who has not led any
evidence nor has shown any government rules and regulation which would
indicate no permission is required, can be permitted to take the benefit of
welfare legislation for claiming the compensation without even discharging
basic onus.
9. In view of above, the Tribunal's order to the extent it awarded
Rs.6,60,000/- towards loss of income from private practice and
Rs.3,66,586/- towards loss of income due to absence from duty is quashed.
10. If the above two amounts have been deposited by the Insurance
Company with the Tribunal, then same should be refunded alongwith
accrued interest thereon. The balance compensation alongwith interest
after reducing the above amount should be withdrawn by the claimant.
11. Statutory deposit of Rs.25,000/- to be transferred to the Tribunal and
the parties are at liberty to make application for refund of the same.
12. Appeal is allowed to the above extent.
[ JITENDRA JAIN, J. ]
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