1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 719 of 2006
Appellant : Kishor son of Madhukarrao Thaokar, aged about
31 years, Occupation: Nil, resident of New
Nandanvan Layout, Nagpur
Versus
Respondents: 1) Chief Executive Officer, Zilla Parishad,
Civil Lines, Nagpur
2) Anil son of Tukaram Dhore, aged about
40 years, Occ: Business, resident of Beldar
Nagar, Opp. Old Dighori Naka, Nagpur
3) The Oriental Insurance Co. Ltd., Nagpur,
through Branch Officer No. 3, Shukla Bhavan,
W.H.C. Road, Dharampeth, Nagpur
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Ms Suman Chokhare, Advocate for appellant Shri B. M. Lonare, Advocate for respondent no. 1 Respondent no. 2 served Shri D. N. Kukday, Advocate for respondent no. 3 Coram : S. B. Shukre, J Dated : 13th December 2017 Oral Judgment
1. This appeal challenges the legality and correctness of the judgment and order dated 29th June 2006 delivered in Claim Petition No. ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 2 143 of 1995 by the Member, Motor Accident Claims Tribunal, Nagpur.
2. The accident in the present case occurred on 3.10.1994 at about 07.30 pm on Nagpur-Kuhi Road. It was in the nature of a dash given to a 2-wheeler, a Luna moped, bearing registration No. MJT-5677 by a bigger vehicle, a commander Jeep bearing registration No. MH-31-G- 9123. At that time, the appellant was driving the Luna moped and his uncle was its pillion rider. They were coming towards Nagpur from Kuhi and whereas the jeep was proceeding from Nagpur side towards Kuhi side. The jeep was owned by respondent no. 1 and driven by respondent no. 2 at the time of accident. The moped was insured with respondent no. 3 at the time of accident. When these vehicles came near Bhatra bifurcation, it appears that the driver of the commander jeep lost control over his vehicle and gave a dash to Luna moped. Resultantly, the rider and the pillion rider both sustained injuries. But the injuries suffered by rider of moped were more severe in nature requiring him to be admitted to a hospital for a period of about one and half months. He sustained injuries to his head and compound fracture to his leg, hand etc. He was required to incur considerable expenses for his medical treatment and also bear considerable amount of pain and agony. His earning capacity was also affected and after his discharge from the hospital, he found that it was permanently reduced. At the time of accident, he was aged about ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 3 20 years and a bachelor. He used to earn Rs. 1500/- per month.
3. The claim petition was accompanied by an application under Section 140 of the Motor Vehicles Act claiming compensation on account of no fault liability. The reply to this application was filed by respondent no. 1. It is stated that there was no permanent disability suffered by the appellant and that respondent no. 1 or his driver was not liable to pay the compensation, there being no fault on the part of the driver of the vehicle owned by respondent no. 1, a commander jeep.
4. Respondent no. 2 did not file any reply nor did he file any Written statement. Respondent no. 1 adopted the reply filed by it to the application under Section 140 of the Motor Vehicles Act as his Written Statement. Respondent no. 3 filed its Written Statement and contested the petition on the ground that the Insurance Policy being "an act" policy, covered only the risk of third-party and did not cover the risk of the rider and that in any case, the appellant/rider possessing no driving licence to drive a Luna moped, was not entitled to receive any compensation in this case.
5. The Tribunal granted application under Section 140 of the Motor Vehicles Act after hearing the parties and it was only against ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 4 respondent no. 1. The no-fault liability was not fastened upon respondents no. 2 and 3, the reason being that at that time, respondents no. 2 and 3 were not impleaded as parties. The application filed under Section 166 of the Motor Vehicles Act, on merits of the case, was partly allowed by the impugned judgment and order holding that there was a contributory negligence on equal basis on the part of the appellant-driver of Luna moped and driver of commander jeep owned by the respondent no. 1 and accordingly fixing the liability to pay the compensation to the appellant to the extent of 50% of the amount determined by it only upon respondent no. 1. Not being satisfied with the apportionment of the liability in this way, the appellant is before this Court in the present appeal.
6. I have heard Ms Chokhare, learned counsel for the appellant; Shri B. M. Lonare, learned counsel for respondent no. 1 and Shri D. N. Kukday, learned counsel for respondent no. 3. None appears for respondent no. 2 though duly served.
7. The points that arise for my determination are -
(1) Whether the Tribunal has rightly found the contributory negligence on the part of appellant and ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 5 respondent no. 2 ?
(2) Whether the compensation granted by the Tribunal is just and proper ?
8. According to learned counsel for the appellant, a serious error has been committed by the Tribunal in appreciating the evidence available on record which has resulted in recording of a perverse finding by it as regards the contributory negligence of the appellant. She has taken me through the evidence available on record. She also placed reliance upon the case of Shivputra Mahadevappa Hadapad v. State of Mysore reported in 1970 Cri. L. J. 1551.
9. Shri Kukday, learned counsel for respondent no. 3 submits that no liability has been fastened upon respondent no. 3 and the findings recorded in that regard are correct.
10. In the case of Shivputra (supra), the learned single Judge of the Mysore High Court by relying upon the law laid down by the Hon'ble Apex Court in the case of Suleman Rahiman Mulani v. State of Maharashtra reported in AIR 1968 SC 829 has held that absence of licence does not create any presumption of rash and negligent driving so as to convict such driver for the offence punishable under Section 304A of ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 6 the Indian Penal Code. In Suleman Rahiman Mulani (supra) relied upon by the learned single Judge of the Mysore High Court, the Hon'ble Apex Court, while dealing with the criminal case registered for the offence punishable under Section 304-A of the Indian Penal Code, observed that there has to be direct nexus between the death of a person and the rash or negligent act of the accused and only because the person did not hold driving licence at the time of accident, it could not be held that just for that singular reason, there was rashness and negligence on the part of driver which resulted in the death of a person. In that case, the evidence was available to show that even though the the accused did not possess valid driving licence, the accused had acquired proficiency in driving. The Hon'ble Supreme Court held that in such a case the only question which must be decided by the Court is as to whether or not at the relevant time, the accused was competent to drive and his incompetence was the cause of death of a person.
11. In the present case, there is no death occurred. This case is also not a criminal case. But the proposition that there has to be a direct nexus between rashness and negligence in driving the vehicle and the death of a person can also be applied to a case like the present, filed under Section 166 of the Motor Vehicles Act. Reason being that this case involves a claim for compensation made under Section 166 of the Motor ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 7 Vehicles Act and such claim is based upon "fault liability" principle, which would oblige this Court to find out whether the cause of accident was the rashness and negligence of the driver of the offending vehicle or not and this cannot be found out unless there is present direct nexus between the accident and the rashness/negligence of the driver. Seen this way, let us now consider the evidence available on record.
12. In the present case, neither the appellant nor respondents no. 1 and 2 have produced on record any material from which one could ascertain the location of the vehicles after occurrence of the accident. There is a spot panchanama at exhibit 54, which is a photostat of the original spot panchanama. Regrettably, for the most important part of it, the situation of the vehicles, this document is illegible and I wonder, how it has been exhibited and admitted in evidence by the Tribunal. The situation of the vehicles post accident appears to be stated in paragraph 2 of this document. But, the crucial line indicating the place where the moped was lying after the accident, is not legible. The appellant who examined himself as P. W. 1 also does not give any clarification in this regard. He was an eye witness to the accident and yet, he does not state anything about the side, that is to say, left or right side of the road, by which he was riding Luna moped. He vaguely says that he was driving it by the side of the road, though he could have very well said that he drove ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 8 the Luna moped by keeping it on correct side of the road. But, he did not. He also did not say anything about side of the road by which the commander jeep was being driven by its driver. He only states that commander jeep came from the opposite direction and gave a dash to his 2-wheeler. He adds that while he was cautious in driving the Luna moped, driver of the commander jeep was not. One does not know what he meant by cautious driving of the 2-wheeler. He should have stated the manner in which the Luna moped was being driven by him. Specific evidence in this regard should have been led by the appellant. But, unfortunately, that is not the case. Respondent no. 2 was also careless about his stand or defence. He did not file any Written Statement and refused to enter the witness box. He was another eye witness who could have helped the Tribunal in discovering the truth. But, he also did not do his bit. In the circumstances, this Court would have to take stock of the evidence available on record by considering whatever are the facts established on record and the circumstances borne out from the record.
13. The cross-examinations of P. W. 1 taken on behalf of respondent no. 1 and respondent no. 3 do not show that any useful material has been brought out on record through the answers of this witness. The only relevant circumstance brought on record is that P. W. 1 who was driving the Luna moped did not possess any licence to drive ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 9 the vehicle. But, sofar as the point of rashness and negligence is concerned, there is nothing in his cross-examination to help the Court to find out the truth.
14. Respondent no. 2, as stated earlier, could have entered the witness box and if he had, he would have perhaps thrown much light on the manner in which the accident took place. But, that did not happen. There is no explanation offered by the owner of the commander jeep (respondent no.1) and its driver (respondent no. 2) as to what prevented them to examine one of the most important witnesses, the respondent no.
2. This conduct of respondents 1 and 2, particularly, respondent no. 2 would, therefore, have to be seen in an adverse manner. There is one more relevant fact which needs consideration. The First Information Report (exhibit 53) discloses that after the accident, respondent no. 2 ran away from the spot of the accident and the First Information Report was lodged by one Anil Dhore, the pillion rider of Luna moped. The appellant was alive and lay in pain on the road after having sustained severe injuries to his head, right hand and left leg. The two-wheeler had been damaged and was not in order to be plied immediately after the accident. On the other hand, the damage suffered by the commander jeep was not of such a nature as to render it inoperable. In these circumstances, first duty of respondent no. 2, the driver of the commander jeep, was to ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 10 remove the injured person immediately to the nearest hospital and then inform the police of the accident. Admittedly, respondent no 2 did not perform his first duty as well as second duty. Obviously, this was because respondent no. 2 felt guilty of his conduct which was steeped in rash and negligent driving of the commander jeep. These facts cumulatively show that it were only the driver of commander jeep (respondent no. 2) who must have been responsible for causing of the accident. Had it not been so, he would have immediately removed the appellant to nearest hospital for medical treatment, informed the police about the accident and also entered the witness box to reveal the relevant facts. But, he did not, thereby indicating that the fault for the accident lay entirely in his court. These crucial aspects of the case have not been considered at all by the Tribunal. These aspects, I must say, now considered, have clinched the issue in favour of the appellant and they reasonably show that the appellant must not have been but respondent no. 2 must have been at fault in occurrence of the accident, which I do hold accordingly. So, the appellant should not have been held responsible for causing of the accident, muchless half of it and he is not in any way.
15. In the circumstances, I find that the Tribunal has not appreciated the evidence available on record in a logical and rational ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 11 manner and has committed serious illegality in reaching a finding that there was contributory negligence on the part of the appellant. This finding needs to be corrected and by doing so, I find that the accident occurred only due to rashness and negligence shown by the driver of the commander jeep (respondent no. 2) owned by respondent no. 1 and that there was no fault on the part of the appellant. First point is answered accordingly.
16. Sofar as the aspect of quantum of compensation is concerned, I am of the view that some correction seems to be necessary. The loss of income has been rightly calculated by the Tribunal. But, the Tribunal has not granted anything on account of actual loss of earning and also under the head of marriage prospects. Although the appellant has claimed his actual loss of earning for four months @ Rs. 1500/- per month, I do not think that this claim can be wholly granted. The appellant was in the hospital for a period of about 1 ½ months and to this period of inactivity, further fifteen days on account of his recuperation post discharge from the hospital can be added. So, for a period of two months, the appellant should be taken to have not earned anything and as such, amount of Rs. 3000/- @ Rs. 1500/- per month could be additionally granted to the appellant on account of his actual loss of earning, which I do grant.
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17. As regards loss of marriage prospects, learned counsel for the appellant placed reliance upon the case of Sanjay Kumar v. Ashok Kumar & anr reported in I (2014) ACC 372 (SC) wherein the Hon'be Supreme Court granted an amount of Rs. 75000/- towards loss of marriage prospects. The same amount cannot, however, be granted towards loss of marriage prospects of the appellant in the present case. The reason being that the amount of Rs. 75000/- under this head was granted by the Hon'ble Supreme Court for the reason that there was amputation of left leg of the claimant therein, which is not the case here. The permanent disability certificate bears photograph of the appellant and this photograph apparently does not show any disfigurement of any part of the appellant. Ordinarily, to stake a claim of this nature, specific evidence is not necessary as the disability speaks for itself. But, in view of what is borne out from the disability certificate, some evidence was required here. However, the appellant has not led any to specifically establish his claim that his name has taken a beating as regards the prospects of his marriage. However, considering the fact that the appellant has suffered permanently 25% of disability and there is also uncontroverted evidence of the appellant indicating that his permanent permanent disability has adversely affected his functional ability which is again a case of some evidence to a limited extent, it can be presumed that ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 13 there is some difficulty experienced by appellant in this regard and so, reasonable amount under the head of loss of marriage prospects could be granted to the appellant. This amount, in my view, would be of Rs. 20,000/-.
18. In view of above, I find that the appellant is entitled to additional amount of Rs. 23000/- (Rs. 3000/- for actual loss of earning and Rs. 20,000/- for loss of marriage prospects). However, the appellant would not be entitled to receive anything more apart from these two amounts under such heads as expectations of life and pain & suffering for the reason that the functional disability of the appellant is not of such a nature as would deprive him of the amenities of life in any manner and for pain and suffering, the appellant has already been grated reasonable compensation. The second point is answered accordingly.
19. In the result, I hold that the appellant is entitled to receive compensation of Rs. 76,500/- (+) Rs. 23,000/- = Rs. 99,500/- together with interest @ 7% per annum from the date of petition till actual realization, which would be inclusive of no-fault liability amount and the same shall be payable to the appellant by respondents no. 1 & 2 jointly and severally. Exoneration of respondent no 3 from the liability to pay the compensation by the Tribunal, is confirmed. The appeal is partly ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 ::: 14 allowed and the impugned judgment and order stand modified in the above terms. Parties to bear their own costs.
S. B. SHUKRE, J joshi ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 01:48:06 :::