fa64.12.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.64 OF 2012
The Divisional Manager,
New India Assurance Company Ltd.,
Sagar through Nagpur D.O.,
West High Court, Dharampeth,
Nagpur. ....... APPELLANT
...V E R S U S...
1] Dhrupadi wd/o Vinod Shrivas,
Aged about 30 years,
Occ: Household.
2] Akansha d/o Vinod Shrivas,
Aged about 10 years,
Occ: Student.
3] Abhishek s/o Vinod Shrivas,
Aged about 5 years, Occ: Nil,
Petitioner Nos.2 and 3 are minor
through natural guardian petitioner No.1
R/o C/o Bhagwan S/o Thithar Thakur,
Vaishali Nagar, Near Bajrang Nagar,
Nagpur.
Deleted as per 4] Sambhunath Shrivas,
Courts order dt.
30/11/12.
Aged about 70 years,
Occ: Nil.
5] Sushila w/o Sambhunath Shrivas,
Aged about 65 years,
Occ: Household, R/o Rameshwari,
Dwarkapuri, Nagpur.
6] Mahendra Kumar s/o Gulabchandra Jain,
Aged about Major, Occ: Owner,
R/o Mohanwadi Layout, Vijant Traders
Compound, Kamptee Road, Teka Naka,
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fa64.12.J.odt 2
Nagpur or Shastri Ward Warthi,
Tah. Mohadi, Dist. Bhandara. ....... RESPONDENTS
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Shri A.J. Pophaly, Advocate for Appellant.
Shri A.D. Ramteke, Advocate for Respondent No.5.
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CORAM: DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
DATE: th
19 JULY, 2017.
ORAL JUDGMENT
1] This appeal is directed against the judgment and
award delivered by Motor Accident Claims Tribunal, Nagpur in Motor Accident Claim Petition No.1135/2006 on 26.03.2010. 2] Brief facts of the appeal can be stated as follows:
Respondent No.1 is the widow of the deceased Vinod, respondent Nos.2 and 3 are their minor children and respondent Nos.4 and 5 are the parents of the deceased. Respondent No.4 is no more. Deceased Vinod was working as a Manager in the Beer Bar and earning Rs.10,000/- per month.
3] It is the case of respondent Nos.1 to 5 that on 15.08.2006 deceased was proceeding on his motorcycle bearing No.MH-31 BE-6790 from Gondkhairi towards Nagpur on ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 ::: fa64.12.J.odt 3 National Highway No.6. It was night time and a travel bus bearing No.MH-36 0944 belonging to respondent No.6 and insured with the appellant herein was coming from opposite direction in fast speed, and it gave dash to the motorcycle of the deceased. As a result, the deceased and the pillion rider on his motorcycle, both fell down, sustained the injuries and died on the spot. On account of his untimely death, as respondent-claimant was their only source of income, appellants prayed for compensation of Rs.10,00,000/- from the respondent No.6 and the appellant, herein jointly and severally.
4] This petition came to be resisted by the appellant herein contending that the cause of accident was the rash and negligent driving of the deceased himself. He was under the influence of liquor and that was the cause of the accident. It is denied that the bus was driven in a rash and negligent manner, and therefore, the liability of the Insurance Company to the owner of the bus was also denied. It was further contended that the amount of compensation as claimed by the respondents was exorbitant and hence the petition needs to be dismissed. 5] On these respective pleadings of the parties, the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 ::: fa64.12.J.odt 4 Tribunal framed necessary issues for its consideration at Exh.32. In support of their case, respondent No.1, the widow of the deceased examined herself. Respondent No.6-Mahendra Kumar Jain, the owner of the luxury bus, also filed his affidavit in evidence. On appreciation of this oral and other documentary evidence produced on record by the parties, the learned Tribunal was pleased to hold that the cause of accident was the rash and negligent driving of the bus and accordingly held the appellant and the respondent No.6, the owner of the bus liable to pay compensation of Rs.7,35,000/- to the respondent-claimant and interest at the rate of 7.5% per annum from the date of petition till realization.
6] This judgment and order of the Tribunal is the subject-matter of this appeal. On the rival submissions advanced before me by the learned counsel for both the parties, only two points arise for my determination. The first point is whether the cause of accident was, in any way, rash and negligent driving of the deceased, so as to attribute him the contributory negligence and secondly, whether the amount of compensation awarded by the Tribunal is fair and adequate?
::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 ::: fa64.12.J.odt 5 7] As regards the cause of accident, admittedly there is no evidence of eye witness on record. Respondent No.1, the widow of the deceased has not witnessed the said accident. Even the pillion rider of the motorcycle, has succumbed to the death in the same accident. Therefore, his evidence is also not available. It was necessary in such situation for the appellant or the owner of the vehicle to examine the Driver of the bus to bring on record the manner in which the accident took place, as he was the best and the only witness to depose about it. However, he is not examined in this case. As a result, except for the F.I.R. and spot panchnama, there is no other evidence on record to prove the manner in which the accident took place.
8] As per the F.I.R. it was the luxury bus, which gave dash to the deceased and it was being driven in a rash and negligent manner and in fast speed. The Police had therefore, after carrying out necessary inquiry and investigation filed charge-sheet against the driver of the bus for the offence punishable under Section 273 and 304-A of the I.P.C. Though, the learned counsel for the appellant has placed reliance on the contents of the spot panchnama to show that the bus was on proper side of the road and it was the deceased who gave dash to ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 ::: fa64.12.J.odt 6 the bus, the contents of the spot panchnama are not sufficient for that purpose as they do not give the particulars of the road or the relevant measurements to show on which side of the road the bus or the motorcycle was found. Moreover the spot panchnama gives the position of the vehicles after the accident and it cannot state the manner in which the accident had occurred. 9] Further more, though learned counsel for appellant also submits that as deceased was working in the Beer Bar as a Manager and it was night time, there was every possibility of deceased being under the influence of liquor, however again there is no evidence on record to that effect. Respondent No.1 the widow of the deceased has denied the suggestion to that effect. For that matter, even the postmortem report also does not disclose the odour of alcohol in the stomach contents. Hence, sans any evidence produced on record, the cause of accident as negligence on the part of the deceased cannot be accepted and is rightly rejected by the Tribunal. The liability of paying compensation to the respondent-claimant is thus rightly fixed on the appellant and respondent No.6, the owner of the vehicle.
10] About the quantum of compensation, as per the ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 ::: fa64.12.J.odt 7 evidence of respondent No.1, the deceased was doing the job of Manager in the Beer Bar and earning Rs.10,000/- per month. However, she has not produced on record evidence to that effect. She has not even examined the owner of the Beer Bar, nor produced the salary certificate of the deceased. In such situation, the Tribunal has rightly considered the earning of the deceased to be Rs.5000/- per month and accordingly, considering his age of 26 years at the time of accident, applied the multiplier of 18 and awarded the total compensation of Rs.7,20,000/- towards the financial loss and then coupled with the additional heads of compensation, the total amount awarded by the Tribunal is Rs.7,35,000/- inclusive of no fault liability amount of Rs.50,000/-. The said amount being just, reasonable and fair, no interference is warranted therein. The appeal therefore, holds no merit and accordingly stands dismissed, with no order as to costs. 11] At this stage, learned counsel for respondent No.5 submits that as respondent No.5 is need of money, she may be permitted to withdraw the amount of her share. Considering her age and her requirement, the permission is granted to the respondent No.5 to withdraw the amount of her share. Respondent No.1 is also permitted to withdraw the amount of her ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 ::: fa64.12.J.odt 8 share in the amount of compensation. Except the amount of the share of minor children, rest of the amount may be proportionately apportioned between respondent No.1 and 4 as per their share, determined by the Tribunal.
JUDGE NSN ::: Uploaded on - 31/07/2017 ::: Downloaded on - 08/08/2017 00:08:20 :::