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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.572 OF 2006
FIRST APPEAL No.575 OF 2006
FIRST APPEAL No.576 OF 2006
*************
FIRST APPEAL No.572 OF 2006
The Oriental Insurance Co. Ltd.,
Khamgaon Branch, through the
Divisional Manager, Nagpur,
Division Office-2, Kanoria House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Shri Vinod s/o. Sahebrao Phepale,
Aged 21 years,
Occupation : Business,
Resident of Ekta Nagar, Buldana,
Tq. And Distt. Buldhana.
Appeal is dismissed 2. Mr. Mohinkhan s/o. Yar Mohd. Khan,
against respondent Aged Major, Occupation : Transport,
No.2, vide order
dt.27.8.2007.
R/o. Bhatta Mohalla, Katni (M.P.).
3. The New India Assurance Company Ltd.,
Branch at Malkapur, through its Branch
Manager, Distt. Buldana.
4. Smt. Renuka Vilas Gosavi,
Age 20 years, Occupation-Household,
R/o. Behind Gajanan Talkies,
Buldana (Legal heir of deceased
Vilas Harigir Gosavi) : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
FIRST APPEAL No.575 OF 2006
The Oriental Insurance Co. Ltd.,
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Khamgaon Branch, through the
Divisional Manager, Nagpur,
Division Office-2, Kanoral House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Ku. Shila Pralhad Chinchole,
Aged 20 years,
Occupation : Tailoring,
R/o. Malgani Taluka Chikhli,
Distt. Buldhana.
2. Mr. Mohinkhan s/o. Yar Mohd. Khan,
Aged Major, Occupation : Transport,
R/o. Bhatta Mohalla, Katni (M.P.).
3. The New India Assurance Company Ltd.,
Branch at Malkapur, through its Branch
Manager, Distt. Buldana.
4. Smt. Renuka Vilas Gosavi,
Age 20 years, Occupation-Household,
R/o. Behind Gajanan Talkies,
Buldana (Legal heir of deceased
Vilas Harigir Gosavi) : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
FIRST APPEAL No.576 OF 2006
The Oriental Insurance Co. Ltd.,
Khamgaon Branch, through the
Divisional Manager, Nagpur,
Division Office-2, Kanoral House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Sachin s/o. Suresh Bhonde,
Aged 18 years,
Agriculturist, R/o. Mhasia Bk.
Tq. And Distt. Buldhana. (Original claimant)
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Appeal is dismissed 2. Mr. Mohinkhan s/o. Yar Mohd. Khan,
against respondent Aged Major, Occupation : Transport,
No.2, vide Registrar
(J) order
R/o. Bhatta Mohalla, Katni (M.P.).
dt.21.8.2007. (Original opponent no.1)
3. The New India Assurance Company Ltd.,
Branch at Malkapur, through its Branch
Manager, Distt. Buldana.
(Original opponent no.2)
4. Smt. Renuka Vilas Gosavi,
Age 20 years, Occupation-Household,
R/o. Behind Gajanan Talkies,
Buldana (Legal heir of deceased
Vilas Harigir Gosavi)
(Original opponent no.3) : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
rd DATE : 3 NOVEMBER, 2017.
ORAL JUDGMENT :
1. These three appeals arising from a common judgment dated 10th April, 2006, delivered by the Chairman, Motor Accident Claims Tribunal, Buldhana in Motor Accident Claim Petition No.21/1999, Motor Accident Claim Petition No.285/1998 and Motor Accident Claim Petition No.284/1998 filed under Section 166 of the Motor Vehicles Act (for short, "MV Act") by three different claimants, as injury claims involving same motor vehicle accident, are being disposed of by this common judgment.
2. Motor Accident Claim Petition No.21/1999 (First Appeal ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 4/13 No.572/2006), Motor Accident Claim Petition No.285/1998 (First Appeal No.575/2006) and Motor Accident Claim Petition No.284/1998 (First Appeal No.576/2006) were respectively filed by Vinod Sahebrao Phepale, Shila Pralhad Chinchole, and Sachin Suresh Bhonde against respondent Nos.2,3 and 4 and the present appellant to claim compensation for the grievous injuries followed by their respective permanent disability suffered by them in an accident involving two motor vehicles. The accident occurred on 14.7.1998 at about 00.30 hours on National Highway No.6 between Amravati and Akola, near village Loni Takli. At that time, all these claimants were travelling by a Tempo Trax vehicle bearing registration No.MH-28/C 399. It was then owned and driven by deceased Vilas Gosavi, husband of respondent No.4 in the appeal. It was insured with present appellant. The accident was the result of a head on collusion between the Tempo Trax vehicle and oncoming truck bearing registration No.MP-21/3299 owned by respondent No.2 and insured with respondent No.3 in the present appeal. As a result of the accident, the claimants sustained grievous injuries leading to each of them suffering permanent disability in various percentages. The driver of the Tempo Trax vehicle also sustained grievous injury and died on the spot. He was the husband present respondent No.4. The claimants were admitted to Civil Hospital, Amravati and some time later two of them, Vinod and Sachin were shifted to private hospital while one of them Shila continued to be at Civil Hospital, Amravati as indoor patient. All the three claimants received medical treatment as indoor patients at these ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 5/13 hospitals. They incurred substantial expenses towards their medical treatment and simultaneously lost their earnings as well. Shila and Sachin, apart from being students, were also carrying on business of tailoring and real estate. The third claimant Vinod too was a real estate agent. Because of permanent disability, all of them also suffered loss of their income from their respective businesses permanently. In order to seek compensation for such loss suffered by each of the claimants, they filed claim petitions under Section 166 of the Motor Vehicles Act.
3. The respondent No.2, the owner of the truck, was proceeded against exparte in all the claim petitions. However, insurer of the offending truck respondent No.3, the New India Assurance Company Limited, resisted the claim petitions by filing written statements in each of the claim petitions. It was submitted that the accident occurred only due to rash and negligent driving of the offending Tempo Trax vehicle and one Police jeep bearing registration No.MH-12/357, which was also involved in the accident. It submitted that since the driver and owner of the Police jeep were not impleaded as party respondents in the claim petitions, the petitions were not maintainable because of want of necessary parties. Alternately, it was submitted by the respondent No.3 that if the driver of the offending truck was found to be negligent, the percentage of his negligence would have to be held as marginal.
4. The respondent No.4 also contested the claim petitions being Motor Accident Claim Petition Nos.284/1998 and 285/1998 and was proceeded exparte in Motor Accident Claim Petition No.21/1999. Her ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 6/13 defence was that though Vilas Gosavi was driver-cum-owner of the Tempo Trax vehicle having a valid driving licence, he was not responsible for causing of the accident and it were the driver of the offending truck who was at fault for the accident. Similar was the defence of the appellant in all the claim petitions. Additionally, the appellant also submitted that there was a breach of the terms and conditions of the insurance policy as the offending Tempo Trax vehicle was registered only as a private vehicle for social and domestic purpose and not for fare paying passengers. So, according to the appellant, there was a fundamental breach of the terms and conditions of the insurance policy.
5. On merits of the case, the Tribunal rejected the defence that petitioners were not tenable but found that the driver of the offending Tempo Trax vehicle, deceased Vilas Gosavi, was solely responsible for causing of the accident as he drove Tempo Trax vehicle rashly and negligently and that the driver of the offending truck was not at fault for the accident. It also found that as the grievous injuries leading to permanent disability were suffered by each of the claimants, they were entitled to receive compensation including reimbursement of their medical expenses from the respondent No.4, the widow of deceased driver-cum-owner of the offending Tempo Trax vehicle and the present appellant, the insurer of the offending Tempo Trax vehicle. Accordingly, by the impugned common judgment and order all the three claim petitions were partly allowed by the Tribunal granting total compensation of Rs.4,01,636/-, Rs.33,000/- and Rs.65,274/- all inclusive ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 7/13 of no fault liability together with interest at the rate of 6% p.a. to the claimants Vinod, Shila and Sachin respectively. Not being satisfied with the same, the appellant is before this Court in these three appeals.
6. I have heard Shri D.N. Kukday, learned counsel for the appellant. None appears for the respondents. I have gone through the record and proceedings of the claim petitions including the impugned judgment and order.
7. Now, the only points which arise for my determination are :
i. Whether the appellant and respondent No.4 prove that the driver of the offending truck was responsible for causing of the accident ?
ii. Whether it is proved that the respondent No.3 is liable to pay compensation and if so in what percentage ?
8. In the present case, three claimants examined themselves as their sole witness and neither the appellant nor the insurer of the offending truck examined any witness in their defence. The respondent No.2, in all the claim petitions, was proceeded exparte. The claimants had also produced in evidence certified copies of the police papers such as first information report and spot panchanama, which have been referred to in the impugned judgment and order as Exhs.-32 and 33, which exhibits, it appears, were given to these documents in a different claim petition being Claim Petition No.262/1998. It has been submitted on behalf of the appellant as well as respondent No.4 that although at least two of the claimants Vinod and Sachin in their respective depositions before the Tribunal had specifically stated that the offending ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 8/13 Tempo Trax vehicle was being driven, at the relevant time, at slow speed by keeping it to the proper side of the road i.e. left side of the road and the offending truck was being driven at high speed with its full head- lights on and had denied the suggestions put to them in their respective cross-examinations taken on behalf of respondent No.3 that the driver of the offending Tempo Trax vehicle was rash and negligent in driving the vehicle, the Tribunal simply ignored such primary evidence available on record and relied upon the police papers, F.I.R. (Exh.-32) and spot panchanama (Exh.-33), to record its finding that the driver of the offending Tempo Trax vehicle was solely responsible for causing of the accident. They submit that this is nothing but perverse appreciation of the evidence available on record.
9. On going through the evidence of Vinod, Sachin, Shila the three claimants and the impugned judgment and order, I find great substance in the argument of learned counsel for the appellant in all these three appeals. The claimants Vinod and Sachin have indeed spoken about unhesitatingly that the driver of the Tempo Trax vehicle was driving it at slow and moderate speed and it were the driver of the offending truck, who drove it at high speed and not only that used full head lights of the truck in driving it. The claimant Sachin added that the driver of the Tempo Trax vehicle had kept the vehicle towards left side of the road, which was the correct side of the road. This evidence of the claimants has not been shaken in any manner in their respective cross- examinations taken on behalf of respondent No.3. Of course, the third ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 9/13 claimant Shila has not said anything about the speed of Tempo Trax vehicle or the side of the road by which it was being driven by deceased Vilas Gosavi. But, a specific suggestion was put to her in cross- examination taken on behalf of respondent No.3 that deceased Vilas attempted to overtake one vehicle which was ahead of Tempo Trax vehicle and in that attempt, his vehicle collided with on coming vehicle which suggestion has been promptly denied by her. This would mean that either deceased Vilas Gosavi was not at fault in driving Tempo Trax vehicle or his fault in driving his vehicle was equal to the fault of the driver of the offending truck in driving the offending vehicle.
10. The above referred testimonies constituting substantive evidence would show that all the three claimants who were occupying the Tempo Trax vehicle themselves were the eyewitnesses to the accident, had an occasion to witness the accident and deposed about the manner in which the accident took place the way they saw it. As stated earlier, there is nothing in their respective cross-examinations to entertain any doubt about their being eyewitnesses or their seeing the accident take place and narrating it before the Court the way it took place. As against this, the evidence of police papers, at the most, would be of corroborative value, to be used to corroborate or support the substantive evidence. Here the substantive evidence is of sterling quality needing no corroboration from any police paper. If such substantive evidence emerging from three claimants' testimonies before the Court was to be supplanted or thrown into a mire of doubt, another set of ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 10/13 substantive evidence of same or even better quality was required. In the present case, there was available such substantive evidence and it was in the nature of the driver of the offending truck. But, respondent No.3, insurer of the offending truck, did not examine him. It also did not examine even the owner of the offending truck. It is seen from the record that no attempt whatsoever was made by the respondent No.3 to examine these persons as its witnesses in order to prove its claim that the driver of the offending truck was not and the driver of the offending Tempo Trax vehicle was responsible for causing of the accident. It did not do so because, I may use here the principle of adverse inference, the driver of the offending truck was also responsible for causing of the accident.
11. The Tribunal in the present case ignored all these important aspects of the evidence available on record and also failed to apply fundamental principles by which the evidence is appreciated. The result is of perverse appreciation of evidence and drawing of conclusions not logically arising from the evidence available on record. The only conclusion that would reasonably and logically arise from the evidence established by the parties in the present case would be that the blame for the accident cannot be entirely placed upon the shoulders of deceased Vilas Gosavi the driver of the offending Tempo Trax vehicle, just because the offences were registered against deceased Vilas Gosavi for rash and negligent driving. As a matter of record, I must point out, there was a head on collision between these two vehicles and when it is considered ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 11/13 together with all the relevant facts and circumstances discussed above cumulatively, a reasonable interference which can be made is that even deceased Vilas Gosavi did not take reasonable care and caution in driving Tempo Trax vehicle, just as driver of the offending truck. In such circumstances, it would be reasonable for this Court to come to a conclusion that the accident occurred in the present case due to negligence of drivers of both the offending vehicles and having regard to the fact that there was a collision between the two vehicles, the percentage of contributory negligence could be fixed to be at 50% each for two drivers of these two offending vehicles.
12. Thus I find that in the present case the driver of the offending truck as well as deceased driver of the offending Tempo Trax vehicle, both were responsible for causing of the accident on equal basis and each of them had contributed towards 50% of the negligence which went into the accident involving the two vehicles. If that is so, even the insurer of the offending truck would be liable to pay half of the compensation jointly and severally along with the owner of the offending truck, he being responsible to pay the same on account of his vicarious liability. Both the points are answered accordingly.
13. So far as quantum of compensation granted by the Tribunal to each of the claimants is concerned, no dispute has been raised in this regard by the appellant or any of the respondents. Therefore, there is no need to deal with the correctness or otherwise of the quantum of compensation awarded by the Tribunal.
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14. In the result, these appeals deserve to be partly allowed by apportioning the liability to pay the compensation on equal basis between the appellant and respondent No.4 on the one hand and respondent Nos.2 and 3 on the other hand. Hence, the order. A] (i) First Appeal No.572/2006 is partly allowed.
Out of amount of Rs.4,01,636/-, which is inclusive of no fault liability amount granted as compensation together with interest at the rate of 6% p.a. from the date of petition till realization to the claimant-Vinod Sahebrao Phepale, 50% amount shall be liable to be paid by appellant and respondent No.4 jointly and severally and remaining 50% of the amount shall be liable to be paid by respondent No.3 to the claimant-Vinod Sahebrao Phepale.
Parties to bear their own costs.
(ii) First Appeal No.575/2006 is partly allowed.
Out of amount of Rs.33,000/-, inclusive of no fault liability amount, granted as compensation together with 6% interest from the date of petition till actual realization by the Tribunal to the claimant-Ku. Shila Pralhad Chinchole, 50% of the amount shall be liable to be paid to the claimant by the appellant and respondent No.4 ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 ::: J-fa572.06,575.06&576.06.odt 13/13 jointly and severally and remaining 50% of the amount shall be liable to be paid by respondent Nos.2 and 3 jointly and severally to the claimant- Ku. Shila Pralhad Chinchole.
Parties to bear their own costs.
(iii) First Appeal No.576/06 is partly allowed.
Out of amount of Rs.65,274/-, inclusive of no fault liability amount, granted as compenstion together with interest at the rate of 6% p.a. from the date of petition till actual realization to the claimant-Sachin Suresh Bhonde, 50% of the amount shall be liable to be paid by the appellant and respondent No.4 jointly and severally and remaining 50% of the amount shall be liable to be paid by respondent Nos.2 and 3 jointly and severally to the claimant-Sachin Suresh Bhonde. Parties to bear their own costs.
B] In all the three appeals, the appellant is permitted to withdraw together with accrued interest, if any, the amount which is in excess of its 50% liability determined under this judgment. C] The impugned judgments and orders stand modified in the above terms.
JUDGE okMksns ::: Uploaded on - 16/11/2017 ::: Downloaded on - 16/11/2017 23:41:41 :::