Bombay High Court
Malan Satish Lawande And Anr. vs Edwin M.A. D'Souza And Anr. on 16 January, 2001
Equivalent citations: II (2001) ACC 404, 2002 ACJ 1131
Author: D Deshpande
Bench: D Deshpande, D Sinha
JUDGMENT
D.G. Deshpande, J.
1. Heard advocates for the appellants and the respondent No. 1. This appeal is filed against the order of Motor Accidents Claims Tribunal, Panaji in Claim Petition No. 42 of 1991, wherein the Motor Accidents Claims Tribunal awarded compensation of Rs. 2,43,000 to the claimants-appellants in the proportion of 50 per cent to each of them with interest on Rs. 92,000 at the rate of 11 per cent per annum from 6.3.1991, that is the date of presentation of the claim petition till payment. The Presiding Officer of the Claims Tribunal adjusted Rs. 25,000 which was paid to the claimants-appellants under the no fault liability.
2. Admittedly, there is no cross-appeal or counter-appeal on behalf of the insurance company. Therefore, the only question that is required to be considered in this appeal is whether the Motor Accidents Claims Tribunal was justified in coming to the conclusion that the driver of the motor cycle was also negligent or whether the driver of the motor cycle had a role to play in this accident. This is a case of contributory negligence as per the findings of the trial court.
3. We have been taken through the evidence of only three witnesses, namely, Panch witness CW 2 Octaviano Dias, who was examined by the claimants to prove the panchnama. The panchnama was also brought on record as Exh. CW 2/A. There is no evidence of eyewitness to the accident in which a jeep dashed against the motor cycle, killing both the driver and the pillion rider. Even after going through the panchnama and the evidence of PW 2, we cannot uphold the finding of the Claims Tribunal that this is a case of contributory negligence. There is absolutely no material on record to come to such a finding and the reasoning given by the Tribunal is without any evidence and unnatural. Therefore, we cannot concur with the view of the Tribunal in that regard.
4. Obviously, the finding of the Tribunal that this is a case of contributory negligence cannot be upheld. Consequently, the contention of the appellants regarding claim of compensation without deducting 40 per cent towards the contributory negligence, has to be accepted. The Tribunal has awarded Rs. 2,43,000 to the claimants after deducting this 40 per cent amount. Therefore, the amount of compensation has to be changed in this background. After calculation it is found that the amount comes to Rs. 3,55,200 and it is this amount to which the claimants are entitled. Further the Tribunal has granted interest of 11 per cent per annum on the amount of Rs. 92,000 only without any basis and reasoning. Interest has, therefore, to be awarded on the amount of compensation to be awarded.
5. Apart from the above amount of Rs. 3,55,200, the claimants have claimed an amount of Rs. 45,000 under different heads, including funeral expenses, etc. We do not find any support to this claim of Rs. 45,000. In our opinion, an amount of Rs. 20,000 would be sufficient to meet the ends of justice on other counts. Therefore, the following order:
The appeal is partly allowed. The order of the Motor Accidents Claims Tribunal, Panaji is modified. The respondents are directed to pay jointly and severally to the appellants a sum of Rs. 3,75,200 along with 11 per cent interest from 6.3.1991, that is the date of claim petition, till payment. The respondents will be entitled for adjustment of Rs. 25,000 paid by them towards the no fault liability to the appellants. Advocate's fees, in this appeal, are fixed at Rs. 2,000 in addition to the costs of Rs. 1,000 awarded by the Tribunal. Whatever payment made, are to be adjusted towards the compensation awarded.
