Smt. Manisha Wd/O Prakash Patil ... vs Mr. Umakant Marotrao Kolhe And ...
2015 Latest Caselaw 3 Bom

    Judgment
                                                          First Appeal No.1013.13

                                       1




                                                                           
    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                   
               NAGPUR BENCH, NAGPUR

                   FIRST APPEAL NO.1013 OF 2011




                                                  
    1. Smt. Manisha Wd/o Prakash Patil
    Aged about 29 years,
    Occupation Household.




                                      
    2. Master Chaitanya S/o Prakash Patil
    Aged about 8 years, 
    Occupation Student,
    Represented through his 
    natural guardian 
                       
    mother Appellant No.1.

    3. Smt. Chandrabhagabai Wd/o Deorao Patil,
    Aged about 63 years,
      


    Occupation Nil.
   



    All Resident of at Post Bina (Sangam),
    Tahsil Kamptee, District Nagpur.                      ..... Appellants.





                               ::   VERSUS   ::

    1. Mr. Umakant Marotrao Kolhe
    R/o 103, Kamgar Nagar, Nagpur.
              Correct Address :





              Mr. Umakant Marotrao Kolhe,
              R/o Plot No.35, Ganpati Nagar,
              Godhani Road, Behind M.B. Town-II,
              Nagpur-440 030.


    2. The Divisional/Branch Manager,

                                                                            .....2/-




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     Judgment
                                                              First Appeal No.1013.13

                                          2




                                                                               
    National Insurance Co.Ltd.,




                                                       
    48, Durga Sada, Balraj Marg,
    Dhantoli, Nagpur.                                        ..... Respondents.
    ================================================================
              Shri S.N. Kumar, Counsel for the Appellants.
              Shri P.A. Abhyankar, Counsel for R-1.




                                                      
              Shri A.W. Paunikar, Counsel for R-2.
    ================================================================


                    CORAM        : A. P. BHANGALE, J.  

RESERVED ON : JULY 14, 2015 PRONOUNCED ON : AUGUST 6, 2015

ORAL JUDGMENT .

1. Heard learned counsel for the rival parties. The appeal

is against the judgment and order dated 29-03-20 11 passed by

learned member, Motor accident claim Tribunal-2 at Nagpur in

Claim application no 605 of 2005 whereby the claim under

Section 166 of the Motor Vehicles Act for sum of Rupees Fifteen

Lakhs was dismissed.

2. Facts briefly mentioned are:-

Mr Prakash Deorao Patil, aged 37 years, was travelling

at Bina T-point from Bina Sangam by Motor Cycle bearing

.....3/-

Judgment First Appeal No.1013.13

registration no. MH-31-AT-9769 on 07-01-2005 at about 7.30

p.m. on Road in front of Mahadeo Hedao's field House. The

Motor Tata Sumo bearing Registration No.MH-31-H-2770 gave

forcible dash to the motorcycle from behind it. Prakash died as

result of the accident. Owner of the offending motor vehicle did

not dispute the involvement of the later mentioned Tata Sumo

vehicle and fact of the accident (W.S. Exhibit 18 - para No.2).

The deceased left behind his dependents viz. widow Manisha

aged 29 years, son Chaitanya aged 8 years and mother Smt

Chandrabhagabai aged 63 years who are claimants of

compensation in this case. The owner of the offending motor

vehicle is Umakant Marotrao Kolhe and the insurer of the

offending Motor vehicle is National Insurance Company

through its Dhantoli branch, Nagpur. The compensation for

death was claimed in the sum of Rs.20,65,000/-. The evidence

consisted of widow of the deceased and an eye witness to the

accident. No witness was examined on behalf of the Owner,

driver and insurer. The Tribunal however dismissed the Claim

.....4/-

Judgment First Appeal No.1013.13

application. In Claim Petition No.605 of 2005 learned Member of

the Motor Accident Claims Tribunal-2, Nagpur recorded the

evidence of claimant Smt. Manisha wd/o Prakash Patil. She

deposed about the accident which occurred on 7.1.2005 at about

07:30 p.m. near village Beena within local limits of Khaperkheda

Police Station, District Nagpur. According to her, when her

husband Prakash was proceeding towards Beena T-Point from

Beena Sangam by motorcycle bearing Registration No.MH-

31/AT/9769, at that time Tata Sumo bearing Registration

No.MH-31/H/2770 came from behind and gave forcible dash to

the motorcycle as a result of which her husband was seriously

injured and died on the spot. Manisha deposed that the accident

occurred solely due to negligence on the part of driver Parasram

Bhadang of Tata Sumo.

3. The Khaperkheda Police Station had submitted Form-

AA (Exh.33), in respect of the accident, which indicates that Tata

Sumo bearing Registration No.MH-31/H/2770 driven by

.....5/-

Judgment First Appeal No.1013.13

Parasram Bhadang employed by Shri Umakant Marotrao Kolhe

caused accident. The offending motor vehicle Tata Sumo was

covered by insurance policy dated 7.2.2005 insured with National

Insurance Company Limited, Nagpur covering the date of

accident.

4.

Thus, although initially the offence vide Crime No.2/05

was registered on 7.1.2005 at Khaperkheda Police Station under

Sections 279, 337, 338, 304-A and 427 of the Indian Penal code

read with Sections 184 and 134 of the Motor Vehicles Act, 1988

by one Sunil Parasram Bhadang (son of driver Parasram), there

appears suppression of fact not disclosing name of the driver and

name of the owner of offending motor vehicle. However, it

appears that the police inquiry revealed name of the owner of the

offending motor vehicle as well as driver thereof. The insurance

policy by the National Insurance Company Limited covering the

date of accident was also revealed during the investigation by the

police and when the charge sheet was filed under Section 173 of

.....6/-

Judgment First Appeal No.1013.13

the Criminal Procedure Code it does appear from Exh.39 that

driver Parasram Bhadang was prosecuted on account of his

negligence and rashness in driving the said Tata Sumo vehicle.

Thus, learned Member of the Tribunal failed to note this fact

during the course of hearing of the claim petition.

5.

Considering the material collected during the course of

investigation and the charge sheet filed under Section 173 of the

Criminal Procedure Code and Form-AA submitted by the police,

the Tribunal could not have in the facts and circumstances

negatived the claim that the deceased Prakash died in a motor

vehicular accident because of rash and negligent driving of the

driver of the Tata Sumo which was covered by insurance policy of

the National Insurance Co.Ltd.. The preliminary facts were

sufficiently proved before the Tribunal regarding death of

Prakash Patil as a result of the rash and negligent driving of the

offending motor vehicle. Hence, the impugned judgment appears

unsustainable and contrary to law because in such cases the

.....7/-

Judgment First Appeal No.1013.13

proof upon preponderance of probabilities required and not the

stricter proof beyond reasonable doubt as is normally expected

in criminal trial.

6. Witness- claimant Manisha was cross examined,

however except suggestion that she had not witnessed the

accident and that she had not produced the documentary

evidence, nothing material could be elicited during the course of

the cross examination of claimant Manisha to discredit her.

Next witness examined was Roshan. He is an eye witness to the

accident and deposed clearly that it was caused by offending

motor vehicle Tata Sumo which came from direction of Beena

Sangam and gave dash to the motorcycle from behind and driver

of the Tata Sumo ran away from the spot. According to the

Witness he was frightened on watching the accident. According

to him, people helped the motorcycle rider and took him to the

hospital. Though this witness was cross examined at length,

there is nothing material to disbelieve him regarding the

.....8/-

Judgment First Appeal No.1013.13

accident that had occurred. It may be that he did not report the

accident to the police but once he is an eye witness to the

accident one may not necessarily venture to go to police statiion

for fear of being subjected to questioning and unnecessary

harassment which may be caused to such witness. It is fact of

common experience and knowledge that the witnesses in India do

have different reactions when they are eye witnesses to any

motor vehicle accident on road. Normally, reason is usual

tendency of avoiding going to police station and reluctance to

participate in the investigation or preliminary inquiry process by

the police, one may not go to police station unless the eye witness

is close friend or relative of the victim of the road accident,

therefore, appreciation of such evidence require reasonable

alertness, prudence to get the facts on record considering

background of witnesses concerned, knowledge of normal

behaviour of witnesses is required on the part of the judicial

forum in such cases. Bearing in mind this, in my opinion, there

was adequate evidence on the record to believe that the motor

.....9/-

Judgment First Appeal No.1013.13

vehicular accident was caused as a result of the rash and

negligent driving of Tata Sumo bearing Registration No.MH-

31/H/2770 driven by Parasram Bhadang. Hence, learned

Member of the Tribunal ought to have appreciated the evidence

accordingly and should have answered the issues in affirmative.

7.

The contention on behalf of the appellant is right that

the Tribunal failed to properly appreciate the evidence on record.

If evidence of an eye witness is prima facie acceptable and

reliable, it cannot be overlooked in motor vehicle accident cases

therefore claim tribunal ought not to have disbelieved the eye

witness Roshan Narnavare (witness no.2). It must be judicially

noticed that the reaction of each eye witness to the event of

accident may differ. Such evidence ought to be appreciated upon

the touchstone of probability as held in the ruling in Bimla

Devi and ors ..vs.. Himachal Road Transport Corpn. And

ors reported in AIR 2009 SC 2819. Admission made in the

pleading when not traversed binds the other party- i.e. owner

.....10/-

Judgment First Appeal No.1013.13

and driver of the offending motor vehicle Tata Sumo. It is

submitted that the insurer thereof did not lead the evidence to

avoid liability to pay compensation. It is thus submitted that the

insurer, owner and the driver were jointly and severally liable to

pay the compensation demanded by the appellants.

8.

Learned Advocate Shri Abhyankar for respodnent

No.1 did not dispute the admission made in the written

statement about the involvement of the Tata Sumo vehicle MH-

31-H-2770. According to him however compensation claimed is

excessive.

9. Learned counsel for the respondent No.2 insurer

disputed the liability to compensate the claimants on the ground

that the Tribunal had rightly dismissed the claim application. It

is contended in reply that the evidence of the witness Roshan

was not the direct evidence of an eye witness to the incident .The

witness may have been planted as there was no damage to the

.....11/-

Judgment First Appeal No.1013.13

vehicle of the victim from behind and that negligence of the

driver of offending motor vehicle is not proved. Exh.25 indicated

that the damage to the vehicle which suffered the accident was

from the front side. Therefore the theory "from behind "is

unbelievable.

10.

There was categorical admission by the Owner of the

Offending Motor vehicle Tata Sumo about its involvement in the

accident occurred on 07-01-2005, in the written statement. And

also about the death of the deceased in the accident. While

insurer sought to dispute its liability on the ground of breach of

the insurance policy. The Tribunal failed to appreciate the

material consisting of the police papers. Form AA which also

indicated the involvement of the offending motor vehicle Tata

Sumo giving dash to the Motor Cycle .In a summary kind of

proceedings before the Tribunal the Tribunal ought to be guided

by the police papers, the information reaching the police in AA

form. An eye witness to the accident, though natural witness, he

.....12/-

Judgment First Appeal No.1013.13

may be frightened of suffering harassment by the Police or

exhibit reluctance to approach the police. Evidence in motor

vehicle accident claim cases is to be appreciated upon touchstone

of probabilities.

11. Considering the evidence led in this case the Tribunal

erroneously misled itself to dismiss the claim. The evidence led

consisted of the witnesses.

12. In the ruling in Kusum Lata Vs. Satbir & others

reported at (2011)3 SCC 646 in paragraph No.5 the Apex Court

observed thus:-

"Admittedly, the facts were that the brother of the deceased, Ashok Kumar while walking on the road heard some noise and then saw that a white colour tempo had hit his brother and sped

away. Immediately, he found that his brother, being seriously injured, was in an urgent need of medical aid and he took him to the hospital. Under such circumstances it may be natural for him not to note the number of the offending vehicle. That may be perfectly consistent with normal human conduct. Therefore, that by itself

.....13/-

Judgment First Appeal No.1013.13

cannot justify the findings reached by the

Tribunal and which have been affirmed by the High Court".

13. In the ruling in Saroj and others Vs. Het Lal and

others reported in (2011) SCC 388 in paragraph No.18 it is

observed thus :

"On considering the rival arguments, it must be said that the petition could not have been

dismissed in totality. Presuming it to be a hit and run case, the appellants were entitled to at least Rs.25, 000/- as per the provisions of Section 161 (3) (a) of the Motor Vehicles Act.

Therefore, both the Courts below have obviously failed to note this provision. But that is not the

end of the matter. In our opinion, both the Courts below have completely erred in giving the finding that it was a hit and run case and that the concerned vehicle belonging to

respondent No.2 was not involved in the accident. Insofar as that finding is concerned, it was an admitted position in the pleadings of respondent No.2 that firstly, the Tata Sumo

vehicle bearing registration No. HR-38-L/6592 was involved in an accident with the motorcycle bearing registration No.HR-26-P/9413 which took place on 16.9.2005 at 3.30 p.m. and secondly, the said vehicle was being driven by respondent No.1. This admission in the pleadings which we have quoted in the order

.....14/-

Judgment First Appeal No.1013.13

was itself sufficient to hold that the concerned

traversed by respondent No.2 and, thus, there was no occasion to hold that the said vehicle was not involved and that it was a hit and run case. It is surprising that not only the Tribunal

but the High Court also should have ignored the vital admission on the part of respondent No.2. It was nobody's case that this admission of respondent No.2 was in collusion between

respondent No.2 and appellant's vehicle belonging to respondent No.2 was involved in

the accident. Once this position is clear, there is no occasion for holding that the vehicle was not involved in the accident and on that count

exonerating the three respondents." In principle therefore, an admission / averment of fact in pleading, if not denied or traversed would bind the party making it..

14. In the ruling in Bimla Devi Vs. Himachal road

Transport Corporation & ors reported in AIR 2009 SC 2819

in paragraph No.18 it is observed thus :

"In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone

.....15/-

Judgment First Appeal No.1013.13

of preponderance of probability. The standard of

proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."

Claimants in the Motor vehicle accident claim cases triable in summary manner and expeditiously by the special Tribunals constituted under the law, need to establish

their case upon preponderance of probability not like a criminal trial beyond reasonable doubts.

15. In Pallavan Transport Corporation Vs. Saroj

Goyal and others reported in 2003 ACJ 475 in paragraph

No.8 observed thus :

"Likewise, merely because the eyewitness did not inform the police nor made any specific complaint did not diminish his statement before

the court regarding the manner of accident. If the evidence of the said witness is cogent, natural and probable, even in the absence of the fact that he did not inform the police regarding

the manner of accident, can safely be accepted. In this regard learned Counsel appearing for the claimants very much relied upon Natchathiram v. Jayasekaran 2000 ACJ 902 (Madras). The learned Judge in a similar circumstance has held, (10) ... The mere fact that he has not given any complaint to the police will not diminish the

.....16/-

Judgment First Appeal No.1013.13

credibility of the witness to any extent as

observed by the Tribunal...

We are in agreement with the view expressed by the learned Judge."

16. Shri Paunikar, learned counsel on the other hand

relied upon the ruling in Oriental Insurance Co. Ltd Vs

Meena Variyal and others reported in (2007) 5 SCC 428. In

paragraph No.27 it is observed thus :

"We think that the law laid down in Minu B. Mehta & Anr. Vs. Balkrishna Ramchandra Nayan & Anr. (supra) was accepted by the

legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act

providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the

authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the

Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or

.....17/-

Judgment First Appeal No.1013.13

neglect or default of the owner of the vehicle

concerned. Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the

Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they

proceed under Section 163A of the Act, the compensation will be awarded in terms of the

Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or

the driver of the vehicle."

17. The eye witness to the accident cannot be blamed in

the peculiar situation of sudden motor vehicle accident for not

remembering the exact registration number of the offending

motor vehicle. The depositions on record, accident form, police

inquiry/ investigation papers may assist the Tribunal to apply

its mind to the facts and circumstances revealed from the record

and proceedings for reaching logical and correct finding to

decide the claim upon preponderance of probabilities. The

Tribunal cannot overlook or ignore the evidence or material on

.....18/-

Judgment First Appeal No.1013.13

record, if available, as stated above. The intention in such cases

ought to be to appreciate the material made available as a

result of the investigation/inquiry made by the Police and to

rely upon the acceptable and reliable evidence on record for

restoring back the victim or his/her dependents to the pre-

accidental position as far as possible.

18. I have considered the evidence on the record in the

light of citations and considering the aforesaid well-established

principles of appreciating evidence in the cases of the Motor

vehicle accidents.in my opinion in the facts and circumstances of

the case the Tribunal committed error of law and failed to

properly appreciate the evidence led on record.

19. Next point is regarding compensation to be awarded to

the claimants. It is argued on behalf of the claimants, that the

annual income of late Prakash Patil was Rs.1,16,000/- per

annum. This argument is supported by documentary evidence

.....19/-

Judgment First Appeal No.1013.13

previous Income Tax returns filed by late Prakash Patil to which

compensation for prospective increases in income at the rate of

50% when added the annually claimed total income rises to

the sum of Rs 1,74000/- per year. Deducting one -third amount

which the deceased would have spent notionally towards self-

expenses at least Sum of Rs 1,16,000/- was annually available

to the dependents of the deceased . That being the annual loss of

dependency and applying the appropriate multiplier 15 the

pecuniary Compensation comes to Rs 17,40,000/-. To this sum

we will have to add non-pecuniary damages claimed on behalf of

the dependents such as Rupees One Lakh for Loss of consortium

for widow of the deceased Prakash, Rupees One lakh for loss of

love and affection for dependents, Rupees One lakh as loss of

Father's valuable guidance for children during their formative

years, Rs.30,000/- towards funeral expenses including

conveyance charges. Total compensation awarded as just is

Rs.20,70,000/- together with Rs.9% interest per annum upon the

sum from the date of the claim till the actual payment.

.....20/-

Judgment First Appeal No.1013.13

20. Reliance is placed upon the ruling in Darshana

Ganesh Kanavaje Vs MSRTC, Mumbai reported in 2013 (6)

Mh L.J. 779 decided by this Court. The principles and

guidelines were mentioned with reference to the rulings by the

Apex Court. In the result, therefore, the appeal must be allowed.

The compensation accordingly can be claimed by the dependents

as just, reasonable and proper to meet their needs in life for the

otherwise monetarily uncompensatable loss of their near and

dear family head and bread earner in the family. Compensation

inclusive of pecuniary and non-pecuniary losses on account of

death of Late Prakash Patil in the motor vehicle accident must

be paid accordingly.

21. The appeal is therefore allowed accordingly with costs.

The impugned judgment and order is set aside. In the facts and

circumstances the respondents are jointly and severally liable to

pay compensation in the sum of Rupees Twenty Lakhs and

.....21/-

Judgment First Appeal No.1013.13

Seventy thousand 20,70,000/- inclusive of no-fault liability under

Section 140 of the M.V. Act, together with interest upon the

unpaid sum of compensation at the rate of Rs.9% per annum

from the date of the Claim application till full payment is made

to the claimants. The amount of compensation be paid to the

Widow of the deceased and then shall be distributed equally

amongst the dependent claimants. Record and proceedings be

sent back to the Tribunal for execution of the Award.

JUDGE

!! BRW (PDRIVE) !!

...../-