Dada Babu Pandhare vs Saudagar Govindrao Jadhav & Anr
2016 Latest Caselaw 1608 Bom

                                             1                  FA NO.174 OF 2003

                 
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                             
                         BENCH AT AURANGABAD




                                                     
                                   FIRST APPEAL NO.174 OF 2003

               Shri Dada s/o Bapu Pandhare,
               Aged 31 years, Occu. Agri.




                                                    
               & labour, R/o. At Post Holewadi
               Tal.Karjat, Dist. Ahmednagar.

                                                  ...APPELLANT
                                                  (Original claimant)




                                           
                       VERSUS

      1.
                             
               Shri Saudagar s/o Govindrao
               Jadhav, Aged 60 years,
               Occu. Business,
                            
               R/o. Gorewadi, Post Korti,
               Tal.Karmala, Dist. Solapur.

      2.       The Oriental Insurance Co.Ltd.
      

               (Notice to be served on its
               Divisional Office, Ahmednagar.)
   



                                   ...RESPONDENTS
                              ...
      Mr.N.C.Garud, Advocate for the appellant.





      Mr.V.C.Patil, Adv., h/f Mr. S.M.Godsay, for 
      Respondent no.2.
      Respondent no.1 served.
                              ...
                     CORAM: P.R.BORA, J.

DATE :April 18th, 2016

***

ORAL JUDGMENT:

1. The appellant has filed the present appeal taking

2 FA NO.174 OF 2003

exception to the judgment and award passed in MACP

No.348/1996 on 29.4.2002, by the Motor Accident Claims

Tribunal, Ahmednagar, whereby the aforesaid claim has been

dismissed by the Tribunal.

2. The point involved in the present appeal is whether,

in absence of vehicle inspection report on record, or the

evidence of expert in that regard, the conclusion can be arrived

at that accident happened because of the failure of brakes of

the vehicle involved in accident, merely on an averment in a

claim petition filed by the victim of the said accident that the

accident happened because the brakes failed of the vehicle.

3. The appellant had filed the aforesaid claim petition

claiming compensation from the owner and insurer of a tractor

bearing registration No.MH-13-A-7786 on account of the

injuries suffered by him while traveling on the said tractor as a

Labour. It was the contention of the appellant that the driver

of the offending tractor was driving the same in a rash and

negligent manner. It was also the contention of the appellant

that after brakes failed of the said tractor, the driver of the said

tractor could not control the same and ultimately it turtled and

in the accident that happened, he received a severe injury to

3 FA NO.174 OF 2003

his right leg. It was also the contention of the appellant that

he was required to be under treatment for a quite long period

and was subjected to incur huge expenses. It was also the

contention of the appellant that because of the injuries caused

to him in the said accident, he has incurred 40 per cent

permanent disability and his right leg was required to be

amputated. The appellant had, therefore, claimed

compensation of Rs.2,00,000/- (Rs. two lacs) from the owner

and insurer of the said tractor.

4. Respondent no.1, who is the owner of the tractor,

had filed his written statement before the Tribunal raising

several objections to the claim petition filed by the appellant

claimant. Respondent no.1 has denied that the accident in

question happened because of the rash and negligent driving of

his driver. Respondent no.1 also denied and disputed the

age, income and the injuries suffered by the appellant and the

permanent disablement incurred by him. Respondent no.2

Insurance Company had resisted the claim petition on the

ground that the aforesaid tractor was being used for

commercial purpose at the relevant time and thus, there was

breach of the policy condition on the part of the owner of the

said tractor, and the insurance company was, therefore, liable

4 FA NO.174 OF 2003

to be exonerated from it's liability to indemnify the insured.

5. The appellant had deposed before the Tribunal in

order to substantiate the contentions raised by him in his

petition and examined one more witness by name Manik

Tukaram Jadhav. No oral evidence was adduced by the

respondents.

6.

Learned Tribunal, on its assessment of the oral and

documentary evidence brought before it, dismissed the claim

petition on the ground that the appellant failed in proving that

the alleged accident happened because of the rash and

negligent act of the driver of the offending tractor. In view of

such finding recorded by the Tribunal, it did not find it

necessary to enter into other aspects of the matter and thus,

admittedly, has not discussed as about injuries caused to the

petitioner and the disability incurred by him so as to determine

the amount of compensation. Aggrieved by the judgment and

award, the original claimant has filed present appeal.

7. Shri N.C. Garud, learned Counsel appearing for the

appellant claimant, submitted that the Tribunal has failed in

appreciating that throughout it was the contention of the

5 FA NO.174 OF 2003

appellant that the driver of the offending tractor was rash and

negligent in driving the said tractor and that has, in fact,

contributed to the occurrence of the alleged accident.

Learned Counsel submitted that, in the petition as well as in his

evidence before the Court, the appellant has specifically

alleged that the driver of the offending tractor was rashly and

negligently driving the said tractor. In the circumstances,

according to the learned Counsel, the Tribunal must have held

that the accident in question happened because of the rash and

negligent driving of the driver of the offending tractor.

Learned Counsel submitted that even if it is assumed that the

brakes of the tractor failed, had the driver of the offending

tractor be diligent enough and would be driving the said tractor

at moderate speed, it could have been easily controlled by him

and may not have turtled and ultimately accident would not

have taken place. Learned Counsel submitted that all these

aspects have been overlooked by the Tribunal. Learned

Counsel, therefore, prayed for setting aside the finding so

recorded by the Tribunal and consequently, the impugned

judgment and award.

In order to support his contentions learned counsel

relied upon the judgment of the Honourable Apex Court in the

case of Minu B.Mehta and another Vs. Balkrishna

6 FA NO.174 OF 2003

Ramchandra Nayan and another (AIR 1977 SC 1248

(1) ).

Learned Counsel further submitted that though the

Tribunal has not gone into the aspect of injuries caused to the

petitioner and, resultantly, has not determined the amount of

compensation payable to the petitioner, this Court shall, by

taking into account the evidence on record, determine the just

and fair compensation payable to the petitioner.

8. Shri V.C.Patil holding for Shri Godsay, learned

Counsel, has resisted the contentions raised on behalf of the

appellant claimant. Learned Counsel submitted that it was

the case of the appellant claimant himself that the accident in

question happened because the brakes of the tractor failed.

Learned Counsel invited my attention to the relevant averment

in the claim petition. Learned Counsel submitted that not

only in the claim petition but in his evidence before the Court

also, the appellant claimant, without any reservation, admitted

that the accident in question happened because the brakes of

the tractor failed. In the circumstances, according to the

learned Counsel, no error has been committed by the Tribunal

in arriving at the conclusion that the claimant has failed in

7 FA NO.174 OF 2003

proving that the accident in question happened because of the

negligence of the driver of the offending tractor and has,

therefore, rightly dismissed the claim petition.

9. In so far as the other submission made on behalf of

the appellant that this Court shall determine the amount of

compensation, the learned Counsel submitted that no evidence

has been, in fact, adduced by the appellant claimant before the

Tribunal in order to prove the injuries caused to him as well as

the disability incurred by him out of the said injuries.

Learned Counsel pointed out that disability certificate has not

been submitted by the appellant before the Tribunal. In such

circumstances, according to learned Counsel, it may not be

possible for this Court to determine the amount of

compensation.

10. I have considered the submissions advanced by

the learned Counsel appearing for the respective parties. I

have also perused the impugned judgment and more

particularly the discussion made by the Tribunal on point no.2.

Learned Tribunal has recorded a finding that the appellant

claimant failed in proving the negligence on the part of the

driver of the offending tractor merely on an averment in the

8 FA NO.174 OF 2003

claim petition that the brakes of the tractor failed. I have

carefully perused the written statement filed by the owner of

the offending tractor before the Tribunal. In his written

statement, the owner has not even whispered that the accident

in question happened because the brakes of the tractor failed.

There is no other evidence on record to show that the alleged

accident happened because the brakes of the tractor failed.

The finding recorded by the Tribunal could have been sustained

had it been

the fact that the tractor was inspected by a

mechanic or expert and he has opined that the brakes of the

said tractor had failed and that was the cause for occurrence

of the accident. Merely because the appellant claimant, who

was a labour on the said tractor at the relevant time, has

stated in his claim petition that the brakes of the tractor failed,

no such conclusion can be arrived at in absence of any expert

evidence or a vehicle examination and inspection report from

the competent authority that the accident had happened

because the brakes of the tractor failed. I reiterate that this

was not even the case pleaded by the owner of the offending

tractor that the brakes of the tractor failed and, as such, no

blame can be attributed on the part of the driver of the

offending tractor in occurrence of the alleged accident. It

cannot be ignored that the appellant had alleged that the

9 FA NO.174 OF 2003

driver of the offending truck was rashly and negligently driving

the tractor at the relevant time.

11. In the case of Minu B.Mehta and another (cited

supra), the Honourable Apex Court has held that the burden

of proving that the accident was due to mechanical defect is on

the owner and it is his duty to show that he had taken all

reasonable care and that despite such care, the defect

remained hidden.

ig In the instant case, as I have earlier noted,

the owner in his written statement filed in the matter has not

even raised such plea that the accident happened due to

mechanical defect. The owner has also not brought on record

any evidence to show that the alleged accident happened

because of some mechanical defect in the offending tractor.

In absence of any evidence from the side of the owner of the

offending tractor, the learned Tribunal has recorded a finding

merely on the averment in the claim petition that the alleged

accident happened because the brakes of the tractor failed.

12) In the above circumstances, the finding recorded

by the Tribunal on the point of negligence has to be quashed

and set aside and it is accordingly quashed and set aside.

10 FA NO.174 OF 2003

13. Learned Tribunal has not recorded any finding in

regard to the entitlement of the appellant claimant for

receiving the compensation because of the injury caused to

him in the alleged accident. It appears that, in view of the

finding recorded by the Tribunal that the appellant claimant

had failed in proving the negligence on the part of the Driver of

the tractor in occurrence of the alleged accident, he did not

find it necessary to record finding on the other issues. Though

the learned Counsel for the appellant claimant has prayed for

determination of the amount of compensation by this Court,

the said course may not be appropriate as well as advisable.

It appears that the appellant claimant had not placed on record

before the Tribunal the certificate of disability incurred by him.

Now, the claimant has secured such certificate and was

intending to file the same before this Court. This Court, vide

its order dated 16th February, 2016, had advised the appellant

to produce disability certificate preferably issued by the

Government hospital. Accordingly, the appellant has

obtained such certificate. However, the same will have to be

proved by him and for that purpose, he may also be required

to adduce the evidence of the concerned Medical Officer so as

to prove the permanent disability incurred by him and its

consequences. In the circumstances, it appears to me that it

11 FA NO.174 OF 2003

would be in the fitness of things to remit the matter back to

the Tribunal for recording the findings on all the aspects and

more particularly as about the injuries sustained by the

appellant claimant and the permanent disability incurred by

him and accordingly to determine the amount of compensation.

The Tribunal will also have to record a finding afresh on the

issue of negligence in view of the fact that the earlier finding

recorded by it has been quashed by this Court. The appellant

claimant is permitted to place on record the permanent

disability certificate obtained by him from the Medical Board

before the learned Tribunal. It would be also open for the

appellant claimant to adduce necessary evidence in that

regard. It need not be stated that in case any such evidence

is adduced, the respondent will have an opportunity to cross

examine the witnesses which may be examined by the

appellant claimant and to adduce the evidence in rebuttal of

the same, if so required.

In view of the above, following order is passed:

ORDER

1. The findings recorded by the Tribunal on issue No.2

in MACP No.348/1996 is quashed and set aside.

Consequently, the order dismissing the claim petition also

stands quashed and set aside.

12 FA NO.174 OF 2003

2. The matter is remitted back to the Tribunal for

deciding it afresh. The appellant shall be permitted by the

Tribunal to file on record the permanent disability certificate

obtained by him from the Medical Board and to adduce the

necessary evidence in that regard. Needless to state that the

respondents shall be given an opportunity to cross examine the

witnesses, if examined by the claimant, and also to adduce

evidence from their side, if so required.

3. The Tribunal shall complete the hearing and decide

the claim petition as expeditiously as possible keeping in mind

that the accident in question had happened in the year 1996.

It would be preferable if the Tribunal decides the claim petition

within six months after the record is received to it from this

Court.

4. The parties to the present appeal are directed to

appear before the Tribunal on 8th of June, 2016.

5. The First Appeal stands allowed in the aforesaid

terms.

(P.R.BORA) JUDGE ...

AGP/174-03fa