Bombay High Court
Somnath Thakaji Mandlik vs Dipakbhai Chimanbhai Patel And ... on 26 August, 2016
Bench: A.V. Nirgude
1 FA 150/2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL NO. 150 OF 2015
Somnath S/o. Thakaji Mandlik, Aged 45 APPELLANT
Years, Occupation Labour, Resident of
Dholewadi, Taluka Sangamner, District
Ahmednagar
V E R S U S
1 Dipakbhai Chimanbhai Patel, Aged 55 Years, RESPONDENTS
Occupation Business, Resident of 79K,
Airport Road, Band Faliya, Dalmondha,
Daman, Daman and Div (Union Territory)
2 Branch Manager, The New India Assurance
Co. Ltd., Malpani Building, Sangamner,
Taluka Sangamner, District Ahmednagar
Mr. K.N. Shermale, Advocate for the Appellant
Mr. A.S. Osmanpurkar, Advocate for Respondent No.2
CORAM : A.V. NIRGUDE, J.
DATE : 22nd August, 2016
ORAL JUDGMENT :
1. By consent of the learned counsel for the parties, the Appeal
is taken up for final hearing at admission stage.
2 FA 150/2015
2. Heard learned counsel appearing for the parties.
3. This Appeal challenges judgment and Award dated 8 th
October, 2014, passed by the learned Motor Accident Claims Tribunal,
Sangamner, in M.A.C.P No. 18 of 2011.
4. The facts that came on record and which are relevant for
deciding the Appeal, in short, can be stated as under :-
5.
Appellant Somnath is a claimant before the lower Court. On
18th May, 2010, at about 08.00 p.m., the appellant and his friend were
driving the motorcycle on public road which was going towards Nasik from
Pune. The appellant was the rider and his friend was pillion-rider. The
appellant was riding the motorcycle on the left side of the road, and
despite of this, he collided on a vehicle which was standing on the left side
of the road. Due to collusion, the appellant sustained injuries and his
friend i.e. pillion-rider died due to head injury. The appellant was taken to
the Hospital and was given medical treatment. Despite medical treatment,
he sustained about 65% permanent disability. The appellant claimed a
sum of Rs.6,00,000/- as compensation under Section 166 of the Motor
Vehicles Act. The vehicle on which the appellant's motorcycle collided
belongs to respondent no.1. The vehicle was insured with respondent no.
2 - Insurance Company.
6. In order to prove his claim, the appellant examined himself
and explained as to how accident had taken place. Respondent no. 1
though served did not come before the Court and did not file written
3 FA 150/2015
statement. On the other hand, respondent no. 2 filed written statement
and took various defences.
The learned Member came to a conclusion that the accident
took place due to contributory negligence of the appellant and the driver of
offending vehicle belonging to respondent no. 1. The appellant challenged
this finding of the tibunal.
7. The question before this Court is, "who is proved to be
negligent in this case?" The learned Judge of the lower Court rightly held
that the driver of offending vehicle which was parked erroneously on the
road was negligent and due to such wrong parking the accident had
taken place.
8. The question is, whether the appellant who was riding the
motorcycle was also partly negligent? To answer this question, I must go
to the evidence of the appellant. In the deposition, he stated that due to
darkness he could not see the offending vehicle standing in his way. From
the contents of the spot panchnama it is seen that the offending vehicle
was indeed standing on part on the road. The panchnama indicates that
there was sufficient space further on the left side of the road. The vehicle
could have been parked beyond the curb of the road. This means that the
offending vehicle occupied about 5' width of the actual road where the
vehicles ply. The offending vehicle thus was an obstacle on the road. The
next question is, how did the appellant not see such obstruction? The
appellant stated in his deposition that due to darkness he did not see the
vehicle. The cross-examiner of the opponent tried to suggest that the
appellant was also negligent at the time of accident. But, he could not
4 FA 150/2015
bring on record relevant facts which could indicate that the appellant could
have seen the obstruction and could have stopped his vehicle in time. The
cross-examiner could bring on record admission of the appellant that at
the time of accident he was not wearing a protective helmet. But, despite
opportunity, the cross-examiner could not bring on record as to whether
the head lamp of the motorcycle was on and that there was otherwise
good visibility. On such roads a rider or a car-driver would generally come
across several kinds of obstructions. Some obstructions are caused due
to wrong parking of the vehicles. Some obstructions are caused due to
slow moving vehicles and some are pedestrians, stray animals on the
road. All such obstructions are required to be avoided by a driver/rider of
a motorcar/motorcycle. A rider of a motorcycle is under obligation to drive
his vehicle carefully. He is also supposed to avoid obstructions as
described above. Yet, if a rider or driver of motor vehicle collides on such
obstructions, it cannot generally be presumed that such rider or driver was
negligent while negotiating an obstruction. Negligence on his part could
be pleaded as defence. In this case, the Insurance Company in their
written statement did not even raise such a defence of contributory
negligence. Had such defence been raised, the learned Member could
have certainly framed an issue that the respondents should prove that this
was a case of contributory negligence etc. Such issue was not framed. At
the time of recording deposition, suddenly the cross-examiner of the
insurance company suggested possibility of contributory negligence on
the part of the appellant. For deciding such question of fact, the first
requirement is that there should be proper defence taken in the written
statement. Pursuant to it, a proper issue is required to be framed and only
thereafter the burden to prove contributory negligence would shift on the
5 FA 150/2015
respondent. Generally an issue of contributory negligence is required to
be proved by an independent evidence which is necessary to be brought
on record from the side of respondent. In absence of all this, I am
surprised that the learned Judge virtually invented the defence of
contributory negligence. He came to a conclusion on the basis of
evidence which I discussed above that the appellant was also negligent.
He also jumped to a conclusion that the appellant contributed to the extent
of 50% in the negligence. Both these findings are arbitrary and erroneous.
Despite this, I am inclined to hold that the appellant was also
negligent at the time of accident. Admittedly, he was not wearing a
protective helmet. He admittedly sustained injuries on his head.
Fortunately despite injuries to his head, he survived. Section 129 of the
Motor Vehicles Act, 1988 compels every person driving or riding a
motorcycle to wear protective head wear. The appellant admittedly
committed breach of the provision of Section 129 of the Motor Vehicles
Act, 1988 and to that extent he is partly responsible for causing injuries to
his head. In view of this, I hold that the appellant contributed only to the
extent of 10% of the contributory negligence.
9. The learned Member of the Tribunal calculated the total
amount of compensation to the tune of Rs.6,29,775/-. This amount is
required to be reduced by 10%. After such deduction, an amount of
Rs.5,66,797/- is payable. The impugned Judgment is accordingly
modified. The appeal is partly allowed. The final order would read as
under :-
6 FA 150/2015
O R D E R
A) Appeal is partly allowed.
B) The Respondents jointly and severally shall pay an amount of
Rs.5,66,797/- (Rupees Five Lac Sixty Six Thousand Seven Hundred
Ninety Seven only) to the Petitioner - Somnath Thakaji Mandlik together
with interest @ 8% p.a. from 29.01.2011 till its full realization. Out of said
amount, an amount of Rs.1,00,000/- be kept in fixed deposit for five years
in any Nationalized Bank of his choice in his name. Remaining amount
with interest be paid to the petitioner by account payee cheque.
( A.V. NIRGUDE, J. )
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