Bhagwat Maruti Khedkar And Anr vs Laxman Balasaheb Thorat And ...
2016 Latest Caselaw 7538 Bom

                                      1                 FA NO.3356 OF 2015


         IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                    BENCH AT AURANGABAD




                                               
                       FIRST APPEAL NO. 3356 OF 2015

      1)       Bhagwat S/o. Maruti Khedkar,
               Age:-53 years, Occu.: Labourer,




                                              
               R/o. Ghogas Pargaon, Tq. Shirur (Kasar),
               District : Beed

      2)       Meera W/o. Bhagwat Khedkar,




                                   
               Age:-48 years, Occu.: Household,
               R/o. As above.
                              ig              ...APPELLANTS
                                             (Orig. Claimants)
                    VERSUS
                            
      1)       Laxman S/o. Balasaheb Thorat,
               Age-53 years, Occu.: Business,
               R/o. Hingangaon, Tq. Haveli,
               District : Pune,
      


               (Owner of Tractor),
   



      2)       Gokul S/o. Bhavsingh Jadhav,
               Age:38 years, Occu.:Driver,
               R/o. Odhari, Tq. Chalisagaon,





               District : Jalgaon,
               (Driver of Tractor),

      3)       New India Assurance Co. Ltd.,
               Branch Office, Jalna Road,





               Beed, Tq. & Dist. Beed,
               Through its Manager.
                                                ...RESPONDENTS
                                               (Orig. Respondents)
                                    ...
               Shri. A.N. Nagargoje, Advocate for Appellants;
               Shri. S.G. Chapalgaonkar, Advocate for Respondents.
                                    ...




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                                             2               FA NO.3356 OF 2015

                                   CORAM: P.R.BORA, J.




                                                                           
                                    ...
               Date of reserving the judgment: 24/11/2016




                                                   
               Date of pronouncing the judgment:21/12/2016
                                 ...




                                                  
      JUDGMENT:

1. The present Appeal is filed against the judgment

and order passed by the Motor Accident Claims Tribunal, at

Beed, in M.A.C.P.No.127/2012 decided on 15th

September, 2015.

2. The aforesaid Claim Petition was filed by the

present appellants seeking compensation in respect of

death of one Ganesh Bhagwat Khedkar in a vehicular

accident happened on 20th of December, 2010. It was

the case of the appellants that deceased Ganesh was

dashed from his behind by a tractor bearing Registration

No.MH-12-TA 8511 while deceased Ganesh was walking,

following the bullock cart of his father. According to the

appellants, the alleged accident had happened because of

negligence on the part of the driver of the offending tractor

attached with the trolley. The appellants had, therefore,

3 FA NO.3356 OF 2015

claimed compensation of Rs.5,00,000/- from the owner

and insurer of the said tractor.

3. The Claim Petition was resisted by the

respondents and more particularly by the Insurance

Company. The Insurance Company had raised a plea of

contributory negligence on the part of the deceased. On

other counts also the petition was contested by the

Insurance Company.

4. Learned Tribunal, after having assessed the oral

and documentary evidence adduced before it, held that in

occurrence of the alleged accident, the deceased, vide his

negligence, has contributed in equal proportion along with

the driver of the offending tractor and, as such, held the

appellants entitled to receive from the owner and insurer

of the offending tractor half of the compensation as was

determined by it. The Tribunal assessed the amount of

compensation to the tune of Rs.7,23,000/- and fixed the

liability on the owner and insurer of the tractor to jointly or

severally pay half of the said amount i.e. Rs.3,61,500/- to

the appellants with interest thereon at the rate of seven

4 FA NO.3356 OF 2015

and half per cent per annum from the date of application

till realization. Aggrieved thereby, the appellants i.e. the

original claimants had preferred the present appeal.

5. Shri A.N. Nagargoje, learned Counsel appearing

for the appellants, assailed the impugned judgment on

three counts. Learned counsel submitted that the Tribunal

has grossly erred in holding that the negligence on the

part of deceased Ganesh was the contributing factor for

occurrence of the alleged accident and the proportion of

the negligence on the part of the deceased was equal as of

the driver of the offending tractor. Learned Counsel

submitted that the evidence on record clearly shows that

deceased Ganesh was walking, following the bullock cart of

his father and was dashed from his behind by the

offending tractor. Learned Counsel submitted that the

accident had happened at the extreme left side of the road

and, as such, no blame could have been attributed on the

part of the deceased in occurrence of the alleged accident.

Learned Counsel submitted that though no evidence was

adduced on behalf of the respondents as about the plea

raised by them of contributory negligence, on surmises

5 FA NO.3356 OF 2015

and conjectures, the Tribunal has held that the deceased

contributed the happening of the alleged accident vide his

negligence.

6. Learned Counsel further submitted that while

determining the amount of compensation the Tribunal

ought not have effected any deduction from the amount

awarded by it towards the non pecuniary damages even

though it had held that in occurrence of the accident there

was equal negligence of the deceased.

7. Learned Counsel submitted that no such

deduction is permissible from the amount awarded towards

non pecuniary damages. Learned Counsel further

submitted that the Tribunal has also erred in not awarding

adequate compensation towards non pecuniary damages.

Learned Counsel further submitted that instead of

awarding interest at the rate of nine per cent which is the

prevailing rate of interest, the Tribunal has erred in

awarding the interest at the rate of seven and half per cent

per annum. Learned counsel, therefore, prayed for setting

aside the finding of the Tribunal in so far as it has held the

6 FA NO.3356 OF 2015

deceased negligent in occurrence of the alleged accident in

equal proportion with that of the driver of the offending

tractor and to enhance the amount of compensation

accordingly.

8. Shri S.G. Chapalgaonkar, learned Counsel

appearing for the respondent Insurance Company

(Respondent no. 3) submitted that the Tribunal has passed

a well reasoned order thereby holding the deceased also

equally negligent in occurrence of the alleged accident.

Learned Counsel further submitted that the Tribunal has

also awarded a just and fair compensation towards non

pecuniary damages and has also not committed any error

in awarding interest at the rate of seven and half per cent

per annum. Learned Counsel submitted that in fact the

Tribunal has awarded the compensation on higher side.

Learned Counsel submitted that though deceased Ganesh

was bachelor, while determining the amount of

compensation the Tribunal has applied the multiplier based

on the age of the deceased when it ought to have been on

the basis of the age of the parents of the deceased.

Learned Counsel further submitted that the Tribunal has

7 FA NO.3356 OF 2015

also erred in enhancing the income of the deceased under

the head of future prospects while determining the amount

of dependency compensation, though the appellants

claimants had not adduced any evidence therefor. In the

circumstances, according to the learned Counsel, the

compensation as awarded by the Tribunal needs to be

decreased.

9. I have carefully considered the submissions

made by the learned Counsel appearing for the respective

parties. I have also perused the impugned judgment and

the material placed on record. In so far as the objections

in respect of compensation as awarded by the learned

Tribunal towards non pecuniary damages and the rate of

interest as awarded by the Tribunal are concerned, I do

not see any merit in the submissions made on behalf of

the appellants in that regard. According to me, the

Tribunal has awarded just and fair amount of

compensation towards the loss of love and affection and

the funeral expenses. Further, it is within the discretion of

the Tribunal as to at what rate the interest is to be

awarded on the amount of compensation. It does not

8 FA NO.3356 OF 2015

appear to me that the Tribunal has erred in exercising the

said jurisdiction by awarding interest at the rate of seven

and half per cent per annum. In no case, it can be said

that it is an arbitrary exercise of the powers by the

Tribunal.

10. I, however, find substance in the contentions

raised on behalf of the appellant regarding the finding

recorded by the Tribunal on the point of the contributory

negligence and the proportion of the negligence attributed

on part of deceased Ganesh. Admittedly, none of the

respondents has adduced any evidence in order to prove

the contributory negligence on the part of the deceased in

occurrence of the alleged accident. Perusal of the

impugned judgment reveals that the Tribunal while

assessing the evidence on record, more particularly the

evidence in the form of Police papers i.e. the FIR and the

spot panchnama, has reached to the conclusion that in

occurrence of the alleged accident the negligence on the

part of the deceased was a contributing factor. In

paragraph nos.9, 10 and 11 of the impugned judgment,

the relevant discussion is made by the learned Tribunal

9 FA NO.3356 OF 2015

which read thus:

"9. Claimant no.1 deposed in his evidence that he was driving bullock cart. The

deceased was walking on the road following it. The Tractor came from behind and hit the deceased on his hand. It made the deceased to fell down and wheel of

trolley went over his head causing his death instantly. In cross-examination this witness concedes that there were 5 to 6 bullock carts moving in row. There is no

evidence to show the distance of other bullock carts. In this situation if the

deceased was walking behind the bullock cart of his father it is not possible for the Tractor to hit him without hitting the

bullock carts running behind. It appears that the deceased was moving on the road along with bullock cart of his father when the accident took place. It may be noted that Tractor pulling two loaded trolleys

causes loud noise when running on the road and its presence can be noticed from

a considerable distance. it is also to be considered that Tractor having two loaded trolleys may run at the maximum speed of

20 to 25 Km/hrs. It is not explained that how the deceased failed to notice the Tractor on the road and how he came into contract with it.

10. On perusal of spot panchanama I find that place of accident is shown on the road. It means the deceased was walking on the road. It may be noted that the accident took place on 15 feet wide road having 2 feet wide shoulder on each side. It a matter of common sense that road is not meant for walking. The deceased ought to have walked on the shoulder of the road if he wanted to do so. At least he should have removed himself from the

10 FA NO.3356 OF 2015

road on seeing Tractor.

11. In view of the facts and circumstances on record I hold that accident was not

possible without the negligence on the part of Tractor driver as well as of the deceased. I hold both of them negligent equally. I answer issues no.1 and 2

accordingly."

11. The discussion made by the Tribunal as

aforesaid and the conclusion recorded by it, if read in the

background of the contents of the spot panchnama and

more particularly, the map of the spot of occurrence,

cannot be wholly subscribed. It is not in dispute that

deceased was hit by the offending tractor from his behind.

Even if it is assumed that while walking, following the

bullock cart of his father, deceased Ganesh might have

slightly moved on the road towards his right side, the

higher responsibility was definitely on the driver of the

tractor, to avoid the accident and, as such, the negligence

on the part of the deceased cannot be held at par with the

negligence of the driver of the tractor. After having

considered the entire material on record, it appears to me

that it would be just and proper to apportion the

negligence on the part of the driver of the offending tractor

11 FA NO.3356 OF 2015

and the deceased Ganesh in the ratio of 75 : 25. To the

aforesaid extent, the impugned award needs to be

modified.

12. Though it was sought to be canvassed by the

learned Counsel for the Insurance Company that the

Tribunal has erred in determining the amount of

dependency compensation by applying multiplier based on

the age of the deceased, in absence of any appeal or Cross

Objection preferred by the Insurance Company,

challenging the finding recorded by the Tribunal, to the

said extent, I am unable to concede to the request of the

Insurance Company to re-determine the amount of

compensation by applying the multiplier based on the age

of the deceased.

13. I have already noted that there is no substance

in the contentions raised by the appellants as about the

inadequacy of the amount of compensation granted by the

Tribunal towards non pecuniary damages as well as the

rate at which the Tribunal has granted the amount of

interest on the amount of compensation.

12 FA NO.3356 OF 2015

14. The Tribunal has assessed the amount of

compensation to the tune of Rs.7,23,000/-. In view of

the fact that the proportion of negligence on the part of

deceased Ganesh is held by this Court to the extent of 25

per cent, the appellants are entitled to receive 75 per cent

of the total compensation which comes to Rs.5,42,250/-

jointly and severally from the owner and the insurer of the

offending tractor. Save and except the modification in the

amount of compensation as aforesaid, the other part of the

award is maintained as it is. Deficit Court fee be recovered

from the claimants before preparation of the modified

award.

The First Appeal stands allowed in the aforesaid

terms. No order as to the costs.

(P.R.BORA)

JUDGE

...

AGP/3356-15fa