Bombay High Court
Bashirbhai Chanbhai Pathan & ... vs Kashinath Mhatardeo & Other on 17 April, 2017
Bench: V.K. Jadhav
1 FA 135.1999.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 135 OF 1999
1. Bashirbhai Chandbhai Pathan,
age 55 yrs, Occ. Nil.
2. Binnatbi Bashir Pathan,
age 50 yrs, Occ. Nil. Appellants.
Orig applicants.
Both R/o Tisgaon, Tq. Pathardi,
Dist. Ahmednagar.
VERSUS
1. Kashinath Mhatardeo Buchade. Appeal abated.
2. Husen Baig Azambaig,
age 35 yrs, Occ. Business,
R/o Pachpir Chawdi, Ahmednagar.
3. The Oriental Insurance Company Ltd.,
Ahmednagar, Branch Mahatma Gandhi
Road, Ahmednagar City. ...Respondents...
...
Advocate for Appellant : Mr A S Barlota
Respondent No.1- abated.
...
CORAM : V.K. JADHAV, J.
Dated: April 17, 2017
...
ORAL JUDGMENT :-
1. Being aggrieved by the common judgment and
award dated 26.4.1995 passed by the Member, Motor
accident Claims Tribunal, Ahmednagar in MACP
No.51/1987 and 52/1987, the original claimants have
2 FA 135.1999.odt
preferred this appeal to the extent of the judgment and
award passed in MACP No.52/1987.
2. Brief facts, giving rise, to the present appeal are as
follows :-
a] The accident had taken place on 5.1.1986 at about
12.30 noon on Nagar-Pathardi Road. Deceased Nashir
and his elder brother Jahangir were travelling in a truck
bearing registration No.MHF/7570. These two brothers
were working as fruit vendor at Pathardi and on that
day they were going to village Pathardi from their
residential village Tisgaon for selling bor fruits. They
had taken with them a gunny bag weighing 50 kgs
when they left their house in the morning. They were
travelling in the said truck alongwith the goods/fruits.
On way, said vehicle truck turned turtled. In
consequence of which, Nashir who was 12 years old died
on the spot, whereas his brother Jahangir had
sustained severe injuries. He was immediately taken to
Rural Hospital Pathardi. The appellants claimants have
preferred MACP No.52/1987 for grant of compensation
in respect of death of deceased Nashir. It has been
3 FA 135.1999.odt
contended in the claim petition that deceased Nashir
was the earning member in the family and as such the
appellants claimants lost his future income. They were
depending on the income of their two sons.
b] Respondent no.1 driver has not filed his written
statement and therefore, hearing of the claim petition
ordered to proceed without his written statement.
c] Respondent no.2 owner of the vehicle truck has
filed his written statement. It has been admitted in the
written statement that those two brothers were
travelling in the truck by paying freight charges of Rs.3
each. They were carrying goods with them from Tisgaon
for destination of Pathardi. It has been further denied
that, respondent driver had driven the said truck in a
rash and negligent manner. It has specifically
contended that the accident had taken place due to
sudden burst of the tyre, for which the respondent
driver was not responsible.
d] Respondent No.3 Insurer has strongly resisted the
claim petition by filing written statement. It has been
4 FA 135.1999.odt
contended in the written statement that, the said truck
involved in the accident had no permit to carry
passengers and as such respondent insurer is not liable
to pay any compensation.
e] The appellants-claimants have adduced oral and
documentary evidence in support of their contentions.
Respondents, however, have not adduced any evidence.
The learned Member of the Tribunal by its impugned
judgment and Award dated 26.4.1995 dismissed both
the claim petitions. The appellants original claimants
have preferred this appeal to the extent of death claim
bearing MACP No.52/1987.
3. The learned counsel for the appellant submits that
the Tribunal has dismissed the claim petition bearing
MACP No.52/1987 mainly on the ground that eye
witness Rajmal Lalwani has stated in his examination in
chief that the accident had taken place as rod under the
steering wheel came to be broken. The Tribunal has
observed in the impugned judgment that it is a case of
accident pure and simple and falls too short of showing
5 FA 135.1999.odt
that the accident originated out of any rash and
negligent driving on the part of the driver of the truck
which act is a lynch pin in proving the accident in a
compensation cases. Learned counsel submits that
said witness Rajmal Lalwani has given all the details
about rash and negligent driving on the part of the
driver of the truck. He has deposed that, the driver of
the truck had raised speed of the truck soon after they
left the village Tisgaon. Even he had asked the
respondent driver to reduce the speed. Even, on curve,
the driver of the said truck has not reduced the speed,
and as such, the vehicle turned turtled. He has further
deposed that respondent driver of the said truck was
not able to control the vehicle and hence the accident
was caused. Learned counsel submits that, the
Tribunal has given weightage to the said stray
answer/admission of witness Rajmal Lalwani and
accordingly dismissed the claim petition. Learned
counsel submits that the Tribunal has also erroneously
exonerated the insurance company. Deceased Nashir
was earning Rs.10/- per day, corresponds to Rs.300/-
p.m. As per the relevant multiplier in consonance with
6 FA 135.1999.odt
his age, the appellants claimants are entitled for the just
and reasonable compensation.
4. The learned counsel for the appellants-claimants
in order to substantiate his contentions placed his
reliance on judgment in case of Smt. Indra Sharma and
others Vs. Chairman, RSEB, Jaipur, reported in AIR
1998 Rajasthan page 140 (Rajasthan High Court).
5. None appears for the respondents.
6. In the instant case, even though respondent owner
has not raised any specific plea about mechanical defect
in the truck involved in the accident, the Tribunal has
considered the same. Though the appellants-claimants
have succeeded in proving rash and negligent driving on
the part of the respondent driver, the Tribunal has not
considered the same and on the basis of so called
mechanical breakdown dismissed the claim petition in
toto. It appears that, respondent owner has raised a
plea that the accident had taken place due to burst of
the tyres, however, in order to substantiate the said
7 FA 135.1999.odt
plea/defence, respondent/owner has not examined
himself before the court nor examined his driver.
Furthermore, respondent-owner has not adduced any
documentary evidence to substantiate his contention
such as inspection report of the vehicle etc.
7. In a case Smt. Indra Sharma and others Vs.
Chairman, RSEB, Jaipur (supra) relied upon by the
learned counsel for the appellants-claimants, in the
identical facts, Rajasthan High Court has held that, in
absence of the pleadings and legal evidence to show that
vehicle was in roadworthy condition on ill-fated day of
accident, before commencement of its journey and
owner/driver have taken all reasonable care, yet defect
remained hidden, the plea of the mechanical breakdown
cannot be considered. However, negligence on the part
of owner and its driver in causing the accident
established beyond pale of doubt. Thus, finding of the
Tribunal that accident occurred due to sudden
mechanical breakdown and not by rash and negligent
driving, not proper.
8 FA 135.1999.odt
8. In the instant case, the claimants have examined
eye witness to the accident, who has deposed about
rash and negligent driving on the part of the driver of
the truck. Even though, he has given warning to the
driver of the truck to reduce the speed on the curve, the
driver has increased the speed of the vehicle truck and
as such, the truck turned turtled. In absence of any
specific plea on the part of the respondent-owner about
mechanical breakdown, on the basis of stray admission
given by the eye witness who is not an expert person,
the Tribunal has dismissed the claim petition. In view of
the above I record my findings in the affirmative to issue
no.1 and hold that the accident took place due to rash
and negligent driving of the truck bearing registration
No.MHF-7570 by its driver. The tribunal has exonerated
the respondent-insurer for the reasons that deceased
Nashir was travelling in the goods tuck as a passenger.
In th case of New India Assurance Co. Ltd. Vs. Asha
Rani and Ors. reported in AIR 2003 SC 607 the
Supreme Court has observed that where the accident
took place before the amendment of Section 147(1) of
the Motor Vehicles Act, 1988 in 1994, the insurance
9 FA 135.1999.odt
company will not be liable for death or injuries
sustained by the owner of the goods or his authorized
agent traveling in the goods vehicle. The Supreme Court
held that, insurer will not be liable to pay the
compensation to the owner of the goods or his
authorized representative on being carried in a goods
vehicle, when the vehicle meets with an accident and
the owner of the goods or his representative dies or
suffers any bodily injury.
9. In the instant case, the incident had taken place
the year 1986 and admittedly, deceased Nashir was
travelling in the said truck alongwith his goods by
paying fare to the driver of the truck. Learned counsel
for the appellant has taken me through the Insurance
policy Exh.25/1. On perusal of the same, it appears
that the respondent insurer has accepted the liability
towards third party and further by accepting additional
premium, liability towards paid driver and cleaner
accepted. Though there is a column about the coverage
of liability to a non-fare paying passenger, said column
is kept blank and as such, liability towards non-fare
10 FA 135.1999.odt
paying passenger is also not covered. In this case,
admittedly, deceased Nashir alongwith his brother was
travelling in the said vehicle as a passenger alongwith
goods by paying freight to the respondent owner. The
learned Member of the Tribunal has therefore rightly
exonerated the respondent insurer from the liability to
pay the compensation in view of the authoritative
pronouncement of the Supreme Court in the judgment
of New India Assurance Co. Ltd. Vs. Asha Rani and
Ors. reported in AIR 2003 SC 607 referred supra.
10. So far as quantum of compensation is concerned,
in paragraph no.17 of the judgment, the Tribunal
though dismissed the claim petition, in order to answer
all the issues, worked out the compensation for which
the claimants are entitled. I do not find any fault in the
said determination of the compensation. The appellants
claimants are thus entitled for an amount of
Rs.57,600/- towards compensation in respect of the
accidental death of their son Nashir from respondents
No.1 and 2, who are jointly and severally liable to pay
the same alongwith interest. Hence, following order.
11 FA 135.1999.odt
O R D E R
I] First Appeal is hereby allowed with costs.
II] The judgment and Award dated 26.4.1995
passed by the Member, Motor Accident Claims
Tribunal, Ahmednagar in MACP No.52/1987 is
hereby quashed and set aside.
III] The MACP No.52/1987 is hereby partly
allowed.
IV] The respondents No.1 and 2 do pay an amount
of Rs.57,600/- (Rs. Fifty Seven Thousand six
hundred) inclusive of 'No Fault Liability'
amount of Rs.15,000/- already paid to the
claimants alongwith interest @ 6% p.a. from
the date of application till realization of the
entire amount.
V] MACP No.52/1987 is hereby dismissed against
respondent No.3 - Oriental Insurance
Company Ltd Ahmednagar.
VI] Award be drawn up accordingly.
VII] First Appeal is accordingly disposed of.
sd/-
( V.K. JADHAV, J. )
aaa/- .....
