Balasaheb Digamber Patange vs Pandurang Hanumant Gaike And Anr
2017 Latest Caselaw 5817 Bom

                                       1       fa731.07

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                AURANGABAD BENCH, AURANGABAD

                  FIRST APPEAL NO. 731 OF 2007

Balasaheb s/o Digamber Patange,
age 37 years, occ. Service,
R/o Sojwala, Tq.Ambajogai,
District Beed                                     ... Appellant
                                                  Orig. Claimant

                 VERSUS

1] Pandurang s/o Hanumant Gaike,
   age major, occ. 
   R/o Waghala (Radi),
   Tq. Ambajogai, Dist. Beed,

2] National Insurance Co.Ltd.,
   through its Divisional Manager,
   Hajari Chambers, Station Road,
   Aurangabad,

3] Rajabhau Nagorao Raut,
   age major, occ. Driver,
   R/o Varapgaon, Tq.Ambajogai,
   District Beed                  ... Respondents
                                  R.Nos. 1 and 2 
                          Orig.Resp.nos. 1 and 2 

                       .....
Mr. S.G.Chapalgaonkar, advocate for the appellant
Mr. D.S.Kulkarni, advocate for respondent no.2
                       .....


                                  CORAM : K.L.WADANE, J.
      
                               Reserved On        : 08.08.2017
                               Pronouncement on   : 10.08.2017




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JUDGMENT :

Being aggrieved and dissatisfied by the

judgment and order, passed by the Member,

Maharashtra Accident Claims Tribunal, Ambajogai in

Motor Accident Claim Petition No. 250 of 2000,

dated 5.3.2007, the appellant/original claimant

has filed the present appeal.

2. Brief facts may be stated as follows.

On 10.8.1999 at about 8.30 p.m. deceased

Digambar was coming from sugar factory on Latur-

Ambajogai road. Auto rickshaw bearing

registration No. MH-23/C-138 came from village

Waghala and gave dash to the deceased. Due to the

dash, deceased fell down on the road and sustained

various injuries. Deceased was admitted as indoor

patient in various hospitals and ultimately died

in the Rural Hospital, Kaij on 22.10.1999.

3. Incident took place due to rash and

negligent driving of rickshaw driver. Offence

came to be registered against rickshaw driver.

4. Respondent no.1 was the owner of rickshaw

and same was insured with Respondent no.2. After

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the accident, the deceased was immediately taken

to the S.R.T.R. Medical College Hospital,

Ambajogai and thereafter he was referred to the

higher station for better medical treatment, but

ultimately he died in Rural Hospital, Kaij on

22.10.1999.

5. The deceased was serving as Telephone

Operator and earning Rs.6,035/- per month. Entire

family of the deceased is depending upon him. As

per the request of relatives of deceased,

postmortem was not performed on the dead body of

Digambar. Hence, the petitioner has claimed total

compensation of Rs. 4 Lakhs on all counts.

6. Respondent no.2 has resisted the claim

petition on the ground that the vehicle was not

insured with Respondent no.2. The ownership of

the vehicle was not known. The deceased died due

to improper medical treatment, but not due to

accidental injuries. By way of additional written

statement, Respondent no.2 contended that deceased

died due to any other reasons and appellant is not

the dependent.

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7. Considering the rival contentions of both

the sides, issues were framed at Exh.41. In order

to prove the claim, claimant entered into witness

box and deposed at Exh.45 by way of filing

affidavit under the provisions of Order XVIII Rule

4 of the Civil Procedure Code. In addition to his

evidence, the claimant relied upon the copy of

first information report and the spot panchanama

Exs. 47 and 48, respectively. As against this, no

evidence is adduced on behalf of the Respondents.

8. I have heard learned counsel Mr.

Chapalgaonkar appearing for the appellant/original

claimant and Mr. D.S.Kulkarni, learned counsel for

Respondent no.2. Considering the evidence on

record and upon hearing both the sides, following

points arise for my determination.

(i) Whether the appellant proves that deceased Digambar died due to motor accident which took place on 10.8.1999 due to rash and negligent driving of auto rickshaw no. MH-23/C-138 by its driver ?

(ii) Whether the appellant proves that he is entitled for compensation ? If yes, to what extent ?

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9. At the out set, it is material to note

that claim of the appellant was rejected on very

technical ground. It is observed by the learned

Member of the Tribunal that the appellant in

cross-examination has admitted that he has not

personally seen the accident.

10. The appellant relies upon the observations

by the learned Member of the Tribunal, as follows.

From the first information report Exh.47,

it seems that the police had registered offence in

view of oral information given by the appellant.

The information with the police was lodged on next

day. Panchanama was drawn on 11.8.1999. It is

pertinent to note that though the first

information report is lodged by the present

appellant, no evidence is placed on record to show

that the police has ultimately came to the

conclusion on the basis of evidence that due to

rash and negligent driving of rickshaw driver the

death occurred, and hence, ultimately filed charge

sheet against the driver of auto rickshaw. It is

necessary because even after getting first

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information report in respect of particular crime,

if investigating officer finds that there is

substance or evidence against the accused, then

instead of filing charge sheet the investigating

officer can seek any other summary, such as 'B',

'C', etc. So, only because the first information

report is lodged, it does not mean that the police

machinery ultimately came to the conclusion that

the death of Digambar took place due to rash and

negligent driving of auto rickshaw driver. Even

the first information report is in respect of

offences punishable under Sections 279 and 338 of

the Indian Penal Code and not under Section 304A

of the Indian Penal Code.

With the above observations, the learned

Tribunal has arrived at a conclusion that

negligence on the part of rickshaw driver has not

at all been proved.

11. By way of filing Civil Application No.

9281 of 2017 the appellant has prayed to adduce

additional evidence and wants to bring on record

copy of charge sheet filed against the rickshaw

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driver, which is allowed. I have carefully gone

through the contents of the charge sheet. On

perusal of the same, it appears that the charge

sheet was filed against rickshaw driver for the

offences punishable under Sections 279 and 338 of

the Indian Penal Code. It appears so, because

charge sheet came to be lodged on 13.10.1999 and

admittedly the date of death of Digambar was on

22.10.1999 i.e. after submission of charge sheet.

12. It is true that the appellant was not the

eye witness to the accident, however, fact of the

accident and negligence of driver can be proved by

way of adducing other evidence and to prove the

negligence of rickshaw driver, the appellant has

produced on record copy of first information

report Exh.47. On plain reading of contents of

first information report, it appears that the

accident occurred due to rash and negligent

driving of rickshaw by its driver, by which

rickshaw gave heavy dash to the deceased from

backside.

13. In addition to that, the appellant is

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allowed to produce additional evidence and the

copy of charge sheet is taken on record. So,

ultimately, the police authority has concluded

that the accident occurred due to rash and

negligent driving of rickshaw by its driver and

because of subsequent death of Digambar the charge

sheet appears to be filed for the offences

punishable under Sections 279 and 338 of the

Indian Penal Code.

14. The first information report is a public

document in view of provisions of Section 74 of

the Evidence Act and its contents can be proved by

producing its certified copies on record as per

the provisions of Section 77 of the Evidence Act.

15. Learned counsel Mr. Chapalgaonkar

appearing for the appellant has relied upon the

observations of the Apex Court in the case of

Oriental Insurance Co. Ltd. Vs Premlata Shukla and

others, reported in 2007 AIR SCW 3591.

"13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other

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contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them."

16. So in view of provisions of the Evidence

Act and the observations in the judgment of the

Supreme Court, the contents of the first

information report can be taken in to

consideration. Thus, the appellant has proved

that the accident occurred due to negligence of

the rickshaw driver.

17. The defence of Respondent no.2 is that the

deceased died due to improper medical treatment or

some other reasons, but this fact is not proved by

Respondent no.2.

18. From the record, it appears that

immediately after the accident injured Digambar

was initially taken to the S.R.T.R. Medical

College Hospital, Ambajogai on 10.8.1999 and he

was indoor patient till 17.8.1999. Thereafter he

was referred to Apex Hospital at Latur and was

discharged on 23.8.1999. Again on the same day he

was admitted in S.R.T.R. Medical College Hospital

at Ambajogai till 10.9.1999. Again he was

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admitted in Rural Hospital, Kaij on 10.9.1999 and

he was there till 18.9.1999. Again he was

referred to the Apex Hospital, Latur on 19.9.1999.

Again he was admitted in Rural Hospital, Kaij on

21.9.1999 and ultimately he died on 22.10.1999.

So, apparently from the record, it reveals that

till the death of deceased Digambar he was indoor

patient and on the request of the relatives of the

appellant postmortem examination was not conducted

and this is very much clear from the contents of

certificate issued by the Medical Superintendent,

Rural Hospital, Kaij. From the same, it appears

that the deceased was admitted in Rural Hospital

at Kaij on 10.9.1999 for accidental head injury

and he died there on 22.10.1999 at 11.30 night.

Therefore, from all the documentary evidence

produced on record, including injury certificate,

papers of medical treatment and the death

certificate, it is crystal clear that the deceased

Digambar died due to injuries sustained by him in

the motor vehicle accident due to rash and

negligent driving of rickshaw by its driver.

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19. It is the contention of the appellant and

it is evident from the oral evidence of the

appellant as well as salary certificate dated

9.10.1999.

20. The document salary certificate ought to

have been exhibited by the learned Tribunal, since

this document is referred in the affidavit of the

appellant and its contents are proved by oral

evidence of the appellant. However, it appears

that the learned advocate appearing for the

appellant in the trial court has not taken care to

refer this document for the purpose of its

exhibition nor the learned Tribunal has exhibited

the document in spite of same being referred in

the evidence of the appellant. Therefore, this

document is deemed to be proved. From the same,

it appears that deceased Digambar was serving as a

Telephone Operator with Ambajogai Sahkari Sakhar

Karkhana Limited Amba Karkhana and his gross

salary was Rs.6,035/- per month, out of which

professional tax has to be deducted. After such

deduction, gross salary of the deceased comes to

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Rs.5,915/-. 5,915 x 12 months comes to

Rs.70,980/-. Out of the above amount, 1/3 rd is

required to be deducted towards personal expenses,

which comes to Rs.23,660/-. Net dependency comes

to Rs. 47,320/-. At the time of death, the

deceased was aged above 50 years. Taking the

appropriate multiplier of 11 and net dependency of

Rs.47,320 x 11 = 5,20,520/- for which the

appellants are entitled on account of loss of

dependency. In addition to that, the appellant is

entitled for non-pecuniary damages, such as loss

of love and affection, loss of estate and funeral

expenses. Thus, the appellant is entitled for

compensation of Rs.2,00,000/- on account of above

three heads. In addition to that, the appellant

is entitled for actual medical expenses of

Rs.39,511/- as are placed on record. Thus, the

total compensation comes of Rs.7,60,031/-, to

which the appellant is entitled to, together with

interest of 6 per cent per annum from the date of

petition till its realization.

21. In view of above, I record my finding to

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the above points in affirmative and proceed to

pass the following order.

(i) First Appeal No. 731 of 2007 is

allowed.

(ii) The judgment and order, passed by

the learned Member, Motor Accident Claims

Tribunal, Ambajogai, in Motor Accident

Claim Petition No. 250 of 2000, dated

5.3.2007 is quashed and set aside.

(iii) Application under Section 166 of

the Motor Vehicles Act is allowed.

(iv) The respondent is directed to pay

compensation amount of Rs.7,60,031/-

together with interest of 6 per cent per

annum to the appellant from the date of

petition till its realization.

(v) Claimants claimed total compensation

of Rs.4,00,000/-. Therefore, the

claimants are to deposit deficit court

fee as the compensation awarded by the

order is Rs.7,60,031/-.

(vi) In the circumstances, there shall be

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no order to costs.

(K.L.WADANE, J.) dbm