Kishor Madhukarrao Thaokar vs Chief Ex. Officer And 2 Ors
2017 Latest Caselaw 9571 Bom

                                                  1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



First Appeal No. 719  of 2006

 

Appellant :              Kishor son of Madhukarrao Thaokar, aged about
                         31 years, Occupation:  Nil, resident of New 
                         Nandanvan Layout, Nagpur

                         Versus

Respondents:             1)    Chief Executive Officer, Zilla Parishad, 
                         Civil Lines, Nagpur

                         2) Anil son of Tukaram Dhore, aged about 
                         40 years, Occ:  Business, resident of Beldar
                         Nagar, Opp. Old Dighori Naka, Nagpur

                         3)  The Oriental Insurance Co. Ltd., Nagpur,
                         through Branch Officer No. 3, Shukla Bhavan,
                         W.H.C. Road, Dharampeth, Nagpur 

-------------------------------------------------------------------------------------------

Ms Suman Chokhare, Advocate for appellant Shri B. M. Lonare, Advocate for respondent no. 1 Respondent no. 2 served Shri D. N. Kukday, Advocate for respondent no. 3

Coram : S. B. Shukre, J

Dated : 13th December 2017

Oral Judgment

1. This appeal challenges the legality and correctness of the

judgment and order dated 29th June 2006 delivered in Claim Petition No.

143 of 1995 by the Member, Motor Accident Claims Tribunal, Nagpur.

2. The accident in the present case occurred on 3.10.1994 at

about 07.30 pm on Nagpur-Kuhi Road. It was in the nature of a dash

given to a 2-wheeler, a Luna moped, bearing registration No. MJT-5677

by a bigger vehicle, a commander Jeep bearing registration No. MH-31-G-

9123. At that time, the appellant was driving the Luna moped and his

uncle was its pillion rider. They were coming towards Nagpur from Kuhi

and whereas the jeep was proceeding from Nagpur side towards Kuhi

side. The jeep was owned by respondent no. 1 and driven by respondent

no. 2 at the time of accident. The moped was insured with respondent

no. 3 at the time of accident. When these vehicles came near Bhatra

bifurcation, it appears that the driver of the commander jeep lost control

over his vehicle and gave a dash to Luna moped. Resultantly, the rider

and the pillion rider both sustained injuries. But the injuries suffered by

rider of moped were more severe in nature requiring him to be admitted

to a hospital for a period of about one and half months. He sustained

injuries to his head and compound fracture to his leg, hand etc. He was

required to incur considerable expenses for his medical treatment and

also bear considerable amount of pain and agony. His earning capacity

was also affected and after his discharge from the hospital, he found that

it was permanently reduced. At the time of accident, he was aged about

20 years and a bachelor. He used to earn Rs. 1500/- per month.

3. The claim petition was accompanied by an application under

Section 140 of the Motor Vehicles Act claiming compensation on account

of no fault liability. The reply to this application was filed by respondent

no. 1. It is stated that there was no permanent disability suffered by the

appellant and that respondent no. 1 or his driver was not liable to pay the

compensation, there being no fault on the part of the driver of the vehicle

owned by respondent no. 1, a commander jeep.

4. Respondent no. 2 did not file any reply nor did he file any

Written statement. Respondent no. 1 adopted the reply filed by it to the

application under Section 140 of the Motor Vehicles Act as his Written

Statement. Respondent no. 3 filed its Written Statement and contested

the petition on the ground that the Insurance Policy being "an act" policy,

covered only the risk of third-party and did not cover the risk of the rider

and that in any case, the appellant/rider possessing no driving licence to

drive a Luna moped, was not entitled to receive any compensation in this

case.

5. The Tribunal granted application under Section 140 of the

Motor Vehicles Act after hearing the parties and it was only against

respondent no. 1. The no-fault liability was not fastened upon

respondents no. 2 and 3, the reason being that at that time, respondents

no. 2 and 3 were not impleaded as parties. The application filed under

Section 166 of the Motor Vehicles Act, on merits of the case, was partly

allowed by the impugned judgment and order holding that there was a

contributory negligence on equal basis on the part of the appellant-driver

of Luna moped and driver of commander jeep owned by the respondent

no. 1 and accordingly fixing the liability to pay the compensation to the

appellant to the extent of 50% of the amount determined by it only upon

respondent no. 1. Not being satisfied with the apportionment of the

liability in this way, the appellant is before this Court in the present

appeal.

6. I have heard Ms Chokhare, learned counsel for the appellant;

Shri B. M. Lonare, learned counsel for respondent no. 1 and Shri D. N.

Kukday, learned counsel for respondent no. 3. None appears for

respondent no. 2 though duly served.

7. The points that arise for my determination are -

(1) Whether the Tribunal has rightly found the

contributory negligence on the part of appellant and

respondent no. 2 ?

(2) Whether the compensation granted by the Tribunal

is just and proper ?

8. According to learned counsel for the appellant, a serious

error has been committed by the Tribunal in appreciating the evidence

available on record which has resulted in recording of a perverse finding

by it as regards the contributory negligence of the appellant. She has

taken me through the evidence available on record. She also placed

reliance upon the case of Shivputra Mahadevappa Hadapad v. State of

Mysore reported in 1970 Cri. L. J. 1551.

9. Shri Kukday, learned counsel for respondent no. 3 submits

that no liability has been fastened upon respondent no. 3 and the findings

recorded in that regard are correct.

10. In the case of Shivputra (supra), the learned single Judge of

the Mysore High Court by relying upon the law laid down by the Hon'ble

Apex Court in the case of Suleman Rahiman Mulani v. State of

Maharashtra reported in AIR 1968 SC 829 has held that absence of

licence does not create any presumption of rash and negligent driving so

as to convict such driver for the offence punishable under Section 304A of

the Indian Penal Code. In Suleman Rahiman Mulani (supra) relied upon

by the learned single Judge of the Mysore High Court, the Hon'ble Apex

Court, while dealing with the criminal case registered for the offence

punishable under Section 304-A of the Indian Penal Code, observed that

there has to be direct nexus between the death of a person and the rash or

negligent act of the accused and only because the person did not hold

driving licence at the time of accident, it could not be held that just for

that singular reason, there was rashness and negligence on the part of

driver which resulted in the death of a person. In that case, the

evidence was available to show that even though the the accused did not

possess valid driving licence, the accused had acquired proficiency in

driving. The Hon'ble Supreme Court held that in such a case the only

question which must be decided by the Court is as to whether or not at

the relevant time, the accused was competent to drive and his

incompetence was the cause of death of a person.

11. In the present case, there is no death occurred. This case is

also not a criminal case. But the proposition that there has to be a direct

nexus between rashness and negligence in driving the vehicle and the

death of a person can also be applied to a case like the present, filed

under Section 166 of the Motor Vehicles Act. Reason being that this case

involves a claim for compensation made under Section 166 of the Motor

Vehicles Act and such claim is based upon "fault liability" principle,

which would oblige this Court to find out whether the cause of accident

was the rashness and negligence of the driver of the offending vehicle or

not and this cannot be found out unless there is present direct nexus

between the accident and the rashness/negligence of the driver. Seen this

way, let us now consider the evidence available on record.

12. In the present case, neither the appellant nor respondents no.

1 and 2 have produced on record any material from which one could

ascertain the location of the vehicles after occurrence of the accident.

There is a spot panchanama at exhibit 54, which is a photostat of the

original spot panchanama. Regrettably, for the most important part of it,

the situation of the vehicles, this document is illegible and I wonder, how

it has been exhibited and admitted in evidence by the Tribunal. The

situation of the vehicles post accident appears to be stated in paragraph 2

of this document. But, the crucial line indicating the place where the

moped was lying after the accident, is not legible. The appellant who

examined himself as P. W. 1 also does not give any clarification in this

regard. He was an eye witness to the accident and yet, he does not state

anything about the side, that is to say, left or right side of the road, by

which he was riding Luna moped. He vaguely says that he was driving it

by the side of the road, though he could have very well said that he drove

the Luna moped by keeping it on correct side of the road. But, he did not.

He also did not say anything about side of the road by which the

commander jeep was being driven by its driver. He only states that

commander jeep came from the opposite direction and gave a dash to his

2-wheeler. He adds that while he was cautious in driving the Luna

moped, driver of the commander jeep was not. One does not know what

he meant by cautious driving of the 2-wheeler. He should have stated the

manner in which the Luna moped was being driven by him. Specific

evidence in this regard should have been led by the appellant. But,

unfortunately, that is not the case. Respondent no. 2 was also careless

about his stand or defence. He did not file any Written Statement and

refused to enter the witness box. He was another eye witness who could

have helped the Tribunal in discovering the truth. But, he also did not do

his bit. In the circumstances, this Court would have to take stock of the

evidence available on record by considering whatever are the facts

established on record and the circumstances borne out from the record.

13. The cross-examinations of P. W. 1 taken on behalf of

respondent no. 1 and respondent no. 3 do not show that any useful

material has been brought out on record through the answers of this

witness. The only relevant circumstance brought on record is that P. W.

1 who was driving the Luna moped did not possess any licence to drive

the vehicle. But, sofar as the point of rashness and negligence is

concerned, there is nothing in his cross-examination to help the Court to

find out the truth.

14. Respondent no. 2, as stated earlier, could have entered the

witness box and if he had, he would have perhaps thrown much light on

the manner in which the accident took place. But, that did not happen.

There is no explanation offered by the owner of the commander jeep

(respondent no.1) and its driver (respondent no. 2) as to what prevented

them to examine one of the most important witnesses, the respondent no.

2. This conduct of respondents 1 and 2, particularly, respondent no. 2

would, therefore, have to be seen in an adverse manner. There is one

more relevant fact which needs consideration. The First Information

Report (exhibit 53) discloses that after the accident, respondent no. 2 ran

away from the spot of the accident and the First Information Report was

lodged by one Anil Dhore, the pillion rider of Luna moped. The appellant

was alive and lay in pain on the road after having sustained severe

injuries to his head, right hand and left leg. The two-wheeler had been

damaged and was not in order to be plied immediately after the accident.

On the other hand, the damage suffered by the commander jeep was not

of such a nature as to render it inoperable. In these circumstances, first

duty of respondent no. 2, the driver of the commander jeep, was to

remove the injured person immediately to the nearest hospital and then

inform the police of the accident. Admittedly, respondent no 2 did not

perform his first duty as well as second duty. Obviously, this was

because respondent no. 2 felt guilty of his conduct which was steeped in

rash and negligent driving of the commander jeep. These facts

cumulatively show that it were only the driver of commander jeep

(respondent no. 2) who must have been responsible for causing of the

accident. Had it not been so, he would have immediately removed the

appellant to nearest hospital for medical treatment, informed the police

about the accident and also entered the witness box to reveal the relevant

facts. But, he did not, thereby indicating that the fault for the accident

lay entirely in his court. These crucial aspects of the case have not been

considered at all by the Tribunal. These aspects, I must say, now

considered, have clinched the issue in favour of the appellant and they

reasonably show that the appellant must not have been but respondent

no. 2 must have been at fault in occurrence of the accident, which I do

hold accordingly. So, the appellant should not have been held

responsible for causing of the accident, muchless half of it and he is not in

any way.

15. In the circumstances, I find that the Tribunal has not

appreciated the evidence available on record in a logical and rational

manner and has committed serious illegality in reaching a finding that

there was contributory negligence on the part of the appellant. This

finding needs to be corrected and by doing so, I find that the accident

occurred only due to rashness and negligence shown by the driver of the

commander jeep (respondent no. 2) owned by respondent no. 1 and that

there was no fault on the part of the appellant. First point is answered

accordingly.

16. Sofar as the aspect of quantum of compensation is concerned,

I am of the view that some correction seems to be necessary. The loss of

income has been rightly calculated by the Tribunal. But, the Tribunal has

not granted anything on account of actual loss of earning and also under

the head of marriage prospects. Although the appellant has claimed his

actual loss of earning for four months @ Rs. 1500/- per month, I do not

think that this claim can be wholly granted. The appellant was in the

hospital for a period of about 1 ½ months and to this period of

inactivity, further fifteen days on account of his recuperation post

discharge from the hospital can be added. So, for a period of two months,

the appellant should be taken to have not earned anything and as such,

amount of Rs. 3000/- @ Rs. 1500/- per month could be additionally

granted to the appellant on account of his actual loss of earning, which I

do grant.

17. As regards loss of marriage prospects, learned counsel for the

appellant placed reliance upon the case of Sanjay Kumar v. Ashok

Kumar & anr reported in I (2014) ACC 372 (SC) wherein the Hon'be

Supreme Court granted an amount of Rs. 75000/- towards loss of

marriage prospects. The same amount cannot, however, be granted

towards loss of marriage prospects of the appellant in the present case.

The reason being that the amount of Rs. 75000/- under this head was

granted by the Hon'ble Supreme Court for the reason that there was

amputation of left leg of the claimant therein, which is not the case here.

The permanent disability certificate bears photograph of the appellant and

this photograph apparently does not show any disfigurement of any part

of the appellant. Ordinarily, to stake a claim of this nature, specific

evidence is not necessary as the disability speaks for itself. But, in view of

what is borne out from the disability certificate, some evidence was

required here. However, the appellant has not led any to specifically

establish his claim that his name has taken a beating as regards the

prospects of his marriage. However, considering the fact that the

appellant has suffered permanently 25% of disability and there is also

uncontroverted evidence of the appellant indicating that his permanent

permanent disability has adversely affected his functional ability which is

again a case of some evidence to a limited extent, it can be presumed that

there is some difficulty experienced by appellant in this regard and so,

reasonable amount under the head of loss of marriage prospects could be

granted to the appellant. This amount, in my view, would be of Rs.

20,000/-.

18. In view of above, I find that the appellant is entitled to

additional amount of Rs. 23000/- (Rs. 3000/- for actual loss of earning

and Rs. 20,000/- for loss of marriage prospects). However, the appellant

would not be entitled to receive anything more apart from these two

amounts under such heads as expectations of life and pain & suffering for

the reason that the functional disability of the appellant is not of such a

nature as would deprive him of the amenities of life in any manner and

for pain and suffering, the appellant has already been grated reasonable

compensation. The second point is answered accordingly.

19. In the result, I hold that the appellant is entitled to receive

compensation of Rs. 76,500/- (+) Rs. 23,000/- = Rs. 99,500/-

together with interest @ 7% per annum from the date of petition till

actual realization, which would be inclusive of no-fault liability amount

and the same shall be payable to the appellant by respondents no. 1 & 2

jointly and severally. Exoneration of respondent no 3 from the liability to

pay the compensation by the Tribunal, is confirmed. The appeal is partly

allowed and the impugned judgment and order stand modified in the

above terms. Parties to bear their own costs.

S. B. SHUKRE, J

joshi