Bombay High Court

Kamalbai Arjun Bhalekar And ... vs Sanjay Pandhari Potbhare And ... on 4 July, 2017

Bench: V.K. Jadhav

                                           1                  F.A.No.2659/2013

                                       REPORTED

                     IN THE HIGH COURT OF JUDICATURE AT

                                          BOMBAY

                                   BENCH AT AURANGABAD.


                               FIRST APPEAL NO.2659 OF 2013



          1. Kamalbai W/o Arjun Bhalekar,
          Age 50 years, Occ.Household,

          2. Sangita W/o Ramesh Bhalekar,
          Age 30 years, Occ.Household.

          3. Balaji S/o Ramesh Bhalekar,
          Age 11 years, Occ.Household,

          4. Jyoti D/o Ramesh Bhalekar,
          AGe 18 years, Occ.Nil.

          5. Nita D/o Ramesh Bhalekar,
          Age 13 years, Occ.Nil.

          6. Bharat S/o Ramesh Bhalekar,
          Age 7 years, Occ.Nil,

          All R/o Village Manjari,
          Tq. Latur, Dist.Latur.

          The claimant Nos.3,5 and 6 are
          minors, u/g of their mother
          Appellant No.2.               ...Appellants.


                           Versus

          1. Sanjay S/o Pandhari Potbhare,
          AGe major, Occ.Business,
          R/o Village Manjari, Tq.
          and Dist.Latur.

          2. The Manager,
          The New India Assurance Co.Ltd.




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                                              2                     F.A.No.2659/2013

          Chandra Nagar, Near Bus
          Stand, Latur.                                  ... Respondents.


                                                 ...


          Mr.R.P.Adgaonkar, advocate for the Appellants.
          Mr.Amit Yadkikar, advocate for Respondent No.1.
          Mr.M.M.Ambhore, advocate for Respondent No.2.
                                   ...

                                   CORAM : V.K.JADHAV,J.

                                   Date     : 04.07.2017.

          ORAL JUDGMENT            :


          1.               Heard       finally     with       consent          at      the

          admission stage.



          2.               Being       aggrieved       by   the      judgment          and

award passed by the Member of the Motor Accident

Claims Tribunal,Latur, in MACP No.323/2010

dt.2.5.2013, the original claimants have

preferred this appeal.

3. Brief facts giving rise to the present

appeal are as follows :

i) On 29.9.2010, in between 6 to 6-30 p.m.

on Manjari Samangaon road within the limits of

village Manjari, Tq. and District Latur, deceased

Arjun was hit by a tum tum auto rickshaw bearing

registration No.MH-44-A-1084. Deceased Arjun was

a pedestrian at the time of accident. After the

vehicular accident, deceased was brought to his

house in an injured condition in the same auto

rickshaw. However, on reaching to the home, he

was found dead.

ii) The claimants/legal representatives of

deceased Arjun approached the Tribunal by filing

MACP No.323/2010 for grant of compensation under

the various heads. It has been contended in the

claim petition that deceased Arjun at the

material time was milk vendor and he was earning

Rs.5,000/- (Rupees five thousand) p.m. out of the

said business. He was also a part time worker in

the restaurant on the monthly salary of

Rs.3,000/- (Rupees three thousand). He was

bread-winner of the family and the appellant-

claimants were depending on his income. The

appellants-claimants have therefore, claimed

compensation of Rs.3,00,000/- (Rupees three lacs)

on all the counts.

iii) The Respondent-owner of the auto

rickshaw has strongly resisted the claim petition

by filing the Written Statement. It has been

contended that the claimants in collusion with

the Police have falsely shown the involvement of

the said auto rickshaw in the vehicular accident.

It has been specifically contended that deceased

was hit by un-known vehicle.

iv) The Respondent insurer has also

strongly resisted the claim petition on the

similar grounds and also raised plea of false

involvement of the auto rickshaw in the vehicular

accident. It has been denied that the said auto

rickshaw hit the deceased. In addition to this,

the Respondent insurer has also raised a plea of

breach of terms and conditions of the policy in

the form that the driver of the auto rickshaw was

not holding valid and effective driving license

at the relevant time.

v) The appellants-claimants have adduced

oral and documentary evidence in support of the

contentions. The Respondent-owner of the auto

rickshaw has examined himself to substantiate his

contention. The Respondent-insurer has not

adduced any evidence.

vi) The learned Member of the Motor

Accident Claims Tribunal, Latur, by its impugned

judgment and award in MACP No.323/2010, dismissed

the claim petition. Hence, this appeal.

          4.               The      learned           counsel           for          the

          appellants/claimants             submits       that      on      the     very

next day of the accident the appellant/claimant

No.1 had lodged the complaint in the concerned

Police Station and on the basis of her complaint,

Crime No.65/2010 came to registered against the

unknown vehicle. The learned counsel submits

that though the said crime was initially

registered against the driver of the unknown

vehicle, it has been specifically mentioned in

the complaint that deceased Arjun was brought to

his house in injured condition in auto rickshaw

by its driver Ajay Kaka Potbhare. The learned

counsel submits that Investigating Officer has

thoroughly investigated the crime and submitted

the charge-sheet Exh.27 against the said Ajay

Kaka Potbhare. The learned counsel submits that

the appellants-claimants have succeeded in

proving the involvement of said vehicle auto

rickshaw in a vehicular accident and in the facts

and circumstances of the case the maxim "Res ipsa

loquitur" squarely applies to the case. Deceased

Arjun was a pedestrian and he was given dash by

motor vehicle. In the post mortem report Exh.29

the cause of death is due to intracranial

haemorrhage due to head injury. Learned counsel

submits that the said maxim is resorted to when

an accident is shown to have occurred and the

cause of accident primarily is within the

knowledge of the Respondent-owner. The learned

counsel submits that the Respondent-owner had not

examined his driver Ajay Kaka Potbhare to explain

as to how deceased Arjun had sustained the

injuries and as to why he was brought to his

house in injured condition in said auto rickshaw.

Learned counsel submits that said Ajay Kaka

Potbhare, the driver was in the management of the

vehicle auto rickshaw and as such by application

of said maxim burden shifts on the Respondent-

owner to prove that the driver was not negligent

in causing the death of deceased Arjun in a

vehicular accident. The learned counsel submits

that the Tribunal has not given thought to the

said maxim and dismissed the claim petition in

toto.

5. The learned counsel for the appellants-

original claimants in order to substantiate his

contention placed reliance on following cases :

i) "Maharashtra State Road Transport

Corporation Vs. Mr.Sahadev @ Sadu Aba Pore and

others" First Appeal No.956 of 1997

dt.14.12.1998;

ii) "Jagannath Narahari Naik Vs. Vasudev

Datta Malik and other" First Appeal No.197 of

2009 dt.4.1.2017;

iii) "Kusum Lata and others Vs. Satbir and

others" reported in A.I.R. 2011 Supreme Court

234;

iv) "Shyam Sunder and others Vs. The State

of Rajasthan" reported in A.I.R.1974 Supreme

Court 890;

v) "Kamalkant Chari Vs. Cajetan Manuel

Dourado and others" reported in 2011 Legal Eagle

(Bom) 2796;

vi) "Pushpabai Purshottam Udeshi Vs. Ranjit

Ginning and Pressing Company Private Limited"

reported in 1977 (2) SCC 745;

vii) "Ravi Kapur Vs. State of Rajasthan"

reported in 2012 AIR (SC) 2986;

viii) "Managing Director, North East K.R.T.C.

Vs. Devidas Manikrao Sadananda" reported in 2006

AIR (SCW) 4770;

6. The learned counsel for the Respondent-

owner submits that there is a reference in the

FIR to the effect that deceased Arjun was brought

to his house in injured condition by one Ajay

Kaka Potbhare. Merely on the basis of said

recital in the First Information Report, nothing

can be concluded. The Respondent-owner has also

denied the involvement of his vehicle in the

accident and in order to substantiate his

contention also examined himself before the

Tribunal. Though the appellants claimants have

placed on record the certified copy of charge-

sheet Exh.27, the appellants-claimants have not

examined any eye witness to the said accident or

the Investigating Officer to substantiate their

contention about the involvement of the vehicle

in the alleged incident. The learned counsel

submits that as such the evidence as adduced by

the appellants-claimants fall short to attract

the said maxim "Res ipsa loquitur". The learned

Member of the Motor Accident Claims Tribunal has

therefore, rightly dismissed the claim petition

for want of evidence about the involvement of the

vehicle owned by Respondent No.1 in the alleged

accident. The learned counsel submits that the

peculiar circumstances constituting the event or

accident should have been brought on record by

the appellants-claimants. There is no evidence

about the involvement of the said vehicle in the

accident and in absence of the said evidence,

there is no question of tendering a reasonable

explanation as to the cause of the said accident

by the Respondent-owner. The learned counsel has

referred the Law Lexicon by writer Ramanatha

Aiyar, wherein the meaning of the said maxim has

been given. The application of the said maxim

always pre-supposes that some part of the casual

process is known, but what is lacking is evidence

of its connection with the defendant's act or

omission. The learned counsel submits that no

satisfactory line can be drawn between "Res ipsa

loquitur" cases and those where it does not

apply. In the instant case in absence of any

evidence about the involvement of the vehicle in

vehicular accident, the Respondent-owner can not

be called upon to explain the cause of the

accident by applying the said maxim.

7. The learned counsel in order to

substantiate his contention also place his

reliance on the case "Shyam Sunder and others Vs.

The State of Rajasthan" reported in AIR 1974

Supreme Court 890 and "Syad Akbar Vs. State of

Karnataka" reported in AIR 1979 Supreme Court

1848.

8. The learned counsel for the Respondent-

insurer submits that the appellants-claimants

have failed to prove the involvement of the

vehicle auto rickshaw in the accident and as such

the Tribunal has rightly dismissed the claim

petition. The learned counsel submits that there

is no dispute that the strict proof of the

accident may not be required to be given by the

claimants and the claimants may prove their case

by preponderance of probabilities. However,

merely on the basis of recital in the FIR Exh.26

and filing of charge-sheet is not sufficient to

draw inference that the vehicle owned by the

Respondent No.1 came to be involved in the

accident. The appellants claimants have not

examined any eye witness or Investigation Officer

to substantiate their contention.

9. The learned counsel for Respondent No.2

however, to substantiate his submissions placed

reliance on the following cases :

i) "New India Assurance Company Ltd. Vs.

Laxman S/o Dadarao Karpe and others" First Appeal

No.2973/2013 dt. 28.7.2015(CORAM :A.V.NIRGUDE,J.)

ii) "Bajaj Allianz General Insurance

Co.Ltd. Vs. Meera W/o Raju Choudhary and others"

First Appeal No.1921/2013 dt.17.2.2014 (CORAM;

K.U.CHANDIWAL,J.),

iii) "Pukhraj Bumb Vs. Jagannath Atchut Naik

and others" reported in 2014(4) Mh.L.J.447;

iv) "Faridabegum Shaikh Yousuf and others

Vs. Daulat Khan S/o Sardar Khan (D) through L.Rs.

and another" reported in 2014(5) All MR 696;

v) "M/s La'BuilDe Corporation Vs. Union of

India and others" reported in 2014 (5) ALL MR

699;

vi) "K.E.Basavarajappa Vs. H.Chandrappa"

Misc. First Appeal No.1822/2010 dt,9.1.2012.

(CORAM: A.S.PACHHAPURE,J.);

vii) "North West Karnataka Rd.Transport

Corporation Vs. Gourabai and others" Civil Appeal

No.3171/2009 arising out of SLP (C) No.15070/2007

dt.1.5.2009;

viii) "Shabbeer Khan Vs. Gaurav Sharma and

another" reported in 2015 (4) TAC 439(Raj.).

10. On careful perusal of the evidence and

the impugned judgment and award passed by the

Tribunal, I find that the evidence in this case

falls short to attract the said maxim "Res ipsa

loquitur". Though the FIR Exh.26 came to be

filed on the very next day of the accident, the

said FIR was lodged against the driver of unknown

vehicle. Though the name of the Ajay Kaka

Potbhare was mentioned in the FIR as a person who

brought deceased Arjun in injured condition to

his house, the appellant-claimant No.1 who has

lodged the said complaint, has not even expressed

her doubt about the involvement of the said

vehicle in which deceased Arjun was brought in

injured condition to his house, however, after

due investigation, the Investigating Officer has

submitted the charge-sheet Exh.27 against said

Ajay Kaka Potbhare. The appellants-claimants

have not examined any eye witnesses nor the

Investigating Officer to substantiate their

contention about the involvement of the vehicle

in the accident. The Respondent has specifically

denied the involvement of his vehicle in the said

accident.

11. In Law Lexicon by writer P Ramanatha

Aiyar, it has been quoted that :

"The phrase "res ipsa

loquitur" is a symbol for the rule

that the fact of the occurrence of an

injury, taken with the surrounding

circumstances, may permit an

inference or raise a presumption of

negligence, or make out a plaintiff's

prima facie case, and present a

question of fact for defendant to

meet with an explanation. It is

merely a short way of saying that the

circumstances attendant on the

accident are of such a nature as to

justify a jury, in light of common

sense and past experience, in

inferring that the accident was

probably the result of the

defendant's negligence, in the

absence of explanation or other

evidence which the jury believes."

                                  It          has      been          further

                      quoted :

                                  "It is said that "res ipsa

loquitur" does not apply if the cause

of the harm is known. This is a dark

saying. The application of the

principle nearly always presupposes

that some part of the casual process

is known, but what is lacking is

evidence of its connection with the

defendant's act or omission. When

the fact of control is used to

justify the inference that

defendant's negligence was

responsible it must of course be

shown that the thing in his control

in fact caused the harm. In a sense,

therefore, the cause of the harm must

be known before the maxim can apply"

It is difficult to draw line between "res ipsa

loquitur" cases and those were it does not apply.

12. In a case "Shyam Sunder and others Vs.

The State of Rajasthan" reported in AIR 1974

Supreme Court 890, relied upon by the learned

counsel for appellants-claimants as well as

counsel for Respondent-owner. In para 10,11 and

12, the Supreme Court has made the following

observations :

"10. The maxim is stated in

its classic form by Erie,C.J.:

... Where the thing is to

shown to be under the management of

the defendant or his servants, and

the accident is such as in the

ordinary course of things does not

happen if those who have the

management use proper care, it

affords reasonable evidence, in the

absence of explanation by the

defendants, that the accident arose

from want of care.

                                     11.    The            maxim      does         not

                      embody       any    rule        of    substantive            law

                      nor      a   rule     of        evidence.               It    is

perhaps not a rule of any kind but

simply the caption to an argument on

the evidence. Lord Shaw remarked

that if the phrase had not been in

Latin nobody would have called it a

principle See Ballard V. North

British Railway Co. AIR 1923 S.C.43.

The maxim is only a convenient label

to apply to a set of circumstances in

which the plaintiff proves a case so

as to call for a rebuttal from the

defendant, without having to allege

and prove any specific act or

omission on the part of the

defendant. The principal function of

the maxim is to prevent injustice

which would result if a plaintiff

were invariably compelled to prove

the precise cause of the accident and

the defendant responsible for it,

even when the facts bearing on the

matter are are at the outset unknown

to him and often within the knowledge

of the defendant. But though the

parties' relative access to evidence

is an influential factor, it is not

controlling. Thus the fact that the

defendant is as much at a loss to

explain the accident or himself died

in it, does not preclude an adverse

inference against him if the odds

otherwise point to his negligence

(see John G. Fleming, The Law of

Torts, 4th ed., p.264). The mere

happening of the accident may be more

consistent with the negligence on the

part of the defendant than with

other causes. The maxim is based on

common sense and its purpose is to do

justice when the facts bearing on the

causation and on the care exercised

by defendant are at the outset

unknown to the plaintiff and are or

ought to be within the knowledge of

the defendant.

12. The plaintiff merely

proves a result, not any particular

act or omission producing the result.

If the result in the circumstances,

in which he proves it, makes it more

probable than not that it was caused

by the negligence of the, defendant,

the doctrine of "res ipsa loquitur"

is said to apply, and the plaintiff

will be entitled to succeed unless

the defendant by evidence rebuts that

probability."

13. In a case of "Syad Akbar Vs. State of

Karnataka" reported in AIR 1979 Supreme Court

1848, relied upon by the learned counsel for

Respondent-owner, in para 19, 20 and 26 the

Supreme Court has made the following

observations:

                                     "19. As          a     rule,       mere       proof

                   that        an      event      has           happened        or      an

                   accident          has     occurred,               the     cause      of

which is unknown, is not evidence of

negligence. But the peculiar

circumstances constituting the event or

accident, in a particular case, may

themselves proclaim in concordant,

clear and unambiguous voices the

negligence of somebody as the cause of

the event or accident. It is to such

cases that the maxim "res ipsa

loquitur" may apply, if the cause of

the accident is unknown and no

reasonable explanation as to the cause

is coming forth from the defendant. To

emphasise the point, it may be

reiterated that in such cases, the

event or accident must be of a kind

which does not happen in the ordinary

course of things if those who have the

management and control use due care.

But, according to some decisions,

satisfaction of this condition alone is

not sufficient for res ipsa to come

into play and it has to be further

satisfied that the event which caused

the accident was within the defendant's

control. The reason for this second

requirement is that where the defendant

has control of the thing which caused

the injury, he is in a better position

than the plaintiff to explain how the

accident occurred. Instances of such

special kind of accidents which "tell

their own story" of being offsprings of

negligence, are furnished by cases,

such as where a motor vehicle mounts or

projects over a pavement and hurts

somebody there or travelling in the

vehicle; one car ramming another from

behind, or even a head-on-collision on

the wrong side of the road.

                                   20.       Thus,                for              the

                   application           of    the          maxim      "res       ipsa

                   loquitur"            no        less            important            a

requirement is that the res must not

only bespeak negligence, but pin it on

the defendant."

                                   26.       From              the              above

                   conspectus,          two       lines      of     approach         in

regard to the application and effect of

the maxim "res ipsa loquitur" are

discernible. According to the first,

where the maxim applies, it operates as

an exception to the general rule that

the burden of proof of the alleged

negligence is, in the first instance,

on the plaintiff. In this view, if the

nature of an accident is such that the

mere happening of it is evidence of

negligence, such as, where a motor

vehicle without apparent cause leaves

the highway or overturns or in fair

visibility runs into an obstacle; or

brushes the branches of an overhanging

tree, resulting in injury, or where

there is a duty on the defendant to

exercise care, and the circumstances in

which the injury complained of happened

are such that with the exercise of the

requisite care no risk would in the

ordinary course ensue, the burden

shifts or is in the first instance, on

the defendant to disprove his

liability. Such shifting or casting of

the burden on the defendant is on

account of a presumption of law and

fact arising against the defendant from

the constituent circumstances of the

accident itself, which bespeak

negligence of the defendant. This is

the view taken in several decisions of

English Courts."

14. In view of the observations made by the

Supreme Court in the above two cited cases and in

the facts and circumstances of the present case,

I do not think that the said maxim "Res ipsa

loquitur" can be made applicable. However, it

is a fact that deceased Arjun who was grazing his

cattles by the side of the road met with an

accidental death. He was on his foot and as per

the probable cause of death given in the post

mortem report, deceased Arjun died due to

intracranial haemorrhage due to head injury. In

the circumstances, it would be just and

appropriate if the appellants-claimants would be

given one more opportunity to prove their case

before the Tribunal by leading additional

evidence. The Respondents are also at liberty to

adduce evidence in rebuttal in case the

appellants-claimants adduce the evidence before

the Tribunal after remand of the matter. Hence,

the following order :

ORDER

i) First Appeal No.2659/2013 (Kamalbai W/o

Arjun Bhalekar and others Vs. Sanjay S/o Pandhari

Potbhare and others) is hereby partly allowed.

          ii)              No costs.



          iii)             The Judgment and award passed by the

          learned         Member     of   the      Motor    Accident          Claims

Tribunal, Latur, in MACP No.323/2010 dt.2.5.2013

is hereby quashed and set aside. The matter is

remanded to the Tribunal with following

directions :

a) To readmit the MACP No.323/2010 under

its original number and the Tribunal shall

proceed to determine the claim petition afresh.

b) The evidence recorded during the

original trial shall be the evidence during the

trial after remand.

c) The appellants-claimants are at liberty

to adduce additional oral/documentary evidence in