Apsana Mohemad And Ors vs Naser Patel Bashiruddin And Anr
2017 Latest Caselaw 4385 Bom

                                     1                      FA203.2008.doc

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

                       902 FIRST APPEAL NO. 203 OF 2008

  1.       Apsana w/o Mohemad, 
           Age : 25 years, Occu : Nil, 

  2.       Pasha s/o Mohemad, 
           Age : 9 years, 

  3.       Heena d/o Mohemad, 
           Age : 7 years, 

  4.       Tabassum d/o Mohemad, 
           Age : 5 years 

  5.       Rubina d/o Mohemad 
           Age : 4 years, 

  6.       Nagma d/o Mohemad, 
           Age : 2 years, 
           Nos.2 to 6 Minor under guardianship 
           of their real mother Appellant No.1

  7.       Fatimabee w/o Khajakhan 
           Age : 53 years, Occu : Nil 

           All R/o Kesapuri (Parbhani), 
           Taluka & Dist. Beed                               .. APPELLANTS
                                                           (Orig. claimants) 
                   VERSUS

  1.       Naser Patel s/o Basiroddin 
           Age : Major, Occu : Business, 
           R/o. Katkatpura, Beed, 
           Taluka & District Beed. 

  2.       The New India Assurance Co. Ltd., 
           Adalat Road, Aurangabad                  .. RESPONDENTS
                                                 (Orig. Respondents)  
                                          ...




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                                           2                         FA203.2008.doc

  Advocate for Appellants                :        Shri. S.S. Chapalgaonkar 
  Advocate for Respondents               :        Shri. D.S. Kulkarni h/f 
                                                  Shri. S.L. Kulkarni 
                                              ...

                                                         CORAM : P.R. BORA, J.

Dated: July 12, 2017

ORAL JUDGMENT :

1. The original claimants in Motor Accident Claim Petition

No.254/2000 decided on 30.11.2005 by the Motor Accident Claims

Tribunal, at Beed have filed the present appeal seeking

enhancement in the amount of compensation as awarded by the

said Tribunal.

2. The aforesaid claim petition was filed by the appellants

seeking compensation on account of the death of Mohemad

Khajakha alleging the same to have caused because of the injuries

received to him in a vehicular accident happened on 18 th October,

1999 having involvement of a car bearing registration no.MH-23-B-

457 owned by the present respondent no.1 and insured with present

respondent no.2.

3. It was the contention of the claimants before the

Tribunal that the alleged accident happened because of the sole

negligence on the part of the driver of the car involved in the

3 FA203.2008.doc

alleged accident. The tribunal has however recorded a finding that,

the accident happened because of the negligence of both i.e.

deceased Mohemad and driver of the car and the proportion of

negligence as has been determined by the Tribunal is 50 - 50.

Aggrieved by, the appellants have preferred the present appeal.

4. Shri. Chapalgaonkar, the learned Counsel appearing for

the appellants / original claimants submitted that, the tribunal has

manifestly erred in recording a finding that, the deceased was

responsible for occurrence of the alleged accident in equal

proportion. The learned Counsel submitted that, in order to prove

that the alleged accident happened because of the sole negligence

on the part of the driver of the offending car, the appellants had

examined one Shrikisan Lande, who was the pillion rider along with

the deceased when the alleged accident happened. Taking me

through the evidence of said witness the learned Counsel submitted

that, he has given ocular account as to how the alleged accident

happened and nothing has come on record to disbelieve his

testimony. The learned counsel submitted that, said Shrikisan Lande

has categorically stated that, car was being driven in rash and

negligent manner and it came on the wrong side and dashed to the

motorcycle. The learned Counsel submitted that, in view of the

4 FA203.2008.doc

evidence of PW No.2 Shrikisan Lande whose presence on the spot of

occurrence has not been disputed, must have been in toto believed

by the tribunal.

5. The learned Counsel further submitted that, the averments in

the spot panchanama have also not been properly appreciated by

the tribunal, which has resulted in drawing some unwarranted

inferences by the tribunal. The learned Counsel submitted that, in

fact no negligence could have been attributed on the part of

deceased.

6. In the alternative, the learned Counsel submitted that, if at all

any negligence was to be attributed on the part of deceased, its

percentage should have been minimal. The learned Counsel

therefore prayed for setting aside the finding recorded by the

Tribunal on the point of negligence, and consequently to modify the

impugned award.

7. The respondent no.1 though has been duly served,

none has entered appearance on his behalf.

8. Shri. D.S. Kulkarni, the learned Counsel appearing for

5 FA203.2008.doc

respondent no.2 - Insurance Company resisted the submissions

advanced on behalf of the appellants. The learned Counsel

submitted that, the tribunal has rightly determined the proportion

of negligence on the part of deceased as well as the car driver based

on the evidence on record and as such no interference is warranted

in the conclusion so recorded.

9. I have carefully considered the submissions advanced

by the learned Counsel appearing for the parties. I have also

perused the impugned Judgment, the evidence and other material

placed on record. It is not in dispute that, the vehicles involved in

the accident were proceeding to the direction opposite to each

other. PW No.2 Shrikisan Lande has given the ocular account of the

incident of accident in his testimony before the Court. As has been

deposed by him, the car was being driven in rash and negligent

manner and it entered on wrong side and gave a dash to the

motorcycle. In his cross - examination except a suggestion that, he

is deposing false so as to support the case of the claimants, no other

material is brought on record revealing the negligence of deceased

motorcyclist. It is the matter of record that, neither the car owner

nor the driver of the said car entered into the witness box.

6 FA203.2008.doc

10. The other evidence which could be useful for deciding

the aspect of negligence is the spot panchanama existing on record.

The spot of the accident as has been shown in the spot panchanama

is not at the midst of the road. It is slightly on the side, from which,

deceased motorcyclist was coming. It therefore can reasonably be

inferred that, to some extent the offending car had entered on its

wrong side. It is also evident that, deceased motorcyclist was also

not plying his motorcycle by keeping a safe margin from the midst

of the road. In the circumstances, some negligence has to be

attributed on the part of deceased motorcyclist also. However, in no

case it can be accepted that, in occurrence of the alleged accident,

deceased motorcyclist was equally negligent. From the situation on

the spot of occurrence, it is quite clear that, the greater negligence

in causing the alleged accident was of the driver of the offending

car. From the material on record, the negligence of the driver of the

offending car and deceased motorcyclist can be apportioned in

proportion of 70:30. To the aforesaid extent, the finding recorded

by the tribunal needs to be modified. Needless to state that,

because of modified finding the amount of compensation payable to

the claimants jointly and severally from respondent nos.1 and 2

would be enhanced by 20%.

7 FA203.2008.doc

11. The respondents are now held entitled to pay to the

claimants 70% of the total amount as has been determined by the

tribunal. The tribunal has held the claimants entitled for the total

compensation of Rs.5,18,400/- and out of the said amount, the

respondents are held liable to pay half of the same i.e. Rs.2,59,200/-

to the claimants. In view of the finding recorded by me herein

above, the claimants are now entitled to receive from the

respondents 70% of the said amount, which comes to Rs.3,62,880/-.

In addition to that, the tribunal has awarded the funeral expenses of

Rs.10,000/-, and Rs.10,000/- towards loss of consortium, love and

affection. The claimants are thus entitled for the compensation of

Rs.3,82,880/- jointly and severally from respondents no.1 & 2

along with the interest thereon at the rate of 9% per annum from

the date of filing of the petition till realization. Award be modified

accordingly.

. Appeal stands partly allowed in the aforesaid terms.

( P.R. BORA, J. )

ggp