Deokabai Vishnuji Helonde vs M/S Ansul Implex Transport And ...
2017 Latest Caselaw 5059 Bom

2607 FA  133/2008                              1                         Judgment


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH AT NAGPUR.


                        FIRST APPEAL NO. 133/2008 


Smt. Deokabai Vishnuji Helonde,
Aged about 60 years, Occu: Household,
R/o. 228, Sharda Chowk,
Ganeshnagar, Nagpur.                                      APPELLANT

                                .....VERSUS.....

1]     M/s. Ansul Implex Transport,
       Represented by Shri Mehta,
       Office at 15-B, 2nd Floor,
       Pushpakunj Commercial Complex,
       Ramdaspeth, Nagpur.

2]     The General Manager,
       The National Insurance Company Ltd.,
       C.No. 11849, Deccan Jimkhana Pune,
       Branch Office at Dhantoli, Nagpur.                  RESPONDE NTS


Shri R.T. Anthony, counsel for appellant.
Shri Shashikant Borkar, counsel for respondent no.2.
None present for respondent no.1.


                 CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

               DATE     : JULY 26, 2017.



ORAL JUDGMENT :  

This appeal is preferred by the original claimant

2607 FA 133/2008 2 Judgment

challenging the judgment and award passed by Member, Motor

Accident Claims Tribunal, Nagpur in Claim Petition No. 860/1998

on 24/03/2006.

2] Brief facts of the appeal can be stated as follows :

Appellant is the widow of the deceased Vishnuji

Rajaramji Helonde, who died in vehicular accident, that has

occurred on 20/03/1998 near Udasa Shivar on Umrer Road. As per

the case of appellant, deceased was returning from his duty on

motorcycle bearing no. MH-31-P-1743 along with one Ramchandra

Shankarrao Deotale, who was the pillion rider. At about 7:30 p.m.

when they were proceeding on the road, they saw that a small piece

of tyre was slowly burning in the middle of the road; there was

strong smell of tyre burning and also one Truck and Tipper which

had already met with a collision and had the accident, were lying in

tilted condition in the middle of the road, having covered 3/4th

portion of the road. Seeing the fire and the smoke, deceased applied

the breaks and took his motorcycle on the side of the road, however

as he could not control the same, it collided on the body of the

Truck, which was standing stationary. Due to the dash, the

2607 FA 133/2008 3 Judgment

deceased sustained injuries. He was taken to the hospital, where he

succumbed to the injuries on 31/03/1998.

3] As per the appellant, one of the vehicle which was lying

on the road was bearing no. MH-31-M-5005. It was owned by

respondent no.1 and was insured with respondent no.2. Hence, she

held both respondents liable to pay the compensation on the count

that the accident has occurred due to sheer negligence on the part

of the driver of the said Truck in keeping the Truck unattended,

without taking any precaution.

4] It is the case of the appellant that deceased was

drawing the salary of Rs.7,564/- per month in his position as

Agricultural Officer and hence having regard to his age, she claimed

compensation of Rs.3,65,000/- in total.

5] Respondent no.1 remained absent though duly served

with summons. It is the respondent no.2 alone which has resisted

the claim petition vide its written statement at Exh.28 contending

inter alia that the sole cause of the accident was the rash and

negligent driving of the deceased himself. Despite the fire of

2607 FA 133/2008 4 Judgment

burning tyre and smoke thereof, deceased did not notice the

obstacles on the road and straightway dashed on the Truck and

Tipper. Therefore as the sole cause of the accident was the rash and

negligent driving of the deceased, respondent nos.1 and 2 cannot be

held liable to pay the compensation to appellant. It was also

submitted that, as the owner and insurance company of the other

vehicles were not joined in the petition, petition was bad for non-

joinder of necessary parties also.

6] On these respective pleadings of the parties, the

Tribunal framed requisite issues at Exh.29 for its determination. In

support of her case, appellant examined herself and also the pillion

rider Ramchandra Deotale. No oral evidence was adduced on behalf

of the respondents.

7] On appreciation of this evidence led by the appellant,

the Tribunal was pleased to hold that it was the case of contributory

negligence as the deceased could not control the motorcycle though

he saw the fire and smoke from the burning tyre and dashed to the

Truck and Tipper. The Tribunal held the contributory negligence of

2607 FA 133/2008 5 Judgment

the deceased to the extent of 60% and 40% on the part of the two

vehicles, the Truck and the Tipper. As only the owner and insurance

company of the Truck was joined as a party, the Tribunal was

constrained to reduce the compensation amount accordingly and

granted the amount of Rs.53,000/- only to the appellant which was

inclusive of NFL amount, with interest at the rate of 7.5% per

annum.

8] This judgment of the Tribunal is the subject matter of

the present appeal. According to learned counsel for appellant, the

Tribunal has not properly appreciated the evidence on record. It is

urged that pillion rider of the motorcycle was the best person to

depose about the manner in which the accident has occurred. He is

also the only eye witness examined in this case and he has

categorically stated that the motorcycle was not in speed and it was

driven at the speed of 20 to 25 Km/Hr. He has also stated that after

seeing the fire, the motorcyclist, turned his motorcycle towards the

left side to avoid the accident and to avoid the fire, but as both the

vehicles, the Truck and the Tipper were lying in the middle of the

road, the accident could not be avoided. According to learned

2607 FA 133/2008 6 Judgment

counsel for appellant, considering that it was night time when the

accident took place, the necessary precautions should have been

taken by the driver of the Truck and the Tipper. Both these vehicles

were left unattended on road, which is against the provisions of

Motor Vehicles Act and that being the cause of accident, the

Tribunal should not have held the deceased responsible for

contributory negligence to the extent of 60%.

9] Per contra, learned counsel for respondent no.2 has

supported the judgment and finding of the Tribunal by pointing out

to the evidence of pillion rider itself, who has deposed that they saw

the burning of the tyre and also the smoke; which indicate that

sufficient precaution was taken by the driver of the Truck and the

Tipper. The very fact that even after seeing the fire, the deceased

could not control his motorcycle and he dashed on the Truck and

the Tipper, is according to learned counsel for respondent no.2,

sufficient to prove that the cause of the accident was the rash and

negligent driving of the deceased himself.

10] Thus the first point which arise for my determination in

this appeal is the cause of accident. In order to decide whether the

2607 FA 133/2008 7 Judgment

finding given by the Tribunal holding the deceased responsible for

60% of the contributory negligence is correct or not, it would be

necessary to peruse the evidence of the pillion rider Shri

Ramchandra Deotale, who was admittedly the only eye witness to

the accident. According to him, while deceased was driving the

motorcycle it was around 7:30 p.m. and therefore it was dark at

night. After passing Udasa Bus Stop and heading towards the first

bridge, they found that a rubber tyre piece was slowly burning in

the middle of the road with very little flame and light and lots of

smoke and fumes. Hence two wheeler was turned by the deceased

to little left side to avoid the fire. In the middle of the road the tilted

Truck and Tipper were lying. In the dark these vehicles were not

noticed immediately. As a result by the time the breaks were

applied, it was too late and the motorcycle collided with the Truck

and went the inside of the Tipper. According to him, the

motorcycle, he himself and the deceased were inside the Tipper

which was tilted after the collision.

11] Thus, even a cursory glance to his evidence is sufficient

to show that there was light of burning tyre . The tyre was kept

2607 FA 133/2008 8 Judgment

slowly burning in the night for approaching vehicles to take note of

the vehicles lying in the road. Therefore, it can be said that

precaution was taken by the drivers of the Truck and Tipper.

Deceased and even pillion rider had actually seen that burning tyre

and smoke. Therefore deceased has taken his motorcycle to the left

side of the road by applying the breaks. In cross-examination also

he has admitted that one tyre was burning and the smoke had

enveloped the atmosphere. He has further admitted that their

motorcycle went inside the portion of the Truck and Tipper.

12] Thus, the evidence of this witness is more than

sufficient to show that sufficient precaution of lightening the tyre

was taken by the drivers of the stationary vehicles, which were lying

there on account of the earlier collision between them. The fact that

even after seeing the fire from the burning tyre, deceased could not

control his motorcycle and went inside the Tipper along with

motorcycle, is more than sufficient to prove the negligence on the

part of the deceased. The Tribunal has in para nos.12 and 13 of its

judgment, properly and correctly appreciated this entire evidence

on record and came to conclusion that without paying any attention

2607 FA 133/2008 9 Judgment

towards the obstacle, the deceased proceeded ahead and straight

way fell in the trolly portion of the Truck with his vehicle, which

denotes the major part of contributory negligence on the part of the

deceased, and accordingly rightly held the deceased responsible for

60% of the contributory negligence.

13] The Tribunal has also considered the fact that both the

Truck and the Tipper were not removed from the spot of accident

and they were lying on the road and considering the provisions of

section 122 of the Motor Vehicles Act, it was held that to some

extent the drivers of the Truck and the Tipper were also responsible

for the accident. The Tribunal has accordingly held them liable for

40% of the contributory negligence. Having regard to the entire

evidence on record, this finding of the Tribunal cannot be disturbed

as it is based on the evidence adduced before it.

14] As regards the authority relied upon by learned counsel

for appellant, that of Shashikala -Vs- Mohd. and another, AIR

2000 Orissa 52, the facts of the said authority were totally

different, as in that case, offending Truck was loaded with

protruding bamboos. It was parked on wrong side of the road

2607 FA 133/2008 10 Judgment

without parking light during night time. Hence, when deceased,

motorcyclist dashed against the same and the bamboos pierced into

his neck, it was held that accident can be said to have taken place

solely due to negligent act of truck driver. As against it, in the

present case, the evidence on record, that of the pillion rider of the

motorcycle, itself clearly goes to show that sufficient precaution was

taken by the drivers of the Truck and the Tipper by lightening the

rubber tyre and keeping it burning in the middle of the road.

Moreover, both the Truck and the Tipper were lying on the road on

account of the accident ensued and as observed by the Tribunal,

they could not be removed before spot panchnama and also on

account of being damaged in the accident. Thus, as the facts of the

present case are totally different from the facts of the above cited

case, therefore this decision cannot be made applicable to the facts

of the present case.

15] In my considered opinion, therefore, finding of the

Tribunal of placing 60% contributory negligence on the part of the

deceased, cannot be disturbed in this appeal, even on re-

appreciation on entire evidence on record.

 2607 FA  133/2008                              11                         Judgment




16]             This brings me to the quantum of compensation. The

Tribunal has considered that at the time of accident deceased was

57 years of age. He was on the verge of retirement and according to

evidence of appellant, he could have received the pension of

Rs.3,750/-, therefore, his yearly income was considered by the

Tribunal to be Rs.45,000/-. 1/3rd of the same was deducted

towards his personal expenses and then applying multiplier of '8',

the Tribunal has assessed the loss of dependency to Rs.2,40,000/-.

As 60% of the contributory negligence on the part of the deceased

was held to be proved, the Tribunal considered that appellant can

be entitled to recover only 40% of the amount of Rs.2,40,000/-

which comes to Rs.96,000/-. The Tribunal has also awarded

amount of Rs.10,000/- towards the loss of love and affection and

consortium. Thus, total compensation amount, which Tribunal held

the appellant entitled was Rs.1,06,000/-.

17] Now this liability of paying Rs.1,06,000/- was equally

divided by the Tribunal on the part of two vehicles, the Truck and

the Tipper, who were held equally responsible for 40% of the

2607 FA 133/2008 12 Judgment

contributory negligence and accordingly appellant is rightly held

entitled to receive Rs.53,000/- as compensation from respondent

nos.1 and 2.

18] According to learned counsel for appellant, however,

the Tribunal should not have divided this amount of Rs.1,06,000/-

between the owners of two vehicles, the Truck and the Tipper. It is

urged that the liability of owners of both the vehicles being joint

and several, appellant could sue both or any of joint tortfeasor and

appellant can also recover the entire amount of compensation from

any one of the joint tortfeasor. To substantiate this submission,

learned counsel for appellant has relied upon the judgment of the

Hon'ble Apex Court in the case of Khenyei -Vs- New India

Assurance Co. Ltd. and others, AIR 2015 SUPREME COURT 2261.

However it has to be stated that the observations made by the

Hon'ble Apex Court in this case are in respect of the composite

negligence. Needless to state that the composite negligence and

contributory negligence are totally different. In case of composite

negligence, it is true that the injured or the legal heirs of the

deceased, who are third parties can recover the entire amount of

compensation from any of the joint tortfeasor. However, in case of

2607 FA 133/2008 13 Judgment

contributory negligence, as deceased himself is to some extent held

responsible for the contributory negligence in the accident that has

occurred, this authority cannot be held applicable. It was necessary

for the appellant to join the owner and insurance company of the

another vehicle also i.e. Tipper. As it is not joined in the proceeding,

appellant can recover only 20% of the total amount of

compensation from the respondents, which is correctly assessed by

the Tribunal as Rs.53,000/-.

19] The impugned judgment and award of the Tribunal

therefore being just, legal and correct and also having the

foundation in evidence and legal position, no interference is

warranted therein.

20] Appeal, therefore holds no merits, hence stands

dismissed, with no order as to costs.

JUDGE

Yenurkar