Bombay High Court
The Senior Div.Manager,National ... vs Santosh S/O Dewaji Rabade And ... on 31 July, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 574 of 2005
Appellant : The Senior Divisional Manager, National
Insurance Company Limited, Divisional
Office No. 1, Firdos Chamber, Near
Panchasheel Square, Wardha Road, Nagpur
versus
Respondents : 1) Santosh Devaji Rabade, aged about 40
years, Occ: service, resident of Adarsh Wadi,
Tahsil and District Nagpur
2) Shradkumar N. Gaonka, aged major,
Occ: business, resident of Goenka Nagar,
Akola
Shri B. B. Raipure, Advocate for appellant
Ms Monali Pathade, Advocate for respondent no. 1
Respondent No. 2 served
Coram : S. B. Shukre, J
Dated : 31st July 2017
Oral Judgment
1. This is an appeal preferred against the judgment and order
dated 10th June 2004 rendered in Claim Petition No. 241 of 1996 by the
Motor Accident Claims Tribunal, Nagpur.
2. I have heard Shri B. B. Raipure, learned counsel for the
appellant and Ms Monali Pathade, learned counsel for respondent no. 1.
None appears for respondent no. 2. I have gone through record of the
case.
3. The following points arise for my determination :
(1) Whether the appellant proves that respondent no. 1 was
responsible for causing of the accident ?
(2) Whether the appellant proves that the appellant was not
liable to pay compensation ?
4. Learned counsel for the appellant submits that since there
were three persons riding the scooter bearing registration No. MH-
31/L/3539 when it received a dash from behind by a truck bearing
registration No. MWD-6143 owned by respondent no. 1 and insured with
the appellant, on 5th December 1995, respondent no. 1 could be said to
be one of the persons who was responsible for causing of the accident. He
submits that since only two persons are allowed to be carried by a two-
wheeler like the one involved in the present case and admittedly, three
persons were on it, offence should have been lodged against the scooter
rider or it should have been registered against drivers and owners of both
the vehicles . But, by registering the offence only against the driver of the
truck, illegality has been committed by the police and this has not been
considered appropriately by the Tribunal.
5. According to learned counsel for respondent no. 1, there was
no question of scooter rider showing any rashness or negligence or even
contributing to the accident, because at the time when the dash was given
to the scooter, the scooter rider had stopped at the signal which had
turned red and they were waiting for the traffic signal to go green. She
also submits that the driver of the truck in question who could have been
the best witness in this case apart from the petitioner, should have been
examined as a witness by the owner or the insurer of the truck. But, that
was not not done and, therefore, adverse inference will have to be drawn
against them.
6. On going through the evidence of claimant/respondent no. 1
who examined himself as P.W. 1; the First Information Report and the
spot panchanama, I find that there is no substance in the argument of
learned counsel for the appellant and merit in the argument of learned
counsel for respondent no. 1.
7. The claimant himself being one of the riders of the scooter,
was an eye witness to the accident. Driver of the truck in the accident
was also the other eye witness. While the petitioner examined himself as
a witness, neither the owner nor the insurer of the truck brought the
driver of the truck to the dock as a witness. So, on the one hand, there
can be an adverse inference against the owner as well as insurer for not
examining driver of the truck as a witness and it could in the nature that
it was because the driver of the truck himself was at fault and on the
other hand, the inference would be that the evidence of P. W. 1 would
have to be accepted as reliable. This is all the moreso because PW 1, in
his examination-in-chief, stated that his scooter was stationary and it were
the truck which was being driven rashly and negligently, that gave violent
dash to the rear side of the scooter at traffic signal. There is no cross-
examination of P.W. 1 taken on this point by the insurer. The owner i.e.
respondent no. 2 did not appear before the Court. No suggestion has
been given to P. W. 1 by the insurer that the truck was not being driven
rightly and negligently at the relevant time. So, the evidence of P. W. 1
deserves to be accepted as reliable which I do so. His evidence also gets
corroboration from the spot panchanama and the First Information
Report.
8. It is true that carrying of three persons on the scooter is
illegal and for that matter a separate offence can be registered against the
rider and owner of the 2-wheeler . But, that offence would have per se
no nexus with the offence relating to rash and negligent driving of a
motor vehicle which results in causing of damage to the property or
injury to life, punishable under Section 279 of the Indian Penal Code. In
a given case, three persons illegally riding 2-wheeler can also be held
responsible for causing of an accident involving motor vehicle, but that
would depend on facts and circumstances of each case. In the present
case, the scooter involved in the accident was not under move. It was
stationary when dash to its rear side was given by the truck in question.
The spot panchanama shows that scooter was standing in the middle of
the road. That would not mean that the scooter was on the wrong side of
the road. The middle of the road can be considered to be the edge of the
right side of the scooter and, therefore, it could not be considered to be its
wrong side where the scooter was made to stand on the road. Had there
been any evidence showing that the scooter was made to stand on the
wrong side of the road near a traffic signal, different consideration might
have arisen. But, such is not a case here. Therefore, non-registration of a
traffic offence against the scooter rider and its owner for carrying on the
scooter three persons illegally, cannot be interpreted to mean that even
the scooter riders were at fault for the present accident. In fact, the
scooter rider played no role in the accident as they were merely standing
at the traffic signal while riding the scooter. Argument of learned counsel
for the appellant is, therefore, rejected.
9. In view of the above, I find that the accident occurred only
due to rashness and negligence shown by the driver of the truck in driving
the truck in question. The finding recorded by the Tribunal in this regard
needs no interference. First point is answered accordingly.
10. According to learned counsel for the appellant, injury in the
nature of permanent disability has not been duly proved by respondent
no. 1. He submits that the disability certificate vide exhibit 29 does not
make any reference to the disability being permanent in nature and that
the doctor who was member of the Board issuing the certificate had never
examined respondent no. 1 and that he was not aware of the reason for
amputation of the left leg of respondent no. 1 below knee of respondent
no. 1. The argument deserves rejection outrightly for the reason that the
appellant never disputed the fact that respondent no. 1 was required to
suffer amputation of the left leg below knee on account of his leg getting
crushed in the accident caused due to the rash and negligent driving of
the truck involved in the present case. This is clear from the way the
cross-examination of P. W. 1 taken on behalf of the appellant has gone.
The evidence of claimant i.e. P. W. 1 in this regard has not been
controverted in any manner. Therefore, the amputation suffered by the
claimant would have to be considered as a result of the injuries he
sustained in the present accident.
11. Now, if P. W. 2 Dr Ramchandra Deoghare did not examine
respondent no. 1 while he was going through the treatment for the said
injuries, I do not think that it would have any adverse result on the claim
of respondent no. 1. When amputation of left leg below knee because of
the accidental injury is not disputed, what remains is only the nature of
disability that such person would suffer and this is what the disability
certificate (exhibit 29) ascertains. It clearly shows that the percentage of
disability was 70% although it does not specify it to be permanent or
otherwise. But, P. W. 2 Dr Ramchandra Deoghare has clarified it to be of
permanent nature and he deposed that "permanent" disability was to the
extent of 70%. P.W. 2 Dr Deoghare was the member of Medical Board
constituted for ascertaining the disability and after examining the nature
of the disability, he certified its extent to be of 70%. There is nothing in
his cross-examination to express any doubt about his certification as such.
Therefore, the evidence of Dr Deoghare as well as the certificate of
handicap vide exhibit 29 both deserve to be accepted and doing so, I find
that respondent no. 1 has successfully proved the fact that he suffered
permanent disability to the extent of 70% because of the injury he
suffered in the present accident.
12. There is also doubt expressed on behalf of the appellant
about the monthly salary of respondent no. 1 because the competent
authority who issued the salary certificate was not examined by him. But,
the cross-examination of P. W. 1 taken on behalf of appellant shows that
even on this point, no suggestions of denial of the salary claimed to be
received by respondent no. 1 were given to him and, therefore, it has to
be held that even on this point, there is no dispute raised.
13. Thus, I find that because of the permanent disability suffered
by respondent no. 1 in the present accident, he was entitled to receive
compensation from the owner and the insurer and thus, the owner as well
as insurer could not seek their exoneration from the liability in the
present case. The annual income as well as loss of income of respondent
no. 1 have been properly assessed by the Tribunal and the over all
compensation awarded by the Tribunal appears to be just and proper.
Point no. 2 is answered accordingly.
14. In the result, I find that there is no merit in the appeal.
Appeal stands dismissed. Parties to bear their own costs.
S. B. SHUKRE, J
joshi
