Akila Parvin Wd/O Kayyum Khan & Ors vs Shaikh Imam Shaikh Amir & Ors
2017 Latest Caselaw 2876 Bom

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

                           FIRST APPEAL NO.227 OF 2006


1.  Akila Parvin wd/o Kayyum Khan
     aged about 29 years, 
     Occupation Household Work 

2.  Shoyab Khan s/o Kayyum Khan,
     aged about 7 years, Minor 

3.  Sananjum Khan d/o  Kayyum Khan,
     aged about 7 years, Minor 
     Nos.2 and 3 Minor by guardian 
     mother claimant No.1 
     All r/o Near Kala Maroti, Old City, 
     Akola, Tq. & Dist. Akola                         ...  Appellants. 

-vs- 

1.  Shaikh Iman Shaikh Amir,
     Adult, Occupation-Driver, 
     r/o Ward No.18 Nandura  
     Dist. Buldhana 

2.  Rapid Transport Corporation,
     38 Narayan Dhuru Street, Mumbai-3 

3.  The Divisional Manager,
     Oriental Insurance company Ltd. 
     Akola 

4.  Sachhidanand Vallabhdas Zanwar
     adult, Truck Owner r/o Gandhi Chowk, 
     Karanja, Dist. Washim.  

5.  The Divisional Manager,
     United India Insurance Company Ltd. 
     Akola                                            ... Respondents. 




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Shri J. B. Kasat, Advocate for appellants. 
Respondent Nos.1,2 and 4 are served. 
Mrs Mrunal Naik, Advocate for respondent No.3. 
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                CORAM  :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JUNE 07, 2017

Oral Judgment :

This appeal is preferred by the original claimants being aggrieved

by the judgment and order dated 19/11/2005 passed in MACP No.264/2003

by the MACT, Akola. The real grievance is against grant of inadequate

compensation by the Tribunal mainly on two counts firstly that of holding

the deceased responsible in the contributory negligence to the extent of 50%

and thereby awarding only 50% compensation and secondly on the ground

that towards the additional heads of the loss of consortium, love and

affection and funeral expenses, sufficient amount of compensation as laid

down in various decisions of Honourable Supreme Court and this Court, has

not been granted.

2. Facts, which are relevant for deciding this appeal can be stated as

follows :

Appellant No.1 is wife of deceased Kayyumkhan whereas

Appellant Nos.2 and 3 are their children. Kayyumkhan was working as

driver on the truck bearing No.MH-30-E-5391. On the date of accident on

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18/06/2003 he was driving the said truck from Amravati to Akola. When the

the truck reached near Dalambi Fata on N.H.No.6, another truck bearing

No.MH-04/E-6718 came from opposite direction and it resulted into the head

on collusion between the two trucks. In the said accident Kayyumkhan

sustained injuries and succumbed to those injuries on the spot.

Respondent No.1 was driver of other truck whereas respondent

No.2 was owner of the said truck and Respondent No.3 is the insurer of the

offending vehicle. Appellants therefore filed claim petition before the

Tribunal claiming compensation of the amount of Rs.7,00,000/- from the

respondents. Out of them respondent Nos.4 and5 are the owner and insurer,

respectively of the truck driven by the deceased. According to the appellants

deceased Kayyumkhan at the time of accident was 35 years of age and

earning salary of Rs.5000/- per month, apart from other allowances. Due to

his untimely death appellant No.1 lost consortium whereas appellant Nos.2

and 3 lost love and affection of their father. The total amount of

compensation therefore as claimed from respondents was to the tune of

Rs.7,00,000/-.

3. This claim petition came to be resisted by respondent No.1 vide

written statement at Exhibit-31, contending inter alia that the deceased

alone was responsible for the accident that has occurred in which he has lost

the life. It is submitted that the truck driver by the deceased left its side of

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the road and came towards the side of the truck driven by respondent No.1

and dashed against the truck of respondent No.1. Deceased was also driving

the truck in high speed. Though respondent No.1 tried to avoid the

collusion, he could not. Hence it is submitted that respondent Nos.1 and 2

cannot be held liable for the accident or to pay the amount of compensation.

4. Respondent No.2 also resisted the said petition by submitting that

even the FIR and scene of offence panchanama reveal that deceased was

negligent in driving the truck and not the respondent No.1. Therefore no

liability can be fastened for payment of compensation either on respondent

Nos.1, 2 or even respondent No.3 which is the insurance company.

5. Respondent No.3 has then resisted the petition by filing written

statement at Exhibit-22 adopting the same defence as raised by respondent

Nos.1 and 2 and further contending that deceased was not possessing valid

driving license at the time of accident. He himself was negligent in driving

the truck.

6. Respondent No.4 remained absent and petition proceeded ex-

parte against him. Respondent No.5 resisted the petition vide written

statement at Exhibit-10 denying the liability and raising contention that

respondent No.1 was negligent in driving the truck and not the deceased.

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7. In support of her claim, appellant No.1 examined herself and that

was the only oral evidence available before the Tribunal apart from

documentary evidence viz. FIR Exhibit-34 and scene of offence panchanama

Exhibit-35. On the basis of this evidence and on appreciation thereof, the

Tribunal was pleased to hold that, as it was a head on collusion and there

are no circumstances were brought on record to minimize the negligence of

either of the drivers, both the drives were equally responsible for the

accident. The Tribunal accordingly held the deceased himself responsible for

the contributory negligence and hence 50% of the amount was deducted

from the amount of compensation which was determined by the Tribunal.

Thus Tribunal directed respondent Nos.1 to 3 to pay jointly and severally

only the amount of Rs.2,01,500/- only to the appellants with interest @ 6%

p.a. thereon.

8. This judgment and award of the Tribunal is challenged in this

appeal by learned counsel for appellant, firstly on the ground that Tribunal

has committed a grave error in attributing contributory negligence to the

deceased. It is submitted that the finding arrived at by the Tribunal in

paragraph 10 of its judgment that the truck driven by the deceased had

crossed the center line of the road, having while patches is not based on the

evidence produced on record. In this respect learned counsel has placed

reliance on the scene of offence panchanama to submit that the panchanama

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nowhere shows that the front portion of the truck, driven by the deceased,

had crossed the center line of the road. It is urged that as per the spot

panchanama the truck driven by the deceased was standing on the central

line and not crossed the same. According to learned counsel for the

appellant, it was the only material before the Tribunal and the Tribunal has

not properly appreciated the same and arrived at a finding which cannot be

supported from the contents of the said panchanama and therefore the said

finding of the Tribunal casting contributory negligence on the part of the

deceased, needs to be set aside.

9. Per contra, learned counsel for respondent Nos.1 and 2 has

submitted that the FIR which is lodged in the instant case and copy of which

is produced on record at Exhibit-34 clearly goes to show that deceased alone

was solely responsible for the accident, as he was driving the truck in a rash

and negligent manner. According to learned counsel for the respondents, the

appellants themselves had placed on record the copy of the FIR and now

they cannot disown the FIR merely because it was lodged by the driver of the

offending vehicle. It is urged that the appellants have not adduced any

evidence to prove that respondent No.1 alone was responsible for the said

accident. It is submitted that appellant No.1 who is examined in the case

was not an eye-witness to the accident and therefore her evidence is of no

help on this aspect. It is urged that contents of spot panchanama are post

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accident and therefore after the accident truck might have been found on

white patches of the center line of the road. However to know what actually

happened at the time of accident there is no eye witness account or any

other evidence adduced by the appellants on record to that effect. In such

situation, one has to go as per contents of the FIR. Further it is submitted

that if FIR was filed against the deceased then the very petition filed by the

appellants under Section 166 of the Act of the MV Act was not maintainable.

If the deceased himself was held negligent and the tortfeasor, then the

remedy for the appellants was to file an application for compensation under

Workmen Compensation Act. It is urged that if the petition itself was not

maintainable, then there is no question, even of allowing 50% of the

compensation, as awarded by the Tribunal. However, it is fairly conceded

by the learned counsel for the respondent No.3 that as this issue was not

raised before the Tribunal and as the amount of compensation is already

deposited and paid to the appellants, this issue may not be pressed. But

according to her, the fact remains that the finding regarding the case of

contributory negligence, arrived at by the Tribunal is on the basis of

appreciation of evidence and cannot be set aside by calling it as perverse.

10. It is pertinent to note that the appellants themselves have relied

upon the FIR and scene of offence panchanama to prove the cause of

accident. These were the only documents to prove that the death of

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deceased had occurred in vehicular accident. Admittedly appellant No.1 who

had entered into witness box was not an eye witness to the accident and

therefore these two documents alone are required to be considered for

deciding the manner in which the accident has occurred. The FIR, certified

copy of which is placed on record, clearly goes to show that it was lodged

against the deceased holding him solely responsible for the manner in which

he was driving the truck. It may be true that said FIR was lodged by the

driver of the offending vehicle but the fact remains that in the immediate

version of the accident which was reported to the police it is stated that the

deceased was driving the truck in rash and negligent manner which has

resulted into collusion. As long as the FIR is not quashed, one has to go by

the contents thereof. The FIR attributes entire blame for the accident to the

deceased.

11. Even the scene of offence panchanama clearly goes to show that

the truck was standing on the white patches on the center line. The Tribunal

has considered this in a specific way by stating that panchanama of scheme

of offence shows that the truck which was driven by the deceased was

standing on the center line of the road. Appellant No.1 has also admitted the

said fact in her cross-examination. The Tribunal has also considered the fact

that the width of the road was about 22 ft and there are patches of metal

road on both sides of tar road, of 5 ft. width. It means there was sufficient

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road available to both the vehicles to cross each other simultaneously. The

very fact that the truck driven by the deceased crossed its side of road and

came on the white patches on the center line and may be at the time of

accident had even crossed the white patches, is sufficient to attribute the

cause of the said accident, as rightly held by the Tribunal, on the part of the

deceased also. It may be true that scene of offence panchanama merely

shows that the truck was standing on the white patches of the center line,

However as the scene of offence panchanama depicts post accident position,

what was the actual position at the time of accident has not been brought on

record by the appellants who are claiming more than 50% compensation.

The burden was upon the appellants to prove that the driver of other truck

alone was rash and negligent. However no such evidence is brought on

record to that effect. No effort is made on that count by examining the

cleaner of the truck or any pedestrian who might have witnessed the

accident. In the circumstances, relying on the contents of the FIR and

panchanama of scene of offence, which are the only documents available on

record, finding arrived at by the Tribunal that it was an head on collusion

between the two vehicles and sans any circumstances brought on record to

minimize the negligence of either of the drivers, cannot be called as

perverse. Therefore it has to be held that the case of contributory negligence

of 50 : 50 % on the part of the drivers of both the vehicles as held to be

proved by the Tribunal needs to be confirmed and upheld.

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12. The second ground, on which the impugned judgment and order

of the Tribunal is challenged relates to the amount of compensation which is

awarded towards the loss of consortium and loss of love and affection, loss of

estate and for funeral charges. It is submitted that the Tribunal has awarded

a meagre amount of Rs.5000/- for loss of consortium, Rs.2500/- for loss of

estate and Rs.2000/- for funeral charges. Reliance is placed on various

judgments of the Apex Court in the cases of Rajesh and ors. vs. Rajbir

Singh and ors (2013) 9 SCC 54, Jiju Kuruvila and ors vs. Kunjujamma

Mohan and ors.(2013) 9 SCC 166, Kala Devi and ors vs. Bhagwan Das

Chauhan and ors. 2015(2) SCC 771 and judgment of this Court dated

20/11/2014 in F.A.No.1023 of 2013 (Shahana wd/o Sk. Umar Farooq

Shaikh and ors. vs. Sureshsingh Thakur Gajrajsingh Thakur) to submit

that as per the legal position upheld by the Apex Court, the appellant

becomes entitled to get the amount of Rs.1,00,000/- towards loss of estate

and loss of expectation of life. Appellant No.1 the wife is also entitled for

Rs.1,00,000/- for loss of consortium, and appellant Nos.2 and 3 are entitled

for Rs.1,00,000/- each for loss of love and affection Thus it is submitted

that altogether the appellants would be entitled to get Rs.5,00,000/- as

compensation under these additional heads.

13. Learned counsel for respondent No.3-Insurance Company

however strongly resisted the claim of the appellants by submitting that even

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in absence of any evidence relating to the employment of deceased, the

Tribunal has already assumed monthly salary of the deceased to be Rs.

3000/- p.m. and applying multiplier of '16', arrived at compensation of

Rs.2,84,000/-. The Tribunal has also awarded the amount of Rs.5000/- for

loss of consortium, Rs.2500 for loss of estate and Rs.2000/- for funeral

charges. It is submitted that considering the peculiar facts of this case,

especially that the petition itself was not maintainable and also the fact that

deceased himself was responsible and held liable for contributory negligence

and the fact that already the amount as awarded by the Tribunal is deposited

and paid to the appellants, no interference is warranted in the impugned

order of the Tribunal.

14. I have given my anxious consideration to the submissions

advanced by learned counsel for both the parties and also considered the

judgments of Honourable Supreme Court and this Court which are relied

upon by learned counsel for the appellant. It may be true that as per the

recent trend, the amount which is awarded towards these additional heads

is enhanced to the extent Rs.1,00,000/- each but one has to consider the

peculiar facts of the present case. In the instant case, the petition itself was

not maintainable and this legal position cannot be ignored even if it is not

pressed before the Tribunal. Moreover already the deceased himself is held

responsible for negligence to the extent of 50%. Apart from that, the entire

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issue is settled as the amount of compensation is deposited and also

withdrawn by the appellants. Hence, I do not find that in the peculiar facts

of this case, interference is warranted in the impugned judgment and order

of the Tribunal on this score also.

In view of aforesaid discussion, the appeal stands dismissed with

no order as to costs.

JUDGE

Asmita