Sanjay Sukhdeo Mankar vs Dadarao Madhukar Mankar And 3 Ors
2017 Latest Caselaw 3515 Bom

2206 FA  971/2008                             1                        Judgment


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



                        FIRST APPEAL NO. 971/2008 




Sanjay Sukhdeo Mankar,
Aged about 31 years, Occu: Driver,
R/o. Borgaon Khurd, TAhsil - Murtizapur,
District - Akola.                                       APPELLANT


                                .....VERSUS.....


1]     Dadarao s/o Madhukar Mankar,
       Aged - major, Occu: Driver
       (Ambulance No. MH-12-RA-02111)
       R/o. Chohotta Bajar, TAhsil - Akot,
       District - Akola.

2]     Deputy Director, Health Service
       (Transportation) Pune.

3]     Civil Surgeon, District Government
       Hospital, Akola, District - Akola.

4]     Director of Insurance, Directorate,
       Mumbai.                                           RESPONDE NTS
                                                                     



       Shri A.S. Mardikar, counsel for appellant.
       None for respondents.




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 2206 FA  971/2008                               2                          Judgment


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

                DATE     : JUNE 22, 2017.


ORAL JUDGMENT :  

In Motor Accident Claim Petition No. 183/2003, the

Chairman, Motor Accident Claims Tribunal, Akola awarded the

compensation of Rs.64,000/- with interest at the rate of 8% per

annum from 17/06/2003 till realization of the entire amount of

compensation to the appellant. Being not satisfied with the amount

of compensation awarded therein, appellant has preferred this

appeal.

2] Brief facts of the appeal are as follows :-

Appellant is the owner of Tractor bearing no. MH-30-E-

7795. On 06/03/2001 at about 2:30 p.m. appellant was driving his

Tractor on National Highway No.6 at Murtizapur. At that time one

Ambulance bearing no. MH-12-RA-02111 came from behind. It was

driven in rash and negligent manner and in high speed and gave

dash to the Tractor of the appellant. As a result, appellant sustained

severe injuries and became unconscious on the spot. He also

suffered extensive damage to the Tractor. Appellant was firstly

2206 FA 971/2008 3 Judgment

treated in Laxmi Deshmukh Government Hospital at Murtizapur

and then at District Government Hospital, Akola and thereafter at

Mankar Hospital, Akola for about one month as indoor patient.

Respondent no.1 was driving the said Ambulance at the time of

accident and it was owned by respondent nos.2 and 3 and insured

with respondent no.4. Appellant, therefore, filed claim petition

under Section 166 of the Motor Vehicles Act against respondents,

claiming compensation of Rs.1,00,000/-.

3] Respondent nos.1 to 3 denied their liability to

compensate the appellant by submitting that the cause of accident

was the rash and negligent driving of appellant as he was driving

his Tractor in high speed on the National Highway and he arrived

from the approach road without taking note of the vehicles passing

on said road. Hence, respondents are not liable to pay any amount

of compensation. In the alternate, it was submitted that the amount

of compensation claimed by the appellant is exorbitant. He has

hardly sustained any disability, much less permanent disability on

account of the injuries sustained in the accident. It was further

submitted that the claim made by appellant towards the

compensation for repairs of the Tractor and medical expenses,

2206 FA 971/2008 4 Judgment

therefore, being on higher side and not reasonable, his petition

needs to be dismissed.

4] On these rival pleadings of the parties, the Tribunal

framed necessary issues for its consideration. In support of his

claim, appellant examined himself and Dr. Ranjeet Patil, who has

issued the disability certificate. He has also led the evidence of three

more witnesses, by name, Gajanan, Mukund and Sanjay to prove

the damages sustained to the Tractor and the repairs thereof. By

way of documentary evidence, appellant produced the disability

certificate, discharge card, medical bills and bills for purchasing the

spare parts etc. On behalf of respondents, respondent no.1 entered

into the witness box and denied his liability for the said accident.

5] On appreciation of this evidence on record, learned

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

negligence, and hence, appellant equally being liable for the said

accident, deducted 50% of the compensation amount and awarded

the amount of Rs.64,000/- only to the appellant.

6]              While   challenging   this   judgment   of   the   Tribunal, 




 2206 FA  971/2008                                5                          Judgment

submission of learned counsel for appellant is that in this case, the

police have, after carrying out necessary enquiry, lodged complaint

against the respondent no.1, the driver of Ambulance for the

offence under Sections 279, 338, 427 of I.P.C., thereby holding that

the cause of the accident was his rash and negligent driving. It is

urged that the observations made by the Tribunal that accident has

occurred due to the negligence of appellant, as he came on the

Highway from the approach road, without taking note of the

vehicles passing on the said road, are not correct as they are against

the material evidence on record. Hence, according to learned

counsel for appellant, there was absolutely no reason for the

Tribunal to treat it as a case of contributory negligence and award

only 50% of the compensation amount. Appellant, has therefore,

prayed for enhancement of the compensation amount to the tune of

Rs.1,00,000/-.

7] The first and foremost question, therefore, arising for

consideration in the present appeal is, what was the cause of the

accident, whether respondent no.1 was alone responsible for the

same or the case of contributory negligence can be said to be made

out? In this respect, the photographs of both the vehicles after the

2206 FA 971/2008 6 Judgment

accident are produced on record at Exh.77 to Exh.83 and these

photographs are self eloquent one to show that in the said accident

both the vehicles had sustained the damage from front side. If the

case of appellant that Ambulance driven by respondent no.1 was in

high speed and it gave dash to his Tractor from behind, while he

was proceeding on proper side of the road, is to be accepted, then

there is no explanation as to how the damage was caused to the

front portion of the Tractor. Therefore, it becomes necessary to

accept the case of respondent no.1 that while Tractor was entering

on the Highway from the approach road, appellant, the Tractor

driver has not taken note of the passing vehicles and dashed against

the Ambulance. The evidence of respondent no.1, the driver of

Ambulance, clearly goes to show that as a result of this dash, his

vehicle got entangled in Tractor and his legs were also fractured in

the said accident. The admission given by the respondent no.1 in

cross-examination that on account of the accident, Tractor broke

into two pieces and the photographs are also sufficient to show that

the impact was forceful and it was on account of the negligence and

rash driving on the part of both the vehicles.

8]              It may be true that Ambulance was in high speed, but 



 2206 FA  971/2008                                 7                         Judgment

that is because there was one serious patient in the said Ambulance

at the time of accident, as deposed by respondent no.1, and

therefore, though Ambulance driver is also responsible for the said

accident, the liability on the part of Tractor driver also cannot be

ignored. If he had entered on the Highway after taking note of the

passing vehicles, then this accident would not have occurred. The

finding, therefore, arrived at by the Tribunal that for this accident

both the vehicle drivers were responsible, and therefore, it was a

case of contributory negligence of 50 : 50 proportion, cannot be

said to be against the evidence on record. On the contrary, on

reappreciation of the evidence, this court also found that the drivers

of both the vehicles were responsible equally for the accident that

has taken place. In such situation, the Tribunal has rightly held

appellant entitled only for 50% of the compensation amount,

arrived at by it as just and fair compensation.

9] In respect of the quantum of compensation also the

perusal of the judgment of the Tribunal shows that the Tribunal has

considered the disability certificate (Exh.67) which was only to the

extent of 4% of the lumber region and that was also only in respect

of the refraction of moments of lumbar spine. The Tribunal has also

2206 FA 971/2008 8 Judgment

considered the medical bills which were produced on record along

with the bills of repairs of the Tractor and then came to conclusion

that the total amount of compensation to which appellant entitled

can be Rs.1,28,000/-, however having regard to the fact that

appellant is also held liable for contributory negligence to the extent

of 50%, the Tribunal has rightly awarded the compensation of

Rs.64,000/- to the appellant with interest thereon.

10] On appreciation of entire evidence on record, this court

does not find any reason to interfere in the said judgment and

finding of the Tribunal.

11] Appeal, therefore, holds no merits. Hence, stands

dismissed.

JUDGE

Yenurkar