Sadashiv Dhondiba Sidapure vs Pandit Manikrao Wadkar And Anr
2017 Latest Caselaw 1052 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          FIRST APPEAL NO. 612 OF 2002
                                      WITH
                       CIVIL APPLICATION NO. 2583 OF 2001



 Sadashiv s/o Dhondiba Sidapure
 Age 36 years, Occ. Agricultural
 and Transport, R/o. Sonkhed
 Tq. Loha, District Nanded                                  ...Appellant

          versus

 1.       Pandit s/o Manikrao Wadkar
          Age 25 years, Occ. Agriculture
          R/o. Khadak-Manjri, Tq. Loha,
          District Nanded

 2.       The Branch manager,
          Oriental Insurance Company Ltd.
          Branch at Nanded                                  ...Respondents

                                        .....

 Mr. A.S. Golegaonkar, advocate for the appellant
 Mr. S.M. Godsay with Mr. V.N. Upadhye, advocates for respondent No.2.
                                    .....

                                              CORAM : V. K. JADHAV, J.

DATED : 27th MARCH, 2017

ORAL JUDGMENT:-

1. Heard learned counsel for the respective parties.

2. Being aggrieved by the judgment and award dated

21.10.2000, passed by the Member, Motor Accident Claims Tribunal,

Nanded, in M.A.C.P. No. 504 of 1996, the original respondent No.1-

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owner preferred this appeal.

3. Brief facts giving rise to the present appeal are as follows:-

a) On 6.2.1996, at about 11.00 a.m. the claimant left his village

alongwith his father. On that day, he started returning to his village in

a jeep bearing registration No. MH-26-5220. On way, at the request

of the passengers, the driver of the said jeep stopped his vehicle and

passengers started getting down from the vehicle. However, when

the claimant was alighting from the said vehicle, the driver without

waiting for the complete alighting of the claimant, started the jeep

and proceeded ahead with the vehicle. In consequence of which, the

claimant lost his balance and fell down on the road and sustained

injuries on his back and head. The claimant was referred to Primary

Health Center, Loha and thereafter shifted to Guru Govindsinghji

Memorial Hospital, Nanded. He was remained there as indoor

patient for a period of 21 days. He has also lost his earnings during

that period. On account of head injury sustained by him, he suffered

from giddiness and also has become permanently disabled. Thus,

the claimant has approached the Tribunal by filing M.A.C.P. for grant

of compensation under various heads.

b) It has been contended in the claim petition that the claimant

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has incurred medical expenses and he has suffered permanent

disablement. He has also suffered pains. He has claimed

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

c) The appellant has strongly resisted the claim petition on the

ground that the claimant sustained injuries on account of his own

negligence. It has been contended that the claimant has not taken

proper precaution while alighting from the vehicle-jeep. It has been

contended that the claimant has sustained only simple injuries and

he has not sustained any permanent disablement as such. It has

been contended that the jeep involved in the accident is insured with

respondent No.2 and hence, respondent No.2 is liable to satisfy the

award.

d) Respondent No.2 insurer has resisted the claim petition on

the ground that jeep vehicle is permitted to be used only for private

purpose, however, it has been used for carrying fare paying

passengers. It has been specifically contended that the claimant was

travelling in the said jeep from Loha to Khadak Manjri, as fare paying

passenger and there has been breach of specified condition of the

policy.

e) The claimant has adduced his oral as well as documentary

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evidence and the appellant owner has also adduced his oral

evidence and examined one more witness. Respondent No.2 insurer

has not adduced any evidence.

f) The learned Member of the Tribunal by its impugned

judgment and award partly allowed the claim petition and held that

the claimant do recover the amount of Rs.30,000/- as compensation

alongwith proportionate costs and interest at the rate of Rs.12% p.a.

from the date of petition till realization of the entire amount from the

appellant owner alone and dismissed the claim petition as against

the respondent insurer. Hence, this appeal.

4. It appears from the memo of appeal that the appellant owner

has challenged the judgment and award passed by the Tribunal

mainly on the ground that the claimant met with an accident out of his

own negligence. It has been contended that the appellant was driving

the jeep at the time of accident and vehicle was in stationary

condition when the claimant was alighting from the vehicle. Witness

No.2 Vijay Holge, examined by the appellant owner, has stated on

oath before the Tribunal that the claimant Pandit slipped and fell

down on the road on account of his own fault. He has further

deposed that jeep vehicle was stationary and even the appellant

owner has stopped his jeep. He has further stated that due to ill

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health, the claimant could not keep proper balance and hence, fallen

down as his leg was slipped. It further appears from the appeal

memo that the claimant has sustained only 10% dis-figuration and

there is no question of any loss of income as such. It also appears

that the appellant owner has challenged the finding recorded by the

Tribunal exonerating the respondent insurer from the liability to pay

the compensation.

5. Learned counsel for the respondent insurer submits that the

claimant Pandit has admitted in his cross examination that after

paying the fare, he started travelling in the jeep involved in the

accident. Admittedly, the jeep involved in the accident is a private

vehicle and passengers could not have been carried in private

vehicle by accepting fare charges. There is clear cut breach of the

terms and conditions of the policy and the Tribunal has rightly

exonerated the respondent-insurer from liability to pay the

compensation.

6. On careful perusal of evidence and the judgment and award

passed by the Tribunal, it appears that claimant Pandit has deposed

that, on way the vehicle jeep was stopped one kilometer away from

the village and the driver asked the passengers to get down from the

jeep. The driver made haste while the passengers were alighting

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from the vehicle. He started the vehicle and proceeded ahead. Even

though the claimant had requested the driver to wait, but the driver

has not paid any heed to his request and consequently the claimant

was thrown off the jeep while alighting and sustained injuries on back

and head. The jeep vehicle was driven by the appellant at the

relevant time is not disputed. The appellant owner has not pleaded

that at the time of accident, the jeep was stationery and claimant

could not keep his balance while alighting from the jeep and thus

sustained the injuries on his own fault. It has been pleaded by the

appellant owner that the claimant has not taken precaution while

alighting from the jeep. However, he has failed to raise the plea that

vehicle jeep being driven by him, at the time of accident, was

stationery when the claimant started alighting from the jeep.

However, the appellant owner has stated so in his evidence before

the Tribunal and added that the jeep was stationery and he had

stopped the jeep. Thus, the evidence without any pleading is liable to

be ignored. The witness Vijay Holge has deposed in the same line.

However, his evidence is also liable to be ignored as there is no

specific pleading raised by the appellant owner in this regard. On the

other hand, the Tribunal has also observed that considering the

injuries sustained by the claimant on his back and head, the same is

not possible only by alighting from stationery vehicle. I am in

agreement with the said observations. Due to jerk of moving jeep the

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claimant while alighting from the jeep thrown off the jeep and

sustained injures on his back and head by falling on road. The

learned Member of the Tribunal has therefore rightly recorded the

finding that the accident has taken place due to rash and negligent

driving on the part of driver of the jeep alone i.e. appellant.

7. So far as exoneration of the respondent insurer is concerned,

the claimant Pandit has admitted in his cross examination that on the

day of accident, there were 16 to 20 passengers in their vehicle and

all of them of his village. All of them, including himself gave hire

charges of Rs.5/- to the driver of vehicle during the journey, while

returning to the village. It is well settled that in order to discharge the

burden of proving defence, the respondent-insurer may adduce oral

or documentary evidence or even may place reliance on the

evidence led by other side. Since the claimant has admitted

unequivocally in his cross examination about fare paid to the driver of

the jeep (appellant) for travelling in the jeep involved in the accident,

the learned Member of the Tribunal has rightly exonerated the

insurance company from the liability to pay compensation alongwith

the appellant owner. So far as the quantum of compensation is

concerned, though the claimant has claimed exorbitant amount of

compensation, the learned Member of the Tribunal has awarded just

and reasonable compensation of Rs.30,000/-. The Tribunal has

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awarded Rs.10,000/- towards pains and agony, Rs.10,000/- towards

incidental expenditure for medicines, transportation charges etc. and

Rs.10,000/- towards loss of so called faculty i.e. Rs.10% dis-

figuration, as shown in the disablement certificate Exh.52. I do not

find any fault in the determination of compensation. There is no merit

in the appeal. The appeal is thus liable to be dismissed. Hence, I

proceed to pass the following order:-

ORDER

I. First appeal is hereby dismissed with costs.

        II.       First appeal is accordingly disposed of.

        III.      The claimant is entitled to withdraw the amount, if deposited

                  in this Court.

8. In view of disposal of first appeal, pending civil application is

also disposed of.

( V. K. JADHAV, J.)

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