Bombay High Court
The Oriental Insurance Co Ltd Thr ... vs Sachin Suresh Bhonde And 3 Ors on 3 November, 2017
Bench: S.B. Shukre
J-fa572.06,575.06&576.06.odt 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.572 OF 2006
FIRST APPEAL No.575 OF 2006
FIRST APPEAL No.576 OF 2006
*************
FIRST APPEAL No.572 OF 2006
The Oriental Insurance Co. Ltd.,
Khamgaon Branch, through the
Divisional Manager, Nagpur,
Division Office-2, Kanoria House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Shri Vinod s/o. Sahebrao Phepale,
Aged 21 years,
Occupation : Business,
Resident of Ekta Nagar, Buldana,
Tq. And Distt. Buldhana.
Appeal is dismissed 2. Mr. Mohinkhan s/o. Yar Mohd. Khan,
against respondent Aged Major, Occupation : Transport,
No.2, vide order
dt.27.8.2007.
R/o. Bhatta Mohalla, Katni (M.P.).
3. The New India Assurance Company Ltd.,
Branch at Malkapur, through its Branch
Manager, Distt. Buldana.
4. Smt. Renuka Vilas Gosavi,
Age 20 years, Occupation-Household,
R/o. Behind Gajanan Talkies,
Buldana (Legal heir of deceased
Vilas Harigir Gosavi) : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
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FIRST APPEAL No.575 OF 2006
The Oriental Insurance Co. Ltd.,
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Khamgaon Branch, through the
Divisional Manager, Nagpur,
Division Office-2, Kanoral House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Ku. Shila Pralhad Chinchole,
Aged 20 years,
Occupation : Tailoring,
R/o. Malgani Taluka Chikhli,
Distt. Buldhana.
2. Mr. Mohinkhan s/o. Yar Mohd. Khan,
Aged Major, Occupation : Transport,
R/o. Bhatta Mohalla, Katni (M.P.).
3. The New India Assurance Company Ltd.,
Branch at Malkapur, through its Branch
Manager, Distt. Buldana.
4. Smt. Renuka Vilas Gosavi,
Age 20 years, Occupation-Household,
R/o. Behind Gajanan Talkies,
Buldana (Legal heir of deceased
Vilas Harigir Gosavi) : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
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FIRST APPEAL No.576 OF 2006
The Oriental Insurance Co. Ltd.,
Khamgaon Branch, through the
Divisional Manager, Nagpur,
Division Office-2, Kanoral House,
Civil Lines, Nagpur. : APPELLANT
...VERSUS...
1. Sachin s/o. Suresh Bhonde,
Aged 18 years,
Agriculturist, R/o. Mhasia Bk.
Tq. And Distt. Buldhana. (Original claimant)
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Appeal is dismissed 2. Mr. Mohinkhan s/o. Yar Mohd. Khan,
against respondent Aged Major, Occupation : Transport,
No.2, vide Registrar
(J) order
R/o. Bhatta Mohalla, Katni (M.P.).
dt.21.8.2007. (Original opponent no.1)
3. The New India Assurance Company Ltd.,
Branch at Malkapur, through its Branch
Manager, Distt. Buldana.
(Original opponent no.2)
4. Smt. Renuka Vilas Gosavi,
Age 20 years, Occupation-Household,
R/o. Behind Gajanan Talkies,
Buldana (Legal heir of deceased
Vilas Harigir Gosavi)
(Original opponent no.3) : RESPONDENTS
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Shri D.N. Kukday, Advocate for the Appellant.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
rd
DATE : 3
NOVEMBER, 2017.
ORAL JUDGMENT :
1. These three appeals arising from a common judgment dated
10th April, 2006, delivered by the Chairman, Motor Accident Claims
Tribunal, Buldhana in Motor Accident Claim Petition No.21/1999, Motor
Accident Claim Petition No.285/1998 and Motor Accident Claim Petition
No.284/1998 filed under Section 166 of the Motor Vehicles Act (for
short, "MV Act") by three different claimants, as injury claims involving
same motor vehicle accident, are being disposed of by this common
judgment.
2. Motor Accident Claim Petition No.21/1999 (First Appeal
J-fa572.06,575.06&576.06.odt 4/13
No.572/2006), Motor Accident Claim Petition No.285/1998 (First Appeal
No.575/2006) and Motor Accident Claim Petition No.284/1998 (First
Appeal No.576/2006) were respectively filed by Vinod Sahebrao Phepale,
Shila Pralhad Chinchole, and Sachin Suresh Bhonde against respondent
Nos.2,3 and 4 and the present appellant to claim compensation for the
grievous injuries followed by their respective permanent disability
suffered by them in an accident involving two motor vehicles. The
accident occurred on 14.7.1998 at about 00.30 hours on National
Highway No.6 between Amravati and Akola, near village Loni Takli. At
that time, all these claimants were travelling by a Tempo Trax vehicle
bearing registration No.MH-28/C 399. It was then owned and driven by
deceased Vilas Gosavi, husband of respondent No.4 in the appeal. It was
insured with present appellant. The accident was the result of a head on
collusion between the Tempo Trax vehicle and oncoming truck bearing
registration No.MP-21/3299 owned by respondent No.2 and insured with
respondent No.3 in the present appeal. As a result of the accident, the
claimants sustained grievous injuries leading to each of them suffering
permanent disability in various percentages. The driver of the Tempo
Trax vehicle also sustained grievous injury and died on the spot. He was
the husband present respondent No.4. The claimants were admitted to
Civil Hospital, Amravati and some time later two of them, Vinod and
Sachin were shifted to private hospital while one of them Shila continued
to be at Civil Hospital, Amravati as indoor patient. All the three
claimants received medical treatment as indoor patients at these
J-fa572.06,575.06&576.06.odt 5/13
hospitals. They incurred substantial expenses towards their medical
treatment and simultaneously lost their earnings as well. Shila and
Sachin, apart from being students, were also carrying on business of
tailoring and real estate. The third claimant Vinod too was a real estate
agent. Because of permanent disability, all of them also suffered loss of
their income from their respective businesses permanently. In order to
seek compensation for such loss suffered by each of the claimants, they
filed claim petitions under Section 166 of the Motor Vehicles Act.
3. The respondent No.2, the owner of the truck, was proceeded
against exparte in all the claim petitions. However, insurer of the
offending truck respondent No.3, the New India Assurance Company
Limited, resisted the claim petitions by filing written statements in each
of the claim petitions. It was submitted that the accident occurred only
due to rash and negligent driving of the offending Tempo Trax vehicle
and one Police jeep bearing registration No.MH-12/357, which was also
involved in the accident. It submitted that since the driver and owner of
the Police jeep were not impleaded as party respondents in the claim
petitions, the petitions were not maintainable because of want of
necessary parties. Alternately, it was submitted by the respondent No.3
that if the driver of the offending truck was found to be negligent, the
percentage of his negligence would have to be held as marginal.
4. The respondent No.4 also contested the claim petitions being
Motor Accident Claim Petition Nos.284/1998 and 285/1998 and was
proceeded exparte in Motor Accident Claim Petition No.21/1999. Her
J-fa572.06,575.06&576.06.odt 6/13
defence was that though Vilas Gosavi was driver-cum-owner of the
Tempo Trax vehicle having a valid driving licence, he was not responsible
for causing of the accident and it were the driver of the offending truck
who was at fault for the accident. Similar was the defence of the
appellant in all the claim petitions. Additionally, the appellant also
submitted that there was a breach of the terms and conditions of the
insurance policy as the offending Tempo Trax vehicle was registered only
as a private vehicle for social and domestic purpose and not for fare
paying passengers. So, according to the appellant, there was a
fundamental breach of the terms and conditions of the insurance policy.
5. On merits of the case, the Tribunal rejected the defence that
petitioners were not tenable but found that the driver of the offending
Tempo Trax vehicle, deceased Vilas Gosavi, was solely responsible for
causing of the accident as he drove Tempo Trax vehicle rashly and
negligently and that the driver of the offending truck was not at fault for
the accident. It also found that as the grievous injuries leading to
permanent disability were suffered by each of the claimants, they were
entitled to receive compensation including reimbursement of their
medical expenses from the respondent No.4, the widow of deceased
driver-cum-owner of the offending Tempo Trax vehicle and the present
appellant, the insurer of the offending Tempo Trax vehicle. Accordingly,
by the impugned common judgment and order all the three claim
petitions were partly allowed by the Tribunal granting total
compensation of Rs.4,01,636/-, Rs.33,000/- and Rs.65,274/- all inclusive
J-fa572.06,575.06&576.06.odt 7/13
of no fault liability together with interest at the rate of 6% p.a. to the
claimants Vinod, Shila and Sachin respectively. Not being satisfied with
the same, the appellant is before this Court in these three appeals.
6. I have heard Shri D.N. Kukday, learned counsel for the
appellant. None appears for the respondents. I have gone through the
record and proceedings of the claim petitions including the impugned
judgment and order.
7. Now, the only points which arise for my determination are :
i. Whether the appellant and respondent No.4 prove that
the driver of the offending truck was responsible for
causing of the accident ?
ii. Whether it is proved that the respondent No.3 is liable to
pay compensation and if so in what percentage ?
8. In the present case, three claimants examined themselves as
their sole witness and neither the appellant nor the insurer of the
offending truck examined any witness in their defence. The respondent
No.2, in all the claim petitions, was proceeded exparte. The claimants
had also produced in evidence certified copies of the police papers such
as first information report and spot panchanama, which have been
referred to in the impugned judgment and order as Exhs.-32 and 33,
which exhibits, it appears, were given to these documents in a different
claim petition being Claim Petition No.262/1998. It has been submitted
on behalf of the appellant as well as respondent No.4 that although at
least two of the claimants Vinod and Sachin in their respective
depositions before the Tribunal had specifically stated that the offending
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Tempo Trax vehicle was being driven, at the relevant time, at slow speed
by keeping it to the proper side of the road i.e. left side of the road and
the offending truck was being driven at high speed with its full head-
lights on and had denied the suggestions put to them in their respective
cross-examinations taken on behalf of respondent No.3 that the driver of
the offending Tempo Trax vehicle was rash and negligent in driving the
vehicle, the Tribunal simply ignored such primary evidence available on
record and relied upon the police papers, F.I.R. (Exh.-32) and spot
panchanama (Exh.-33), to record its finding that the driver of the
offending Tempo Trax vehicle was solely responsible for causing of the
accident. They submit that this is nothing but perverse appreciation of
the evidence available on record.
9. On going through the evidence of Vinod, Sachin, Shila the
three claimants and the impugned judgment and order, I find great
substance in the argument of learned counsel for the appellant in all
these three appeals. The claimants Vinod and Sachin have indeed
spoken about unhesitatingly that the driver of the Tempo Trax vehicle
was driving it at slow and moderate speed and it were the driver of the
offending truck, who drove it at high speed and not only that used full
head lights of the truck in driving it. The claimant Sachin added that the
driver of the Tempo Trax vehicle had kept the vehicle towards left side of
the road, which was the correct side of the road. This evidence of the
claimants has not been shaken in any manner in their respective cross-
examinations taken on behalf of respondent No.3. Of course, the third
J-fa572.06,575.06&576.06.odt 9/13
claimant Shila has not said anything about the speed of Tempo Trax
vehicle or the side of the road by which it was being driven by deceased
Vilas Gosavi. But, a specific suggestion was put to her in cross-
examination taken on behalf of respondent No.3 that deceased Vilas
attempted to overtake one vehicle which was ahead of Tempo Trax
vehicle and in that attempt, his vehicle collided with on coming vehicle
which suggestion has been promptly denied by her. This would mean
that either deceased Vilas Gosavi was not at fault in driving Tempo Trax
vehicle or his fault in driving his vehicle was equal to the fault of the
driver of the offending truck in driving the offending vehicle.
10. The above referred testimonies constituting substantive
evidence would show that all the three claimants who were occupying
the Tempo Trax vehicle themselves were the eyewitnesses to the
accident, had an occasion to witness the accident and deposed about the
manner in which the accident took place the way they saw it. As stated
earlier, there is nothing in their respective cross-examinations to
entertain any doubt about their being eyewitnesses or their seeing the
accident take place and narrating it before the Court the way it took
place. As against this, the evidence of police papers, at the most, would
be of corroborative value, to be used to corroborate or support the
substantive evidence. Here the substantive evidence is of sterling quality
needing no corroboration from any police paper. If such substantive
evidence emerging from three claimants' testimonies before the Court
was to be supplanted or thrown into a mire of doubt, another set of
J-fa572.06,575.06&576.06.odt 10/13
substantive evidence of same or even better quality was required. In the
present case, there was available such substantive evidence and it was in
the nature of the driver of the offending truck. But, respondent No.3,
insurer of the offending truck, did not examine him. It also did not
examine even the owner of the offending truck. It is seen from the
record that no attempt whatsoever was made by the respondent No.3 to
examine these persons as its witnesses in order to prove its claim that the
driver of the offending truck was not and the driver of the offending
Tempo Trax vehicle was responsible for causing of the accident. It did
not do so because, I may use here the principle of adverse inference, the
driver of the offending truck was also responsible for causing of the
accident.
11. The Tribunal in the present case ignored all these important
aspects of the evidence available on record and also failed to apply
fundamental principles by which the evidence is appreciated. The result
is of perverse appreciation of evidence and drawing of conclusions not
logically arising from the evidence available on record. The only
conclusion that would reasonably and logically arise from the evidence
established by the parties in the present case would be that the blame for
the accident cannot be entirely placed upon the shoulders of deceased
Vilas Gosavi the driver of the offending Tempo Trax vehicle, just because
the offences were registered against deceased Vilas Gosavi for rash and
negligent driving. As a matter of record, I must point out, there was a
head on collision between these two vehicles and when it is considered
J-fa572.06,575.06&576.06.odt 11/13
together with all the relevant facts and circumstances discussed above
cumulatively, a reasonable interference which can be made is that even
deceased Vilas Gosavi did not take reasonable care and caution in driving
Tempo Trax vehicle, just as driver of the offending truck. In such
circumstances, it would be reasonable for this Court to come to a
conclusion that the accident occurred in the present case due to
negligence of drivers of both the offending vehicles and having regard to
the fact that there was a collision between the two vehicles, the
percentage of contributory negligence could be fixed to be at 50% each
for two drivers of these two offending vehicles.
12. Thus I find that in the present case the driver of the offending
truck as well as deceased driver of the offending Tempo Trax vehicle,
both were responsible for causing of the accident on equal basis and each
of them had contributed towards 50% of the negligence which went into
the accident involving the two vehicles. If that is so, even the insurer of
the offending truck would be liable to pay half of the compensation
jointly and severally along with the owner of the offending truck, he
being responsible to pay the same on account of his vicarious liability.
Both the points are answered accordingly.
13. So far as quantum of compensation granted by the Tribunal
to each of the claimants is concerned, no dispute has been raised in this
regard by the appellant or any of the respondents. Therefore, there is no
need to deal with the correctness or otherwise of the quantum of
compensation awarded by the Tribunal.
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14. In the result, these appeals deserve to be partly allowed by
apportioning the liability to pay the compensation on equal basis
between the appellant and respondent No.4 on the one hand and
respondent Nos.2 and 3 on the other hand. Hence, the order.
A] (i) First Appeal No.572/2006 is partly allowed.
Out of amount of Rs.4,01,636/-, which is
inclusive of no fault liability amount granted as
compensation together with interest at the rate
of 6% p.a. from the date of petition till
realization to the claimant-Vinod Sahebrao
Phepale, 50% amount shall be liable to be paid
by appellant and respondent No.4 jointly and
severally and remaining 50% of the amount shall
be liable to be paid by respondent No.3 to the
claimant-Vinod Sahebrao Phepale.
Parties to bear their own costs.
(ii) First Appeal No.575/2006 is partly allowed.
Out of amount of Rs.33,000/-, inclusive of no
fault liability amount, granted as compensation
together with 6% interest from the date of
petition till actual realization by the Tribunal to
the claimant-Ku. Shila Pralhad Chinchole, 50%
of the amount shall be liable to be paid to the
claimant by the appellant and respondent No.4
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jointly and severally and remaining 50% of the
amount shall be liable to be paid by respondent
Nos.2 and 3 jointly and severally to the claimant-
Ku. Shila Pralhad Chinchole.
Parties to bear their own costs.
(iii) First Appeal No.576/06 is partly allowed.
Out of amount of Rs.65,274/-, inclusive of no
fault liability amount, granted as compenstion
together with interest at the rate of 6% p.a. from
the date of petition till actual realization to the
claimant-Sachin Suresh Bhonde, 50% of the
amount shall be liable to be paid by the appellant
and respondent No.4 jointly and severally and
remaining 50% of the amount shall be liable to
be paid by respondent Nos.2 and 3 jointly and
severally to the claimant-Sachin Suresh Bhonde.
Parties to bear their own costs.
B] In all the three appeals, the appellant is permitted to
withdraw together with accrued interest, if any, the amount which is in
excess of its 50% liability determined under this judgment.
C] The impugned judgments and orders stand modified in the
above terms.
JUDGE
okMksns
