New India Assurance Company ... vs Gajanan Shivhari Saelke
2017 Latest Caselaw 6946 Bom

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


                                      FIRST APPEAL No.391 OF 2005


                 New India Assurance Co. Ltd.,
                 through its Divisional Manager, 
                 Division No.1, Gopalkrishna Bhawan, 
                 Jhnsi Rani Square, Sitabuldi, 
                 Nagpur.                              :      APPELLANT

                           ...VERSUS...

        1.    Gajanan s/o Shivhari Shelke
               Aged about 30 years,
               C/o M.G. Bhonde, Plot No.75,
               Bandu Soni Layut, Parsodi,
               Nagpur. 
               
        2.    Vijay s/o Balakram Banger
               Aged about 30 years, Driver
               R/o Kasturba Nagar, Jaripatka
               Nagpur.

        3.    Sayyad Najibuddin s/o Sayyad Mujjibuddin
               Aged about Major, Occ.: Business
               Tent Line, Sadar, Nagpur.

        4.    The United India Insurance Company Ltd.,
               Nagpur, through its Divisional Manager,
               Divisional Office-I, Op. Saraf Chambers,
               Sadar, Nagpur.

        5.    Shri S. S. Vij,
               Aged about Major, Occ.: Business
               R/o Gurunanakpura
               Paul Goods Transport, Wardhamanagar, 
               Nagpur.
               (Abated vide Court's order dated 21.12.2015) :RESPONDENTS




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        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A. J. Pophaly, Advocate for the Appellant.
        None for respondent nos. 1, 2 and 3
        Shri M. R. Kalar, Advocate for respondent no.4
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM  :   S.B. SHUKRE, J.

th DATE : 8 SEPTEMBER, 2017.

ORAL JUDGMENT :

This is an appeal preferred against the judgment and

order dated 23.3.2005 rendered by the Member, Motor Accident

Claims Tribunal, Nagpur.

2] Under Section 166 of the Motor Vehicles Act petition

filed for receiving compensation on account of injuries suffered by

the respondent no.1 and also consequent permanent disability in

an accident which occurred about at about 19:10 hours on

19.3.1991 near railway crossing at Butibori on Nagpur Chandrapur

road. The Tribunal partly allowed the petition and gave

compensation of Rs.75,000/- inclusive of No Fault Liability to the

respondent no.1 together with interest @ 6% per annum from the

date of petition till realization of the amount and the liability to

pay such compensation was jointly and severally fastened upon the

appellant and respondent nos. 2 and 3.

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        3]                 The accident in this case occurred as a result of the dash

given to the rear side of trailer truck bearing registration no.

MH-23/885 (hereinafter referred to as the "trailer truck" for short)

by the truck bearing registration no. MTG-5286 (hereinafter

referred to as "iron bars truck" for short), which was carrying iron

bars at the time of accident. The respondent no.1 had kept himself

alongside the iron bars in the body of the truck at the time of

accident. The truck bearing registration no. MTG-5286, the iron

bars truck, was driven by respondent no.2 and owned by

respondent no.3 at the relevant time. It was not insured with any

Insurance Company. However, the other vehicle involved in the

accident- the trailer truck, was insured with the appellant and

owned by respondent no.5 against whom the appeal has been

abated. As the liability has been compositely fastened upon the

appellant and respondent nos. 2 and 3 and as the appellant has not

accepted the findings recorded against it by the Tribunal, the

appellant is before this Court in the present appeal.

4] I have heard Shri A.J. Pophaly, learned counsel for the

appellant and Shri. M. R. Kalar, learned counsel for respondent

no.4, United India Insurance Company. Nobody appears on behalf

of respondent nos. 1, 2 and 3. I have gone through the record of

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the case including the Award. Now, following points arise for my

determination:

i] Whether the Tribunal has rightly found that both the vehicles involved in the accident were at fault and thus this was a case of composite negligence?

ii] Whether the compensation awarded by the Tribunal is just and proper?

5] It is submitted by learned counsel for the appellant that

there is no evidence brought on record by the respondent no.1, the

original applicant, which would show that there was any

negligence on the part of the driver of the trailer truck, which was

parked by the side of the road at the time when dash to its rear side

was given by the other vehicle, the iron bars truck. He points out

that offences for rash and negligent driving were registered against

the driver of the iron bars truck and this fact has been ignored by

the Tribunal. He also submits that the injuries suffered by

respondent no.1 were not the direct result of the accident, but

hitting of respondent no.1 against the iron bars stored in the rear

portion of the iron bars truck. Learned counsel for respondent

no.4, United India Insurance Company submits that an appropriate

order be passed in this case.

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        6]                 It is seen from the evidence of the claimant, PW-1, that

although he was travelling by keeping himself in the rear side of

the truck, he was somehow able to see condition of the trailer truck

immediately after the accident and that is the reason why he

deposed before the Court that at the relevant time the trailer truck

had not put on the tail lamps and that the truck was not properly

visible to the vehicle approaching from the rear side of the trailer

truck. This evidence of PW-1 has gone completely unchallenged.

No dispute whatsoever has been raised by the appellant about it,

which can be seen from the cross-examination of this witness taken

on behalf of the appellant.

7] Even the spot panchnama filed at Exh.44, does not

categorically mention the fact that there were tail lamps to the

trailer truck which were switched on at the time of accident. It is

significant to note here that the accident had occurred at the time

when the visibility on the road had been considerably reduced

because of the evening time by which dusk had set in. Therefore,

switching on of the tail lamps of the trailer truck, there being

considerable reduction in light, was necessary. Whenever visibility

on the road is reduced, moving vehicles need guidance for

navigation and the best guidance would come through the blinking

J-fa 391.05.odt 6/9

of the lights of the other vehicles. If such guidance is not available,

the driver of the other moving vehicles would find it very difficult

to avoid any mishap. Of course, as rightly submitted by the

appellant, the driver of the iron bars truck in the present case, was

also under a duty to switch on its head lights and that if he had not

switched on the headlights, he also would have to take a

substantial share for the fault in occurrence of the accident. But in

the instant case, there is no evidence brought on record by any of

the contesting parties to enable this Court to form any opinion

about switching on or not switching on of the headlights of the iron

bars truck. I must say, there is not even a single suggestion given

in this regard to PW-1 by the appellant in his cross-examination.

Therefore, this Court is constrained to record its finding only on the

basis of what is available as evidence on record and considering the

same, I find that the driver of the trailer truck was at fault in

recklessly parking the trailer truck by the side of the road without

taking of precautions. This would, as a necessary corollary, make

me further find that registration of crime against the driver of the

iron-bars truck cannot be understood as absolving of the driver of

trailer-truck of his fault liability in this case.

        8]                 Now, the question would be whether the driver of the





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iron bars truck can also be held to be negligent in causing of the

accident and if so what should be the percentage of negligence,

whether in equal proportion or unequal one.

9] In the present case, one can see that although the

visibility on the road had been reduced considering the time of the

accident one would have to say that it was not so reduced as to

make the driver of the moving vehicles completely blind to the

stationary objects ahead of them. While driving a vehicle like the

iron bars truck in the present case, there is a heavy responsibility

upon the driver to exercise reasonable care and caution. It appears

that driver of this vehicle in the instant case did not exercise such

reasonable care and this is evident from the fact that while drawing

the spot panchnama (Exh.44) presence of brake marks was not

noticed by the author of the panchnama. This also appears to be

the reason behind registration of offences by police against driver

of iron-bars truck. If the brake marks had been noticed by the

author of the panchnama, the reflection about their presence would

have certainly been there in the spot panchnama (Exh.44). That

not being the case here, I am of the view that even the driver of the

iron bars truck was at fault in causing of the accident or otherwise

he would have noticed the stationary trailer-truck parked ahead of

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his truck, if not from a long distance but at least a short distance,

and then he would have taken effort to avert the collision by

applying brakes or diverting the course of the vehicle.

10] All said and done, at the same time, I also find in the

absence of any evidence and the material available on record in this

proceeding, that it would not be possible for this Court to fix the

percentage of the negligence of the driver of the two vehicles and it

would have to be left to be determined in an appropriate

proceeding initiated by any of the parties, upon whom the liability

has been fastened. Suffice it to say in this proceeding that the

accident occurred in this case because of negligence and rashness

on the part of driver of both the vehicles and the Tribunal has

rightly found it to be a case of composite negligence. The first

point is answered accordingly.

11] The Tribunal while awarding the compensation found

that no documents were placed on record to show age and income

of the deceased and so held that an amount of Rs.75,000/- would

be a reasonable compensation for the respondent no.1 in the facts

and circumstances of the case. I do not think that any different

finding is possible if one takes an overall view of the evidence

available on record. This amount of compensation includes the

J-fa 391.05.odt 9/9

amount of liability on account of no fault principle. The Tribunal

has rightly determined it to be so and has also rightly granted the

interest at 6% per annum from the date of petition till realization of

the actual amount. The second point is answered accordingly.

12] In the result, I find no merit in this appeal and it

deserves to be dismissed.

The appeal stands dismissed.

Liberty is granted to the appellant to file appropriate

proceeding for fixation of percentage of negligence of all the parties

upon him liability has been fastened jointly and severally by the

Tribunal.

Parties to bear their own costs.

JUDGE

rgingole