Vijay S/O Jagannath Nawalkar vs Ashok S/O Dadarao Kolhe & Another
2017 Latest Caselaw 7063 Bom

        J-fa564.05.odt                                                                                                     1/6 


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


                                      FIRST APPEAL No.564 OF 2005


        Shri Vijay s/o. Jagannath Nawalkar,
        Aged about   years,
        Occupation : Business,
        Resident of Wadner Gangai, Tq. Daryapur,
        District Amravati.                                                           :      APPELLANT

                           ...VERSUS...

        1.    Ashok s/o. Dadarao Kolhe,
               Aged about 24 years,
               Occupation : Labourer,
               Resident of : Wadner Gangai,
               Tq. Daryapur, Distt. Amravati.

        2.    The Oriental Insurance Company Limited,
               Through its Branch Manager,
               Rayat Haweli, Old Cotton Market, Akola.
               Tq. And District Akola.                  :      RESPONDENTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri A.M. Gordey, Senior Advocate for the Appellant.
        None for the Respondents.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 13 SEPTEMBER, 2017.

ORAL JUDGMENT :

1. This appeal challenges the legality and correctness of the

judgment and order dated 24.8.2005, rendered in Motor Accident Claim

Petition No.97 of 2005 by the Member, Motor Accident Claims Tribunal,

J-fa564.05.odt 2/6

Akot.

2. By the impugned judgment and order, a claim petition filed

under Section 166 of the Motor Vehicles Act by respondent No.1 was

partly allowed by the learned Member of the Tribunal. The Tribunal

determined the amount of Rs.1,47,000/- to be the just and fair

compensation payable to the respondent No.1 for permanent partial

disability that he suffered in the accident which took place on 27.5.2003

at about 3.00 p.m., near Sawara diversion on Telhara to Wadner Gangai

road. At that time, respondent No.1 was traveling by a motor vehicle, a

Matador 407, bearing registration No.MH-32-B-2063, which was a goods

carriage vehicle. The respondent No.1 was traveling by this vehicle

along with some gift articles on the request of one Purushottam Raut of

Telhara. The respondent No.1 had been to Telhara for attending the

marriage ceremony of the son of Purushottam Raut and the accident

occurred on his return journey by the offending vehicle to Wadner

Gangai. The offending vehicle was, at the time of accident, driven by

Dilip Babulal Yadav and owned by the present appellant. It was then

insured with respondent No.2. Dilip Babulal Yadav was made a party

respondent No.1 in the claim petition filed by the claimant. However,

during the pendency of the claim petition, Dilip Babulal Yadav expired

and therefore his name was struck off from the array of the parties.

3. The claim raised by the respondent No.1 was resisted by the

appellant as well as respondent No.2 by filing a separate written

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statements. The respondent No.1 examined himself as his only witness,

being PW 1, while the appellant and respondent No.2 did not examine

any witness in their defence. On merits of the case, the Tribunal found

that the accident occurred only due to rash and negligent driving of the

offending vehicle by its driver and that it being owned by the appellant

and insured with the respondent No.2, the Tribunal also found that the

liability to pay compensation to respondent No.1 of the appellant and

respondent No.2 was joint and several. The quantum of compensation

was fixed to be at Rs.1,47,000/- inclusive of no fault liability claim. The

interest on this amount was also granted at the rate of 9% p.a. from the

date of petition till realization. This was not acceptable to the appellant

and therefore, he is before this Court in the present appeal.

4. I have heard Shri A.M. Gordey, learned Senior counsel for

the appellant. None appears for either of the respondents though duly

served on merits of the case. I have also gone through the record of the

case. Now, following points arise for my determination :

                           i)           Whether   the   respondent   No.1   proves   that
                                        accident   occurred   only   due   to   rash   and
                                        negligent driving of the offending vehicle by
                                        its driver ?

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

5. It is seen from the evidence available on record that the

offences for rash and negligent driving were registered in this case

against the driver of the offending vehicle. This is evident from the F.I.R.

J-fa564.05.odt 4/6

filed against him which is at Exh.-24. According to PW 1 Ashok Dadarao

Kolhe, who is respondent No.1 in the present case and also a claimant,

he was traveling by a offending vehicle and it was being driven at great

speed by its driver. He has deposed before the Court that he had

cautioned the driver of the offending vehicle against it and had requested

him to slow down the speed, but his request was ignored by the driver.

He has also stated that as the truck approached Sawara diversion, the

driver of the truck lost control over it and the truck or the offending

vehicle turned turtle. There is nothing in his cross-examination taken on

behalf of the appellant to enable this Court to discard such evidence of

PW 1, the claimant. Then, the spot panchanama vide Exh.-25 also shows

that at the spot of incident, the road was quite wide having width of

12 ft. and it was flanked by a strip of road, 6 ft. wide, made up of the

metal. The spot panchanama further shows that no obstacles or

obstructions were seen to be present on the road at the spot of accident.

This would indicate that there were no circumstances which could be

said to be beyond the control of the driver of the offending vehicle which

resulted in or contributed to causing of the accident. The cumulative

effect of such evidence available on record is, therefore, that the driver of

the offending vehicle lost control over it only because of his failure to

exercise due care and caution which resulted in occurrence of the

accident. The first point is answered accordingly.

6. Now, the question to be dealt with is about the quantum of

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compensation awarded by the Tribunal being just and proper or

otherwise. I must say here that there is no dispute about suffering of

permanent disability by the respondent No.1 because of the injuries that

he suffered in the present accident. There is also not much dispute about

the extent of permanent and partial disability suffered by the respondent

No.1. Even otherwise, evidence available on record shows its extent to

be of 60%. The permanent disability resulted from amputation of the

right leg above knee of the respondent No.1. So, the compensation on

account of such disability would certainly have to be granted to the

respondent No.1.

7. The Tribunal, relying upon the case of Ajmeera Govind vs.

Principal, Arvindo Residential School, Bodhan and another, reported

in 2005 ACJ 1436 granted compensation on account of suffering of

permanent partial disability by respondent No.1 in the sum of

Rs.1,12,000/-, considering the fact that there was no specific evidence

adduced by the respondent No.1 to show the effect of his permanent

disability upon his earning capacity. I do not find any fault in such an

approach adopted by the Tribunal and the finding so recorded by it.

8. In addition to the above amount, the Tribunal has also

granted further amounts of Rs.20,000/-, Rs.10,000/- and Rs.5,000/- on

such heads as, medical and traveling expenses, sufferance of pains and

mental shock and loss of earning during the period of hospitalization.

Grant of compensation by the Tribunal under these heads is supported by

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evidence available on record and, therefore, such grant does not warrant

any interference from this Court.

9. Thus, the Tribunal determined the amount of compensation

payable to respondent No.1 by the appellant and respondent No.2 jointly

and severally to be at Rs.1,47,000/- inclusive of no fault liability claim

and deducting the amount of Rs.25,000/- from the same, fixed final

amount of compensation payable in the instant case to be at

Rs.1,22,000/- together with 9% interest from the date of petition till

actual realization. For the reasons stated earlier, I am of the view that

determination of such compensation amount by the Tribunal is just and

fair and cannot be faulted with. The rate of interest granted by the

Tribunal being representative of the prevailing interest rate can also not

be interfered with. The second point is answerer accordingly.

10. In the circumstances, I find that the appeal deserves to be

dismissed.

11. The appeal stands dismissed.

12. Parties to bear their own costs.

JUDGE okMksns