Balu S/O. Limbaji Alias Limbraj ... vs The Divisional Manager, ...
2021 Latest Caselaw 6181 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                               FIRST APPEAL NO. 858 OF 2010

Balu s/o. Limbaji alias Limraj Bhosale,
Age 29 years, Occu. Nil, R/o. Rui,
Now present at village Undari,
Taluka Kaij, District Beed.                      ..        Appellant
                                                       (Original Claimant)
        Versus
The Divisional Manager,
M.S.R.T.C., Divisional Office,
Beed.                                            ..         Respondent
                                                           (Original Respondent)
                                     ...
Mr. Swapnil S. Dargad, Advocate for Appellant
Mr. D. S. Bagul, Advocate for Respondent
                                     ...

                                                 CORAM :      ANIL S. KILOR, J.

                                                 DATE :       7th APRIL, 2021

ORAL JUDGMENT :-

This is an appeal filed by the claimant challenging the Judgment

and Order dated 15th January, 2009 passed by the Member, Motor

Accident Claims Tribunal, Ambejogai, District Beed, in Motor Accident

Claim Petition No. 23 of 2007, rejecting the claim on the ground that the

claimant has failed to establish and prove that the accident in question

occurred due to negligence and rash driving of the driver of Maharashtra

State Transport Corporation (MSRTC) Bus.

2. I have heard the learned counsels for the respective parties.

3. The brief facts of the present case, are as follows -

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3.1             It is the case of the appellant-claimant that on 09-04-2008 at

about 5.10 a.m., when the appellant along with Jagannath Pawar were

proceeding on a motorcycle bearing No. MVG-2815 from village Undari to

Shikhar Shinganapur and when the motorcycle reached in the Ghat area

near Shikhar Shinganapur, one ST Bus bearing No. MH-20-D-6046 came

from backside of the appellant and gave dash to the motorcycle, due to

which, the accident occurred and appellant sustained serious injuries.

The appellant was hospitalized and he incurred medical expenses of

Rs. 50,000/-.

3.2 It is the further case of the appellant that he sustained

permanent disability in the said accident. Accordingly, he filed a claim

petition under Section 166 of the Motor Vehicles Act, and though,

according to him, he is entitled to receive compensation to the tune of

Rs.31,18,000/-, he restricted his claim to Rs.4,00,000/-.

3.3 The respondent- MSRTC filed its reply to the Claim Petition

and denied the case of claimant that the accident occurred due to

negligence and rash driving of driver of the S.T. Bus. It is the case of the

respondent that the motorcycle had given dash to the S.T. Bus and not the

S.T. Bus.

3.4 The claimant has examined himself and two more witnesses

including Doctor. Whereas, the respondent examined driver of the S.T.

Bus.

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3.5             The learned Tribunal, after scrutinizing the oral as well as

documentary evidence and more particularly the spot panchnama, arrived

at the conclusion that the claimant failed to establish and prove the

accident occurred due to negligence and rash driving of driver of the S.T.

Bus and, as such, the claim petition was rejected.

3.6 The learned Tribunal has also held against the claimant on

the ground that the person who was driving the motorcycle and the

insurance company were not made party to the claim petition.

4. Mr. Dargad, learned counsel appearing for the claimant

submits that the impugned Judgment and Order dated 15-01-2009 passed

by the learned Tribunal failed to consider and appreciate the oral as well

as documentary evidence available on record.

4.1 He further submits that there is difference between

contributory negligence and composite negligence and the present case is

of composite negligence, and therefore, even if it is held that ST Bus

driver and the person, who was driving motorcycle on which the claimant

travelling as a pillion rider, were negligent, the claimant can file claim

petition against all the persons, who are negligent or any one of such

persons. And, in this matter, since the claim petition was filed against the

respondent - MSRTC and not against the driver and owner of the

motorcycle, the claim is maintainable.

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4.2              The learned counsel for the claimant has placed reliance on

the following Judgments -

(1) Sunita and others Versus Rajasthan State Road Transport Corporation and others1 (2) Mangal Ram Versus Oriental Insurance Company Limited and others2 (3) Dulcina Fernandes and others Versus Joaquim Xavier Cruz and another3 (4) Khenyei Versus New India Assurance Company Limited and others4

4.3 It is submitted that in the case of accident claim, a strict rule

of evidence is not applicable, but the claimant has to prove and establish

his case on the basis of preponderance of probabilities. He, therefore,

submits that the impugned Judgment and Order is not sustainable in the

eyes of law and, accordingly, he prays for setting aside the Judgment and

Order of the learned Tribunal and award the compensation by allowing

the present Appeal.

5. On the other hand, Mr. Bagul, learned counsel appearing for

the respondent - MSRTC supports the impugned Judgment and Order and

states that the learned Tribunal has rightly relied upon the spot

panchnama from where one can easily arrive at the conclusion that

1 (2020) 13 Supreme Court Cases 486 2 (2018) 5 Supreme Court Cases 656 3 (2013) 10 Supreme Court Cases 646 4 2015 (9) Supreme Court Cases 273

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because the motorcycle was damaged from the front side and not from

the backside and at the same time the ST Bus was damaged from the

backside and not from the front side the motorcycle gave dash to ST Bus

and not the ST Bus gave dash to the motorcycle.

5.1 Mr. Bagul, learned counsel appearing for the respondent

further argued that it is necessary for the claimant while claiming the

compensation under Section 166 of the Motor Vehicles Act, 1988 to prove

and establish negligence and as the claimants failed to prove the fact of

negligence, no claim can be entertained, and therefore, the Tribunal has

rightly rejected the claim.

5.2 Mr. Bagul, learned counsel appearing for the respondent-

claimant further argues that even otherwise claim petition is not

maintainable without making the driver of the motorcycle as a party and

also insurance company to the claim petition. In support of his

contention, he has placed reliance on the following Judgments -

(1) United India Insurance Co. Ltd. Versus Ratan Popat Patil and another5 (2) New India Insurance Company Limited Versus Suman Bhaskar Pawar and others6 (3) New India Insurance Company Limited Versus Sitaram Devidayal Jaiswal and others7

5 2011 (2) Bom. C. R. 711 6 2010 (1) Bom. C. R. 319 7 2012 (5) Bom. C. R. 285

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(4) New India Insurance Company Limited Versus Sitaram Devidayal Jaiswal and others8

6. To consider the rival contentions of both the parties, I have

perused the record and Judgment and Order of the learned Tribunal.

7. The Hon'ble Supreme Court of India in the case of Sunita

and others Vs. Rajasthan State Road Transport Corporation and others 9,

after considering various judgments of the Apex Court has held thus,

"22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident has taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases."

8. The judgments cited by the learned counsel for the appellant

in the case of Mangal Ram and Dulcina Fernandes are on the similar lines

and relied upon by the Apex Court in the above referred case of Sunita

and others.

9. On the above referred touchstone, I revert back to the facts

of the present case. There is no dispute that the S.T. bus is involved in the

accident. As regards the negligence, the learned Tribunal has observed

that the driver of the S.T. bus was not negligent, by relying upon the oral 8 2012 (5) Bom. C. R. 285 9 2012 (5) Bom. C. R. 285

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evidence of the driver who in his deposition put forth a story that one

motorcyclist came from his backside in a high and excessive speed in rash

and negligent manner and without observing whether the road is clear to

overtake the bus, he tried to overtake the bus. At the same time, one

tumtum vehicle came from opposite direction and there were pits on the

road. Hence, the driver of the motorcycle lost his control on the

motorcycle and in feared condition, brushed his motorcycle to the rear

wheel tyre of the S.T. bus on the driver side and fell on the road. The tyre

of the motorcycle came under the tyre of the S.T. bus and the motorcycle

fell on the road.

10. If the said narration of this witness is taken as it is and

considered in totality, the narration in such a detail is not possible from

any driver who is driving a heavy vehicle like S.T. bus, particularly in

ghat and in a situation when the motorcycle is coming from backside. The

narration in such a detailed manner is possible only when the driver of

the S.T. bus was continuously watching the motorcyclist. Thus, the said

story appears to be improbable.

11. In the FIR and in the oral evidence of the claimant no. 1, it

has come on the record that the S.T. bus gave dash to the motorcycle. No

contrary evidence has been brought by the Insurance Company except the

evidence of driver of the S.T. bus which cannot be relied upon for the

above referred reasons. Having held so, I am of the considered view that

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the learned Tribunal has committed error in holding that the driver of the

bus was not negligent.

12. Furthermore, the spot panchanama in this case is not

sufficient to arrive at a conclusion that the S.T. bus driver was not

negligent but the deceased was negligent. For the purposes to decide

negligence, material more than spot panchanama is necessary and,

therefore, I do not find spot panchanama in this case sufficient to arrive at

a conclusion that the S.T. bus driver was not negligent.

13. In the circumstances, looking at the oral evidence of the

claimant no. 1 and the FIR, it is safe to hold that the driver of the S.T. bus

was negligent.

14. In the case of Khenyei Versus New India Assurance Company

Limited and others, the Hon'ble Supreme Court of India has held thus,

"15. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan17 has held that in case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The

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relevant portion is extracted hereunder: (SCC pp. 750-51, paras 6-7)

"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.

7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."

The decision in T.O. Anthony v. Karvarnan17 has been relied upon in A.P. SRTC v. K. Hemlatha18.

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15. In the light of above referred well settled position of law, if

the oral evidence of the driver of the S.T. bus is accepted as probable and

the oral evidence of claimant along with documentary evidence available

on record, is considered, at the most, there may be a case of composite

negligence and in that case, it will be held that the driver of the S.T. bus

and driver of the motorcycle both were negligent for the occurrence of

the accident. Even in that case, the Claim Petition against all the persons

who are negligent or any one of such person who is negligent, is

maintainable.

16. In the circumstances, the contention of the learned counsel

for the respondent that in absence of driver of the motorcycle and

Insurance Company, as party to the Claim Petition is not maintainable, is

rejected and it is held that the Claim Petition is maintainable.

17. The judgments cited by the learned counsel for the

respondent are of no help to the respondent in view of the fact that the

said judgments are distinguishable on facts.

18. Having held as above, I am of the considered view that the

appellant is entitled for compensation in this matter against the

respondents. Accordingly, I hold that the Judgment and Order passed by

the learned Tribunal is erroneous and not sustainable in the eyes of law.

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19. In the above facts and circumstances, it will be appropriate

that the learned Tribunal shall determine the amount of compensation

and for that it would be in the interest of both parties, to remit the matter

back to the learned Tribunal only for the said purpose.

20. Accordingly, I pass the following order :-

ORDER

I] The first appeal is partly allowed.

II] The Judgment and Order dated 15th January, 2009 passed by the Member, Motor Accident Claims Tribunal, Ambejogai, District Beed, in Motor Accident Claim Petition No. 23 of 2007, is set-aside.

III] The matter is remanded back to the Tribunal for a limited purpose to determine the amount of compensation on the basis of oral as well as documentary evidence available on record, which shall be determined within a period of three months from today.

IV] The parties shall appear before the Tribunal on 30th April, 2021.

V] The Registry is directed to send back the record and proceedings to the Tribunal if possible before 30th April, 2021 or at the earliest.

VI]    No order as to costs.



                                                    ( ANIL S. KILOR )
                                                        JUDGE
rrd