Anil Raokadaji Kamble vs Shriram Ganpat Bherane And 2 ...
2021 Latest Caselaw 11469 Bom

  204FA 840.2012.odt                               1



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

                         FIRST APPEAL NO. 840 OF 2012

  Anil Rokadaji Kamble,
  age 26 years, Occ. At present Nil,
  R/o Panchshil Nagar, Washim by pass, Akola,
  District Akola.
                                                               ...APPELLANT
                    Versus

  1. Shriram Ganpat Bherane,
     age adult, Occ. Driver,
     R/o Rajanda, Tq. Barshitakli, Akola.

  2. Pradeep Kashiram Wankhede,
     age adult, Occ. Owner of Minidor,
     R/o Ward No.5, Patur, Tq. Patur, Dist. Akola.

  3. The Divisional Manager,
     United India Insurance Co. Ltd.
     Old Cotton Market, Akola, Dist. Akola.
                                                         ...RESPONDENTS

  S/Shri A.S. Londhe and S.N. Ingle, Advocates for the appellant.
  Shri A.R. Bhuibhar, Advocate for respondent Nos.1 and 2.
  Shri M.M. Kalar, Advocate for respondent No.3.
                    .....

                                 CORAM : PUSHPA V. GANEDIWALA, J.

DATED : AUGUST 21, 2021.

ORAL JUDGMENT :

This is the claimant's Appeal filed against the

judgment and order dated 10/03/2011 passed by the Member,

Motor Accident Claims Tribunal, Akola in M.A.C.P. No.

310/2008, whereby the Claim Petition filed by the claimant

stood dismissed.

The facts of the case, in nutshell, are as under :

2. On 08/09/2007, at about 5:30 pm, when the

claimant was going on a motorcycle bearing No. MH-30-L-7123

from Kamala Nagar towards his shop situated at Panchsheel

Nagar, Washim Bypass, Akola, one minidor bearing No. MH-30-

E-6843 came from back side, which was rashly driven by

respondent No.1, and gave dash to the motorcycle due to

which the claimant sustained injuries to his right ankle. That

the appellant was pillion riding.

3. The First Information Report came to be lodged

with the Old City Police Station, Akola on the same day against

the driver of the minidor for the offence punishable under

Sections 297, 327 and 427 of the Indian Penal Code.

4. It is stated that the appellant, in the aforesaid

accident, suffered partial permanent disability to the tune of

30% and working capacity of 100%. That the appellant was a

wrestler and had participated in number of competitions and

won prices. That the age of the appellant, at the relevant time,

was 25 years, and he had to remain as a indoor patient for 34

days and was required to spend Rs.1,50,000/- on his

treatment. The appellant claimed Rs.8,00,000/- towards

compensation. Respondent Nos.1 and 2 are the driver and

owner of the offending vehicle respectively, while respondent

No.3 is the insurer of the vehicle.

5. Respondent Nos.1 and 2, in their joint written

statement, opposed the claim and denied the contents in the

petition, thereby denied their liability to pay compensation.

They specifically pleaded that respondent No.1 was driving the

vehicle very slowly and carefully. That he had just started the

vehicle and within 300 feet away from the starting point, the

claimant came fast from Kamala Nagar side on the Akola-

Washim road and due this sudden arrival, it was stated that

respondent No.1 could not avoid dash to the rear side of the

vehicle of the claimant. That respondent No.1 denied any

negligence on his part, and it is alleged that due to the rash

and negligent driving of the claimant, who approached the

main highway running Akola to Washim, the aforesaid accident

occurred.

6. Respondent No.3 - Insurance Company, in its

separate written statement (Exh.18), denied the contents in the

Claim Petition and the occurrence of the accident. The

Insurance Company also pleaded statutory defences as are

available to it under Section 149(2) of the Motor Vehicles Act.

7. On the basis of pleadings of the parties, the

Tribunal framed necessary issues and recorded evidence as

adduced by the parties. The claimant examined himself at

Exh.25 and brought on record the police documents and

medical papers. Two more witnesses were examined in support

of his claim. The respondents preferred not to examine any

witness.

8. The Tribunal, on the basis of oral and documentary

evidence, rejected the claim of the claimant mainly on the

ground that there was head on collision between the two

vehicles, and considering the contents in the FIR and spot

panchanama, in the opinion of the Tribunal, no negligence on

part of the driver of minidor can be inferred. This judgment is

impugned in this Appeal.

9. I have heard S/Shri Londhe, Bhuibhar and Kalar,

learned counsel for the respective parties. The following point

arose for consideration of this Court :

"Whether the claimant is entitled to receive compensation

amount for 30% permanent disability suffered by him due

to the motor accident involving minidor bearing No. MH-30-

E-6843 ?"

10. Shri Londhe, learned counsel for the appellant,

strongly relied on the oral testimony of the injured and

submitted that in his testimony, he has clearly stated that he

was coming from Kamala Nagar to his shop situated at the

Akola-Washim road and the minidor was coming from Akola

side, and therefore, the conclusion arrived at by the Tribunal

for head on collision is misconceived. He further submitted that

had both the vehicles were coming from opposite direction,

there could not have been damage to the minidor from front

side and the motorcycle from back side. With regard to

compensation, the learned counsel, on instructions, submits

that the appellant would be satisfied with the compensation

already calculated by the Tribunal.

11. On the contrary, Shri Bhuibhar, learned counsel for

respondent Nos.1 and 2 and Shri Kalar, learned counsel for

respondent No.3, while supporting the impugned judgment

and order, jointly submit that the Tribunal has correctly arrived

at conclusion that there was no negligence on part of the driver

of the minidor and thus prayed for dismissing the Appeal.

12. I have considered the submissions put forth on

behalf of both the sides. I have also perused the record with the

assistance of learned both the counsel.

13. At the outset, the occurrence of the accident and

involvement of the minidor is not disputed. It is also not

disputed that the said vehicle was insured with respondent

No.3, and at the relevant time, the license possessed by

respondent No.1 is valid.

14. With regard to occurrence of the accident, the

claimant in his examination-in-chief, had stated as under :

"That on 8.09.2007 at about 17.30hrs when the I was

going on the Motor Cycle bearing No.MH-30-L-7123 from

Kamlanagar to the shop at Panchashil Nagar Washim By

pass Akola, one Mini Door bearing no. MH-30-E-6843

come from back side i.e. from Akola side and going to

words Patur in very high speed, driving in rash and

negligent manner and gave dash to the Motor Cycle. Due

to that dash I sustained injuries to the Right ankle and

Right ankle and Right ankle is badly damaged and

sustained injuries all over the body. The accident took

place due to sole negligence of driver of the Mini Door."

This witness is cross-examined by the learned

counsel for the Insurance Company wherein he had stated that

he cannot say as to how far the minidor in question was behind

his motorcycle. However, he had stated that it was not in his

front. He had denied the suggestion that the minidor and the

motorcycle was coming from opposite direction. The tenor of

his cross-examination would suggest that both the vehicles

were not heading from opposite direction.

15. Respondent Nos.1 and 2, in their written statement,

stated that respondent No.1 had just started the vehicle, and

within 300 feet away from the starting point, the claimant

came fast from Kamala Nagar side on Akola-Washim road. That

because of the sudden arrival of the vehicle in a fast speed,

respondent No.1 could not avoid dash to the rear side of the

vehicle of the claimant, though he tried his level best to control

his vehicle.

A perusal of record would reveal that respondent

Nos.1 and 2 did not to enter in the witness box. In such a case,

there is no difficulty in considering their pleadings which are in

the nature of admissions, favoring the claimant's case.

16. From the aforesaid specific pleadings of respondent

Nos.1 and 2, it is clear that the claimant was coming from

Kamala Nagar side on the Akola-Washim road. This is also the

case of the claimant that he was coming from Kamala Nagar

side on the Akola-Washim road, and therefore, the conclusion

arrived at by the Tribunal that both the vehicles were coming

from opposite directions and there was head on collision, is

erroneous and cannot be sustained. Had both the vehicles were

coming from opposite direction, there could not be damage to

the minidor from front side and the motorcycle from back side.

Respondent No.1 - driver of the minidor, in his written

statement, himself has admitted that he could not avoid dash

to the rear side of the vehicle of the claimant, which itself

shows that the minidor was in a high speed and even though

the claimant was approaching the main highway running from

Akola to Washim, the driver of the minidor did not take care to

reduce the speed of the minidor, and therefore, it could not be

said that the driver of the minidor was not negligent.

17. Even though the Tribunal recorded negative finding

for entitlement of the claimant to receive compensation, the

Tribunal decided the issue of assessment of compensation to

which the claimant would have been entitled otherwise. The

Tribunal on the basis of material on record calculated the

compensation of Rs.3,32,135/- which includes compensation

towards the heads - loss of future income, loss of income

during the period of treatment, medical expenses, special diet

and pain and suffering. The said amount, as calculated by the

Tribunal, appears to be just and fair considering the facts of the

present case. The learned counsel for the appellant has no

grievance with the amount of compensation as calculated by

the Tribunal. Even this Court finds the said compensation as

just and fair, and therefore, no interference is warranted.

18. For the reasons aforestated, the finding recorded by

the Tribunal about negligence of the appellant is erroneous and

deserves to be set aside. Hence, the following order :

ORDER

i. The Appeal is allowed.

ii. The judgment and order dated 10/03/2011 passed

by the Member, Motor Accident Claims Tribunal, Akola in

M.A.C.P. No. 310/2008 is quashed and set aside.

iii. Respondent Nos.1 to 3 are directed to deposit

Rs.3,32,135/- with interest @ 7.5% per annum from the date

of petition till its realisation with the Registry of this Court

within a period of twelve weeks from today. Thereafter, the

appellant shall be entitled to withdraw the said amount, after

deducting the deficit Court fee.

iv. The Appeal stands allowed and disposed of. No

costs.

JUDGE ****** Sumit