Bombay High Court
Smt. Shahin Raess Shaikh And Ors vs Pune Municipal Corporation And ... on 24 February, 2021
Bench: P. K. Chavan
1-FA-1721-2002.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1721 OF 2002
A/W
CIVIL APPLICATION NO.352 OF 2019
IN
FIRST APPEAL NO.1721 OF 2002
1. SMT. SHAHIN RAEES SHAIKH ]
Age: 30 yrs. Occ: Household, ]
R/o. 25, Modikhana, Solapur. ]
2. SHARPHUHIN MULAKA NAIKWADI ]
Age: 69 yrs. Occ: Retired, ]
R/o. As above. ]
3. MASHUMBI SHARPHUHIN NAIKWADI ]
Age: 59 yrs. Occ: Household. ]
R/o. As above. ] Appellants/
Applicants
V/s.
1. PUNE MUNICIPAL CORPORATION, PUNE ]
Shivaji Nagar, Pune - 5. ]
2. THE ASSISTANT DIRECTOR OF ]
INSURANCE, Maharashtra State, ]
R/o. Bandra (East), Gruha Nirman ]
Bhawan, (MHADA), Mumbai. ] Respondents
(Opponents)
Digitally signed by
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Shailaja S. Shailaja S. Halkude
Halkude Date: 2021.02.26
11:07:54 +0530
1-FA-1721-2002.doc
Mr. Shashikant P. Chaudhari a/w Mr. Pranot Pawar a/w Ms. Kishori
Tribhuwan i/b Pawar & Co., for Appellant/Applicant.
Ms. Madhavi Tavanandi, for Respondent No.1.
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 15TH FEBRUARY, 2021.
PRONOUNCED ON : 24th FEBRUARY, 2021.
JUDGMENT:
1. This appeal challenges the Judgment and Award dated
20th February, 2002 passed by the learned Chairman, M.A.C.T.,
Solapur in M.A.C.P No.93 of 1998, by which the Petition of the
appellants came to be dismissed.
2. Facts in brief are as under;
Appellant No.1 is the widow of deceased Raees Shaikh and
appellants No.2 and 3 are parents of the deceased. Deceased Raees
Shaikh (for short 'deceased') was aged about 38 years. He was a
resident of Solapur. He was issue less. Deceased was working as
Branch Manager with Sanchayani Savings and Investment (I)
Limited, Pune.
On 27th October, 1997, deceased was proceeding from
Bahirat Putala, Pune on his motorcycle bearing Registration No. MH-
12-NA-1891. He was driving the motorcycle in a moderate speed by
the left side of the road. At the relevant time, a P.M.T bus bearing
registration No. MH-12-Q/0763 (offending bus) gave a forcible dash
to his motorcycle. Due to dash, deceased fell down. He was crushed
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under the rear wheel of the offending bus resulting into his
instantaneous death.
3. Genaba Kadu was the Driver of the offending bus which
belongs to respondent No.1 and insured with respondent No.2.
Bhalchandra Nagne (Applicant's witness No.3) was incidentally an
eye witness and also the investigating officer who was proceeding in
the same direction at the relevant time on his scooter. He was on his
way to Shivaji Nagar Police Chowky under Deccan Police Station. An
F.I.R was registered (Exhibit 24) by A.W.3- Bhalchandra Nagne.
Statements of the witnesses were recorded. A panchnama of the
scene of occurrence was drawn. A charge-sheet was filed against
Driver of the offending bus Genba Kadu attributing rash and
negligent driving to him. The appellants have claimed compensation
of Rs.20,00,000/- to 25,000,00/. However, they restricted the claim
to a sum of Rs.10,00,000/-.
4. It is contended by the appellants that the deceased was
drawing a monthly salary of Rs.2900/-, getting petrol expenses of
Rs.500/- and in addition to that development expenses of Rs.500/-.
He had a rent free quarter. It is further contended that besides
serving in Sanchayani Savings Scheme and Investment (I) Ltd, he
used to sell home appliances of "Sony" by taking orders and was
getting additional income of Rs.1500/- per month. Out of his
savings, he had purchased a Tata Sumo Jeep in the name of his wife-
appellant No.1. The Jeep was being given on hire and for
transportation. Appellant No.1 being a pardanashin lady, deceased
himself was looking after the business of the said jeep and was
earning Rs.16,000/- per month. Thus, it is contended that the total
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income of the deceased was around Rs.22,400/- per month. The
appellants, therefore, claimed compensation as above.
5. Issues were framed below Exhibit 21 by the learned
Chairman. It is held that the Driver of the offending bus was not
rash and negligent at the time of the accident and, therefore, he
cannot be held responsible for the accidental death of the deceased
involving the offending bus. The learned Chairman of the Tribunal
held that the accident occurred due to rash and negligent driving of
the motorcycle by the deceased and, therefore, the appellants are not
entitled for any compensation from the respondents.
6. Aggrieved by the the said decision, the appellants have
approached this Court by way of the first appeal.
7. I heard Mr. Chaudhari, learned Counsel for the appellants.
He would argue that the Investigating Officer himself was the eye
witness and, therefore, his evidence needs to be believed and Driver
of the offending bus ought to have been held responsible for causing
the accident. The learned Chairman has, therefore, erred in not
considering the evidence of Bhalchandra Nagne in its proper
perspective and had erred in observing that the deceased had
contributed to the accident to its full extent. It is further submitted
that the learned Chairman has failed to appreciate the fact that
evidence of A.W.3-Bhalchandra Nagne was neither challenged by the
respondents in the cross-examination nor challenged by contradicting
his statement in F.I.R. The learned Counsel for the appellants took
me through the evidence of A.W.3-Bhalchandra Nagne in order to
buttress his point that he was a creditworthy witness, in the sense,
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that there was no reason for him to testify falsely in relation to the
accident as well as with regard to the fast driving of the offending
bus by its Driver.
8. On the aspect of application of multiplier, it is contended
that the learned Chairman has erred in applying the multiplier in
respect of age of the parents instead of the deceased in the light of
the fact that one of the claimants is his widow. By applying improper
multiplier, the learned Chairman had erred in quantifying the
amount of compensation awardable to the claimants. The impugned
judgment has also been assailed on the ground that the learned
Chairman has failed to distinguish between absolute liability, strict
liability and rules under Reyland Vs. Fleture and failed to appreciate
that the respondents have not proved any exception.
9. Per contra, Ms. Madhavi Tavanandi, learned Counsel
appearing for respondent No.1-Pune Municipal Corporation
supported the impugned judgment by arguing that it was sole
negligence of the deceased and, therefore, respondent No.1 cannot
be fastened with any liability of compensating the appellants for the
accidental death of the deceased.
10. In order to prove rash and negligent driving of the Driver
of the offending bus, the appellants examined A.W.3-Bhalchandra
Nagne. According to this witness, on 27 th October, 1997 while
proceeding from Police Chowky to the Corporation by his Scooter, he
noticed the deceased who overtook him riding a motorcycle and tried
to overtake the offending bus from the left side. While doing so, the
offending bus hit the motorcyclist resulting into his fall on the
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ground and coming under the rear wheel of the conductor's side.
Blood was oozing from his mouth and nose. This witness shifted him
to the Sassoon Hospital, Pune, however, Doctor declared him dead.
A.W. 3- Nagne informed Shivaji Nagar Police Chowky on phone from
the Hospital and went to the spot. Interestingly, though he was an
eye witness, he became an Investigating Officer who conducted spot
panchanama, gave memo to R.TO for inspection of the offending bus
and recorded statement of the witness. The F.I.R is proved at Exhibit
24.
11. In sum and substance, it is the evidence of this witness that
the accident took place due to the negligence on the part of the bus
Driver. Had he been slow, the accident could have been avoided.
This witness filed a charge-sheet against the Driver of the offending
bus.
12. Learned Counsel Ms. Tavanandi for respondent No.1
informed this Court that the Driver has already been acquitted of the
offence.
13. During his cross-examination, A.W.3-Bhalchandra Nagne
admits that the speed of the motorcycle of the deceased was more
than speed of his Scooter. If contents of the F.I.R, Exhibit 24 vis-a-vis,
evidence of A.W.3-Nagne is seen, it is obvious that there was no
occasion for this witness to actually see as to how the accident took
place. It is significant in the light of the fact that the F.I.R clearly
indicates that when he reached on the spot, there was a crowd of
vehicles and people. However, in his evidence, he testified the
circumstances that laid to the accident in detail. Indeed, he made
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improvements in his version before the Court and, therefore, the
learned Chairman has rightly declined to place credence on his
evidence. Moreover, had he been an eye witness, he ought not to
have acted as an Investigating Officer also as that would not be a
fair investigation.
14. Statement of one Virendrakumar Dube was recorded who
was sitting at P.M.T Bus stand. He testified that around 12.30 noon,
he noticed one motorcycle going from the bridge towards Savarkar
Bhavan. In front of the bus stand, motorcycle of the deceased slipped
and he was crushed under the rear left side wheel of the PMT Bus.
The blood was oozing from his nostrils and mouth. He died on the
spot. Statement of Dube who was an eye witness to the accident and
whose statement was recorded by A.W.3- Bhalchandra Nagne does
not corroborate the testimony of A.W.3- Bhalchandra Nagne himself
and, therefore, it is difficult to accept that Driver of the offending bus
was responsible for rash and negligent driving resulting into death of
the deceased. It can be seen that the deceased came under the rear
wheel of the conductor side while overtaking bus from the wrong
side. This itself indicates that the deceased was solely responsible for
the accident due to his negligent act of driving the motorcycle in a
high speed and overtaking the bus from the wrong side.
15. A perusal of spot panchanama Exhibit 25 reveals that width
of the road near spot of the accident was 50 feet and the motorcycle
of the deceased was lying at a distance of 2 feet south of the place of
the accident. The rear wheel of the offending bus was at a distance
of 15 feet from the place of the accident and the front left wheel of
the bus was at a distance of 32 feet from the place of the accident.
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This indicates that the offending bus stopped at a distance of 15 feet
from the place of the accident and, therefore, it cannot be said that
the Driver of the offending bus was in high speed. The offending bus
must have been in a moderate speed. Except damage to the head
lamp, there was no other damage to the motorcycle.
16. In this background, evidence of O.W.1-Genaba Kadu, Driver
of the offending bus is significant. He testified that at the relevant
time, he was plying on Route No.36 i.e from Municipal Corporation
to Chinchwad Gaon. His duty hours were from 5.00 a.m to 2.30 p.m.
He was supposed to take five rounds on the said route. The accident
took place when he was taking the last round. According to this
witness, around 12.45 p.m, he left the first stop known as Dengale
Bridge stop. The work of pipeline was going under the bridge. It was
a one way traffic. He was driving slow. Speed of the bus was 10 to
20 kms per hour. When he crossed the bridge and entered Bahirat
Putala Chowk, another bus came from right side which took turn and
went towards Deccan. At that time, he heard some of the passengers
shouting that a motorcyclist fell behind. He stopped the bus and got
down. He noticed that the motorcyclist was taken in an auto
rickshaw. According to this witness, he did not give dash to the
motorcyclist as has been rightly testified that there was no question
of giving dash to the motorcycle of the deceased. During his cross-
examination, he denied the suggestions of he being rash and
negligent and in a hurry to finish last round of the bus. There is
nothing in his cross.
17. It is obvious that there was no occasion for the bus Driver
either to see the motorcyclist trying to overtake his bus from the
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wrong side or to see as to how he came under the rear wheel. At the
most, had the deceased overtaken the offending bus from the right
side then the things ought to have been different. As already
discussed, the deceased was trying to overtake the bus from the
wrong side and hit it which resulted into the accident and
consequently, resulted into his death. The deceased himself had
invited the peril by risking to overtake the offending bus from the
wrong side. No one but he is to be blamed for putting his life at risk.
The learned Chairman has, therefore, rightly appreciated the
evidence of all the witnesses by concluding that the motorcyclist had
invited the accident by trying to overtake the offending bus from the
wrong side.
18. The learned Chairman, however, went on to determine the
income, amount of compensation which could have been awarded to
the deceased and all other relevant factors which, in the given set of
circumstances, were not necessary for the simple reason that once it
has been held that the Driver of the offending bus was not at all
negligent in causing the accident, the question of determination of
compensation becomes otiose.
19. For the reasons stated hereinabove, I do not find any merit in
this appeal. The appeal stands dismissed. However, in the
circumstances, there is no order as to costs.
20. In view of dismissal of the appeal, Civil Application No.352 of
2019 stands disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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