Peniel Children Home And Another vs Godawari Baliram Hasnale And ...
2022 Latest Caselaw 8443 Bom

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                                                                         483.13FA

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                               FIRST APPEAL NO. 483 OF 2013

          1.       Peniel Children Home
                   Sisu Society for integrated Soci,
                   Uplipeniel Children Home,
                   R/o LIC Colony, Plot No.R-4/160/9,
                   Khopegaon Road, Latur,
                   Dist. Latur, Maharashtra

          2.       Ramesh S/o Shankar Suryawanshi
                   Age : 43 years, Occ : Driver,
                   R/o LIC Colony, Plot No.R-4/160/9,
                   Khopegaon Road, Latur.
                                                     .. APPELLANTS
                   VERSUS

          1.       Godawari w/o Baliram Hasnale
                   Age : 47 years, Occ : Household,
                   R/o Gawali Nagar, Latur.

          2.       Pradeep S/o Baliram Hasnale
                   Age : 27 years, Occ : Education,
                   R/o Gawali Nagar, Latur.

          3.       Prashant S/o Baliram Hasnale
                   Age : 24 years, Occ : Education,
                   R/o Gawali Nagar, Latur.

          4.       Trivenibai W/o Babarao Hasnale
                   Age : 67 years, Occ : Household,
                   R/o Chambarga, Tq. Shirpur Anantpal,
                   Dist. Latur.

          5.       The New India Assurance Co. Ltd.,
                   Gayatri Krupa Ukka Road,
                   Chandra Nagar, Latur.
          .                                    RESPONDENTS




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                                                                            483.13FA

                                         ...
          Advocate for Appellant : Mr.S.N. Pagare
          Advocate for respondent nos.1 to 4 : Mr. S.P. Urgunde
          Advocate for respondent no.5 : Ms. Sayali S. Tekale h/f
                                           Mr.S.G. Chapalgaonkar
                                       ...
                                  CORAM : S.G.DIGE, J.

                                       RESERVED ON : 19/07/2022
                                       PRONOUNCED ON : 26/08/2022



          JUDGMENT :

Being aggrieved and dissatisfied with the

judgment and award passed by the Member, Motor

Accident Claims Tribunal, Latur, the appellants - original

respondent no.2 and original respondent no.1 have

preferred this appeal.

2. Brief facts of the case are as under :-

On 30.05.2010 during night hours deceased

Baliram and his son-in-law were proceeding to the Railway

Station at Latur on motor cycle. Deceased Baliram was

ridding the motor cycle. At about 8.45 p.m., auto rickshaw

bearing no.MH-24-L-9233 driven by respondent no.1 in rash

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and negligent manner gave dash to the motor cycle from

opposite direction. In the said accident, deceased Baliram

sustained fatal injuries and while undergoing the treatment,

he succumbed to the injuries. First Information Report was

lodged for rash and negligent driving against respondent

no.1 under various sections of the Indian Penal Code (For

short, "IPC").

3. The respondent nos.1 to 4 -original claimants

filed Claim Petition before the Motor Accident Claims

Tribunal, Latur (For short, "the Tribunal") for getting

compensation against the appellants and respondent no.5

on account of death of deceased Baliram. Considering the

evidence on record and after hearing the parties, the

Tribunal has awarded compensation of Rs.15,49,120/- with

interest @ 6% p.a. from the date of Petition till its

realization. The said judgment and order is under challenge.

4. It is the contention of the learned counsel for

the appellants that the Tribunal has erroneously held

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appellant no.2/original respondent no.2 responsible for

paying compensation in respect of the accident, in fact the

deceased was at fault. The learned counsel further submits

that the treatment was given to the deceased in private

hospital without recording medico-legal case. The first

information report is lodged after lapse of 11 days. The

pillion rider was not examined to prove the point of rash

and negligent driving of appellant no.2. The Tribunal

granted excess and exorbitant compensation under the

guise of just compensation. The Tribunal has not considered

that appellant no.1 is society for integrated social upliftment

SISU who is running orphanage in Latur District and the

auto rickshaw is registered in the name of appellant no.1.

Appellant no.1 is not profit organization and working for

the welfare of poor and orphan children. Hence requested

to allow the appeal.

5. It is contention of the learned counsel for

respondent nos.1 to 4 that while granting compensation,

the Tribunal has considered all the aspects and granted

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compensation. The deceased was serving as permanent

Mason in Irrigation Department, Latur, whose monthly

salary was Rs.19,495/-. The deceased was getting income

from agricultural land. Considering the evidence on record

the Tribunal has granted just and proper compensation.

6. The learned counsel for respondent no.5

submitted that on the date of vehicular accident, the auto

rickshaw was not insured with respondent no.5. Hence the

appellant no.1 being the owner of the auto rickshaw is

liable to pay the compensation. The judgment and order

passed by the Tribunal is legal and valid.

7. I have heard all the learned counsel. Perused

the judgment and order passed by the Tribunal. The

appellants have preferred this appeal mainly on three

grounds (i) The deceased himself was negligent while

driving the motor cycle, (ii) F.I.R. is lodged after 11 days of

the accident and (iii) income of deceased considered on

higher side.

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8. I deal with all issues one by one.

(i) Negligence of deceased :-

It has come in the evidence of CW-1 - Pradeep

Baliram Hasnale, who is son of the deceased, that after the

accident the deceased become unconscious, therefore, the

son-in-law (pillion rider) of deceased took him to hospital

i.e. Civil Hospital, Latur, thereafter deceased was taken to

Vivekanand Hospital, Latur and then Lokmanya Intensive

Care Centre, Latur. The deceased was under treatment in

ICU for 15 days from the date of accident. Thereafter, he

died on 15.06.2010. On 10.06.2010, the son-in-law (pillion

rider) of the deceased filed the complaint with M.I.D.C.

Police Station, Latur against appellant no.2/original

respondent no.1, nothing elicited in cross-examination of

this witness.

The evidence of this witness shows that the

deceased was admitted in the hospital and he was taking

treatment in ICU. As the deceased was taking treatment,

hence there was delay for lodging the F.I.R. Mere delay for

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lodging the complaint cannot be a ground to exonerate the

liability of appellant no.2 against whom the offence is

registered for rash and negligent driving. Appellant no.2 has

examined himself at Exhibit-52. He has stated that on the

date of incident, he was returning from Latur Railway

Station towards SISU School. His auto rickshaw was in

moderate speed. He was driving the auto rickshaw on the

left side of the road. The deceased was driving his motor

cycle in high speed with rash and negligent manner. The

deceased tried to overtake one Jeep. At that time, the speed

of the motor cycle was very high and the deceased gave

dash to his auto rickshaw and fallen down. Thereafter, this

witness and others shifted deceased to the hospital and son-

in-law of the deceased (pillion rider) told this witness that

they are responsible for the said accident and they are not

going to file any complaint against this witness. On that

assurance this witness returned from spot of incident to his

school. This witness further stated that on 30 th May, 2010,

he went to M.I.D.C. Police Station, Latur to inform about

the accident. At that time Incharge Officer of the M.I.D.C.

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Police Station told him that if he is not responsible for the

accident then there is no need to register the F.I.R.

Thereafter, the false complaint is filed against this witness.

In cross-examination, this witness admitted that he had

gone to M.I.D.C. Police Station, Latur with written

complaint stating therein that the deceased was at fault and

responsible for vehicular accident but his written complaint

was not accepted by the Police.

9. From the evidence of this witness, it appears

that there are contradictions in the statement made by this

witness. This witness has stated that after accident he along

with others shifted the deceased to the hospital, whereas in

the second sentence, this witness states that from spot of

accident, he returned to the school on assurance given by

the son-in-law of the deceased. Admittedly, the accident is

occurred at about 8.45 p.m. As per the evidence of

appellant no.2, he returned to the school on assurance of

the son-in-law of the deceased and on the other side, he

states that he shifted the deceased to the hospital. So there

483.13FA

are contradictions in his evidence regarding shifting the

deceased to the hospital as well as returning to his school.

Moreover, he has stated that on 30.05.2010 i.e. on the same

day of accident, he went to Police Station to inform about

accident. Appellant no.2 has not stated in his affidavit by

what time he had gone to the M.I.D.C. Police Station to

inform the Police about the accident. In his evidence, he has

not stated that he had gone there with written complaint. In

cross-examination, he admitted that he went there with

written complaint. On one point, this witness states, on

assurance of son-in-law of deceased he returned the school

then question remains why again he went to Police Station,

what prompted him to lodge complaint that too about 10

p.m. to 11 p.m. Had the appellant no.2 gone to Police

Station, the Police would have taken cognizance of incident

and would have visited the hospital where deceased was

admitted, but it was not happened. Considering

contradictions in statements of appellant no.2, the evidence

of appellant no.2 is hard to digest.

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10. While considering the evidence of both these

witnesses, it is necessary to see the documentary evidence

came on record in respect of the accident. F.I.R. is at

Exhibit-36 and the copy of the spot panchanama is at

Exhibit-37. The spot panchanama is prepared by the Police

after visiting the place of accident. It shows that the

vehicular accident had taken place on the left side of the

road heading to Latur Railway Station. It was correct

vehicular traffic side as far as the motor cycle is concerned,

which the deceased was riding. The vehicular accident was

occurred on the left side of the road. It shows that auto

rickshaw had come by wrong side of the road and hit the

motor cycle, which the deceased was riding. Had the

deceased was trying to overtake the Jeep as alleged by

appellant no.2 (respondent no.1), the place of accident

would have been on the right side of the road, but the place

of the accident is on the left side of the road, it shows that

appellant no.2 was driving the auto rickshaw at high speed

and in rash and negligent manner, resulting into the

vehicular accident. The first information report is lodged

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against appellant no.2. It proves that vehicular accident has

taken place because of rash and negligent driving of the

driver of the auto rickshaw i.e. appellant no.2. Moreover,

from the evidence of appellant no.2 i.e. contradiction in

statements, it proves that his plea of negligence of deceased

is false and after thought, this plea has taken to avoid

liability of paying compensation.

(ii) Delay in filing the F.I.R. :-

11. In respect of issue regarding the delay in filing

the F.I.R., I have already observed earlier that after the

accident the deceased was admitted in ICU, hence there is

delay for lodging the F.I.R., hence the ground of delay is not

sustained.

(iii) Income of deceased :-

12. In respect of issue regarding income of

deceased, it has come in the evidence of PW-2 Devidas

Dhage Exhibit-47 that the deceased Baliram Hasnale was

working as Mason in Irrigation Department, he was

permanent employee, salary certificate of the deceased is at

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Exhibit-44. This certificate shows salary of the deceased was

Rs.19,494/- per month. Thus annual salary comes to

Rs.2,33,928/-. The Tribunal has considered the income tax

returns deduction from this salary and has considered

Rs.2,21,428/- per annum. At the time of accident the age of

deceased was 56 years, hence the Tribunal has applied

multiplier of 9. On that basis, the calculation is done. It

comes to Rs.13,28,400/-. The Tribunal has considered

Rs.2,03,720/- as medical expenses. Bills are produced on

record. The total compensation of Rs.15,49,120/- is

awarded. I do not find exorbitant amount is awarded. All

compensation amounts are given on the basis of evidence.

13. It is contention of the learned counsel for the

appellants that appellant no.1 is not profit organization

working for welfare of poor people but this fact was not

considered by the Tribunal while awarding compensation.

14. The question is whether appellant no.1 can

claim immunity from the liability on the basis of their social

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work. In my view, the deceased has lost his life in accident.

Respondent no.1 has lost her husband whereas respondent

nos.2 and 3 have lost their father. Value of human life

cannot be measured in precise arithmetical calculations.

Appellant no.1 is owner of offending auto rickshaw so they

cannot avoid their liability. Work for welfare of people

cannot be a ground to avoid any liability. In view of the

above, I pass the following order :-

ORDER

(i) The appeal is dismissed.

          (ii)     No order as to costs.

          (iii)    In view of the disposal of the first appeal itself, pending

civil applications, if any, the same stand disposed of.

(iv) Respondent nos.1 to 4 are entitled to withdraw amount

deposited by appellant no.1.

[S.G.DIGE] JUDGE SGA/-