Bombay High Court
Sou. Vimal Vithal Barge vs Dilawar Shamshuddin Dangare And Ors on 12 June, 2025
2025:BHC-AS:23601
Digitally
signed by
WAKLE
WAKLE
MANOJ
MANOJ
JANARDHAN
Manoj 202-FA-717-2003 & other.doc
JANARDHAN Date:
2025.06.16
19:28:56
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.717 OF 2003
Shivling Vithal Barge ...Appellant
V/s.
1. Dilawar Shamshuddin Dangare
2. New India Assurance Company Ltd., Sangli,
3. Ramjan Abdul Shaikh
4. Oriental Insurance Company Ltd., Sangli ...Respondents
WITH
FIRST APPEAL NO.718 OF 2003
Sou. Vimal Vithal Barge ...Appellant
V/s.
1. Dilawar Shamshuddin Dangare
2. New India Assurance Company Ltd., Sangli,
Policy No.31/151004/09435
3. Ramjan Abdul Shaikh
4. Oriental Insurance Company Ltd., Sangli ...Respondents
WITH
FIRST APPEAL NO.716 OF 2003
Shri. Vithal Govind Barge ...Appellant
V/s.
1. Dilawar Shamshuddin Dangare
2. New India Assurance Co. Ltd., Sangli,
1/27
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Manoj 202-FA-717-2003 & other.doc
3. Ramjan Abdul Shaikh
4. Oriental Insurance Company Ltd., Sangli ...Respondent
Mr. Ranjit R. Bhosale, for the Appellant.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 09th May, 2025
PRONOUNCED ON: 12th June, 2025
JUDGMENT:
-
. Present Appeals have been filed under Section 173 of the
Motor Vehicles Act, 1988 ("the Act") by Original Claimants in
M.A.C.P. No.352 of 1993, No.354 of 1993 and No.349 of 1993
respectively, against the common Judgment and Order dated
30/11/2000, in Motor Accident Claim Petition No.349 of 1993,
No.350 of 1993, No.351 of 1993, No.352 of 1993, No.354 of 1993,
No.355 of 1993 and No.363 of 1993, passed by the Motor Accident
Claims Tribunal, Sangli.
1.1) By the impugned Judgment and Order, M.A.C.P. No.363
of 1993 was dismissed and all the other claims were partly allowed
but only against Respondent No.3.
2) Record indicates that, all the aforesaid Appeals have been
admitted on 18/10/2004. In F.A. No.717/2003, Respondent Nos.2
Manoj 202-FA-717-2003 & other.doc
and 4 were duly served. Advocate Rajesh Behere appeared for
Respondent No.2 and Advocate J.S. Chandanani appeared for
Respondent No.4. The Appeal has been dismissed for default as
against Respondent No.3.
2.1) The record also indicates that F.A. No.717 of 2003 has
been dismissed for default against Respondent No.1. But the Bailliff's
Report dated 24/04/20o6 and the Report dated 26/04/2006 received
from the Asstt. Superintendent, Civil Court Junior Division, Islampur
state that Respondent No.1 has been served under O 5 R 17 of the
C.P.C. by affixing the notice to the outdoor of his house as he had
gone out of station and about to return in the next 4/5 days. However,
Respondent No.1 did not file his appearance. Therefore, the Order of
dismissing the Appeal against Respondent No.1 is called back.
2.2) In First Appeal Nos.718/2003 and 716/2003, Respondent
Nos.1, 2 and 4 were duly served. Advocate Mr.D.B. Gupta, Advocate
Mr.Rajesh Behere and Advocate J.S. Chandanani appeared for
Respondent Nos.1, 2 and 4 respectively. Said Appeals have been
dismissed for default against Respondent No.3.
3) Hence, heard Mr.Bhosale, the learned Advocate for the
Appellants. Perused the Record. Despite sufficient opportunities
granted, none appeared for Respondent Nos.1, 2 and 4.
4) All the said 7 claims arose out of the same accident which
Manoj 202-FA-717-2003 & other.doc
occurred on 13/06/1993, at about 6:00 PM, on Pune-Bangalore Road,
near Yede-Nipani Approach Road. The vehicles involved in the
accident were a Motor Truck bearing No.MWE-1457 ("truck") and a
Tempo Trax bearing Registration No. MH12E8237 ("trax"). The truck
was owned by Respondent No.1 and insured with Respondent No.2
whereas the trax was owned by Respondent No.3 and insured with
Respondent No.4. The said trax was driven by Azamuddin Sayyed.
Out of the 7 claims, M.A.C.P. No.351 of 1993 was in respect to the
death of Hemlata, aged 15 years, who was occupant in the trax.
M.A.C.P. No.363 of 1993 was in respect of the death of Azamuddin
Sayyed.
5) It was the case of the claimants that at the relevant time
and place, when they alongwith other injured-claimants and the
deceased Hemlata were travelling in the trax and proceeding to Jotiba
for darshan, three trucks were coming from the opposite directions in
a row. The trax was proceeding from North to South, i.e., from
Koregaon to Kolhapur side, while the trucks were coming from
Kolhapur side, i.e., from South to North. The offending truck was 3rd
in the row, which was driven rashly and negligently by Respondent
No.1, the owner himself. It was averred that, while overtaking the two
trucks ahead of it, the truck came on the wrong side and gave dash to
the trax, even though the driver of the trax gave a signal through
Manoj 202-FA-717-2003 & other.doc
headlights. Due to the said impact Hemlata and Azamuddin Sayyed
sustained serious injuries and died on the spot. The Appellants and
other claimants sustained grievous injuries which caused them
permanent partial disability. Hence, the Appellants, other injured
persons and the legal heirs of Hemlata and Azamuddin Sayyed filed
the said claims under Section 166 of the Motor Vehicles Act, 1988.
6) The Appellant/Claimant in M.A.C.P. No.352 of 1993
averred that, he was aged 20 years and studying third year B.A. at the
time of accident. He had sustained a fracture to the scull and an
injury to the brain. He was inpatient in Krishna Hospital and
medically treated there till 23/06/1993. He lost his memory due to
the head injury. As a result, he could neither complete his education
nor get his dream job in the police or the military services. Therefore,
he claimed Rs.1,00,000/- towards loss of memory, Rs.25,000/-
towards pain and suffering, and Rs.5,000/- towards medical
expenses.
7) The Appellant/Claimant in M.A.C.P. No.354 of 1993
averred that, she was aged 50 years and doing household work. She
had sustained a fracture to the scull, right hand, jaw and dislocation
of some teeth. She was inpatient till 19/07/1993. The aforesaid
injuries caused her permanent disability due to which she cannot do
the domestic work as before. Therefore, she claimed Rs.1,50,000/-
Manoj 202-FA-717-2003 & other.doc
towards loss of memory, Rs.25,000/- towards pain and suffering, and
Rs.10,000/- towards medical expenses.
8) The Appellant/Claimant in M.A.C.P. No.349 of 1993
averred that, he was aged 46 years, serving as a Police-Sub Inspector
and drawing monthly salary of Rs.3,500/-. He had sustained injury
over head, face, fracture to the left leg and fracture to the right hand.
He was inpatient in the same hospital. His injuries were operated,
but, he cannot work as before due to the injuries. Therefore, he
claimed Rs.1,00,000/- towards loss of memory, Rs.25,000/- towards
pain and suffering, and Rs.5,000/- as medical expenses.
9) All the seven claims proceeded without a Written
Statement of Respondent Nos.1 and 3.
9.1) Respondent No.2 opposed the aforesaid claims by filing
the separate Written Statement (at Exhs.24 & 23, 25 & 26
respectively). Respondent No.2 denied that, the accident occurred
due to the rash and negligent driving of the truck. It was denied that,
the Appellants sustained the said injuries and that it caused disability
to them, which affected their working and earning capacity. It was
contended that, the accident occurred when Azamuddin Sayyed,
driver of the trax was overtaking another vehicle and in that process
came on the wrong side. It was admitted that, the truck was validly
and effectively insured with Respondent No.2 at the time of accident.
Manoj 202-FA-717-2003 & other.doc
However, it was contended that the liability of Respondent No.2 was
subject to the terms and conditions of the policy.
10) Respondent No.4 also opposed the claims by filing the
separate Written Statement (at Exhs.27, 26 & 27 respectively).
Respondent No.4 admitted the said accident and that, the trax was
validly and effectively insured with Respondent No.4. But it
contended that said accident occurred due to the rash and negligent
driving of the truck by Respondent No.1. It was contended that there
was no negligence on the part of the driver of the trax. Respondent
No.4 denied the accidental injuries of the claimants; that, it caused
them the disability; and that, the claimants are not able to work and
earn as before, due to the disability. It was contended that there was a
breach of the policy terms and conditions by the driver and owner of
the trax as the trax was carrying 15 to 16 fare paying passengers and
their risk was never covered by the subject policy of the insurance. In
this background, Respondent No.4 prayed to dismiss the claim with
costs.
11) In view of the pleadings, the Tribunal framed the relevant
issues in each claim. Thereafter, the parties adduced their evidence in
the respective claim. After considering the oral and documentary
evidence on record, the Tribunal held that the accident occurred only
due to the rash and negligent driving of the trax. As a result, the
Manoj 202-FA-717-2003 & other.doc
Tribunal absolved Respondent Nos.1 and 2 from the liability to pay
the compensation. The Tribunal also absolved the Respondent No.4-
Oriental Insurance Company from the said liability for the reason that
the trax was hired for reward and carrying more passengers than
permissible limit.
12) In M.A.C.P. No.352 of 1993, considering the evidence as to
the injuries, disability, occupation and income of the claimant Mr.
Shivling Barge, the Tribunal held that, the doctor did not show any
disability nor any witness was examined to prove that the injury
suffered by this claimant led to the permanent disability. It was held
that the injury certificate (Exh.47) is not sufficient to prove that the
fracture to the skull resulted in the permanent loss of the memory.
Therefore, the Tribunal held that it is difficult to accept that the
claimant became disabled due to said injury. However, considering
the nature of the injury, the Tribunal awarded Rs.10,000/- under
general heads. Relying upon the payment receipt and the hospital bill
(Exh.48), the Tribunal awarded Rs.3,171/- towards medical
treatment. Although the claimant proved the medical proscription
(Exhs.49 to 57), the Tribunal did not consider the same and awarded
any compensation towards purchase of pharmacy, for want of
pharmacy bills. Thus, the Tribunal awarded total Rs.13,171/- to this
claimant.
Manoj 202-FA-717-2003 & other.doc
13) In M.A.C.P. No.353 of 1993, considering the evidence as to
the injuries, disability and the occupation of the claimant Sau. Vimal
Barge, the Tribunal held that, the disability suffered by her
permanently reduced her working capacity as a homemaker and
considering the fact that, cooks were then available on a monthly
payment of Rs.300/-, the Tribunal held that there was loss of
Rs.3,600/- per annum towards engaging a cook/maid on account of
the disability. The claimant was aged 50 years at the time of the
accident. Therefore, the Tribunal awarded her a total compensation of
Rs.36,000/- for the loss of 10 years' income towards engaging a maid.
Additionally, the Tribunal awarded Rs.13,014/- towards medical
expenses and Rs.15,000/- for pain and suffering.
14) In M.A.C.P. No.349 of 1993, considering the evidence of
the claimant Mr. Vithal Barge, the Tribunal held that, there has been
no such disability to the claimant which can be said to be permanent
in nature. Therefore, awarded him total compensation of Rs.14,842/-.
Submissions
15) Mr. Bhosale, the learned Advocate for the Appellants
submitted that the Appellants adduced their evidence on oath and
clearly stated that the accident occurred due to the rash and negligent
driving of the truck. It is a settled law that in such claim matters the
substantive evidence should be weighed more than the police papers.
Manoj 202-FA-717-2003 & other.doc
He submitted that the F.I.R. clearly recorded that, the accident
occurred due to rash and negligent driving of the truck. Neither
Respondent Nos.1 filed his Written Statement nor adduced his
evidence to contest the issue of the negligence. He submitted that the
F.I.R. and the Spot Panchnama do not show exactly how the vehicles
were positioned when they met with the accident and exactly on
which side of the road did the accident occur. Therefore, there was no
legal impediment in relying on the evidence of the Appellants and
accepting their claim that the accident occurred due to the rash and
negligent driving of the truck. Respondent Nos.2 to 4 also not
examined any witness including Respondent No.1, to contradict the
evidence of the Appellant as to the manner and cause of the accident.
Therefore, adverse inference was permissible against them. However,
the Tribunal held that the accident occurred due to rash and negligent
driving of the trax only, which is erroneous and against the evidence
on record. He submitted that despite the claimants suffered serious
injuries and consequent disability, meager compensation amount
have been awarded to them. He, therefore, urged that the impugned
Judgment and Award be modified and just compensation be awarded.
16) Now turning to the question of negligent driving. All the
claimants specifically pleaded that there was rash and negligent
driving of the truck by Respondent No.1. It is their case that when the
Manoj 202-FA-717-2003 & other.doc
trax reached near Yede-Nipani approach road, the offending truck,
while overtaking two trucks which were ahead of it, came on the
wrong side and gave dash to the trax which was driven by Azamuddin
Sayyed in a moderate speed, observing the rules and regulations of
the road and without any negligence on his part.
17) The evidence of claimant Vithal Govind Barge is that, at
the time of the accident, he was seated in the trax on the front seat,
near the driver. He saw that the offending truck ignored the signal
given by the trax driver, came at a high speed, in a negligent manner
and gave dash to the trax. But he admitted that at the spot, the road
was straight for about 3 to 4 kms. He saw the offending truck
approaching from the front, when it was at a distance of about ½ km.
from the trax. Therefore, the Tribunal observed that, if really the
offending truck was seen from a distance of ½ km., then certainly the
trax driver would have taken precaution and took the vehicle on
Kachha road. As such, the Tribunal held that the evidence of Vithal
Barge is not reliable. The Tribunal observed that, when the truck
driver was overtaking the trucks ahead of it, there was no possibility
of the accident. This shows that the trax driver was not attentive, if
the evidence of Vithal Barge was believed as correct.
17.1) The Tribunal noted that, 15 to 16 persons were seated in
the tempo trax. The claimant in M.A.C.P. No.350 of 1993 was seated
Manoj 202-FA-717-2003 & other.doc
at the rear portion of the trax, therefore, it was hardly possible for her
to see the incoming vehicle. Appellant Shivling Vithal Barge admitted
that at the relevant time, he was sleeping and he woke up only after
the accident. From the Evidence of the claimant Rohini in M.A.C.P.
353 of 1993 and the Appellant Vimal, the Tribunal noted that, they
admitted that the occupants in the jeep were engrossed in
conversation with each other. They were not attentive to the road.
Therefore, the Tribunal held that it is difficult accept their evidence
that the accident occurred due to the rash and negligent driving of the
truck.
17.2) The Tribunal noted that, from the F.I.R. it is evident that
that API Kobal registered the offence against Respondent No.1 for
causing this accident and prosecuted him. However, considering the
contents in the Spot Panchnama, the Tribunal held that the width of
the road at the spot was 22 feet. There was kachha road of 5 to 6 feet
in width abutting either side of the road. Kolhapur is towards South,
while Pune is towards North. Admittedly the truck was proceeding
towards Pune, while the trax was proceeding towards South, i.e.
towards Kolhapur. It means the correct side of the trax was East,
while the correct side of the truck was West. The Spot Panchnama
recorded that, the vehicles involved in the accident were removed
from the road for traffic purposes, but before that, the post accident
Manoj 202-FA-717-2003 & other.doc
position of the vehicles was marked by drawing lines.
17.3) The Tribunal noted that, in the Spot Panchnama, in
paragraph 2, there is reference that the front wheel of the trax was
one feet away from the dividing line of the road towards West and the
rear wheel was in the centre of the road. It means that the trax came
to the wrong side as the place of accident is one foot away from the
dividing line towards West. Therefore, the Tribunal declined to accept
the averments or statements made by the witnesses that the offending
truck came to wrong side, while over-taking the trucks ahead of it and
gave dash to the trax. The Tribunal further observed that, on the
contrary, it appears from the situation found at the spot that the trax
driver himself, while over-taking some other vehicle, came to the
wrong side as his vehicle was found one foot towards Western side,
i.e., correct side of the truck. Additionally, the Tribunal noted that,
the trax was over-crowded. The capacity of trax was not more than 10
seats. Therefore, an inference can be drawn that the driver of the trax
was unable to control the trax. Only precaution of the driver is not
sufficient. Therefore, and applying the principle of ' res ipsa loquitur',
the Tribunal held that there was total negligence on part of the trax
driver.
18) But this Court is not in agreement with the aforesaid
finding recorded by the Tribunal. Because, it is well-settled that in the
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proceedings of Section 166 of the Act, the issue of negligence has to be
decided on the basis of preponderance of probabilities and that,
standard of proof beyond reasonable doubt cannot be made
applicable in such cases. In National Insurance Co. Ltd. v/s.
Chamundeswari and others1, the Hon'ble Supreme Court held that,
"... If any evidence before the Tribunal runs contrary to
the contents in the first information report, the evidence
which is recorded before the Tribunal has to be given
weightage over the contents of the first information
report. ... Whether driver of the vehicle was negligent or
not, there cannot be any straitjacket formula. Each case is
judged having regard to facts of the case and evidence on
record."
18.1) In Jiju Kuruvila and others v/s. Kunjujamma Mohan and
others2, the Hon'ble Supreme Court held that,
"24. The mere position of the vehicles after accident, as
shown in a Scene Mahazar, cannot give a substantial proof
as to the rash and negligent driving on the part of one or
the other. When two vehicles coming from opposite
directions collide, the position of the vehicles and their
directions, etc. depends on a number of factors like speed
of vehicles, intensity of collision, reason for collision, place
at which one vehicle hit the other, etc. From the scene of
the accident, one may suggest or presume the manner in
1 2021 ACJ 2558
2 2013 ACJ 2141
Manoj 202-FA-717-2003 & other.doc
which the accident occurred, but in absence of any direct
or corroborative evidence, no conclusion can be drawn as
to whether there was negligence on the part of the driver.
In absence of such direct or corroborative evidence, the
Court cannot give any specific finding about negligence on
the part of any individual."
18.2) In the case in hand, the Spot Panchnama indicates that,
the line marking done on the road was mainly intended to
demonstrate as to how the truck and the trax were positioned, post
the accident. In other words, said marking was not intended to show
that, the accident occurred due to the fault of both drivers or either of
them. It is not clear as to when the said marking was done and by
whom. The Spot Panchnama was recorded on the next day of the
accident. There is no evidence from the Respondents' side as to how
the said vehicles were actually positioned when met with the accident.
The injured witnesses, in particular, claimant- Vithal Barge
categorically deposed that, before the accident, the driver of taxi had
signaled the driver of the truck and alerted him. However, the Spot
Panchnama clearly indicates that there was a 40 feet long left rear tire
mark and a parallel 35 feet long right rear tire mark of the truck on
the road, even though the truck was a heavy vehicle. Therefore, it is
legitimate to infer that since the truck was driven at a very high speed,
Manoj 202-FA-717-2003 & other.doc
it could not slow down while overtaking despite receiving the signal
from the driver of the taxi, and consequently it contacted the trax. The
Respondents have not explained as to why the truck was driven
touching the centre of the road despite the truck driver had a 16 feet
wide road including 5 feet wide Kachcha road and two trucks were
running ahead of the said truck. It is significant to note that if the trax
was driven on the wrong side, first it would have collided with the
first truck, not the last truck. Therefore, the evidence of the claimant
is acceptable that the speeding offending truck unthinkably and
dangerously overtook the trucks running ahead of it and consequently
the truck came near the centre of the road. This act of the driver of the
said truck was the main cause of the accident. There is no pleading or
contention nor the evidence that the accident occurred just because
the trax was over-seated. Therefore, The F.I.R. was registered only
against the driver of the truck, because the eye witness Mr. Prakash
Patil named in the F.I.R. clearly stated that the trax was driven slowly
and only blamed the Respondent No.1 for causing the accident.
18.3) It is not the case of the claimants that any vehicle was
proceeding in front of the trax at the time of the accident. Sufficient
road space was available to the left of the trax. However, the right side
of the trax came in the line of the truck. Therefore, it is probable that
the trax was also overtaking some vehicle. This inference is fortified
Manoj 202-FA-717-2003 & other.doc
by the fact that, at the time of the accident, one tempo was stationary
on the Kachcha road to the East side of the said road, i.e., exactly to
the side of the spot of the accident. As such, it is probable that, in
addition to the Kachcha road, said stationary tempo also occupied
some portion of the said road. Presumably, therefore, the trax driver
had no other option but to overtake the stationary tempo by keeping
safe distance. And in that process, the trax came at the center of the
road and at that very juncture, the truck came from the opposite
direction driven at a high speed despite being loaded with cattle and,
dangerously overtaking the two trucks running ahead. Be that as it
may, it is evident that despite the trax driver signaled by flashing the
headlamps, the driver of the truck did not slow down the truck.
Therefore, the conclusion is inevitable that Respondent No.1 was not
driving his truck carefully, keeping proper look out at the road and
following the traffic rules/regulations. As a result, the truck dashed
the trax and caused the accident. Thus, the driver of the truck alone
was negligent and responsible for the accident.
19) In M.A.C.P. No.352 of 1993, the evidence of Shivling
Barge is that he had sustained a head injury due to the accident. He
was inpatient in Krishna Hospital from 13/06/1993 to 23/06/1993.
His injury was operated. After one month, again he was admitted in
the same hospital as he was suffering from certain medical conditions
Manoj 202-FA-717-2003 & other.doc
directly related to the said injury. He deposed that he has been
suffering from loss of memory and giddiness and, during night time
he has been experiencing severe head-aches, on account of the said
injury. He had an ambition to become a police officer or an officer in
the military. He could not fulfill his ambition due to the disfigurement
of the face. However, the claimant Shivling Barge was not examined
by any doctor, who treated or operated on his injury nor did he prove
any document in the evidence to establish the said difficulty.
Therefore, the Tribunal held that the claimant failed to prove that the
injury suffered by him led to the permanent disability claimed by him.
In the backdrop, the Tribunal awarded Rs.3171/- towards medical
treatment as per the payment receipt at Exh.48. Further, the Tribunal
awarded Rs.10,000/- under the general head.
19.1) But in my considerable opinion, the aforesaid
compensation is less, because the Injury Certificate (Exh.47) clearly
recorded that, the claimant had suffered "Compound Skull Fracture
with Brain Injury and Subarachnoid Bleeding". He had become
unconscious and irritable because of the injury. There was bleeding
from the nose and mouth. The classified file "D" of the original
proceedings received from the Tribunal contains the entire medical
papers of the claimant. Said papers show that, initially, the claimant
was inpatient from 13/06/1993 to 23/06/1993. Again, the claimant
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was admitted in same hospital on 20/12/1993 for the complaint of
"Generalized Tonic Clonic Seizures" and unconsciousness, while he
was asleep. This indicates that despite the medical treatment, the
head injury impaired the brain. It appears that the aforesaid medical
papers were not brought to the notice of the Tribunal. There is
nothing to doubt the said papers. Therefore, even if the claimant
failed to prove the disability, looking at the evidence as a whole, in my
considered view, the claimant is entitled to receive a lump sum
compensation of Rs.75,000/- towards medicine, conveyance, special
diet, injuries, disability, pain and suffering and loss of the amenities
of life.
19.2) The award of Rs.3171/- for the medical expenses is in
consonance with the medical bills and receipts etc. proved in the
evidence. Besides, the claimant has incurred Rs.1148/- towards
hospital, Rs.198/- for accommodation and Rs.1400/- for C.T. Scan,
totalling to Rs.2,746/-. The relevant payment receipt and hospital bill
are available in the classified file "D". Therefore, the claimant is
entitled to receive additional Rs.2,746/-. Thus, the claimant Shivling
Barge is entitled to get a total compensation of Rs.80,917/-.
20) In M.A.C.P. No.354 of 1993, the evidence of the claimant
Vimal Barge coupled with the evidence of AW3-Dr. Ravindra Gunaki
(Exh.53 in M.A.C.P. No.349 of 1993) show that the said claimant had
Manoj 202-FA-717-2003 & other.doc
suffered the following injuries in the accident :- (a) Head Injury, (b)
Splenic tear, (c) Compound comminuted fractures proximal third
radius and ulna with elbow dislocation Rt. Side, (d) Fracture
mandible Rt, and (e) Fracture 3rd rib Rt. Side. The aforesaid injuries
led to (a) Fixed flexion deformity Rt. Elbow 30°, and (b) Limitation of
supination Rt. Forearm. AW3 deposed that the said injuries resulted
in 35% permanent partial disability. The aforesaid evidence is
supported with the Injury-Cum-Disability Certificate (Exh.39). There
is nothing on record to disbelieve the said oral and documentary
evidence. The other medical papers in the classified File "D" show
that there was crush injury to the Rt elbow and it was 3 rd degree
splenic tear. Hence, the Tribunal accepted the said injures and the
disability, which is not erroneous.
20.1) In view of various bills and prescription produced in the
evidence, the Tribunal awarded of Rs.13014/- towards medical
treatment, which is justifiable.
20.2) The claimant deposed that her teeth fell due to the
mandible injury, therefore, she is unable to eat properly. There is loss
of memory due to the head injury. Therefore, she is unable to do the
domestic work as before. The disability has reduced her working
capacity as a homemaker, forever. There has been the loss of the
gratuitous cooking services due to the accidental injuries. Therefore,
Manoj 202-FA-717-2003 & other.doc
there will be loss of the family income on account of engaging a cook.
Cooks were then available on a monthly payment of Rs.300/-.
Therefore, the Tribunal held that there was loss of the income of
Rs.3,600/- per annum towards engaging a maid and considering the
claimant was aged 50 years, awarded a sum of Rs.36,000/- for the
loss of 10 years' income.
20.3) However, in accordance with the decision in National
Insurance Co. Ltd. Vs. Pranay Sethi and Others3 and Sarla Verma and
others Vs. Delhi Transport Corporation and another 4, 25%,
(Rs.900/-) of the loss of the income should be added towards the loss
of the future income. On such addition, the actual loss of the yearly
future income would be Rs.4,500/- per annum. Considering the
claimant was aged 50 years, the applicable multiplier would be "13".
As such the actual loss of the income comes to Rs.58,500/-. The
Tribunal awarded Rs.15,000/- towards pain and suffering, but
considering the nature of the injuries and disability caused, the
claimant deserves to get Rs.40,000/- for the same. No compensation
is awarded for the loss of the enjoyment and amenities of life. Looking
at the nature of the disability and the fact that the claimant has been
unable to eat properly, she deserves to get Rs.50,000/- towards the
3. 2017 ACJ 2700 (SC)
4. 2009 ACJ 1298 (SC)
Manoj 202-FA-717-2003 & other.doc
loss of the enjoyment and amenities of life. The claimant is entitled to
get Rs.5000/- as conveyance and special diet. Thus the total
compensation comes to Rs. 1,66,514/-.
21) In M.A.C.P. No.349 of 1993, the evidence of Vithal Barge
coupled with the evidence of Aw2-Dr. Bharat Dixit and AW3-Dr.
Ravindra Gunaki show that claimant Vithal Barge had sustained the
following injuries due to the accident :-
(a) CLW over scalp, 10 x 1 x 1 cms., active bleeding
(b) CLW below right eye, 3x 1/2 x 1/2 cm.,
(c) CLW left fore-arm, 3 x 1 x 1/2 cm.
(d) Fracture patella, left side.
21.1) AW2 and AW3 deposed that Vithal Barge was admitted in
the hospital on 13/06/1993 and discharged on 19/07/1993. AW3
deposed that he examined Vithal Barge on 18/10/1995. Vithal Barge
has difficulty in squatting due to the fracture injury. As such, he has
suffered 10% permanent partial disability with reference to the Right
lower limb. Accordingly, he issued the Disability Certificate (Exh.54).
The Evidence of Vithal Barge is that due to the head injury his
memory was affected, but there is no sufficient evidence to hold the
same. On the contrary he admitted that his mental condition was
normal and good. The claimant deposed that, he was not given
bandobast duty due to the fracture injury. He was placed in the
Manoj 202-FA-717-2003 & other.doc
control room. Therefore, he lost dearness allowance and travel
allowance. But in the cross-examination, he admitted that even after
the accident he served in the police department and received entire
pay, gratuity and all other dues after his retirement. Therefore, the
Tribunal find it difficult to accept that further promotions of Vithal
Barge were affected due to the disability. The Tribunal observed that
even after the said injury, Vithal Barge discharged his duty as a PSI.
Therefore, there was no such disability which can be said to be
permanent in nature. In the backdrop, the Tribunal awarded him
total compensation of Rs.14,842/- as under :-
(a) Medical Expenses Rs.6842/-.
(b) Loss of 17 days leave Rs.3000/-.
(c) Pain and Suffering Rs.5000/-.
21.2) However, the Tribunal did not consider that there was
nothing on record to take an exception to the evidence of AW3.
Patella is important part of the body. The Respondents did not
adduce any evidence to rebut the evidence of Vithal Barge that he
suffered the 10% disability or to show that, the said disability has
been completely recovered. Considering the disability has been
suffered with reference to the lower limb and the percentage is less, it
was probable that, the claimant could continue the service despite the
disability. But that itself is not sufficient to conclude that the claimant
Manoj 202-FA-717-2003 & other.doc
has not suffered the disability. Therefore, I hold that the claimant has
suffered 10% permanent partial disability as deposed by PW3. As a
result, even if there is no loss of the future income on account of the
disability, the claimant is entitled to receive Rs.30,000/- towards the
disability.
21.3) The evidence of AW2 and AW3 indicates that the claimant
was inpatient from 13/06/1993 to 19/07/1993. The Discharge Card
(Exh.54) also shows that the claimant was discharged on 19/07/1993.
As such, being inpatient, the claimant must have taken leave for the
hospitalization period of 36 days. Therefore, the claimant is entitled
to receive Rs.4,000/- towards the loss of the leave.
21.4) Considering the nature of the head injury and the fracture
sustained by the claimant, he must have suffered pain for a
considerable duration. The Discharge Certificate mentions that the
claimant was treated in the O.P.D. from 20/06/1993 to 18/10/1995.
This indicates that the fracture injury took considerable time to
recover. However, Rs.5,000/- only awarded towards pain and
suffering. Considering the evidence as a whole, in my view the
claimant deserves to get Rs.20,000/- towards pain and suffering.
There must be some loss of amenities of life on account of the fracture
injury and the disability. Therefore, the claimant deserves to get
Rs.20,000/- towards the loss of enjoyment of life. The medical
Manoj 202-FA-717-2003 & other.doc
expenses are awarded as proved by the claimant. Therefore, the same
need not be enhanced. The claimant is also entitled to receive
Rs.5000/- under the head of special diet and conveyance. Thus, the
claimant is entitled to receive total Rs.85,842/-.
22) Since the truck was owned by Respondent No.1 and
validly insured with Respondent No.2-New India Assurance Company
Ltd, said Respondent Nos.1 and 2 are liable to pay the compensation
amount worked out above. The Appellants are entitled to receive
some interest on the compensation amount. Considering the facts and
circumstances of the case, the injuries sustained by the claimant and
the amount of the award quantified above, I deem appropriate to
award the interest at the rate of 8% per annum, from the date of
registration of the claims till realization of the amount.
23) The conspectus of the above discussion is that, the
Tribunal failed to consider the evidence produced by the
Appellants/Claimants in its correct perspective. Consequently,
instead of holding Respondent No.1/truck owner-cum-driver
negligent and responsible for the accident, the Tribunal wrongly held
that the accident occurred due to the rash and negligent driving of the
trax. Consequently the claims were dismissed against Respondent
Nos.1, 2 and 4, which is erroneous and not lawful. Despite sufficient
evidence was adduced, the Tribunal failed to quantify the "just
Manoj 202-FA-717-2003 & other.doc
compensation". Said infirmity, therefore, warranted an interference
with the impugned Judgment and Order to set aside the same to
partly allow the M.A.C.P. No.352 of 1993, M.A.C.P. No.354 of 1993
and M.A.C.P.No.349 of 1993 as against Respondent Nos.1 and 2 and
dismiss the said claims as against Respondent Nos.3 and 4. Thus, the
Appeals succeed, accordingly.
23.1) Hence, following Order is passed.
i) F.A. No.717 of 2003, F.A. No.718 of 2003 and F.A. No.716
of 2003 are partly allowed with proportionate costs against
Respondent Nos.1 and 2.
ii) The impugned common Judgment and Order dated
30/11/2000, in Motor Accident Claim Petition No.349 of 1993,
No.350 of 1993, No.351 of 1993, No.352 of 1993, No.354 of 1993,
No.355 of 1993 and No.363 of 1993, passed by the Motor
Accident Claims Tribunal, Sangli is set aside in respect of Motor
Accident Claim Petition No.349 of 1993, No.352 of 1993 and
No.354 of 1993.
iii) M.A.C.P. No.352 of 1993, M.A.C.P. No.354 of 1993 and
M.A.C.P. No.349 of 1993 are partly allowed as against
Respondent Nos.1 and 2.
iv) The M.A.C.P. No.352 of 1993, No.354 of 1993 and No.349
of 1993 are dismissed as against Respondent Nos.3 and 4.
v) The Respondent Nos.1 and 2 shall jointly and severally
pay the Appellant Shivling Vithal Barge a sum of Rs.80,917/-
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(inclusive of NFL amount) together with interest at the rate of
8% per annum from the date of the Claim Petition till realisation
of the amount.
vi) Respondent Nos.1 and 2 shall jointly and severally pay the
Appellant Sou. Vimal Vithal Barge a sum of Rs.1,66,514/-
(inclusive of NFL amount) together with interest thereon at the
rate of 8% per annum from the date of the Claim Petition till
realisation of the amount.
vii) Respondent Nos.1 and 2 shall jointly and severally pay the
Appellant Shri. Vithal Govind Barge a sum of Rs. 85,842/-
(inclusive of NFL amount) together with interest thereon at the
rate of 8% per annum from the date of the Claim Petition till
realisation of the amount.
viii) Respondent Nos.1 and 2 shall deposit the aforesaid
amounts in the Tribunal within two months from the date of
uploading of this Judgment on the official website of this Court.
ix) On deposit of the amount, the Tribunal shall immediately
give notice to the Appellants to withdraw the compensation
amount along with interest.
x) Appeals are disposed of in aforesaid terms.
xi) R & P received from the Tribunal shall be immediately
sent back.
(SHYAM C. CHANDAK, J.)
