Gujarat High Court
Lhr Of Decd Mohanbhai Shankarbhai ... vs Sitponiya Gulam Mohammedvali on 5 September, 2023
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5218 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LHR OF DECD MOHANBHAI SHANKARBHAI PATEL ARUNABEN
MOHANBHAI PATEL
Versus
SITPONIYA GULAM MOHAMMEDVALI
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Appearance:
RUSHABH H MUNSHAW(8958) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 05/09/2023
CAV JUDGMENT
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(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. The present first appeal is filed by the appellant under
Section 173 of the Motor Vehicles Act, 1988 to assail the
judgment and award dated 20.07.2018 passed by the Motor
Accident Claims Tribunal (Aux.), at Vadodara in Motor Accident
Claim Petition No.1043 of 2012 whereby the claim petition filed
by the appellant-original claimant was partly allowed.
2. The appellant-Arunaben Mohanbhai Patel is the original
claimant and respondent No.2-Bajaj Allianz General Insurance
Co. Ltd. is the original defendant No.2 in the main proceedings,
and for the sake of convenience and brevity, they shall
hereinafter be referred to as the original claimant and
defendant No.2 respectively. The Code of Civil Procedure,
1908 shall hereinafter be referred to as the 'Code' and the
Motor Vehicles Act, 1988 be referred to as the 'Act'.
3. The facts leading to the filing of the present appeal may
be summarized as under;
3.1 The husband of the claimant, namely, Mohanbhai
Shankarbhai Patel met with an accident on the fateful day, i.e,.
on 16.01.2012 at about 15:45 O'clock. The deceased was
coming towards Ankleshwar from Valia by riding his motorcycle
slowly, cautiously and on the right side of the road and when
he reached at the place of occurrence, one Eicher Tempo
bearing registration No.GJ-16-W-8933 came from the opposite
direction in a rash and negligent manner and with an excessive
speed and dashed with the motorcycle of the deceased, as a
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result of which, the deceased fell down and sustained serious
injuries and later on succumbed. A complaint in this regard
came to be lodged before the Valia Police Station, District:
Bharuch being C.R. No.I-14 of 2012.
3.2 Thereafter, the legal heirs of deceased, i.e,. the wife of
the deceased has filed the claim petition, seeking an amount
of compensation under various heads.
3.3 On 20.07.2018, the Tribunal passed the impugned
judgment and award by partly allowing the claim petition filed
by the claimant.
3.4 Being aggrieved by and dissatisfied with the impugned
judgment and award, the present first appeal is filed by the
original claimant by raising manifold grounds.
4. Learned advocate Mr. R.H. Munshaw who appears on
behalf of the original claimant has submitted that the
impugned judgment and award passed by the learned Tribunal
is erroneous, unjust, improper and against the settled
principles of law. Learned advocate Mr. Munshaw has
submitted that the judgment and award passed by the
Tribunal is contrary to the provisions of the Motor Vehicles Act,
more particularly, the principle of contributory negligence and,
therefore, the same is required to be quashed and set aside.
Learned advocate Mr. Munshaw has further submitted that on
the strength of the occurrence of the incident, a FIR also came
to be registered against the driver of the Eicher Tempo and the
concerned Investigating Officer, after collecting evidence and
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completion of investigation submitted charge-sheet against the
driver of the Eicher Tempo. Learned advocate Mr. Munshaw
has submitted that, therefore, on the strength of the police
papers, it appears that the claimant has successfully proved
that the incident of accident is occurred due to sole negligence
on the part of the driver of the Eicher Tempo. It is found out
from the evidence that the deceased Mohanbhai Shankarbhai
Patel was driving his motorcycle on the correct side of the road
in a very cautious manner by following the traffic rules and
regulations with a moderate speed, whereas the driver of the
Eicher Tempo had come from the opposite direction with an
excessive speed and in a very negligent manner and dashed
with the motorcycle of the deceased, due to which, the
incident of accident occurred and the husband of the claimant
died and, therefore, the entire 100% negligency is required to
be fastened on the head of the tempo driver. Learned
advocate Mr. Munshaw has submitted that the evidence
collected by the Investigating Officer during the course of
investigation clearly goes on to show that the negligence was
solely on the part of the driver of the Eicher Tempo. Learned
advocate Mr. Munshaw has submitted that it is also an
admitted position of fact that the driver of the Eicher Tempo
was joined as the party respondent in the main proceedings,
but he has not entered into the witness box to disown the
charges levelled against him and, therefore, in absence of any
positive evidence, as per the settled proposition of law,
adverse inference is required to be drawn against the driver of
the Eicher Tempo.
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5. Learned advocate Mr. Munshaw has also submitted that
the learned advocate for the Insurance Company has also not
made any application to bring evidence in that regard. It is the
duty upon the incumbent officer of the Insurance Company to
disprove the charges levelled against the driver of the Eicher
Tempo by bringing him in the witness box but failed to lead
evidence to that effect and, therefore, on the strength of
cumulative effect of the evidence available on record it clearly
appears that the incident of accident is occurred due to sole
negligence on the part of the driver of the Eicher Tempo who
was driving the vehicle in a very rash and negligence manner
and, therefore, 100% liability is required to be fixed on the
head of the driver, owner and insurance company of the Eicher
Tempo collectively. Learned advocate Mr. Munshaw has
submitted that, in fact, cogent, convincing and clinching
evidence is available on record, which clearly goes on to show
that accident is occurred due to fault on the part of driver of
the Eicher Tempo. Despite the evidence available on record, at
the time of assessing the negligency of the drivers, the learned
Tribunal has held 20% liability on the head of the driver of the
motorcycle and by doing so, the learned Tribunal has
committed a grave error. Not only that, in the operative part
of the judgment and award, the Tribunal has very succinctly
observed that in the absence of the evidence of the driver of
the Eicher Tempo, adverse inference is required to be drawn
against him, however, despite the same, the learned Tribunal
had considered 20% liability on the head of the driver of the
motorcycle and, therefore, the said view adopted by the
learned Tribunal is required to be modified by holding that the
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driver of the Eicher Tempo is 100% negligent as sufficient
opportunity was being given to them to disown the said liability
but failed to lead any evidence to that effect. Learned
advocate Mr. Munshaw has further submitted that the learned
Tribunal has discussed the position of the place of occurrence
in a great detail by appreciating and evaluating the evidence
available on record in a very exhaustive manner. The contents
of the Panchnama clearly crystalizes the position that the
incident of accident is occurred due to the excessive speed of
the Eicher Tempo. Learned advocate Mr. Munshaw has
submitted that the learned Tribunal has awarded total amount
of Rs.40,01,200/- and out of the said amount, 20% amount was
deducted towards the contributory negligence attributed on
the part of the deceased and after deducting the said amount,
the total amount of compensation has come to Rs.32,00,960/-.
Learned advocate Mr. Munshaw has submitted that the 20%
amount which has been deducted on the ground of
contributory negligence on the part of the driver of the
motorcycle is required to be given back to the claimant
because as per the evidence available on record, it is clearly
found out that the incident of accident is occurred due to the
sole negligency on the part of the driver of the Eicher Tempo
who was driving his vehicle in a very rash and negligent
manner and with excessive speed.
6. Learned advocate Mr. Munshaw has further submitted
that, in fact, in the present first appeal, he has raised certain
other grounds for enhancement of the awarded amount,
however, he has candidly submitted that at this juncture he is
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not raising any other contention so far as rest of the grounds
mentioned in the memo of the appeal are concerned. In short,
he is not pressing for the rest of the grounds mentioned in the
memo of the appeal and confined his arguments pertaining to
the issue of liability of negligence only.
7. Learned advocate Mr. Munshaw has submitted that this is
a clear cut case of negligency on the part of driver of the
Eicher Tempo. However, instead of that, the learned Tribunal
has calculated the negligency by adopting the principle of
contributory negeligency despite the fact that against the
driver of the Eicher Tempo, charge-sheet has been filed and
also the fact that though he was joined as the party to the
proceedings and notice was also duly served to him, he has
not led any evidence and, therefore, adverse interference is
required to be drawn and 100% negligency is required to be
fastened on the head of the driver of the Eicher Tempo and by
not adopting the said view, the learned Tribunal has
committed a grave error.
8. In support of his aforesaid submissions, learned advocate
Mr. Munshaw has placed reliance upon the following case laws;
i) In the case of Oriental Insurance Company Limited
vs. Ramdas Madanlal Saini, reported in 2020 ACJ 742;
ii) In the case of Natvarlal Mohanlal Kachhela Legal
Heirs of Deceased vs. Hamirbhai Bhimshibhai, reported in
2022 ACJ 1947;
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iii) In the case of Oriental Insurance Co. Ltd.,
Registered Office at Oriental vs. Legal Heirs of
Lakhubhai Umedsinh Jadeja, Dineshbha Lakhubha,
reported in 2023 JX (Guj.) 230.
9. In such circumstances, referred to above, learned
advocate Mr. Munshaw prays that there being merit in this
appeal, the same be allowed and the judgment and award
passed by the learned Tribunal be modified accordingly.
10. Per contra, learned advocate Mr. Vibhuti Nanavati who
appears on behalf of the Insurance Company has submitted
that the judgment and award passed by the learned Tribunal is
just, fair, reasonable and based upon the sound principle of
law. Learned advocate Mr. Nanavati has submitted that if the
Hon'ble Court would go through the findings recorded by the
learned Tribunal in the operative part of the order, in that
event, the Hon'ble Court would find that after appreciating and
considering all the evidences available on record and after
taking into consideration the ratio laid down by the Hon'ble
Apex Court in catena of decisions, the learned Tribunal has
awarded the amount of compensation, which in my humble
submission, is not required to be even slightly modified or
enhanced.
11. Learned advocate Mr. Nanavati has submitted that it is
true that the incident of accident is occurred on 16.01.2012 at
about 15:45 O'clock at Ankleshwar-Valia road. The deceased
was coming from Valia side whereas the Eicher Tempo was
coming from the opposite direction and the incident in
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question had occurred due to head on collusion of both the
vehicles involved in the accident and the said fact is revealed
from the contents of the Panchnama. It is clearly stated in the
Panchnama that damages were found on the right side of the
motorcycle and on the left side of the Eicher Tempo. Learned
advocate Mr. Nanavati has submitted that the record itself
shows and suggests that immediately after the occurrence of
the incident, the concerned police officer reached at the place
of occurrence, however, at that point of time, the vehicles
were already shifted from the place of occurrence. Therefore,
the exact location of the spot where the accident took place
has not been expressly mentioned in the Panchnama, but the
details as regards certain stretch of Tyre marks and blood
stains are mentioned in the Panchnama. It is also an admitted
position of fact that the said incident of accident is not
witnessed by anybody. Not a single witness was examined on
behalf of the claimants who has stated that he or she has seen
the said incident. The claimant herself was not an eye-witness
and the driver of the Eicher Tempo was not examined. Learned
advocate Mr. Nanavati has submitted that it is true that
Insurance Company has not examined the driver of the Eicher
Tempo as a witness despite the fact that charge-sheet is filed
against him. However, the owner of the vehicle submitted an
application to disprove the charge of accusation levelled
against the driver as the summons could not have been served
upon the driver of the Eicher Tempo because as per the
bailiff's endorsement, the driver of the Eicher Tempo has
passed away.
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12. Learned advocate Mr. Nanavati has submitted that after
the occurrence of incident of accident, a complaint is
registered against the driver of a particular vehicle, in that
event, at the end of day, after completion of investigation, the
Investigating Officer would have to file charge-sheet against
the driver whose name has been shown as an accused in the
FIR if at all offence is found to be made out. Learned advocate
Mr. Nanavati has vociferously submitted that on the strength of
the registration of complaint, the investigating machinery
would be set into motion and the concerned Investigating
Officer has to conduct the investigation and has to submit
charge-sheet but at the time of submission of charge-sheet,
the Investigating Officer need not have to decide the
percentage of negligency of the drivers of the vehicles
involved in the accident in question. The said fact can be
verified after leading evidence before the Hon'ble Court and on
the touchstone of testimony of the cross-examination of the
witnesses made by the opponent/s and the evidence comes on
record requires to be appreciated and evaluated by the
Hon'ble Court and, thereafter, the Hon'ble Court would have to
decide the impact of proportionality of the negligence of the
drivers involved in the accident. Therefore, simply on the
strength of submission of charge-sheet against the driver of
the particular vehicle and the fact that the said driver was not
examined, entire 100% liability of negligence cannot be
attributed on the head of the driver against whom charge-
sheet is filed by the Investigating Officer. Those documents are
required to be tested on the touchstone of the evidence by
providing appropriate opportunity to make cross-examination
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to other side as per the provisions of the Evidence Act and if
found to be correct in that test, in that event, liability can be
fixed.
13. Learned advocate Mr. Nanavati has further submitted
that it is the settled practice and by the passage of time we
have seen almost in all cases that the Investigating Officers
are generally used to file charge-sheet against the accused
person whose name has been shown as an accused in the first
information report at the time of registration of the complaint.
Not only that, it is also the natural conduct on the part of the
complainant to register complaint against the driver of the
heavy and big vehicle involved in the accident, and ultimately
at the end of the day, after complesation of investigation,
charge-sheet is filed against the said driver. Lerarned
advocate Mr. Nanavati has submitted that solely on the ground
of registration of complaint and submission of charge-sheet
before the competent court, it cannot be held that the incident
of accident is occurred due to sole negligence on the part of
the driver against whom charge-sheet is filed. Learned
advocate Mr. Nanavati has also submitted that it is an
admitted position of fact that the width of the road where the
said incident took place is 32 feet and both the vehicles were
coming from the opposite directions and it was a head on
collusion between both the vehicles and the said fact is also
found out from the contents of the Panchnama wherein the
details as regards the damages caused to both the vehicles are
mentioned in a very categorical terms. Learned advocate Mr.
Nanavati has further submitted that merely on the basis of
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filing of charge-sheet against the driver of the particular
vehicle, 100% negligency cannot be attributed against the said
driver. On the strength of the registration of the complaint, the
Investigating Officer has to verify whether the incident of
accident is occurred or not and if occurred, then whether such
an accident is occurred due to the composite negligency or
contributory negligency of both the drivers or not. However, in
both the conditions, generally, the charge-sheet would be filed
against the person against whom complaint is registered and,
therefore, solely on the ground of registration of complaint and
submission of charge-sheet, it cannot be said that 100%
negligency should be attributed on the head of the driver of
the vehicle against whom charge-sheet is filed. Learned
advocate Mr. Nanavati has submitted that, in fact, the width of
the road where the incident in question was occurred is 32 feet
which is sufficient space for the purpose of smooth passing of
the vehicles coming from the opposite directions. Even
though, the incident in question is occurred on the said road
which clearly reveals that there was a negligency on the part
of both the drivers and considering the size of the Eicher
Tempo, i.e., the heavy vehicle and the fact that charge-sheet is
filed against the driver of the Eicher Tempo, the learned
Tribunal has attributed 80% negeligency on the head of the
Eicher Tempo and 20% liability is fixed on the head of the
driver of the motorcycle, and as such, there is no error
committed by the Tribunal while passing the impugned
judgment and award. Learned advocate Mr. Nanavati has
further submitted that so far as the other heads are
concerned, the deceased Mohanbhai Shankarbhai Patel was
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working as Jr. Engineer with Gujarat Reclaim & Rubber
Products Ltd. at Ankleshwar and was earning Rs.55,371/- per
month. In support of his claim, the claimant has produced the
copy of Form-16 and the salary slip of last salary drawn by the
deceased, wherein the gross income of the deceased is
mentioned as 55,371/- and after deducting the amount of all
taxes, the net income is mentioned as 27,194/- and,
accordingly, on the basis of latest pronouncement of the
Hon'ble Apex Court wherein the mode and manner of the
calculation of the amount of compensation is prescribed by the
Apex Court was adopted and, accordingly, just, fair and
reasonable award is passed by the learned Tribunal. Learned
advocate Mr. Nanavati has submitted that as at the time of
making submissions, learned advocate for the claimant has not
put much emphasis upon rest of the heads, therefore, he is not
arguing much but submitted that after considering and
appreciating the entire evidence available on record as well as
adopting the ratio decided by the Hon'ble Apex Court in the
latest pronouncement while calculating the amount of
compensation, the learned Tribunal has passed just, fair and
reasonable order, which does not require any modification at
the end of this Court at this juncture.
14. In such circumstances, referred to above, learned
advocate Mr. Nanavati prays that there being no merit in this
appeal, the same be rejected.
15. We have heard the learned counsel appearing for the
parties and also perused the impugned judgment and award
passed by the learned Tribunal.
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16. It appears from the materials available on record that
after hearing both the learned advocates appearing for the
respective parties, the learned Tribunal has framed the
following issues;
"1) Whether it is proved that the deceased
sustained injuries and died on account of rashness or
negligence in driving on the part of the driver of the
vehicle involved in the accident?
2) What amount, if any, the claimants are entitled
to by way of compensation and from which of the
opponents?
3) What order?"
17. The aforesaid issues came to be answered as under;
"1) In the affirmative.
2) As per final order.
3) As per final order."
18. The claimant, in support of its claim, has produced oral as
well as documentary evidences. However, the Insurance
Company has not produced any evidence except the copy of
the insurance policy of the offending vehicle. Thereafter, both
the learned advocates for the respective parties have
submitted closing pursis vide Exhs. 52 and 58 respectively.
19. Before adverting to the rival submissions canvased on
either side, we must go through the facts of the present case
as well as the findings recorded by the Tribunal. It appears
from the record that the incident in question had occurred on
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16.01.2012 at Ankleshwar-Valia Road. As per the case of the
claimant, on the fateful day, the deceased was coming from
Valia towards Ankleshwar on his motorcycle in a very
moderate speed and when he reached near the place of
occurrence, the driver of the Either Tempo came from the
opposite side in a very rash and negligent manner with an
excessive speed and dashed with the motorcycle of the
deceased and due to the injuries sustained in the said
vehicular accident, later on, the deceased succumbed to the
same. A complaint in this regard also came to be lodged by
the claimant against the driver of the Eicher Tempo. The
claimant also put reliance upon the Panchnama in support of
its claim. It was the case of the claimant that except filing of
formal written statement, the Insurance Company has not
examined any witness to establish the negligence on the part
of the deceased, whereas in support of its claim, the claimant
has produced certain documentary as well as oral evidences.
20. As against this, it was the case of the Insurance Company
that the deceased was driving his motorcycle rashly and
negligently and while trying to overtake one vehicle, he went
on wrong side and dashed with the Eicher Tempo which was
coming from the opposite side on the correct side of the road.
The Insurance Company has also put reliance upon the
Panchnama to prove its case. The insurance company also
raised a ground that the deceased was not wearing a helmet
and thereby violated the provisions of Section 129 of the Act
and, therefore, the larger responsibility of occurring of the
unfortunate incident may be fastened on the head of the
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deceased.
21. At the time of making submissions before this Court,
learned advocate Mr. Musnahw has fairly conceded that
initially the present appeal has been preferred by raising
manifold grounds so far as all the heads of compensation are
concerned, however, he is restricting his arguments so far as
the issue of negligency of the drivers of the vehicles involved
in the accident are concerned. The main bone of contention
raised by learned advocate Mr. Munshaw is that the driver of
the motorcycle was driving his vehicle in a moderate speed
and on the correct side of the road. The width of the road is 32
feet and the driver of the Eicher Tempo was coming with an
excessive speed from the opposite direction in a rash and
negligent manner and dashed his Eicher Tempo with the
motorcycle of the deceased, as a result of which, the
unfortunate incident has occurred. Accordingly, a complaint
was also registered and a charge-sheet also came to be filed
against the driver of the Eicher Tempo. Learned advocate Mr.
Munshaw has also gone through the contents of the
Panchnama and submitted that all the evidences available on
record clearly goes on to show that the incident of accident is
occurred due to the sole negligency on the part of the driver of
the Eicher Tempo and, therefore, 100% negligency is required
to be attributed on the head of the driver of the Eicher Tempo.
The driver of the Eicher Tempo was also joined as the party
respondent in the proceedings before the Tribunal. Summons
was duly served upon him, but he has chosen not to appear
and contest the claim petition. Therefore, in absence of any
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contrary evidence, adverse inference is required to be drawn
on the head of the driver of the Eicher Tempo, however,
instead of the same, the learned Tribunal has fastened 20%
liability on the head of the driver of the motorcycle and the
said findings and observations made by the learned Tribunal is
not in consonance with the evidence available on record.
Therefore, considering the above stated evidence available on
record, the said findings and observations made by the learned
Tribunal is required to be altered by fixing 100% negligency
on the head of the driver of the Eicher Tempo.
22. Learned advocate for the insurance company has also
gone through the same set of evidence and vociferously
submitted that mere registration of complaint and filing of
charge-sheet against the driver of the other vehicle is not a
sole criteria, on the basis of which, 100% liability of negligency
can be fastened on the head of the driver against whom
complaint is registered.
23. In the case of Municipal Corporation of Greater
Bombay vs. Laxman Iyer, reported in 2003 AIR SCW 5505, it
is held by the Hon'ble Apex Court that negligence is omission
of duty caused either by an omission to do something which a
reasonable man guided upon those considerations who
ordinarily by reason of conduct of human affairs would do or
obligated to, or by doing something which a prudent or
reasonable man would not do. Negligence does not always
mean absolute carelessness, but want of such a degree of care
as is required in particular circumstances. Negligence is failure
to observe, for the protection of the interests of another
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person, the degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other person
suffers injury. The idea of negligence and duty are strictly
corelative. Negligence means either subjectively a careless
state of mind, or objectively careless conduct. Negligence is
not an absolute term, but is a relative one; it is rather a
comparative term. No absolute standard can be fixed and no
mathematically exact formula can be laid down by which
negligence or lack of it can be infallibly measured in a given
case. What constitutes negligence varies under different
conditions and in determining whether negligence exists in a
particular case, or whether a mere act or course of conduct
amounts to negligence, all the attending and surrounding facts
and circumstances have to be taken into account. It is absence
of care according to circumstances. To determine whether an
act would be or would not be negligent, it is relevant to
determine if any reasonable man would foresee that the act
would cause damage or not. The omission to do what the law
obligates or even the failure to do anything in a manner, mode
or method envisaged by law would equally and per se
constitute negligence on the part of such person. If the answer
is in the affirmative, it is a negligent act. Where an accident is
due to negligence of both parties, substantially there would be
contributory negligence and both would be blamed. In a case
of contributory negligence, the crucial question on which
liability depends would be whether either party could, by
exercise of reasonable care, have avoided the consequence of
other's negligence. Whichever party could have avoided the
consequence of other's negligence would be liable for the
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accident. If a person's negligent act or omission was the
proximate and immediate cause of death, the fact that the
person suffering injury was himself negligent and also
contributed to the accident or other circumstances by which
the injury was caused would not afford a defence to the other.
24. It is also held by the Hon'ble Apex Court in catena of
decisions that in the case of contributory negligence, a person
who has himself contributed to the extent, 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 the outcome of combination of
negligence of two or more other persons. Composite
negligence' refers to negligence on part of two or more
persons. Where as person is injured as a result of negligence
on 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. 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
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recoverable by him in respect of the injuries stands reduced in
proportion to his contributory negligence. The said principle is
also reiterated by the Hon'ble Apex Court in the case of T. O.
Antony vs. Karvarnan, reported in 2008 AIR SCW 2045 by
holding that 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.
25. We have gone through the contents of the Panchnama
and the FIR. It is the settled proposition of law that the
Panchnama drawn by the Investigating Officer always shows
the post accident situation, and here in the case on hand, at
the time of preparing the Panchnama, as the said vehicular
incident is occurred on a busy highway, the vehicles were
immediately shifted from the place of occurrence and,
therefore, except the location of the accident and direction of
the road, nothing is found from the Panchnama. One cannot
derive to the particular conclusion in the absence of any
cogent evidence as regards the negligency on the part of the
drivers. The width of the road is 32 feet and the two vehicles
coming from the opposite directions can smoothly and safely
pass through the said road without any hindrance. It is found
out from the Panchnama that the right side of the motorcycle
is damaged whereas left side of the Eicher Tempo is found to
be damaged. Therefore, it can be said that both vehicles
dashed on head on collusion and the incident of accident is
occurred due to the fault on the part of both the drivers and,
therefore, this is a clear cut case of contributory negligency on
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the part of the drivers of both the vehicles. Now the main
issue to be considered and decided is to decide the
percentage of negligence on the part of the drivers involved in
the accident. It is the settled proposition of law that in the
incident of accident where two vehicles are involved, in that
event, maximum liability could be imposed on the head of the
driver of the big and heavy vehicle as the driver who is driving
the big and heavy vehicle has to be more careful and cautious
while driving such a big and heavy vehicle and, therefore,
liability of negeligency is on higher pedestal on the head of the
driver of the heavy vehicle compared to small vehicle. As the
claimant is not an eye-witness and not a single witness has
been examined who has seen the said incident, and in
absence of any such direct evidence, we have to put reliance
upon the circumstantial evidence placed on record by the
parties which clearly goes on to show that the incident of
accident is occurred due to the fault on the part of the drivers
of both the vehicles and as Eicher Tempo is big and heavy
vehicle compared to the motorcycle, therefore, maximum
liability is required to be fastened on the head of the driver of
the Eicher Tempo. Merely on the basis of registration of the
complaint and filing of charge-sheet against one of the drivers
of the vehicles involved in the accident, the entire 100%
liability of negligency cannot be fastened on the head of the
driver against whom charge-sheet is filed, more particularly,
when such an incident has taken place due to head on
collusion between both the vehicles. In such a case, the
liability of negligency can be fixed on the basis of the
involvement of the vehicles and the percentage of ngeligency
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can be decided by going through the condition of the vehicles
and contents of the Panchnama. However, here in the case on
hand, upon perusal of the Panchnama as well as other
materials available on record, except the case of contributory
negligency, nothing further has come on record. Cross
exasmination is one of the most efficacious methods of
establishing truth and exposing falsehood, and to arrive at a
truth, its veracity should be judged, and for that purpose,
cross-examination is an acid test. It tests the truthfulness of
the statement made by a witness on oath in examination-in-
chief.
26. We have gone through the evidence available on record,
the deposition of the witnesses and the other materials
produced by the rival parties. We have also gone through the
impugned order passed by the Tribunal. At the time of deciding
the issue pertaining to negligency on the part of the drivers
involved in the vehicular accident, the learned Judge has
considered all the materials available on record in its true spirit
and proper perspective. Not only that, the learned Judge has
narrated the evidence available on record upto great extent
and jump to a particular conclusion that 80% negligency is
found on the head of the driver of the Either Tempo and 20%
negligency is found on the head of the driver of the
motorcycle and we do not find any perversity and infirmity in
the said findings assigned by the learned trial judge in the
operative part of the order.
27. At this stage, it would be apposite to refer to another
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judgment in the case of V. Prabhakara Vs. Basavaraj K.
(Dead) by Legal Representatives & Ors., reported in
(2022) 1 SCC 115, wherein the Hon'ble Supreme Court has
observed in Paragraph Nos.21 and 22 has observed as under,
"21. A relief can only be on the basis of the
pleadings alone. Evidence is also to be based on such
pleadings. The only exception would be when the
parties know each other's case very well and such a
pleading is implicit in an issue. Additionally, a court
can take judicial note of a fact when it is so apparent
on the face of the record. A useful reference can be
made to the following passage in Bachhaj Nahar v.
Nilima Mandal, (2008) 17 SCC 491:
"15. The relevant principle relating to circumstances
in which the deficiency in, or absence of, pleadings
could be ignored, was stated by a Constitution
Bench of this Court in Bhagwati Prasad v.
Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para
10)
"10. ... If a plea is not specifically made and yet
it is covered by an issue by implication, and the
parties knew that the said plea was involved in
the trial, then the mere fact that the plea was
not expressly taken in the pleadings would not
necessarily dis-entitle a party from relying upon
it if it is satisfactorily proved by evidence. The
general rule no doubt is that the relief should
be founded on pleadings made by the parties.
But where the substantial matters relating to
the title of both parties to the suit are touched,
though indirectly or even obscurely, in the
issues, and evidence has been led about them,
then the argument that a particular matter was
not expressly taken in the pleadings would be
purely formal and technical and cannot succeed
in every case. What the Court has to consider in
dealing with such an objection is: did the
parties know that the matter in question was
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involved in the trial, and did they lead evidence
about it? If it appears that the parties did not
know that the matter was in issue at the trial
and one of them has had no opportunity to lead
evidence in respect of it, that undoubtedly
would be a different matter. To allow one party
to rely upon a matter in respect of which the
other party did not lead evidence and has had
no opportunity to lead evidence, would
introduce considerations of prejudice, and in
doing justice to one party, the Court cannot do
injustice to another."
23. It is fundamental that in a civil suit, relief to be
granted can be only with reference to the prayers
made in the pleadings. That apart, in civil suits, grant
of re- lief is circumscribed by various factors like
court fee, limitation, parties to the suits, as also
grounds barring relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of action or
parties, etc., which require pleading and proof.
Therefore, it would be hazardous to hold that in a
civil suit whatever be the relief that is prayed, the
court can on examination of facts grant any relief as
it thinks fit. In a suit for recovery of rupees one lakh,
the court can- not grant a decree for rupees ten
lakhs. In a suit for recovery possession of property
'A', court cannot grant possession of property 'B'. In
a suit praying for permanent injunction, court cannot
grant a relief of declaration or possession. The
jurisdiction to grant relief in a civil suit necessarily
depends on the pleadings, prayer, court fee paid,
evidence let in, etc."
(emphasis in original)
Section 96:
22. The first appellate court while exercising power
under Section 96 can re-do the exercise of the trial
court. However, such a power is expected to be
exercised with caution. The reason being, the trial
court alone has the pleasure of seeing the demeanor
of the witness. Therefore, it has got its own
advantage in assessing the statement of the
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witnesses which may not be available to the
appellate court. In exercising such a power, the
appellate court has to keep in mind the views of the
trial court. If it finds that the trial court is wrong, its
decision should be on the reasoning given. A mere
substitution of views, without discussing the findings
of the trial court, by the appellate court is not
permissible. If two views are possible, it would only
be appropriate to go with the view expressed by the
trial court. While adopting reasoning in support of its
findings, the appellate court is not expected to go on
moral grounds alone."
28. A slight change in the fact would make a world of
difference in applying the principle as a precedent and
that has been clearly mentioned in one of the decisions
delivered by the Apex Court in the case of State of
Madhya Pradesh vs. Narmada Bachao Andolan &
Anr., reported in (2011) 7 SCC 639, since we would like to
rely upon the said decision, the relevant observations
contained in para-64 are quoted hereunder:-
"The Court should not place reliance upon a
judgment without discussing how the factual
situation fits in with a fact-situation of the decision
on which reliance is placed, as it has to be
ascertained by analysing all the material facts and
the issues involved in the case and argued on both
sides. A judgment may not be followed in a given
case if it has some distinguishing features. A little
difference in facts or additional facts may make a lot
of difference to the precedential value of a decision.
A judgment of the Court is not to be read as a
statute, as it is to be remembered that judicial
utterances have been made in setting of the facts of
a particular case. One additional or different fact
may make a world of difference between the
conclusions in two cases. Disposal of cases by blindly
placing reliance upon a decision is not proper. (Vide:
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Municipal Corporation of Delhi v. Gurnam Kaur, AIR
1989 SC 38; Govt. of Karnataka & Ors. v. Gowramma
& Ors., AIR 2008 SC 863; and State of Haryana &
Anr. v. Dharam Singh & Ors. (2009) 4 SCC 340)."
29. It is found out from the aforesaid discussion that at
the time of fixing the liability of negligence, the learned
Tribunal has discussed all the aspects of the matter and
passed just, fair and reasonable order and we do not find
any infirmity in the said findings and, therefore, we are of
the opinion that so far as the findings given by the learned
Tribunal pertaining to negligence is concerned, the same
is correct one and we are in full agreement with the said
findings.
30. In view of the above, we are of the opinion that no case
is made out to call for any interference since there appears to
be no illegality, no irregularity nor even perversity.
31. Accordingly, the appeal stands dismissed, and judgment
and award passed by the learned Motor Accident Claims
Tribunal (Aux.) at Vadodara dated 20.07.2018 in M.A.C.P.
No.1043 of 2012 stands confirmed. No order as to costs.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(DIVYESH A. JOSHI,J)
VAHID
