Bombay High Court
Union Of India (Uoi) And Ors. vs Abdulla Khan Biban Khan And Ors. on 25 April, 1991
Equivalent citations: 2(1993)ACC427
JUDGMENT A.D. Mane, J.
1. These appeals have been filed under Section 110-D of the Motor Vehicles Act, 1939 against the judgment and award passed by the Motor Accidents Claims Tribunal, Nanded, dated 19th February, 1986 by which Rs. 50,000/- have been awarded as compensation to the claimant-respondent, and they are thus disposed of by a common judgment.
2. The facts of the case giving rise to the claim may be summarised as follows:
On 1st January, 1983, at about 10 a.m. the claimant-respondent Abdulla Khan, who was a Probationary Police Sub-Inspector attached to Shivaji Nagar Police Station, was proceeding on his bicycle to the Police Station along the right side of the road. One Mohd. Shafi was also following him on his bicycle. When the respondent Abdulla Khan came near the I.T.I. bus-stop that is to say in front of the Patel Automobiles Shop, a military truck 3 Ton B A bearing No. 74-D 14807 of 52 Maharashtra Battalion N.C.C. Nanded driven by the appellant in First Appeal No. 79 of 1986 came from behind in a high speed. It was the case of the respondent that the appellant driver drove the truck rashly and negligently; in giving dash to the carrier of his bicycle as a result of which he fell down when the rear wheel of the truck passed over his buttock. He was immediately removed to the hospital in the very truck. He was required to be the indoor patient till April 25, 1983. He has received serious injuries such as fracture to pelvis, rupture to urethra for which he has undergone operation in the Civil Hospital at Aurangabad. He, therefore, filed the application against the truck driver by joining his master Union of India, who is the appellant if First Appeal No. 78 of 1986, claiming the compensation.
3. That application was contested by the present appellants on twofold ground. Firstly, that the truck in question was not at all involved in the accident. Secondly, that the respondent was got injured by fall out of his own fault, suggesting that the claimant was a tortfeasor. In this context it has been alleged that the respondent and two other persons were riding on bicycles in such manner that each of them had held one's bicycle with one hand and had kept the other hand on shoulder or other. The cyclists themselves, therefore, got entangled and in consequence the respondent fell down and sustained the injuries. The PSI Paliwal had rushed to the spot and on his request, the appellant driver stopped the military truck and carried the injured in the truck to the hospital. In the circumstances, it was submitted that the claim was misconceived. Lastly, it was stated that the application for compensation was not tenable for want of notice under Section 80, Civil Procedure Code.
4. On the aforesaid rival theories of the parties, evidence was led on issues framed at Exh. 42 and one of the important issues was whether the appellant driver drove the truck in rash and negligent manner giving dash to the respondent resulting in his fall and getting injured. The nature of the evidence adduced by the parties is oral testimonies of the witnesses to the accident and the medical evidence.
5. The respondent has examined two eye-witnesses besides his own testimony at Exh. 99. The witnesses who have been examined are Mohd. Shafi, Exh. 94 and Dr. Rathod, exh. 100. In addition to these eye-witnesses, the respondent has also led evidence of three doctors, viz. Dr. Ravindra, Exh. 64, Dr. Sham, Exh. 66 and Dr. Kamalkar, Exh. 81, in support of the nature of injuries received by him. There is also the evidence of the Investigating Officer PSI Paliwal, Exh. 97. As against that, in defence, the appellants have examined three witnesses, viz., (1) Shantaram Pawar, Exh. 109, (2) Jyotiba Patil, Exh. 120 and (3) the appellant driver Madhav Jagtap, Exh. 100, himself.
6. The learned Member of the Claims Tribunal on examining oral testimonies of the witnesses for the parties has found that the respondent was injured due to rash or negligent driving of the appellant driver of the military truck by giving him the dash. The defence of the appellants was thus discarded. In the opinion of learned Member of the Claims Tribunal, the claim was not bad for want of notice under Section 80, Civil Procedure Code. Haying regard to relevant factors as proved in the evidence of doctors a lump sum compensation of Rs. 50,000/- has thus been awarded. Dated:
Dated: April 26,1991.
7. At the outset, it may be stated that with assistance of the learned Counsel for the parties I have gone through the entire evidence in the case. Mr. Godhamgaonkar, the learned Counsel for the appellant driver, has made a great deal of criticism against the ocular evidence and the only contention that has been pressed into service is that evidence regarding the accident as deposed to by the eye-witnesses is unworthy of credence and should be discarded. It has been argued that the witnesses have not come out with true version of the accident but they have given a false account of the incident. The evidence adduced by the respondent-claimant is of such a nature that it is difficult of disengage the truth from falsehood and the learned Member of the Claims Tribunal was not, therefore, justified in keeping reliance on such evidence.
8. It becomes, therefore, necessary to turn to the material version of each witness to find out if the criticism levelled against them bears any merit. I may first state in brief the material version of each of the witnesses for the respondent-claimant. The first of them is Mohd. Shafi, Exh. 94, who claims to be the eye-witness to the accident. He has stated that lie along with his neighbour was going on his bicycle to S.P. Office. When they came near the I.T.I. bus-stop in front of Patel Automobiles, the claimant was going ahead of him on his bicycle. One truck came from behind. It passed his side but on going ahead of him the truck gave dash from its left side bumper to the claimant. The claimant, therefore, fell down on the left side of the road and rear wheel of the truck passed over the left back lower portion of the buttock of the claimant. In cross-examination he has stated that there was no visible injury on the body of the respondent but his penis was bleeding. He did not notice blood on the spot. The witness has further said in cross-examination that the place where the respondent-claimant was lying is about 4' from the corner of the road.
9. The next witness is the claimant himself, Exh. 99. He corroborates the earlier witness. He has stated that when he was going on bicycle by left side of the road, N.C.C. truck came from behind. It gave dash from front side to his bicycle. The truck was in high speed. Due to dash he fell down. Then the left rear wheel of truck passed over his right buttock. The truck went ahead and stopped at a distance of about 20'. In cross-examination he has stated that he was lying 4' inside the road from the left side. According to him, after his fall the rear wheel of the truck rolled over his right buttock. He denied that while cycling he was passing by the side of the road divider and, therefore, the dash of the truck was not probable.
10. The last witness is Dr. Ramchandra Rathod, Exh. 100. He has stated that while he was proceeding along the road he saw two cyclists going one after another on their bicycles. At that time the truck overtook him and from some distance from behind he saw the truck dashing against the bicycle of the claimant by its front bumper. The claimant fell down on the road near the footpath. After he fell down he came under the rear wheel of the truck. The truck then stopped at a distance of about 10'. In cross-examination he has stated that the truck did not touch any part of the body of the cyclist while giving dash.
11. Before I deal with the argument of the learned Counsel for the appellant it is equally relevant to state in brief what the defence witnesses have to say in this behalf. First witness is Shantaram. He is J.C.O. Quarter Master. He was travelling in the truck driven by the appellant driver and according to him at the relevant time he was sitting in the driver's cabin, and one Naib Subedar and Clerk Shinde were in the body of the truck. They were gong to General Hospital for annual medical check-up. It is his version that after the truck turned in front of I.T.I. and proceeded in front of Godavari Hotel he saw three cyclists proceeding ahead. The driver of the truck gave horn and the cyclists gave side and so the truck overtook them. The truck was, however, stopped at a distance of 15 paces ahead on hearing the shouts. According to him the injured was carried in the said truck to the General Hospital. He has stated that the truck did not give any dash to the cyclist.
12. That is what the appellant driver has deposed to in his deposition at Exh. 110. In addition thereto, he has stated that the persons sitting in the body of the truck shouted, due to which he stopped the truck and according to him, his truck did not dash against either of the cyclists.
13. Now, Mr. P.G. Godhamgaonkar, the learned Counsel for the appellant driver, has pressed into service the following circumstance as appearing in the evidence of the claimant and his witnesses to lay a foundation to his submission that evidence of the eyewitnesses is unworthy of credence and it requires to be discarded entirely inasmuch as it is difficult to disengage the truth from falsehood from their evidence. The only circumstances which is relied upon in support of above submission is that, according to these witnesses the rear wheel of the truck passed over the buttock of the claimant. Therefore, it has been submitted that if that were the case it was highly improbable that the claimant would have sustained the injuries as noticed by the doctors without there being a substantial damage to various parts of his body. Not only that but according to him, if it were a case that lower part of the body of the claimant was crushed under the rear wheel of the truck then in that case the death would have been imminent. Therefore, it has been submitted that the very circumstance suggests the improbability in their say which in consequence shows that they could not have been the witnesses to the accident.
14. I gave my anxious consideration to the submissions of Mr. Godhamgaonkar, the learned Counsel for the appellant driver and I am unable to accept that merely because the witnesses have exaggerated in stating what they have seen from a distance, that would become a ground to discard their evidence entirely. The learned Member of the Claims Tribunal has considered their evidence with due care and caution and has observed that part of the evidence of the witnesses is nothing but a mere exaggeration. Even on close scrutiny of the evidence of these witnesses and the claimant, it can be said that there is cogent and reliable evidence to prove that the claimant fell due to dash by the truck which was driven by the appellant driver without proper care and caution. It is, therefore, not possible to find any difficulty in disengaging the truth from falsehood in the evidence of these witnesses. There is no challenge to the injuries sustained by the claimant and the medical opinion corroborates the version of the witnesses and the claimant that rear wheel of the truck had burst the buttock of the claimant. There is, therefore, no substance in the submission of the learned Counsel for the appellant driver that the entire evidence of the claimant and his witnesses is unworthy of credence.
15. There is no dispute that the road is 20' wide. Evidence shows that the claimant was ahead on his bicycle. The truck driven by the appellant driver overtook the two witnesses and while overtaking the claimant its front portion gave dash to the rear carrier of the claimant's bicycle. The fall was natural. The truck, however, did not stop there and there only. Due to fall, according to the claimant, rear wheel passed over his buttock. The very fact that the truck was not slopped then and there only after giving dash to the bicycle of the claimant would further strengthen the testimony of the Claimant and his witnesses that unless he was hurt by the rear wheel of the truck he could not have received the injuries. There is, therefore, no merit in the contention that the injuries suffered by the claimant were due to mere fall. That conduct of the appellant driver leaves no room for doubt that he was rash and negligent in driving the truck.
16. There is absolutely no merit in the defence version. The theory suggested in defence is merely to be mentioned and rejected. It is true that the claimant was removed in the same truck but that circumstances alone would not help the defence that no accident was caused by the truck.
17. It is sought to be contended that having regard to the size of the road and the road dividers, perhaps the claimant himself was at fault in not riding the bicycle on right side of the road. That contention is also devoid of any merit. The road is 20' wide. The evidence shows that the claimant was riding bicycle on the left side of the road. This is also evident from the spot panchnama showing that place where he has fallen and that is just adjacent to the left edge of the road. It is, therefore, not possible to find fault with, the claimant.
18. There is positive indication in the evidence of witnesses that there was no scope for concocting the case of accident as sought to be suggested in the evidence of the appellant. The occurrence was immediately reported to P.S.I. Witness Mohd. Shafi has lodged the First Information Report. His evidence in consistent with what has been stated by him in the First Information Report. The P.S.I. who had arrived at the spot immediately after the accident has recorded the statements of witnesses. Therefore, there is also no merit in the contention of the learned Counsel for the appellant driver that the witnesses have come out with false account of accident.
19. The finding recorded by the learned Member of the Claims Tribunal is supported by the evidence on record. Significantly, the evidence proves that there is a direct nexus between the injuries received by the respondent No. 1 and the act of the truck driver. That finding of the learned Member of the Claims Tribunal, therefore, requires no interference.
20. It may be stated that the learned Counsel for the appellant, Mr. P.G. Godhamgaonkar, in appeal preferred by the Government of India has also raised another contention that the claim petition was not maintainable for want of notice under Section 80 of the Code of Civil Procedure. That contention was rejected by the learned Member. The petition filed against the Union of India is based on vicarious liability being the master of the driver employee. Mr. Gulam Mustafa, the learned Counsel for the respondent No. 1, has invited my attention to a decision in Mangilal v. Union of India 1973 ACJ 352 (MP), to show that in a case like the present no notice under Section 80 of the Code of Civil Procedure is necessary when the principle of sovereign immunity is not applicable for the act done by the servant.
21. The notice under Section 80 of the Code of Civil Procedure is not necessary for an application for compensation under Section 110-A of the Motor Vehicles Act, before the Accidents Claims Tribunal, constituted under the Act.
22. Now coming to the quantum awarded by the learned Member of the Claims Tribunal, it may be stated that the medical evidence goes unchallenged, besides the evidence of the claimant in regard to other items for which he has asked for compensation. Dr. Kamalkar, in his deposition, Exh. 81, has stated that the claimant has sustained disability of the permanent nature due to the accident of 17 per cent. Taking into account the duration of the lime for which the claimant had to undergo medical treatment at Aurangabad and the external of expenditure which he was incurred, the compensation of Rs. 50,000/- awarded in the case may not be said to be unreasonable.
23. Therefore, there is no substance in the appeals. The appeals are, therefore, dismissed. There shall, however, be no order as to costs.