Bombay High Court
Zainuddin Fidahussain Bombaywala vs Mohansing Swarnsingh Panjabi ... on 17 October, 2019
Author: M. G. Giratkar
Bench: M. G. Giratkar
1 jg.fa 473.12.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 473 OF 2012
Zainuddin Fidahussain Bombaywala,
Aged about 73 years,
Occupation : Business,
R/o Bombaywala Complex,
Panderkauda Road,
Tq. & Dist. Yavatmal. ... Appellant
VERSUS
(1) Mohansingh Swarnsingh Panjabi
(Bhullar), Aged about 55 years,
Occupation : Driver, R/o Kacheri
Nagar, Near N.P. Kopargaon, P.S.
Kopargaon, Dist. Ahmednagar,
Driving License No. 1613.
(2) Branch Manager, The United
India Insurance Company Limited,
Mahajanwadi Chock, Yavatmal,
Tq. & Dist. Yavatmal. ... Respondents
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Shri S. O. Ahmed, Advocate for the appellant
None for the respondents
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CORAM : M. G. GIRATKAR, J.
Date : 17/10/2019.
Oral Judgment In this appeal, following order was passed on 19-9-2019.
"None appeared for the respective parties.
Put up the matter for final hearing/dismissal order after ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 :::
2 jg.fa 473.12.odt two weeks."
2. Today, in the first half, learned Advocate for the appellant has argued the appeal. None appeared for the respondents. Therefore, matter is kept in second half. In second half also, none appeared for the respondents.
3. This is an appeal against the judgment of the Motor Accident Claims Tribunal (MACT), Yavatmal in Motor Accident Claim Petition No. 341/2007.
4. The facts giving rise to the present appeal can be summarized as under :-
(i) On 6-4-2007 at about 1.00 p.m., the appellant was going from Pandharkawada side on his Honda Activa Scooter bearing No. MH-29-H-4330 in moderate speed. At some distance, one ST bus was stopped and passengers were alighting from ST bus. At the relevant time, offending truck bearing no. MH-26-H-6365, driven by the respondent no. 1 in rash and negligent manner, dashed to the scooter of the appellant. Accident took place due to rash and negligent driving of driver of offending truck i.e. respondent no. 1. The said truck was ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 ::: 3 jg.fa 473.12.odt driven and owned by the respondent no. 1 and insured by the respondent no. 2. Due to the accident, the appellant has sustained permanent disability of 40%. Report was lodged against the respondent no. 1. Respondent no. 1 was prosecuted by police for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code.
(ii) Claim petition was filed by the appellant claiming compensation of Rs. 6,00,000/-. The respondent no. 1 remained absent though served. The respondent no. 2 filed written statement at Exhibit 17 and denied the claim. It is submitted by the respondent no. 2 - Insurance Company that the appellant himself was negligent. It is also the contention of the respondent no. 2 that appellant himself contributed the accident and, therefore, at the most, the respondent no. 2 can be liable to pay 50% amount of compensation.
(iii) Issues were framed at Exhibit 23. The appellant examined himself and proved the documents i.e. First Information Report (FIR), spot panchanama etc. The appellant also examined Dr. Avinash Ranade. He has proved disability certificate, Exhibit 47.
(iv) After hearing both the parties, learned Member, MACT, Yavatmal come to the conclusion that the appellant was equally responsible for ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 ::: 4 jg.fa 473.12.odt the accident and, therefore, the respondent no. 2 - Insurance Company was directed to pay 50% amount of compensation of Rs. 1,00,000/-. Hence, the present appeal.
5. Heard learned Advocate Shri S.O. Ahmed for the appellant. He has pointed out FIR and charge-sheet proved by the appellant before the MACT. Exhibit 35 is the FIR copy and copy of charge-sheet is at Exhibit 36 and copy of spot panchanama is at Exhibit 37. Learned Advocate has submitted that the MACT has wrongly taken into consideration the less earning of appellant. In fact the appellant was paying income-tax. Copy of Income-Tax Return is filed on record but it is not taken into consideration. At last, he submitted that the appellant has incurred medical expenditure of Rs. 2,77,614/-. Learned Advocate Shri Ahmed has submitted that the appellant is entitled for compensation of Rs. 6,00,000/- along with interest from the date of filing of petition till the realization of whole amount.
6. None appeared for the respondents even in second half.
7. Perused the judgment and evidence on record. From the evidence of appellant, it appears that accident took place due to rash ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 ::: 5 jg.fa 473.12.odt and negligent driving of the respondent no. 1. Copy of FIR and charge-sheet show that the respondent no. 1 was prosecuted by police for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. There is nothing on record to show that appellant was negligent while driving his vehicle. Learned MACT without any evidence wrongly come to the conclusion that the appellant was negligent. Learned MACT wrongly taken into consideration 50% negligence on the part of the appellant.
8. Evidence on record i.e. evidence of appellant supported by documentary evidence i.e. FIR, spot panchanama, charge-sheer show that the respondent no. 1 drove offending truck in rash and negligent manner and gave dash to the scooter of the appellant, therefore, accident took place. Hence, it is clear that accident took place due to rash and negligent driving of respondent no. 1. There is no dispute that offending truck was owned and driven by respondent no. 1 and insured by the respondent no. 2. In respect of amount of compensation, learned Tribunal has wrongly taken into consideration earning of Rs. 2500/- per month. In fact Second Schedule of Section 163-A of the Motor Vehicles Act was enacted in the year 1989 and at that time notional income was ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 ::: 6 jg.fa 473.12.odt Rs. 15000/- per annum. In the year 2007, it must be doubled. Therefore, notional income of appellant is taken as Rs. 3,000/- per month. So yearly income comes to Rs. 36,000/- (3000x12). As appellant was 65 years old at the time of accident, therefore, multiplier 5 is applied.
Therefore Rs. 36,000 x 5 = Rs. 1,80,000/-
For 40% disability, it comes to Rs. 72,000/- (40% of Rs. 1,80,000/-) As per Exhibits 53, 54, 42 (1 to 52) - medical bills show that appellant incurred medical expenditure of Rs. 2,77,614/-. Hence, amount of compensation is as under :-
Rs. 72,000/- + Rs. 2,77,614= Rs. 3,49,614/-
In addition to that, the appellant is entitled for compensation of Rs. 5,000/- for pain and suffering + Rs. 25,000/- for loss of earning + Rs. 10,000/- for special diet + Rs. 10,000/- for travelling expenses Total comes to Rs. 3,99,614/- which is rounded off to Rs. 4,00,000/-. In that view of the matter, the appeal is allowed. ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 :::
7 jg.fa 473.12.odt
9. Impugned judgment is hereby quashed and set aside.
10. The respondent nos. 1 and 2 shall jointly and severally pay amount of compensation of Rs. 4,00,000/- (Rupees Four Lacs) to the appellant along with interest at the rate of 7.5% p. a. from the date of filing of petition i.e. from 11-12-2007 till the realization of whole amount.
JUDGE wasnik ::: Uploaded on - 22/10/2019 ::: Downloaded on - 21/04/2020 17:16:01 :::