Bombay High Court
Gurunath P. Naik And Ors. vs Narendra Govind Chodankar And Ors. on 21 July, 1994
Equivalent citations: I(1995)ACC428, 1996ACJ805
JUDGMENT G.D. Kamat, J.
1. In Claim Petition No. 72 of 1986 a sum of Rs. 1,10,000/- has been awarded to respondent No. 1. This award is now challenged in the present appeal by the driver and owner of a tourist bus bearing registration No. GDS 2245.
2. Mr. R.G. Ramania, learned Counsel for the appellants, has raised two questions for consideration in this appeal. In the first place, according to him, regard being had to the evidence on record, the manner in which the bus in question passed over the left foot of respondent No. 1 while negotiating a circuitous road near the Secretariat at Panaji, it was clearly incumbent upon the Tribunal to have imported the doctrine of contributory negligence and that way ought to have apportioned the responsibility for the accident at least in the ratio of 50:50. In the second place, the other grievance is that the Tribunal has awarded a sum of Rs. 50,000/- by way of general damages on the sub-head of pain, suffering and shock and at the same time has awarded a further sum of Rs. 50,000/- by way of general damages on the sub-head of discomfort, inconvenience and permanent disability and another sum of Rs. 10,000/-by way of special compensation to enable the respondent No. 1 to have treatment in future. According to the learned Counsel, there is no justification for grant of huge compensation of Rs. 50,000/- on the subhead of pain, suffering and shock and, in any case, the special compensation of Rs. 10,000/- is not at all justified.
3. Coming to the first grievance in the appeal, it is necessary to view as to how the accident arose as spoken to by the respondent No. 1, original claimant, AW 1, Narendra Chodankar, says that on 29.3.1986 he started from the post office side with a pillion rider on his motor cycle bearing No. GDG 7189 and after negotiating the curve on the right side of a oneway street behind the Secretariat when he was about to negotiate the next curve on the left hand side the right front wheel of the tourist bus bearing No. GDS 2245 driven by appellant No. 1 and owned by appellant No. 2, dashed against his motor cycle; with a view not to allow him to fall down he touched his left foot on the road, at which point of time the wheel of the bus passed over his left foot. He was immediately hospitalised and advised amputation of the five phalanges. He, however, did not accept the advice at the Goa Medical College Hospital and got himself discharged on 17.4.1986 and lodged himself at a private nursing home at Bombay where he was treated by Dr. Laud. According to his evidence and the medical evidence which is on record to which not much reference is necessary, with a view to prevent gangrene the petitioner had to undergo surgical intervention as a result of which half of his left foot was amputated. Even after amputation, it appears that he was required to do skin-grafting at a little later date.
4. In support of his case as to how the accident took place he adduced the evidence of his pillion rider, M.V. Premdas, AW 2. He confirmed the story as told by the original claimant and clearly speaks as to how the right front wheel of the bus passed over the left foot of the claimant. According to him, the tourist bus was following them and collided against the motor cycle on the curve on the road at the back of the Secretariat.
5. Soon after the accident, a panch-nama of the scene of the offence was drawn and the same was attested by the panchas. Venkatesh Naik, AW 5, is the panch witness who has been examined in this case, who gave details as to the position of the vehicles, that the motor cycle was lying close to the front wheel of the bus in question, the various distances, the falling of the chapel and the length of the brake marks of front as well as back tyres.
6. On behalf of the appellant, the only evidence in so far as the accident is concerned, is adduced from one Sudin Dattaram Sinari, RW 3. It is indeed true that on behalf of the owner, her power of attorney has been examined, but that evidence is not helpful to the case of any of the parties inasmuch as the attorney was not a witness to the accident. Sudin Sinari, RW 3, claims that he was in the cabin of the bus at the relevant time. According to him, when the bus in which he was seated was about to take a turn at the back side of the Secretariat all of a sudden the claimant who was driving the motor cycle swerved from left to right in front of the bus. As a result of this sudden movement the motor-cyclist lost his balance and with a view to regain his balance he touched his left foot on the ground at which point of time the front right wheel of the bus in the process touched and went over the left foot. Soon after this event, according to him, the bus stopped. He himself arranged a rickshaw and sent the claimant to the Goa Medical College Hospital. He has affirmed that there was no pillion rider on the motor cycle and the motor cycle was without any damage.
He had affirmed in examination-in-chief that the bus had gone on a north Goa tour with tourists and after completing the tour the tourist bus was coming to the centre of the city to drop the tourists back to their hotels.
On the basis of his deposition the witness was cross-examined and the witness landed in saying that he is a driver and at the same time a tourist guide. He admitted in cross-examination that he is in the employment of appellant No. 2 and generally travels in the cabin of the tourist bus as a guide and he also drives for the owner. He denied the various suggestions made to him in cross-examination relating to the accident.
7. It must be noticed in the first place that the appellants want to invoke the doctrine of contributory negligence. The bus in question at the relevant time of the accident was driven by appellant No. 1, Gurunath P. Naik, who was never examined in the claim petition. It is a rule of evidence that if a person who ought to have been examined is not examined or a person who was required to tender evidence shies away from court, an adverse inference must be taken against such person. There is no explanation whatsoever as to why appellant No. 1, Gurunath P. Naik, shied away from the court. It is indeed true that during the course of the hearing to an enquiry by the court Mr. Ramania, Counsel for the appellants, says that the driver Gurunath went out of India, but, however, the fact remains that the present appeal has been filed by him. We, however, leave the matter at this stage. In fact, we are entitled to refuse to examine this point of contributory negligence on the basis that the evidence of the driver was necessary in this case to understand as to how the accident took place.
8. In our view, there is no place for importing the doctrine of contributory negligence in the present case and suffice to mention that the road on which the accident took place is a one-way street. This being so, the original claimant who was riding his motor cycle was entitled to travel and take the curve either on his left side as also on his right side. Merely because the accident took place by which it is clear that the motor-cyclist had to be on the right side of bus in question, that by itself does not enable the appellants to invoke the doctrine of contributory negligence. Counsel would have been right if that particular road was catering for two-way traffic. This being not the situation and in the absence of the evidence being tendered by driver of the tourist bus, there is no question of doctrine of contributory negligence.
9. We now come to the next challenge, namely, the grant of compensation. In the first place, it must be noticed that the compensation was assessed in a sum of Rs. 1,20,000/- and since the original claimant was getting the lump sum award, a lump sum deduction at 10 per cent was applied and the compensation made payable was a sum of Rs. 1,10,000/-. It must be incidentally mentioned that respondent No. 1, original claimant, has filed cross-objections in this appeal that regard being had to the present trend of decisions and observations of the Supreme Court vis-a-vis inflation, there is no place for lump sum deductions.
10. Medical evidence in this case has been tendered by Dr. U.G. Nachinolkar, CW 3, who is Professor of Orthopaedics in the Goa Medical College Hospital. He speaks of the injury and the intervention made on the date of the accident up to the discharge of the original claimant on 17.4.1986. According to him, the left foot had turned gangrenous and amputation of all five phalanges was recommended. He then says that he again had to view the original claimant on 11.12.1986 and he, evaluated permanent disability putting it at 20 per cent. He also proved a certificate issued by him dated 11.12.1986, which certifies that the original claimant suffered permanent disability to the extent of 20 per cent with the loss of 5 metatarsopha-langeal joints. The matter that now needs consideration is that even if the Tribunal has committed some errors in the matter of grant of compensation on different heads, the question in reality to ask is whether the compensation of Rs. 1,10,000 is just and reasonable in a case where a person upon meeting with accident loses half of his foot, which is an all-time loss to him. Though in the medical world the disability is computed at 20 per cent, nevertheless the fact remains that the original claimant has become a person with one half leg. In the absence of phalanges there can be no stability to the leg and also manoeuvrability. We indeed agree with Mr. Ramania, learned Counsel for the appellants, that the bifurcation of the compensation as shown by the Tribunal under different heads may appear to be on the higher side, but when it is considered in the context of a permanent loss of the left foot and inevitable immobility, in our view, the compensation of Rs. 1,10,000/-cannot be faulted with. Needless to observe that as an aftermath of this accident the original claimant has now become a handicapped person. Regard being further had to the inflation and considering the time the accident took place in the year 1986, in no manner there be any interference in the awarded sum. We, therefore, see no reason to interfere. The appeal is dismissed and so also the cross-objections. Parties are, however, directed to bear their own costs in this appeal.