Bombay High Court
Mangesh Madhukar Karmakar & Anor vs State Of Mah. Thru. Collector & 6 Ors on 7 June, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
214-FA-302-08 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.302 OF 2008
1. Mangesh s/o Madhukar Karmankar
Aged about 23 years,
R/o Chandrapur, Shende Layout
Naginebag Ward, Tah. & Dist. Chandrapur
2. Neha d/o Madhukar Karmankar
Aged about 23 years,
R/o Chandrapur, Shende Layout
Naginebag Ward, Tah. & Dist. Chandrapur
3. Kalawati wd/o Madhukar Karmankar,
Aged about 40 years, Occ. Service,
R/o Chandrapur, Shende Layout,
Naginebag Ward, Tah. & Dist. Chandrapur ... Appellants.
-vs-
1. The State of Maharashtra
Through The Collector,
Chandrapur
2. The Executive Engineer,
PWD Division No.1
Chandrapur
3. Director of General Insurance
Maharashtra State
Grih Nirman Bhawan Mahal,
Room No.264, 1st Floor,
Opp. Kalu Nagar,
Bandra (East) Bombay-05
4. Suresh s/o Ruprao Tule
Aged about 50 years,
Occ. Government Service as a
Motor Driver R/o Chandrapur,
Ramnagar Near RTO Office,
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214-FA-302-08 2/13
Tah. and Dist. Chandrapur
5. Gangubai wd/o Hari Karmankar
Aged about 60 years.
R/o Bamni, Tahsil & Dist.
Chandrapur
6. Branch Manager,
National Insurance Company Ltd.
Chandrapur, Tahsil and Dist.
Chandrapur.
7. Kalavati wd/o Madhukar Karmanka .... Respondents.
(Deleted)
Shri S. R. Kulkarni, Advocate with Shri Anand Parchure Advocate for
appellants.
Shri S. Bissa, Assistant Government Pleader for respondent No.1/State.
Shri R. Vyas, Advocate with Shri S. Dhote, Advocate for respondent No.4.
Shri C. Anthony, Advocate for respondent No.6.
CORAM : A. S. CHANDURKAR, J.
DATE : June 07, 2019.
Oral Judgment :
This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, the said Act) takes exception to the judgment of the Motor Accident Claims Tribunal, Chandrapur in Claim Petition No.17/2003 whereby the learned Member had been pleased to dismiss the said claim for compensation.
2. The facts in brief are that it is the case of the appellants-claimants that the husband of appellant No.3 and father of appellant Nos.1 and 2 was serving as Medical Officer. On 16/03/2002 at about 12.30 pm he was ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 3/13 proceeding on his two wheeler when he was given a dash from the rear side by a tractor-trolley that was owned by the respondent Nos.1 and 2 and was insured with the respondent No.3. The said vehicle was being driven by the respondent No.4. The husband of appellant No.3 succumbed to injuries giving rise to filing of the aforesaid claim petition. An amount of Rs.15,00,000/- was claimed under Section 166 of the said Act as the amount of compensation.
3. In the written statement filed by the respondent Nos.1 and 2 it was denied that the claimants were entitled for any compensation. Though the ownership of the tractor in question was admitted to be that of respondent Nos.1 and 2, it was pleaded that it was the deceased who had been rash and negligent in driving the vehicle. The deceased gave a dash to the trolley from the rear side and as a result of that dash he suffered injuries and succumbed to the same. Similar plea was raised by the driver of the said tractor-trolley. Reply was also filed by the insurer of the two wheeler and Insurance Company also denied its liability.
4. After considering the evidence on record led by the parties the learned Member recorded a finding that the accident had taken place between the tractor-trolley as well as the scooty being driven by the deceased. However, a finding was recorded that the deceased had given a ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 4/13 dash to the tractor-trolley from the rear side and hence the deceased himself was responsible in causing the accident. On that count the claim petition came to be dismissed. Being aggrieved the claimants have filed the present appeal.
5. Shri S. Kulkarni, learned counsel for the appellants submitted that the learned Member of the Claims Tribunal erred in dismissing the claim for compensation. The entire adjudication by the Claims Tribunal was based on surmises and conjectures. There was no definite evidence on record to conclude that the deceased had given a dash from the rear side to the tractor- trolley. The First Information Report (FIR) as well as the spot panchanama at Exhibits 81 and 83 respectively clearly indicated that it was the tractor- trolley that had given a dash to the two wheeler that was being driven by the deceased. An offence was registered against the driver of the tractor. The statement of one Kamlabai had been recorded by the police authorities in which she clearly admitted that it was the tractor-trolley that had given a dash to the two wheeler. Subsequently when said Kamlabai was examined in the present proceedings she changed her version with a view to support the driver of the tractor-trolley. It was then submitted that the driver of the tractor-trolley had clearly stated that he was not aware about the manner in which the accident occurred. There was no rear mirror affixed to the tractor as required by Rule 161 of the Motor Vehicle Rules, 1989 (for short, ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 5/13 the said Rules) and this indicated the negligence on the part of said driver. The tractor being a heavy vehicle and it having given a dash to the scooty, the heavy vehicle itself was responsible for the accident and hence the claimants were entitled to receive compensation. In absence of any definite finding being recorded by the Court and in view of the version of the interested witnesses, the evidence in that regard was liable to be ignored. In support of his submissions the learned counsel placed reliance on the following decisions :
i) Basthi Kasim Saheb (Dead) by LRs. vs. Mysore State Road Transport Corporation and ors. (1991) 1 SCC 298
ii) Rajesh and ors. vs. Rajbir Singh and ors. (2013) 9 SCC 54
iii) Pawan Kumar and anr. vs. Harkishan Dass Mohan Lal and ors.
(2014) 3 SCC 590
iv) National Insurance Company Ltd. Ranchi vs. Payal Choudhary and ors. (2009) 2 TAC 375
v) Jiju Kuruvila and ors. vs. Kunjujamma Mohan and ors. (2013) 9 SCC 166
vi) Bajaj Auto Ltd. vs. Commissioner of C. Ex. Pune 2000 SCC Online CEGAT 172.
It was thus submitted that the claim for compensation ought to have been allowed.
6. Shri C. Anthony, learned counsel for the insurer of the two wheeler-respondent No.6 supported the aforesaid submissions. According to him registration of an offence against the driver of the tractor-trolley was a ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 6/13 material fact that could not be ignored. The tractor being the heavier vehicle it could not be exonerated from its liability.
7. Shri S. B. Bissa, learned Assistant Government Pleader for the respondent Nos.1 to 3 supported the impugned judgment. According to him the learned Member of the Claims Tribunal after considering the entire documentary evidence rightly concluded that the accident occurred due to the negligence on the part of the two wheeler. The said vehicle had dashed the tractor-trolley from the rear side and hence no liability could be fastened on the respondent Nos.1 to 3. He also referred to the deposition of the eye witness in that regard and submitted that the impugned judgment was liable to be maintained. Similarly, Shri R. Vyas learned counsel for the respondent No.4 also supported the impugned judgment.
8. The following points arise for determination :
(I) Whether the finding recorded by the Claims Tribunal that the accident took place as a result of rash and negligent driving by the driver of the two wheeler is based on the evidence on record ?
(II) If the answer to the aforesaid point is in the negative, what is the amount of compensation to which the claimants are entitled from the respondent Nos.1 to 4 ?::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 7/13
9. I have heard the learned counsel for the parties at length and I have perused the evidence led by them. The Claims Tribunal in paragraph 10 of its judgment has recorded a finding that the accident in question occurred on 16/03/2002 and the vehicles involved were the tractor-trolley owned by the respondent Nos.1 and 2 and the two wheeler on which the deceased was riding. That finding is not under challenge. The crucial aspect to be determined is whether the claimants have proved that the tractor- trolley gave a dash to the two wheeler or whether it was the two wheeler that gave a dash to the said tractor-trolley at its rear side. Exhibit-81 is the FIR in which it has been stated that on account of rash and negligent driving by the driver of the tractor-trolley a dash from the rear side was given by the tractor-trolley to the two wheeler resulting in the accident. In the final report at Exhibit-80 similar statements have been made and the offence has been registered against the driver of the tractor-trolley. During the course of investigation by the police authorities, a statement of one Kamlabai Golarkar was recorded on the next day of the accident in which she has stated that the tractor-trolley gave a dash to the scooty from the rear side and at that point of time the said tractor was being driven at high speed.
10. The driver of the tractor-trolley was examined at Exhibit-116 and according to him when he was driving the tractor he was informed by a labour sitting in trolley that a person had dashed a trolley from the back side ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 8/13 and hence he stopped the said vehicle. He has further stated that he had gone to the police station but he was told that it was not necessary to lodge any report. In his cross-examination he admitted that there was no rear mirror to the tractor and he could not see as to what was behind his tractor. He denied the suggestion that on account of his negligence the accident was caused. He admitted that near the spot of the accident there was a tea-stall and the lady who was running a tea-stall took the injured to the hospital. He further admitted that though he had given information of the accident to his office the letter in that regard was not placed on record.
One Kamlabai whose statement was recorded by the police authorities was also examined at Exhibit-123 and in her deposition she denied that her statement was recorded by the police. According to her the deceased gave a dash to the trolley from the rear side. She denied her statement being recorded in any manner. Perusal of the accident papers including the FIR as well as the final report indicates that the statement of Kamlabai was infact recorded by the police authorities and in the final report her name has been mentioned at serial No.6 as a witness to be examined in the criminal proceedings. In the light of this material on record it becomes clear that the statement of Kamlabai in her deposition before the Claims Tribunal to the extent that the police authorities did not record her statement is contrary to the record and that she was trying to assist the driver of the tractor-trolley by stating otherwise. Similarly, the driver of the tractor- ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 9/13 trolley being an interested witness, his version would have to be viewed in that context. Considering the contents of the FIR at Exhibit-81 along with the final report at Exhibit-80 which includes the statement of said Kamalabai dated 17/03/2002 it becomes obvious that the tractor-trolley had given a dash to the two wheeler resulting in the accident.
The findings recorded by the learned Member that it was the two wheeler which gave a dash to the tractor-trolley can be seen to be based on surmises and conjectures. There was no reason to ignore the contents of the FIR as well as the final report. In fact in paragraph 13 of the impugned judgment it has been observed that there was a possibility that while the two wheeler was overtaking the tractor-trolley it must have dashed the tractor. Such case is not pleaded by either of the parties and suggestion to that effect had been denied by the witnesses examined by the respondent Nos.1 and 2.
11. The aforesaid aspect can be viewed by referring to the following observations in Mangla Ram vs. Oriental Insurance Company Limited and ors. (2018) 5 SCC 656 :
22. ... While dealing with a similar situation, this Court in Bimla Devi vs. Himachal RTC (2009) 13 SCC 530 noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the persons standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 10/13 Tribunal stricto sensu is no bound by the pleadings of the parties, its function is to determine the amount of fair compensation....
24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. vs. M. Karumai Ammal (1980) 3 SCC 457, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent that negligence sufficient under the law of tort to create liability. ... "
25. In Culcina Fernandes vs. Jaaquim Xavier Cruz (2013) 10 SCC 646, this Court examined similar situation where the evidence of claimant's witness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi (supra).
Similarly, in New India Assurance Co. Ltd. vs. Pazhaniammal and ors. 2012 ACJ 1370 it has been observed thus :
" 7. ... But as a general rule it can safely be accepted that production of the police charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the Motor Vehicles Act. A ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 11/13 system cannot feed itself on a regular diet of distruct of the police. Prima facie, charge-sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties does not accept such charge-sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge-sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge-sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases, such charge-sheet can be reckoned as sufficient evidence of negligence in a claim under section 166 of the Motor Vehicles Act, 1988. We mean to say that on production of such charge-sheet the shifting of burden must take place. ..."
In Basthi Kasim Saheb (supra) it has been observed that initially it is for a driver of the vehicle to explain as to how the accident had occurred and if there is no such explanation forthcoming, the principle of res ipsa loquitur would apply.
12. In the present case the driver of the vehicle has clearly stated that he was not aware as to how the accident had occurred. When that statement is considered in the light of the FIR as well as final report at Exhibit-81 and 80, it becomes clear that the said driver had refused to state the real facts before the Court. The fact that the tractor is a heavier vehicle and the fact that the accident occurred at 12.30 pm are also the aspects which cannot be ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 12/13 ignored. Thus on principle of preponderance of probabilities and in the light of the documents on record it becomes clear that it was the tractor-trolley which gave a dash to the two wheeler resulting in the said accident. The driver of the tractor-trolley was therefore rash and negligent in causing the said accident. Point No.(I) is answered by holding that the Claims Tribunal erred in recording a finding that the driver of the two wheeler was rash and negligent in driving his vehicle. It was the tractor-trolley which gave a dash to the two-wheeler.
13. As it has been found that the accident occurred due to rash and negligent driving of the driver of tractor-trolley, the claimants would be entitled to receive compensation. The evidence on record indicates that the deceased was working as a Medical Officer and as per the salary certificate at Exhibit-77 he was receiving net salary of Rs.13,520/- per month. Amount of profession tax being deducted was Rs.300/-. It is thus clear that the deceased was received net salary of Rs.13,220/- per month. The annual salary would therefore be (13,220 x 12) Rs.1,58,640/- . 1/3rd amount was liable to be deducted for personal expenses and hence the annual salary after such deduction (1,58,640-52,880) would be Rs.1,05,760/-. Considering the age of the deceased, multiplier of eleven was rightly applied by the Claims Tribunal and this would make the total loss to be (1,05,760 x 11) Rs.11,63,360/-. By applying the law as laid down in National Insurance ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 ::: 214-FA-302-08 13/13 Company Ltd. vs. Pranay Sethi (2017) 16 SCC 680, 40% amount towards future prospects was liable to be awarded which comes to Rs.4,65,344/-. Further amount of Rs.70,000/- on the conventional heads is also liable to be awarded. This would make the total amount of compensation (Rs.11,63,360 + 4,65,344 + 70,000) Rs.16,98,704/-. The total amount of compensation would be payable with interest at the rate of 9% per annum by respondent Nos.1 to 4. Point No.(II) is answered accordingly.
14. In view of aforesaid discussion the following order is passed :
(i) The judgment of the Claims Tribunal dated 21/11/2007 in Claim Petition No.17/2003 is set aside.
(ii) It is held that the claimants are entitled to receive an amount of Rs.
16,98,704/- as compensation under Section 166 of the said Act. The said amount would include the amount already received under Section 140 of the said Act.
(iii) The compensation would be payable with interest at the rate of 9% per annum from the date of filing the claim petition till its realization subject to the claimants paying necessary court fees.
(iv) Each appellant would be entitled to receive 1/3rd share in the amount determined.
(v) The First Appeal is allowed in aforesaid terms with no order as to costs.
(A. S. Chandurkar, J.) Asmita ::: Uploaded on - 18/06/2019 ::: Downloaded on - 14/07/2019 18:02:01 :::