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T.G. Baburaj v/s Vikas Atmaram Khare & Others

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

Company & Directors' Information:- THE VIKAS LIMITED [Strike Off] CIN = U24231UP1934PLC000592

    First Appeal No. 1096 of 2007

    Decided On, 28 January 2019

    At, High Court of Judicature at Bombay


    For the Appellant: P.V. Ghare, A.M. Ghare, Advocates. For the Respondents: R2, S. Bhalerao, N. Kalwaghe, R3, S. Tapadia, A. Quazi, R4, D.N. Kukday, Advocates.

Judgment Text

1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the said Act’) has been preferred by the claimant seeking enhancement in the amount of compensation as awarded by the Claims Tribunal.

2. According to the appellant claimant, he is the owner of a TempoTrax Jeep which was insured with the respondent No. 4. On 26.12.2001, the appellant was proceeding in that vehicle which was driven by respondent No. 5 on the highway when it was dashed by another jeep coming from the opposite side. The said Jeep was driven by the respondent No. 1, owned by respondent No. 2 and was insured with the respondent No. 3. As a result of that accident, the claimant suffered various injuries and was required to undertake medical treatment. It is the case of the claimant that he incurred an amount of Rs. 1,25,000 towards those medical expenses. He also suffered permanent partial disability to the extent of 25% as a result of fractures to the femur bone. He therefore filed proceedings under Section 166 of the said Act claiming compensation of Rs. 5,00,000.

3. Written statement was filed by respondent No. 3 Insurer of the offending vehicle. It was denied that the driver of that vehicle was rash and negligent while driving the same. Without prejudice, it was stated that drivers of both the vehicles were equally responsible.

In the written statement filed by respondent No. 4, the claim as made was denied.

The respondent No. 5 in his reply stated that he was driving the vehicle belonging to the claimant carefully and that the respondent No. 1 was rash and negligent in driving his vehicle.

4. Before the Claims Tribunal, the claimant examined himself at Exhibit 52 as well as two Doctors, who treated him, at Exhibits 74 and 78. The respondents did not lead any evidence. After considering that evidence on record, the learned Member of the Claims Tribunal held that both the vehicles had equally contributed to the said accident. It was found that the total amount to which the claimant was entitled was Rs. 1,53,000 and 50% thereof was directed to be paid jointly and severally by respondent Nos.1 to 3. Not being satisfied with the quantum of compensation, the claimant has filed this appeal.

5. Mr. P. Ghare, learned Counsel for the appellant submitted that the income of the claimant was taken on a lower side despite the fact that he was doing the business of tyres. The compensation on account of permanent disability has also been taken on a lower side. In absence of any evidence being led by the respondents, it ought to have been held that the driver of the offending vehicle himself was rash and negligent and the entire amount adjudicated ought to have been directed to be paid to the claimant. The claimant had examined himself and therefore, absence of negligence on the part of his driver was duly proved. He referred to the decisions in Sandeep Khanuja v. Atul Dande & Another, I (2017) SLT 689=2017 (4) Mh.LJ 1 and the judgment in First Appeal No. 52 of 2009, Bhura Raosu Pawar v. Syed Hanif Syed Shakoor Kadari, dated 4.1.2019. It was thus submitted that the appellant was entitled for higher compensation.

6. Mr. S. Bhalerao, learned Counsel for the respondent No. 2 supported the impugned judgment and submitted that on the basis of the evidence on record just compensation was paid to the claimants. The driver of the vehicle belonging to the appellant was not examined and therefore the negligence was rightly apportioned.

Ms S. Tapadia, learned Counsel for the respondent No. 3 also supported the impugned judgment. Referring to the deposition of the Doctors it was submitted that the nature of work being done by the appellant was not affected as a result of the said accident. No permanent disability was suffered.

7. Mr. D.N. Kukday, learned Counsel for the respondent No. 4 also supported the impugned judgment. He submitted that since the vehicle of the appellant was duly insured and there was no third party claim, no liability could have been saddled on the respondent No. 4.

8. In the light of aforesaid submissions, the following points arise for determination

(i) Whether the aspect of contributory negligence has been rightly determined?

(ii) Whether the appellant is entitled for higher compensation?

9. I have heard the learned Counsel for the parties at length and I have perused the records of the case. The claimant examined himself at Exhibit 52. He stated that he was doing the business of sale of tyres and that he was earning Rs. 8,000 per month from his business. As a result of the accident, he had suffered permanent disability to the extent of 25% and the same had affected his business. In his cross-examination, he stated that the offending vehicle was at a distance of hundred feet when he saw the same approaching from the opposite side. He denied the suggestion that the offending vehicle had dashed his vehicle. He admitted that his business was still being run. The appellant placed on record various documents indicating the treatment taken by him. He placed on record the medical certificate indicating 25% permanent partial disability. For proving that certificate, the Doctor issuing the same was examined at Exhibit 78. He stated that as a result of that accident, there was shortening of the leg by one inch and that the patient could walk with footwear for the said leg with a high heel. He denied the suggestion that the disability did not cause any difficulty in doing his work. Another Doctor examined at Exhibit 74 was the Doctor who had operated the appellant. Insofar as the aspect of negligence is concerned, the spot Panchanama and First Information Report is on record. Though the drivers of both the vehicles were joined as parties, none of them examined themselves so as to state on oath that the driver of the other vehicle was responsible in causing the accident. The deposition of the appellant indicates that he saw the offending vehicle from a distance of about hundred feet when it was approaching. It is after considering all the aforesaid material on record that the Claims Tribunal has adjudicated the aspect of contributory negligence to the extent of 50% each. Paragraphs 9 to 11 contain the discussion in that regard. It is seen that after considering the entire available material and in the light of absence of the evidence of the driver of either vehicle, on preponderance of probabilities the aspect of contributory negligence has been assessed. The subsequent location of both the vehicles after occurrence of the accident by itself cannot indicate entire negligence on the part of one of the drivers. I therefore find that the finding as recorded by the Claims Tribunal that both the vehicles equally contributed to the accident is a reasonable finding based on the evidence on record. Point No. (i) as framed is accordingly answered by holding that the Claims Tribunal rightly held the drivers of both the vehicles to be equally negligent.

10. As regards the claim for enhancement, it is seen that the appellant did not place on record any document to indicate his earnings from his tyre business. His mere statement that he was earning Rs. 8,000 per month is without any documentary proof. He admitted that his business was still going on from the shop situated at Shivni even when he was deposing before the Court. It is on that basis that the notional income has been taken at Rs. 3,000 per month. That finding therefore does not warrant any further modification. Amount of Rs. 9,000 has been granted as loss of income for three months after the accident.

11. The deposition of the Doctor who had issued medical certificate at Exhibit 64 indicates shortening of the right lower leg by one inch and difficulty in squatting. The disability has been assessed at 25% partial/permanent. Considering the nature of business being done by the appellant, it is no doubt that same has resulted in some inconvenience to the appellant. The Claims Tribunal has awarded a sum of Rs. 5,000 for the injuries and Rs. 10,000 towards pain and suffering. In all, it has awarded sum of Rs. 50,000 in that regard. After considering the ratio of the decision in Sandeep Khanuja (supra) and by taking an overall view of the matter, it is found that the appellant is entitled for some enhancement under the heads of compensation for injuries, pain and suffering and slight shortening of his right leg. The Claims Tribunal had found the total compensation payable to be Rs. 1,56,768. By making further additions under the heads of injury suffered, towards pain and suffering and towards shortening of his right leg, it is found that total compensation payable would be Rs. 2,00,000 instead of the amount adjudicated. 50% thereof comes to Rs. 1,00,000. The appe

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llant is also entitled to receive the difference in the amount of medical expenses. Out of an amount of Rs. 1,03,577, the Claims Tribunal has granted an amount of Rs. 78,768. The difference of Rs. 24,809 is thus payable to the appellant. With that modification, point No. (ii) is answered by holding that the appellant is entitled for total compensation of Rs. 1,00,000 as well as the amount of difference in the medical expenses which is Rs. 24,809. 12. Accordingly, the judgment of the Claims Tribunal in M.A.C.P. No. 333 of 2003 dated 9.8.2007 is partly modified. It is held that the appellant is entitled to an amount of Rs. 1,24,809 as compensation. After deducting the amount already received, the balance amount is payable with interest at the rate of 8% per annum by respondent Nos. 1 to 3 from the date of filing of the petition till the date of realization. The First Appeal is allowed in aforesaid terms and disposed of. No costs. Appeal allowed.