1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.228 OF 1995 The Maharashtra State Road Transport Corporation, Bombay (Divisional Controller, Solapur Division, Solapur). .... APPELLANT. VERSUS Shashikant Jagannath Muley Age-45 years, Occu: Service, R/o- 'Vaibhav', Chaytanyanagar, Near Professor Colony, Ahmednagar. .... RESPONDENT. ... Mr.V.S. Yadav Advocate h/f. Mr. M.K. Goyanka Advocate for the Appellant. Mr.V.S. Bedre Advocate for Respondent. ... CORAM: K.K. TATED, J. DATE : 23RD JUNE, 2009. 2 ORAL JUDGMENT: 1. Heard Mr. Yadav, learned counsel for the Appellant and Mr. Bedre, learned counsel for the Respondent. 2. Present First Appeal preferred by the original respondent challenging the Judgment and award dated 6th January, 1995 passed by the Member, Motor Accident Claims Tribunal, Ahmednagar in Motor Accident Claim Petition No.293 of 1987. The Respondent in present First Appeal is original claimant, who met with an accident on 29th June, 1987 and sustained several injuries. 3. In the present case, the accident took place on 29th June, 1987 in which the Respondent sustained injuries i.e. fracture to his right leg and also injuries on the shoulder and chest. It is the case of the claimant that on 29th June, 1987 at about 12 noon he was going on his motor-cycle from M.I.D.C. Ahmednagar to Ahmednagar city. Near mile stone No. Malegaon 169 Rahuri 35, S.T. Bus No. MWQ 276 Barshi to 3 Shirdi driven by the Appellant's driver, came rashly and negligently with high speed from Ahmednagar side and dashed against the Respondent. Due to this accident, the Respondent sustained injuries. He was admitted in Deepak Hospital, Ahmednagar from 29th June, 1987 to 28th August, 1987. It is the contention of the Respondent that because of the accident motor- cycle bearing No. MHI 974 was also damaged. Therefore, the Respondent filed Motor Accident Claim Petition No. 293 of 1987 before the Motor Accident Claims Tribunal, Ahmednagar claiming compensation to the tune of Rs. 45,000/-. Considering the evidence on record the Tribunal awarded a sum of Rs.45,000/- together with interest thereon at the rate of 12% per annum from the date of filing of the Petition i.e. 28th December, 1987 till realization and costs of the Petition. 4. It is the case of the Appellant that Tribunal erred in coming to the conclusion that Respondent - original claimant proved that he was entitled to compensation to the tune of Rs.45,000/- because of the accident which took place on 29th June, 1987. Learned counsel for the Appellant further pointed out that the 4 Tribunal erred in coming to the conclusion that the Respondent was entitled to interest on Rs.45,000/- at the rate of 12% per annum from the date of filing of the Petition till realization. Learned counsel for the Appellant further submitted that the Tribunal erred in interpreting recitals of spot panchanama Exhibit 24. He submitted that the Tribunal in its Judgment at Para 6, observed that there were no brake marks on the road and motor-cycle was lying 30 ft. behind the S.T. Bus and when there were no brake marks of S.T. Bus on the road or of the motor-cycle, then it could not be said that driver of S.T. Bus was rash or negligent and the recitals of the panchanama supported the case of the Appellants that firstly the claimant dashed a cow and thereafter dashed against S.T. Bus. Learned counsel for the Appellant further submitted that the Tribunal erred in disbelieving the evidence of the conductor of the Bus. It has come in his evidence that at the material time he was issuing tickets to passengers and at the same time he saw the incident. It has not been brought on record that conductor of S.T. Bus was issuing tickets while sitting at his seat. Therefore, naturally he was issuing tickets by standing in the 5 passage of Bus and was able to see front road and happening on it. Under such circumstances, the Tribunal ought to have believed the evidence of conductor of the Bus for deciding the point of contributory negligence. Learned counsel for the Appellant further submitted, not only that the Tribunal failed to appreciate that the Respondent - original claimant failed to produce cogent evidence to show that he was entitled to compensation to the tune of Rs.45,000/- with interest at the rate of 12% per annum from the date of filing of the Petition till the date of realization. Apart from these grounds, there are several grounds raised by the Appellant in the present Appeal challenging the impugned Judgment and award passed by the Tribunal. Learned counsel for the Appellant across the Bar made statement that Appellant instructed him to restrict ground for challenging the impugned Judgment and award passed by the Tribunal on the ground of contributory negligence and rate of interest awarded by the Tribunal. In view of the statement made by the learned counsel for the Appellant as above, it is not necessary to consider the entire evidence on record. 6 5. Learned counsel for the Appellant submitted that the accident took place because of contributory negligence. He submitted that the Respondent was also responsible for the accident which occurred on 29th June, 1987. He submitted that Panchanama drawn by the police indicated that S.T. Bus was running slowly by its side and that there were no brake marks of the S.T. on the road. He further submitted that at the relevant time when the S.T. Bus was proceeding slowly to Kopergaon side, the Respondent - original claimant was seen coming in abnormal and excessive speed from the opposite direction on the motor-cycle by S.T. driver. By seeing the Respondent, the S.T. driver lowered down the speed. At that time the driver of the S.T. saw that there was one cow crossing the road. The Respondent was not able to control the motor-cycle and first dashed against the cow and thereafter on the driver side bumper of the S.T. Bus and as a result of which the Respondent was injured. On the basis of these submissions, learned counsel for Appellant submitted that the accident occurred as a result of rash and negligent driving of the motor-cycle rider 7 i.e. Respondent and hence the Respondent could not claim any damages from the Appellant as a result of injuries sustained by him. 6. On the other hand, learned counsel for Respondent submitted that the accident took place because of sole negligence on the part of Bus driver who was driving the Bus at the time of accident, rashly and negligently. 7. With the assistance of the counsel for both the parties, I have gone through the Record and Proceedings of the present case. Learned counsel for the Appellant submitted that the driver of the Bus himself filed complaint with the police on 30th June, 1987 which was at Exhibit 24. The bus conductor Vithal Maruti Bhosale examined at Exhibit 36 as DW1. In his evidence, he stated that the Bus was not proceeding in high speed. According to him the accident took place because of the rash and negligent driving of the motor-cycle by the claimant. It is to be noted that in cross examination when counsel for Respondent in trial court asked him about bus stop near the Civil 8 Hospital, he was not in a position to give answer. He stated that: " I do not know whether there is stop near Civil Hospital." . Not only that the conductor i.e. DW1 was not in a position to state, at that time how many persons were travelling in the Bus. He stated that when the accident took place, there was rush in the Bus. He further stated that at the time of booking the tickets, one has to look at the tickets for punching. If that is the version of the conductor, then it will be difficult to accept his statement that accident took place because of rash and negligent driving of the Respondent. Not only that, it is not possible to rely on his evidence that when the accident took place, he saw one cow coming on the road from the eastern side. 8. Apart from this evidence, there is no other evidence brought on record by the Appellant to show the rash and negligent driving of the motor-cycle by the Respondent. Learned counsel appearing on behalf of the Appellant relied on the Judgment in the matter of 9 Municipal Corporation of Greater Bombay vs. Shri Laxman Iyer and another, reported in AIR 2003 Supreme Court, Page 4182. In this Authority, the Apex Court held that negligence does not always mean absolute carelessness, but want of such a degree of a care as is required in particular circumstances. Learned counsel for the Appellant mainly relied on Para 6 of the said Judgment, which reads as under: "6. A plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in common parlance 'negligence' is categorized as either composite or contributory. it is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean 10 absolute carelessness, but want of such a degree of a care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute terms, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding 11 facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligate or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent 12 act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility 13 for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P. 361)." 9. Learned counsel appearing on behalf of the Appellant also relied on the Judgment in the matter of Bijoy Kumar Dugar vs. Bidyadhar Dutta and others, reported in AIR 2006 Supreme Court, Page 1255. In this case the Apex Court held that if there is head on collision of vehicles, in that case drivers of both vehicles should be held responsible to have contributed equally to accident. Para 12 of the said Judgment reads as under: 14 "12. Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta- PW2 who was traveling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head-on collision. The MACT has not accepted the evidence of PW2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver 15 abnormally in a zigzag manner, as PW2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head-on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, In our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of 16 compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate." 10. I have gone through both the Authorities cited by the learned counsel for Appellant. After going through both the Authorities carefully, I find that contributory negligence depends upon the facts and circumstances of each case. In the present case, there is material on record to show that because of rash and negligent driving of the driver of S.T. Bus the accident took place. In any case, it is the duty of the heavy vehicle driver to take care on road at the time of driving of the vehicle when light vehicle is coming from the opposite direction. In the present case the driver of S.T. Bus was driving the Bus in rash and negligent manner and therefore the accident took place. On these facts and circumstances, it is not possible to hold that the Respondent was also negligent at the time of accident and therefore there 17 was contributory negligence on the part of the Respondent. 11. Learned counsel for the Appellant further submitted that in the present case the Tribunal awarded higher rate of interest on compensation. He submitted that the Tribunal awarded 12% interest on a sum of Rs.45,000/- from the date of filing of Application till the date of realization, which is on the higher side. On the other hand, learned counsel for the Respondent submitted that because of the accident, the Respondent was hospitalized from 29th June, 1987 to 28th August, 1987. At the time of accident, he was working with Mahindra Sintered Products Ltd. as a Plant Manager. He further submitted that because of the accident the Respondent could not join his duties in the said company from 30th June, 1987 to 25th November, 1987. In support of his submissions, the Respondent produced certificate issued by Personnel and Administrative Officer of the said company, which is at Exhibit 28. Learned counsel for the Respondent further submitted that because of accident, the Respondent could not join his services 18 immediately and therefore the Company refused to pay him salary for the period of July, 1987 to November, 1987. In support of these submissions, learned counsel for the Respondent drawn my attention to the certificate issued by the said company, which is at Exhibit 30. It is specifically mentioned in the said certificate that : "Mr. S.J. Muley was not paid his salary from July 1987 to November, 1987. Since he did not attained his duties due to his fatal accident." 12. Therefore, it is crystal clear from Exhibit 28 and 30 that because of the accident, the Respondent could not join his services and he suffered loss for non payment of salary i.e. more than Rs.20,000/-, at the rate of Rs.4500/- per month. It is to be noted that there is no dispute that Respondent was hospitalized from 29th June, 1987 till 28th August, 1987. Therefore, the compensation awarded by the Tribunal to the tune of Rs.45,000/- is absolutely reasonable. Only the question is about the payment of interest at the rate of 12% per annum on the said 19 amount. The Apex Court in the matter of New India Assurance Co. Ltd. vs. Satender and others, reported in (2206) 13 Supreme Court Cases, Page 60, awarded interest at the rate of 9% per annum. The Apex Court in the matter of Syed Basheer Ahamed and others vs. Mohd. Jameel and another, reported in J.T. 2009 (1) S.C. Page 296, awarded interest at the rate of 6% per annum. The Apex Court in the matter of United India Insurance Co. Ltd. vs. Bindu and others, reported in J.T. 2009 (4) S.C. Page 315, awarded interest at the rate of 6% per annum. Considering the Apex Court Judgments referred to above, the Banking interest rates at present and facts and circumstances of the present case, I find that, interest rate should be at the rate of 9% per annum, as the accident took place on 29th June, 1987 and the Respondent claimed nominal compensation of Rs.45,000/- though he was hospitalized due to the accident for the period from 29th June, 1987 till 28th August, 1987. In view of the facts and circumstances, the present Appeal is partly allowed with the direction that the Appellants are liable to pay a sum of Rs.45,000/- to the Respondent - original claimant with the interest at the rate of 9% per annum 20 from 28th December, 1987 i.e. the date of filing of the Claim Petition, till realization. Hence the order: O R D E R i) The Judgment and award dated 6th January, 1995 passed by the Member, Motor Accident Claims Tribunal, Ahmednagar in Motor Accident Claim Application No.293 of 1987 is modified to the extent that Respondent/ original claimant is entitled to compensation along with interest at the rate of 9% per annum. The operative part of the Judgment of the trial Court should read as under: "The Petition is allowed. Opponent No.1 M.S.R.T. Corporation do pay to the petitioner a sum of Rs. 45,000/- together with interest thereon at the rate of 9% p.a. from the date of filing the petition i.e. from 28.12.1987 till realization, and costs of this petition." 21 ii) First Appeal is partly allowed to the extent indicated above. No order as to the costs of this Appeal. [K.K. TATED, J.] asb/JUN90/fa228.95