1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.295 OF 1998 Iqbal Mohammad Shaikh, R/o.S-9, Anandi Apartment, D'uler, Mapusa-Goa and at present 3-A Hill Crown Apartment, Near St. Marry Convent, Mapusa, Goa 403 507. Appellant VERSUS 1. Laxman Chandrappa Lokhe, Age 43 years, Occ.Service, R/o.Ratnagiri Depot, MSRTC, Ratnagiri. 2. Depot Manager, MSRTC, Ratnagiri. 3. Divisional Controller, Jafar Shaikh, MSRTC, Ratnagiri. 4. United India Insurance Co. Ltd; Amodar Chambers, 2nd Floor, Curla-De-Revara, Punjim, Goa. Respondents Mr.C.M.Lokesh, Advocate for appellant. Mr.G.S.Hegade, Advocate for respondents. CORAM : A.S.OKA, J. DATE : 02nd December 2009 JUDGEMENT :- 1. The appellant is the original claimant who has taken an exception to the judgement and award dated 18th January 1997 passed by the 2 learned Member of the Motor Accident Claims Tribunal. The appellant filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "said Act") for grant of compensation on account of injuries sustained by him in motor accident. 2. On 4th June 1991 the appellant was driving his Tempo along Mumbai-Goa National Highway. At about 11.30 a.m. when he reached village Kamathe, Tal. Chiplun, a bus owned by the Maharashtra State Road Transport Corporation (hereinafter referred to as "the state transport bus") came from the opposite direction in high speed. The case of the appellant is that he took his tempo to its extreme left side. However, collision could not be avoided and the state transport bus gave a dash to the tempo. The appellant suffered injuries as a result of the accident including a compound fracture. He has stated that he remained hospitalised for three and a half months. It is contended that his leg is shortened by one inch. His contention is that due to permanent disability he is unable to drive the tempo. Though the appellant claimed entitlement of Rs.3.50 lakhs, the claim was restricted to a sum of Rs.2.00 lakhs. The first respondent is the Driver of the state transport bus. The claim was contested by the first to third respondents. It was contended that the accident occurred due to rash and negligent driving of the tempo by the appellant himself. It is contended that the state transport bus was being driven on its proper side and in fact the appellant drove his tempo on its wrong side and gave a dash to the bus. 3. The Tribunal recorded a finding that the appellant failed to prove any negligence on the part of the driver of the bus and in fact he himself was negligent. 4. The learned counsel appearing for the appellant submitted that there was evidence on record to show that the accident occurred due to rash and negligent driving on the part of the first respondent. It is submitted that the first respondent did not step into the witness box and, 3 therefore, first to third respondents could not prove their case that the appellant himself was negligent. He invited my attention to the certified copy of the Panchanama which is on record. Inviting my attention to paragraph 7 of the impugned judgement, he pointed out that the learned Member of the Tribunal has relied upon the Police statements of the witnesses, though the said statements were not admissible in evidence. He did not dispute that as far as damage to tempo is concerned, the appellant has received compensation of Rs.70,000/- from the insurer of the tempo. He submitted that the impugned judgement and order is perverse. 5. The learned counsel for the first to third respondents submitted that the certified copies of the statements of the witnesses recorded by the Police have been marked as exhibits without any objection from the appellant. He submitted that in the circumstances the Tribunal was justified in reading the said statements in the evidence. He submitted that as a Member of the Tribunal the learned Judge was justified on relying upon the said statements. He submitted that even the Panchanama does not support the case of the appellant and in fact the same shows that the appellant himself was negligent. He submitted that the Tribunal has rightly rejected the claim made by the appellant. 6. I have given careful consideration to the submissions. The appellant stepped into the witness box. He produced several documents in evidence such as bills and receipts of medical expenditure incurred, certificate of disability, bills and receipts relating to work of repairs to the tempo etc.. It must be noted here that a purshis was filed by the appellant at Exhibit-50 stating that though along with the claim petition he had produced certified copy of FIR and Panchanama, the appellant was not admitting the contents thereof and, therefore, the same should not be read in evidence. It must be stated here that the evidence of the appellant was recorded on 20th November 1996. During the course of recording of evidence several documents were exhibited. On 12th December 1996, 4 the appellant filed a purshis recording that he has closed the evidence. On that day the claim petition was adjourned to 31st December 1996 for hearing of arguments. On that day the learned Member proceeded to exhibit the certified copies of the statements of the witnesses recorded by the Police by marking them exhibits being Exhibits 65 to 71 respectively. These statements were recorded in investigation as the appellant was prosecuted for the offences under sections 279, 338, 427 of the Indian Penal Code and Section 184 of the said Act. The statements of the witnesses recorded for the purposes of investigation could not have been read in evidence. In paragraph 7 of the impugned judgement and order, the learned Member of the Tribunal has referred to the said statements for coming to the conclusion that the appellant was himself guilty of rash and negligent driving. The said statements could not have been read in evidence and the learned Member of the Tribunal committed a gross error by reading the said statements in evidence. 7. It will be necessary to consider the evidence of the appellant. In his evidence he stated that when he came near Kamathe Ghat of Mumbai- Goa national highway it was raining. He pointed out that there was a narrow bridge having speed breakers on either sides. According to him, he crossed the speed breakers and the speed of the tempo at that time was 30 kilo meters per hour. He stated that at that time the state transport bus came from the opposite side in a high speed and gave a dash to the tempo. He stated that as a result of the impact the tempo was pushed to the back side up to a distance of 30 feet. As a result the tempo came at the centre of the road. He stated that he has produced on record the certified copy of the judgement of the Criminal Court in which he has acquitted of the offences alleged against him. In the cross examination he admitted that at the spot of the accident, the width of the road was 24 feet. He denied the correctness of the suggestion that on the right hand side of the state transport bus there was open space on the road having width of 12 feet. He denied the correctness of the suggestion that he did not control the tempo and gave a dash to the bus. It is pertinent to note that 5 in the cross examination of the appellant not even a suggestion has been given that it was his tempo which came on the wrong side. There is no suggestion given that at the time of impact, the state transport bus was on its correct side. As against this, the first to third respondents have not adduced any evidence and in fact first respondent driver has not stepped into the witness box. As stated earlier, the learned Member of the Tribunal could not have relied upon the statements of the witnesses recorded by the Police at the time of investigation. In the cross examination of the appellant not even a suggestion is given that his case that the tempo was pushed to the extent of 30 feet on its rear side is false. The only suggestion given is that this aspect is not mentioned in the claim petition. It must be stated here that the certified copy of the judgement of the Criminal Court is placed on record which shows that the appellant was acquitted of the offence of rash and negligent driving. The certified copy of the said judgement and order dated 9th January 1996 ought to have been exhibited. Though the judgement of the Criminal Court is not conclusive for the purpose of determining the issue of negligece, nevertheless, the said judgement will have to be considered. 8. The spot panchanama at Exhibit-72 has been read in evidence by the learned Judge. A purshis has been filed by the appellant stating that though the certified copy of the panchanama was filed only for completing the procedural requirement, the same should not be read in evidence. It was a document produced by the appellant himself and hence there was nothing wrong if the said document was exhibited. In the said panchanama at Exhibit-72 it is recorded that glass in front of the driver's seat of the tempo has been completely smashed. It is noted that even the lamp in front of the driver's side of the state transport bus has been damaged. It is noted that the tin sheets of the state transport bus on the side of the driver have been damaged. The panchanama records that the tempo has sustained damage to the extent of Rs.1.00 lakh. 9. Thus, there is uncontroverted evidence of the appellant as regards 6 negligence on the part of the first respondent-driver of the bus. The appellant has categorically stated on oath that it has the driver of the bus who came on the wrong side and gave a dash. In fact, there is no specific cross examination on the said assertion made by the appellant in his evidence. There is an extensive damage to the state transport bus. Therefore, this is a case where a finding ought to have been recorded that the appellant has proved that the accident occurred due to negligence on the part of the first respondent and to that extent the finding recorded by the Tribunal suffers from infirmity. Therefore, it will have to be held that the accident occurred due to the rash and negligent driving on the part of the first respondent. 10. The claim made by the appellant is in two parts. One is the claim on account of the damage to the tempo and the second is on account of injuries sustained by him. As far as damage to the tempo is concerned, the appellant has received compensation of Rs.70,000/- from the fourth respondent with whom the tempo was insured. Therefore, the said claim cannot be considered in the present appeal. 11. In the examination-in-chief the appellant has relied upon the receipts and other documents showing the expenditure incurred on medical treatment. He has stated that prior to the accident he was earning Rs.10,000/- per month and was paying Rs.7,000/- per month by way of installment of the price of the tempo. He has stated that he was admitted in hospital for three months and his right leg was in plaster for seven months. He stated that he was spending Rs.30/- to Rs.40/- on special diet and he has spent a sum of Rs.2,200/- as ambulance charges as he was taken from Chiplun to the hospital at Goa. He stated that on the date of recording of evidence he had not fully recovered and was unable to drive any vehicle. He has placed reliance on two certificates issued by the medical practitioner. The said certificates are at Exhibits 53 and 54. The certificate at Exhibit-53 is issued by Dr.Bhale, an Orthopedic Surgeon. In the said certificate dated 5th August 1996 it is recorded that 7 the said doctor had treated the appellant for compound fracture of upper right tibia in June 1991. In the said certificate he quantified the disability of the appellant at 5%. In second certificate which is at Exhibit-54 dated 3rd June 1991 it is stated that the appellant was under treatment of Dr.Bhale and the treatment will go on for at least six months. Thus, the disability assessed is only to the extent of 5%. There is no evidence adduced by the appellant of loss of earning capacity. His statement in the evidence was that on the date of evidence he was unable to drive the vehicle. There is no evidence on record to show that the appellant by reason of the injuries sustained was permanently prevented from driving the vehicle. In the claim petition filed by the appellant he has claimed medical expenses of Rs.1.00 lakh, loss of income at Rs.1.10 lakhs, compensation on account of mental pain and sufferings quantified at Rs. 30,000/-, damage to the vehicle at Rs.1.00 lakh and miscellaneous expenses at Rs.7,000/-. The claim of loss of income has not been substantiated and in fact the appellant could not establish as to what was his income. As far as expenditure incurred on treatment is concerned, the bills at Exhibits-37, 39, 43, 47, 51, 55, 59, 63 and 65 show that a sum of Rs.21,668/- was spent by the appellant on medical treatment. It is not expected that each and every bill and voucher will be preserved. Hence, the amount spent on medical expenditure can be treated as Rs.22,000/-. The evidence on record shows that the appellant was taken from Chiplun to Goa to the hospital of Dr.Bhale. A reasonable amount of Rs.2,000/- will have to be awarded as charges of the ambulance. As the appellant was hospitalised for a considerable long period of three months, some amount must have been incurred by his relatives on conveyance. The said amount can be quantified at Rs.3,000/-. On account of special diet a sum of Rs.2,000/- deserves to be granted. On account of disability of 5% and mental pain and sufferings a minimum amount of Rs.10,000/- deserves to be awarded. 12. Considering the aforesaid items which are established, the compensation payable to the appellant will have to be rounded off to Rs. 8 40,000/-. 13. The claim petition is of the year 1992. From the year 1992 to 2009 there are considerable fluctuations in the rates of interest offered by the banks. Taking into account the said aspect, the interest on the compensation amount will have to be fixed @ 7.5% p.a. from the date of institution of the petition till realization of the amount. 14. Hence, the appeal must succeed in part and I pass following order :- A) First to third respondents are directed to pay compensation of Rs. 40,000/- (Rs. Forty thousand only) to the appellant together with interest thereon @ 7.5% p.a. from the date of filing of the claim petition till realisation or deposit of the amount; B) This amount will be inclusive of compensation paid, if any, towards no fault liability; C) The appellant will be entitled to proportionate costs of the claim petition as well as this appeal from first to third respondents; D) Time of four months is granted to first to third respondents to comply with the award. The compensation amount shall be deposited with the Tribunal; E) As and when the amount is deposited, the Tribunal will permit the appellant to withdraw the same; F) The appeal is allowed partly in the above terms; G) Record and proceedings be sent back to the concerned Tribunal. (A.S.OKA, J.) Kolhapure