1 FA : 1003/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1003 OF 1994 Collector, Customs & Central …. Appellant Excise, Satara & Anr. Vs. Ashok Venkatrao More & Anr. …. Respondents Mr. D.A. Dubey i/by Mr. T.C. Kaushik for appellant. Mr. Vinod Jadhav for respondent no.1. Coram : A.S. Oka, J. Date : 20th September 2011 ORAL JUDGMENT : 1. This appeal was dismissed for non prosecution yesterday. On the oral request made by learned counsel for the appellant, the appeal is restored to the file and is taken up for final hearing. 2. The appellants are original opponent nos. 2 and 3, in a claim petition filed by the 1st respondent under Section 110(A) of the Motor Vehicles Act, 1939. 3. On 26th August 1988, the 1st respondent had visited Sainik School at Satara. While walking back, near the junction at Zilla 2 FA : 1003/1994 Parishad ground, Sadar Bazar, he met a friend who was plying a scooter. The 1st respondent started talking with his friend near the corner. At that time, a jeep bearing No. MAF-986 driven by the 2nd respondent which was owned by appellants, gave a dash to the 1st respondent. The 1st respondent sustained injuries. According to his case, he suffered permanent disability. He claimed that accident occurred due to negligence on the part of the driver of the jeep. 4. The appellant and the driver of the Jeep filed a joint written statement. It was contended that one Ashok More who was plying a Bajaj scooter, was carrying two pillion riders and he was driving scooter in a very high speed. Though the driver of the jeep applied brakes and stopped the jeep, the scooter gave a dash to the stationary jeep. As a result, the 1st respondent sustained injuries. The case made out by the appellants is that it was the said More, who was driving the scooter was negligent. 5. The learned Member of the Tribunal held that accident occurred due to rash and negligent driving by the jeep owned by the appellant. The learned Judge proceeded to grant compensation of Rs.80,000/- with interest. 6. The learned counsel appearing for the appellant has taken the Court through the pleadings and notes of evidence. He 3 FA : 1003/1994 pointed out that it was established on the evidence that there was a damage to the right side lamp of the jeep. He submitted that such a damage could not have occurred if the jeep had given a dash to a stationary scooter. He submitted that evidence of the 1st respondent’s witness Prakash Sankpal was an evidence of an interested witnesses. He submitted that even the witness Nitin was not at all an independent witness and in fact he was an interested witness. He, therefore, submitted that the negligence was not proved. He submitted that in any event, the compensation granted is on the higher side in the absence of documents. 7. I have heard submissions. Perused the pleadings and notes of evidence. The case is made out by the 1st respondent was that it was the jeep, which gave a dash to the stationery scooter while he was talking to the persons sitting on the scooter. Whereas the case of the appellant was that the scooter came from southern side in a very high speed. It is alleged that there were two pillion riders sitting on it and it gave dash to the jeep. The appellant contended that the driver of the jeep tried his best by stopping the jeep by applying brakes. The issue before the Tribunal was that which of the two contentions was proved. 4 FA : 1003/1994 8. The learned Member of the Tribunal in paragraph 6 of the judgment has made a reference to the topography of the area. Paragraph 6 of the judgment reads thus: “6. It would be useful to have a topographical idea of the spot, which is near Engineering College. Sainiki School, Satara is located on the Eastern side. The Railway Station road is the main road which is to the South. It is East-West from it one road goes between Sainiki School ground and Circuit house towards North i.e. towards Sadar Bazar. Behind the Circuit house, one small road which meets this North-South road going from Railway station road to Sadar Bazar. Thus the small road is East-West from Sainiki School towards Engineering College. Now Engineering College is located on the North but towards West end of this small road and near the Engineering College, there is a junction. A road from Bandhakam Bhavan which is located on the corner of Railway Station road goes to the North towards Sadar Bazar and meets this small road on its Western side. Thus, the Sainiki School or the Circuit house is on the Eastern side of that road, while the Engineering College is on the Western end of the small road, which is East- West. A road going from Bandhakam Bhavan towards North meets this small road on the Western side. There is thus a junction there. There is yet another road which is near this junction and that road goes towards Povai-Naka. That road which is also East-West is some what to the Southern side of the junction. Thus, when one comes from the small road between Circuit house and the Engineering College, one has to take a slight turn towards South and then again turn towards West. There is thus `S’ turn at the junction. On the Western side of the junction, there is a ground and that ground is on the lower level.” 5 FA : 1003/1994 Memorandum of the appeal shows that there is no serious challenge to the topography of the spot of accident, which is recorded in paragraph 6 of the judgment. As stated earlier, the 1st respondent himself stepped into witness box and examined Sankpal and Nitin as witnesses. On the other hand, the appellants examined one Arun Gadkari, who was an employee of the Central Excise and Customs Department. The admitted position as noted by the learned Member of the Tribunal is that the jeep admittedly came by a small road from the eastern side. It appears that there are two offices of the Customs Department in the vicinity. The case made out by the driver of the jeep is that he along with the officers of the Customs, Kulkarni and Jadhav had visited the office near the Circuit House. At about 4 pm, the officers instructed him to visit the office at Povai Naka and bring a particular file. Witness Gadkari accompanied the driver. On the basis of the evidence of the said witness, the learned Member held that the jeep was proceeding by a small road towards Povai Naka office i.e. on the Western side. The version of the driver of the Jeep is that when he saw a scooter coming in a fast speed, he applied brakes, but scooter hit the bumper of the jeep. It is true that the driver lodged the information with the Police Station. Witness Prakash Sankpal was sitting on the scooter as a pillion rider and one Baban More 6 FA : 1003/1994 was at the driver’s seat. The said More deposed that when he saw 1st respondent, the scooter was stopped on the left side of the tar road on a kaccha road, near the curve. He stated that when he was talking to the 1st respondent, he had rested his feet on the ground. 9. The panchanama records that there were brake marks having length of 7 feet on the driver’s side of the jeep and having length of 14 feet on the cleaner’s side. The learned Member noted that the jeep was negotiating a curve. The learned Member has noted that the driver had taken Assistant Collector, Mr. Kulkarni and Superintendent Mr. Jadhav to the office near Circuit House, as there was a visit of Collector of Customs. As a file was urgently needed, the driver was deputed to bring the file from other office. One important circumstance considered by the Tribunal is that if according to the case of the appellants, the scooter came from the Southern side, the jeep was turning towards Southern side and therefore impact would normally be on the left side of the jeep. However, even according to the case of the appellants, the impact on the right side of the jeep. Another circumstance considered by the learned Member is that if the scooter had given a dash to the jeep, the 1st respondent who was standing on the road could not have been thrown away. 7 FA : 1003/1994 10. Under the circumstances, it is not possible to find fault with the finding recorded by the learned Tribunal on the issue of negligence. 11. The 1st respondent suffered compound fracture of right leg. The disability certificate notes disability to the extent of 15%. The 1st respondent deposed that as a result of the injury, he is unable to walk properly. He suffered injuries on hand and head. He was hospitalized in civil hospital for more than two months. He was required to visit the hospital for a period of more than one month for dressing. He was required to use crutches. 12. The learned Member of the Tribunal has granted a sum of Rs.20,000/- towards medical treatment. Only a sum of Rs. 15,000/- has been granted towards pain and sufferings. It is true that after granting reasonable amount of Rs.35,000/- towards actual loss of earning, and sum of Rs.25,000/- for future loss of earning has been granted. There was no reason to grant a sum of Rs.20,000/- on the ground that the children of the 1st respondent were minors. However, the compensation granted for pain and suffering is on the lower side and moreover no compensation has been granted on account of 15% permanent disability. Taking overall view of the matter, the compensation of Rs.80,000/- granted by the Tribunal is reasonable. 8 FA : 1003/1994 Considering the fact that the claim was filed in the year 1991 and that it was decided in the year 1994, the rate of interest of 12% per annum is reasonable. No case for interference is made out. The appeal is accordingly dismissed with no order as to costs. ( A.S. Oka, J.)