1 IN THE HIGH COURT OF BOMBAY AT GOA First Appeal no.288 of 2003 with Cross Objection No. /2004. (Stamp no.97/2004) 1. Shri Mohan S. Kerkar (since deceased) House no.842, Naik vaddo, Calangute, Bardez - Goa 1(a)Kavita Gajanan Salgaonkar residing at Porbhavaddo, Calangute, Bardez, Goa. 1(b) Roshan Shyam Sawal, residing at, Naikavaddo, Calangute, Bardez, Goa. 1(c) Lavita Laximan Shirodkar, residing at, Naikavaddo, Calangute, Bardez, Goa. 1(d) Yeshashri Pradeep Pednekar, residing at: Sodiem, Siolim, Bardez, Goa. 1(e) Shankar Mohan Kerkar, residing at: Naikvaddo, Calangute, 2 Bardez, Goa. 1 (f) Kundan Mohan Kerkar, residing at Naikvaddo, Calangute, Bardez, Goa. 1 (g) Ashwini Jeetendra Kerkar, residing at: Naikvaddo, Calangute, Bardez, Goa. 1(h) Rupali Suraj Mandrekar, residing at: Salgaonkar building, B1/B2, 32/105, Vidyanagar Colony, Volant, Betim, Porvorim, Bardez, Goa. 2. Smt. Mirabai Mohan Harji Kerkar, House no.842, Naik Vaddo, Calangute, Bardez, Goa. …. Appellants. V e r s u s 1. Shri Shripad V. Pilankar, r/o House no.413/C, Conca Bandh, Parra, Bardez-Goa. (since deceased through his legal heirs) 1(a) Smt. Shrimati Pilankar, widow(since deceased) 3 1(b) Shri Gajanan S. Pilankar, son 1(c) Smt. Geeta G. Pilankar, daughter- in-law 1(d) Shri Purushottam S. Pilankar, son 1(e) Smt. Pooja P. Pilankar, daughter -in-law 1(f) Shri Arun S. Pilankar, son 1(g) Smt. Sulochana A. Pilankar, daughter-in-law 1(h) Shri Praskash S. Pilankar, son 1(i) Smt. Pratima P. Pilankar, daughter- in-law 1(j) Shri Madan S. Pilankar, son 1(k) Smt. Jyoti M. Pilankar, daughter-in -law 1(l) Shri Sanjay S. Pilankar, son all residents of House No.413/C, Conca Bandh, Parra, Bardez-Goa. 1(m) Smt. Geeta Govind Falari, daughter 1(n) Shri Govind D. Falari, Son-in-law 1(o) Smt. Usha A. Kaulekar, daughter 1(p) Shri Amarnath P. Kaulekar, son-in-law all residents of r/o House no.413/C, 4 Conca Bandh, Parra, Bardez-Goa. 2) National Insurance Company, 11st floor, Waman Smruti building, near Laximi Narayan Temple, Mapusa. …. Respondents Mr. V. Menezes with Ms. Conception, advocates for the Appellants. Mr. P.A. Kamat, advocate for respondents 1(a) to 1(p). Mr. J.P. Mulgaonkar, advocate for respondent no.2. Cross Objections Stamp no.97 of 2004 1. Shri Shripad V. Pilankar, r/o House no.413/C, Conca Bandh, Parra, Bardez-Goa. (since deceased through his legal heirs) 1(a) Smt. Shrimati Pilankar, widow(since deceased) 1(b) Shri Gajanan S. Pilankar, son 1(c) Smt. Geeta G. Pilankar, daughter- in-law 1(d) Shri Purushottam S. Pilankar, son 1(e) Smt. Pooja P. Pilankar, daughter -in-law 5 1(f) Shri Arun S. Pilankar, son 1(g) Smt. Sulochana A. Pilankar, daughter-in-law 1(h) Shri Praskash S. Pilankar, son 1(i) Smt. Pratima P. Pilankar, daughter- in-law 1(j) Shri Madan S. Pilankar, son 1(k) Smt. Jyoti M. Pilankar, daughter-in -law 1(l) Shri Sanjay S. Pilankar, son all residents of House No.413/C, Conca Bandh, Parra, Bardez-Goa. 1(m) Smt. Geeta Govind Falari, daughter 1(n) Shri Govind D. Falari, Son-in-law 1(o) Smt. Usha A. Kaulekar, daughter 1(p) Shri Amarnath P. Kaulekar, son-in-law all residents of r/o House no.413/C, Conca Bandh, Parra, Bardez-Goa. 2) National Insurance Company, 11st floor, Waman Smruti building, near Laximi Narayan Temple, Mapusa. …. Applicants Vs. 6 1. Shri Mohan S. Harji Kerkar (since deceased) House no.842, Naik vaddo, Calangute, Bardez - Goa 1(a)Kavita Gajanan Salgaonkar residing at Porbhavaddo, Calangute, Bardez, Goa. 1(b) Roshan Shyam Sawal, residing at, Naikavaddo, Calangute, Bardez, Goa. 1(c) Lavita Laximan Shirodkar, residing at, Naikavaddo, Calangute, Bardez, Goa. 1(d) Yeshashri Pradeep Pednekar, residing at: Sodiem, Siolim, Bardez, Goa. 1(e) Shankar Mohan Kerkar, residing at: Naikvaddo, Calangute, Bardez, Goa. 1 (f) Kundan Mohan Kerkar, residing at Naikvaddo, Calangute, Bardez, Goa. 1 (g) Ashwini Jeetendra Kerkar, 7 residing at: Naikvaddo, Calangute, Bardez, Goa. 1(h) Rupali Suraj Mandrekar, residing at: Salgaonkar building, B1/B2, 32/105, Vidyanagar Colony, Volant, Betim, Porvorim, Bardez, Goa. 2. Smt. Mirabai Mohan Harji Kerkar, House no.842, Naik Vaddo, Calangute, Bardez, Goa. …. Respondents Mr. P.A. Kamat, Advocate for the applicants. Mr. V. Menezes with Ms. Conception,advocates for respondents 1(a) to 1(h). Mr. J. P. Mulgaonkar, Advocate for the respondent no.2. Coram: A. P. Lavande, J Reserved on : 7/1/2011 Pronounced on : 6/5/2011. JUDGMENT: By this appeal, the appellants take exception to the judgment and Award dated 24/7/2003 passed by the Motor Accident Claims Tribunal, Panaji in Claim Petition 8 no.207/1994 by which the appellants have been ordered to pay compensation of Rs.1,27,720/- with interest thereon at the rate of 9% p.a from the date of filing of the petition till payment. The liability of the Insurance Company, respondent no.2 herein is limited to Rs.6000/- only. The claimants have filed cross objection claiming compensation of Rs.2,50,000/-. 2. The Appellant no.1 was the driver and appellant no.2 was the owner of the truck bearing no.GDT-5535 which was involved in the accident. 3. Briefly the facts leading to filing of the present appeal are as under: On 22/3/1994 at about 4.20 hours, truck bearing no.GDT-5535 driven by the appellant no.1 (since deceased) in a rash and negligent manner and in a fast speed dashed against an electric pole, a telephone pole, a 9 Maruti van, a motor cycle and a pedestrian and thereafter dashed against the shop of Shripad V. Pilankar (since deceased) completely damaging the shop. Shri Pilankar filed Claim Petition no.207/1994 against the appellants and respondent no.2 claiming compensation of Rs.2,50,000/- towards damages caused to the shop. 4. The parties herein shall be referred to as per their status before the Tribunal. 5. The claim was contested by the respondents. The Insurance Company took up the defence that their liability was restricted to Rs.6000/- only. On the basis of the pleading, the Tribunal framed the following issues: i) Whether the claimant proves that on 22.3.94 at about 16.20 hours the respondent no.1 drove a truck No. GDT- 5535 loaded with stones in a rash and negligent manner and dashed against the shop bearing house no.9 in ward 10 no.8 in Arun Niketan, opposite S.T. Stand, Mapusa and damaged it completely? ii) Whether the claimant proves that in the said accident he also suffered minor injuries? iii) Whether the claimant proves that he is entitled for a total compensation of Rs.2,50,000/- towards damages caused to the shop? iv) Whether the respondent nos.1 and 2 prove that the brakes of the said truck failed when the respondent no.1 was coming down the slope from Dattawadi to Ansabhat, Mapusa and that he tried his level best to control the truck by putting it in gear and therefore, they are not liable to pay any compensation? v) Whether the respondent no.3 proves that their liability under the Insurance policy of the said truck in respect of damage to property of third party is limited to Rs.6000/- only? vi) Whether the respondent no.3 proves that 11 respondent no1. was not holding a valid driving licence at the time of the accident and that the vehicle was used without valid permit therefore, there has been breach of policy conditions and they are not liable to pay any compensation to the claimant? 6. During the pendency of the claim petition, the original claimant expired and his legal representatives were brought on record. In support of their case the claimants examined five witnesses. The respondent nos.1 and 2 examined one witness in support of their case. Respondent no.3 examined one witness in support of its case. The appellant no.1 Mohan Kerkar died during the pendency of the appeal and his legal representatives have been brought on record. 7. The Tribunal upon appreciation of the evidence led by the parties held that rashness and negligence on the 12 part of respondent no.1 was proved. The Tribunal assessed the compensation at Rs.1,27,720/- and held that the liability of the Insurance Company was limited to Rs.6000/- only. 8. Aggrieved by the impugned judgment and award dated 24/7/2003, the appellants have filed the present appeal on the ground that the compensation granted is highly excessive. 9. The claimants filed Cross Objections claiming compensation of Rs.2,50,000/-, as claimed originally. However, during the course of hearing Mr. Kamat appearing for the legal representatives of the original plaintiff submitted that he is not pressing the cross objection. 10. Mr. Menezes, learned counsel appearing for the 13 appellants submitted that rashness and negligence on the part of the driver of the vehicle was not proved and therefore the Tribunal has erred in holding that the driver was rash and negligent in driving the vehicle. Learned counsel further submitted that the compensation granted by the Tribunal is highly excessive and there is absolutely no basis for granting such compensation. According to Mr. Menezes, the Tribunal ought not to have granted amount of Rs.1,27,720/- as compensation on the basis of the bills (Exhibits 34,37 and 41 colly). Learned counsel further submitted that the Tribunal ought not to have placed reliance on the evidence of the witnesses examined by the claimants since they were either neighbours and/or interested witnesses. He therefore submitted that the compensation granted in favour of the claimants is highly excessive and therefore interference is warranted with the impugned order. 14 11. Mr. Kamat, learned counsel appearing for the legal representatives of the original claimant submitted that the Tribunal has correctly appreciated the evidence led by the parties and has awarded compensation which is just and proper. According to Mr. Kamat the scene of offence panchanama clearly discloses that the entire shop of the claimant was damaged as a result of the accident which was caused on account of rash and negligent driving of the vehicle by the driver. He therefore submitted that no interference is warranted with the impugned award. Mr. Kamat submitted that he is not pressing the cross objection. 12. Mr. Mulgaonkar, learned counsel for respondent no.2 submitted that the liability of respondent no.2 has been rightly restricted to Rs.6000/- by the Tribunal. 15 13. I have carefully considered the rival submissions and perused the record. 14. In view of the rival submissions, the following points arise for determination: I) Whether the driver of vehicle bearing no.GDT-5535 was rash and negligent in driving the said vehicle? II)Whether on account of the accident the shop bearing H.No.9 in ward no.8, opposite S.T. Stand, Mapusa belonging to the claimant was completely damaged? III) Whether the compensation of Rs.1,27,720/- awarded by the Tribunal is just and proper and if not 16 to what compensation the claimants are entitled ? 15. As stated above, the Tribunal upon appreciation of the evidence led by the parties held that the claimants had proved that the offending truck was driven in a rash and negligent manner resulting in an accident and caused damage to the shop of the claimant. 16. It is pertinent to note that it was the case of the respondent nos.1 and 2 in the claim petition that the accident occurred on account of failure of the brakes of the truck. However, no evidence was led to prove this fact. Although Mohan Kerkar (deceased respondent no.1) claimed in his evidence that the accident had occurred on account of failure of the brakes of the vehicle, no cogent evidence was led to prove this fact. On the contrary, the evidence of Prakash Pilankar, son of late Shripad 17 Pilankar(original claimant) proved that the truck which was driven by respondent no.1 was driven in a rash and negligent manner dashed against an electric pole, a telephone pole, a Maruti van, a motorcycle, a pedestrian and thereafter the truck climbed over the steps and rammed into the shop damaging the structure completely. In my considered opinion the evidence of Prakash Pilankar which is corroborated by the scene of offence panchanama (Exhibit 58) clearly proves that the accident had occurred due to rash and negligent driving of the driver of the truck. 17. The next question which arises for consideration is that to what compensation the claimants are entitled. The claimants placed reliance upon evidence of Mr. Prakash Pilankar, Cw.1 who deposed that his father had renovated the shop before the accident and after 18 the accident his father spent an amount of Rs.1,75,000/- towards reconstruction of the shop. The claimant examined M.R. Shenvi, Cw.4, the Surveyor to assess the loss. He claimed that he conducted inspection of the shop. He produced the survey report of the shop (Exhibit 39) in terms of which the total damage caused was to the tune of Rs.1,31,700/-. In cross examination he denied that he had not correctly assessed the damages. 18. The claimants also examined Mr. Narendra V. Kanekar, Cw2, Mr. Vinay V. Joshi, Cw3 and Mr. Shahajan Shaikh, Cw.5. Mr. Narendra Kanekar had undertaken the work of reconstruction of the shop. He produced two bills. One was in respect of the renovation carried out prior to the accident and the second (Exhibit 34) for an amount of Rs.23,600/- was in respect of repairs and reconstruction after the accident. 19 19. Vinay Joshi, Cw.3 deposed that he carried out painting of the said shop prior to and also after the accident. He produced two bills (Exhibits 36 and 37). The amount of Rs.4,950/- was paid in respect of the painting work done to the shop after the accident. 20. Mr. Shahajan Shaikh, Cw5 claimed that he had undertaken work of fabrication including materials of the said shop. He deposed that shop was partly damaged after the accident and as such the work of fabrication was given to him. He produced two bills (Exhibit-41 colly) in respect of the fabrication work. The bill dated 8/3/1993 was in respect of the work done prior to the accident and the bill dated 3.4.1994 was in respect of work done after the accident. The said bill was for the sum of Rs.99,120/-. The witness also gave bills of the fabrication work done by him after the accident. 20 21. The Tribunal held that the claimants were entitled to the amounts of Rs.23,650/-, Rs.4,950/- and Rs.99,120/- in terms of Exhibits 34, 37 and 41 colly dated 3.4.1994 and thus the claimants were entitled to total compensation of Rs.1,27,720/- (Rupees One lakh twenty seven thousand seven hundred twenty only). 22. Considering the evidence oral as well as documentary led by the parties and considering the fact that the shop was partly damaged on account of the accident which was caused on account of rash and negligent driving of the driver Shri Mohan Kerkar, I am of the considered opinion that the compensation awarded by the Tribunal cannot be said to be excessive warranting interference in appeal. In my view the assessment of compensation by the Tribunal cannot be said to be patently illegal or unreasonable so as to justify interference in the appeal. I am of the considered view that the evidence of 21 the three witnesses referred to above who have done different works in the shop which was damaged on account of the accident and submitted bills does not deserve to be rejected, in view of the fact that their evidence stands substantially corroborated by evidence of the expert Shri M.R. Shenvi, Cw4 who had submitted report assessing the damages at Rs.1,31,700/-. 23. In view of the above, I am of the considered opinion that the compensation awarded by the Tribunal is just and proper and deserves no interference. As rightly held by the Tribunal, the evidence of Pandharinath Anvekar, RW2, who was examined on behalf of the Insurance Company clearly proves that in terms of the Insurance Policy (Exhibit 53), the liability of the Insurance Company was limited to Rs.6000/- only and as such no interference is warranted with the said finding recorded by the Tribunal. 22 24. In the result therefore, I do not find any ground to interfere with the impugned judgment and award. Resultantly, the appeal is dismissed. Considering the facts and circumstances of the case the parties are directed to bear their own costs. A. P. Lavande, J Ap/-