1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 489 OF 2010 Murlidhar S/o Marotrao Dalvi .... APPELLANT V E R S U S Sayyad Daulat S/o Sayyad Meer & another .... RESPONDENTS ---------------------------------------------------------------------------------------------------------------- Mr. S.S.Rathi, Advocate for the appellant. Mr. B.R.Sable, Advocate for resp. no. 1. Mr. B.A.Dhengle, Advocate for resp. no. 2. ---------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 05/10/2010 ORAL ORDER : 1. This Court vide its Order dated 3/3/2010 had issued notice for hearing of the Appeal finally at the admission stage. The record and proceedings is also received. With the consent of the learned counsel for the parties, the matter is heard finally at the stage of admission. 2. The present Appeal is filed by the original claimant, who had filed M.A.C. No. 110 of 2007 on account of the permanent disability sustained by the appellant on account of the accident, which had taken place when he was travelling on motorcycle and was dashed by Indica Car bearing registration No. MH-12/AR-8395. 2 3. It is the case of the claimant that he was driving the vehicle from the correct direction at the constant speed. The car came from the wrong side and gave dash to the motorcycle. The claimant suffered multiple fractures and permanent disability of 25 % as per the disability certificate [ Exh. 23 ]. The claimant adduced the evidence. The respondent did not adduce any evidence. The Member, Motor Accident Claims Tribunal, Parbhani [ For short, ‘ Tribunal ’ ] by its Judgment and Award dated 16/10/2009 partly allowed the claim petition. Although, the Tribunal held that the loss of earning capacity and expenses incurred is to the tune of Rs. 1,80,000/-, still on the ground that the claimant was driving motorcycle without licence presumed a fact of negligence on the part of the claimant and deducted 40 % of the amount thereby granting compensation of Rs. 1,08,000/- instead of Rs. 1,80,000/-. The claimant has assailed the said Award before this Court. 4. Mr. S.S. Rathi, the learned counsel for the claimant submitted that just because the claimant was not holding any driving licence, that can not ipso- facto be a proof of negligence. The Court has to independently arrive at a finding about the rash and negligent act. For the said purpose, he relied on the Judgment of the Apex Court in the case of Sudhir Kumar Rana V/s Surinder Singh and Ors. Reported in AIR 2008 Supreme Court – 2405 . He has further submitted that the claimant had laid evidence to show that the accident occured sheerly on account of the rash and negligent act of the driver of the offending vehicle i.e. The car. No evidence is laid to controvert the case put-forth by the claimant. According to him, even no suggestion is given to the claimant in that regard. The claimant being the eye witness, his deposition ought to have been relied upon. According to him, 40 % amount deducted is erroneous. Mr. Rathi further submitted that the Tribunal also miserly paid an amount towards pains and suffering of Rs. 1,190/- when it has accepted that the claimant had suffered multiple fractures and his face was dis-figured. As such, he submits that even towards pains and sufferings, amount of Rs. 10,000/- ought to have been awarded. 3 5. Per Contra, Mr. Dhengle, the learned counsel appearing on behalf of the Insurance Company submitted that the fact that the claimant was driving the vehicle without licence, clearly shows that he was not proficient to drive the motor vehicle and when he is not proficient to drive the vehicle, the negligence would be presumed in such case. According to him, the Tribunal has rightly come to the conclusion and has deducted 40 % of the amount. He has further submitted that the accident is head on collision between two vehicles and in such case, the negligence of drivers of both the vehicles would be presumed. According to the learned counsel, no fault can be found in the Judgment passed by the Tribunal. 6. Mr. B.R.Sable, the learned counsel for respondent no. 1 supported the Judgment passed by the Tribunal. 7. With the assistance of the learned counsels for the respective parties, I have gone through the record and proceedings and the evidence on record. The Tribunal has mis-read the evidence of the claimant. The claimant had stated that he was going at the constant speed. He had nowhere stated that he was driving the vehicle at the excessive speed. More over, a question was put to the claimant that he was driving the vehicle at the speed of 70 – 80 Km. per hour, he he denied. When he said that he was driving at the constant speed and also denied the suggestion that he was driving the vehicle at the speed of 70 - 80 Km. per hour would show that his case was consistent that he was driving the vehicle at the constant speed i.e. moderate speed. He has also stated that the car came from the wrong side. The respondent has not given any suggestion that the claimant was stating incorrectly in this regard nor the respondents have laid any evidence. The driver of the car would have been the best witness to controvert the said case. But, he has not laid any evidence. In such circumstances, there is no impediment to accept the evidence of the claimant. The Tribunal solely on the count that the claimant was possessing the driving licence, has assumed negligence which is against the dictum of the Apex Court in the case of Sudhir Rana referred supra, wherein the Apex Court has held thus, 4 “ 8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the Courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence ”. 8. In such circumstances, taking into account the totality of the evidence on record and the fact that there is no finding regarding the rash and negligent act of the claimant, I find that amount of 40 % deducted towards negligence of the claimant is unsustainable. 9. The Court below has come to the conclusion that the loss of earning can be computed at Rs. 1,53,000/- and the amount towards medical bills to the tune of Rs. 25,810/-. I do not find any error in computing the said amount. However, the amount awarded towards pains and sufferings is too meagre in the wake of the injuries suffered by the claimant. I, therefore, award amount of Rs. 10,000/- towards pains and sufferings. As such, the Award passed by the trial Court is modified and I hold that the appellant/claimant is entitled for the amount of Rs. 1,89,810/-. 10. Hence, I pass the following order. 5 (I) The Appeal is allowed. (II) The appellant is held entitled to Rs. 1,89,810/- including the amount under the ‘ No Fault Liability ’ with interest @ 6 % per annum from the date of petition till realization. (III) Respondent nos. 1 and 2 are jointly and severally liable to pay Rs. 1,89,810/- ( inclusive of amount under the ‘ No Fault Liability ’ ) along with interest @ 6 % per annum from the date of petition till realization. The amount already paid shall be adjusted from the amount awarded. (IV) However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/FA 489.10