1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.70 OF 2005 Shaikh Abdul Razak, Son of Abdul Sattar, aged 57 years, married, service, resident of Mormugao Dock Labour Board Colony, Building No.15, Room No.b/31, Headland Sada, Vasco-da-Gama, Goa. … Appellant V/s 1. Tulsappa Maliyappa Karur, son of Maliyappa Karur, major in age, driver of vehicle bearing registration number KA-30/3527, resident of House No.32, Binga, near Church Karwar. 2. Surendra K. Kalgutkar, major in age, owner of vehicle bearing registration number KA-30/3527, resident of house no.130, Nandangada, Kodibag, Karwar. 3. United India Insurance Company Ltd., Insurer of vehicle bearing registration number KA-30/3527, Radha Govind Complex, Kaikini Road, Karwar. …. Respondents Mr. S.S. Kakodkar, Advocate for the Appellant. Mr. A.R.S. Netravalkar, Advocate for Respondent No.3. CORAM : F.M. REIS, J. DATE : 29th APRIL, 2011 JUDGMENT : 2 The above appeal challenges the judgment and award dated 30/11/2004, passed by the learned Presiding Officer, Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No.95/1997. 2. The Claim Petition was filed by the appellant to claim compensation, due to the injury sustained by the appellant on account of an accident which he sustained as he was a pillion rider of a motorcycle driven by his son while proceeding from Karwar towards Vasco on 19/05/1996. On account of the said motor vehicle accident, the appellant suffered two compound fractures on his right leg. The said accident occurred at Karmalghat in Canacona where the vehicle bearing registration no.KA-30/3527 coming from the opposite direction in a rash and negligent manner dashed on the motorcycle in which the appellant was the pillion rider. Accordingly, the Claim Petition was filed claiming a total compensation of Rs.1,94,800/- from the respondents. By judgment and award dated 30/11/2004, the learned Presiding Officer of the Motor Accident Claims Tribunal dismissed the Claim Petition filed by the appellant. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 3 3. Shri S.S. Kakodkar, the learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that from the evidence on record, specially, the sketch produced by the appellant, it clearly establishes that the respondent no.1 was solely responsible for the accident. The learned Counsel further submitted that while assessing the compensation payable to the appellant, the Tribunal has awarded only Rs.25,000/- on account of the permanent disability, though the appellant has suffered compound fractures and was hospitalized for 123 days and had to undergo an operation at the M.P.T. Hospital as well as Goa Medical College. The learned Counsel has taken me through the evidence on record and pointed out that from the site of the accident it is evident that the vehicle driven by respondent no.1 had come in a rash and negligent manner and had dashed against the motorcycle wherein the appellant was the pillion rider. The learned Counsel has further submitted that the learned Tribunal has erroneously appreciated the evidence on record and has come to a wrong conclusion that the appellant has failed to establish rashness and negligence on the part of the respondent no.1. The learned Counsel, as such, pointed out that the impugned judgment deserves to be quashed and set aside. 4 4. On the other hand, Shri Netravalkar, the learned Counsel appearing for respondent no.3 has strongly disputed the submissions advanced by the learned Counsel appearing for the appellant. He pointed out on the basis of the evidence on record that the appellant has failed to establish by any cogent evidence that respondent no.1 was responsible for the accident and/or that the respondent no.1 was driving the vehicle in a rash and negligent manner. The learned Counsel has taken me through the sketch and pointed out that the truck was on the extreme left hand side of the road and that the truck had stopped at a distance of 1 metre from the point of impact, which shows that respondent no.1 was not rash and negligent in driving the truck. The learned Counsel has further submitted that the rider of the motorcycle wherein the appellant was the pillion rider, was solely responsible for the accident and, as such, the Tribunal has rightly come to the conclusion that the appellant is not entitled for any compensation. 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: 5 POINT FOR DETERMINATION Whether the Tribunal was justified to dismiss the Claim Petition filed by the appellant. 6. The fact that the accident has occurred has not been disputed by the parties. On perusal of the evidence on record, I find that the motorcyclist was ascending the slope and the truck driven by respondent no.1 was descending the slope. The sketch at the site of the accident is at Exhibit 37. On perusal of the said sketch as well as the evidence on record, one finds that at the place of the accident there was no curve and the road was broad and the width of the road was 7 metres. The motorcycle in which the appellant was a pillion is found on the extreme left hand side of the road which is his correct side and that the truck was also on his correct side as it was proceeding from Margao to Canacona. Considering the positions of the vehicles and the evidence of CW2/Nandakishore Mirajkar and CW5/Shaikh Abdul Sattar, it cannot be said that the rider of the motorcycle was solely responsible for the accident. CW2/Nandakishore Mirajkar in his evidence stated that he was returning from Karwar on his scooter which was driven by him and that one Suresh Gauns was his pillion rider. He has further stated that the appellant was a pillion rider of the motorcycle which was 6 coming towards Margao. He has further stated that he was proceeding behind the appellant at a distance of 15 to 20 metres and that the truck was coming in the opposite direction. There was a turn and the truck driver did not slow down and, as such, the front bumper guard of the truck dashed against the motorcycle. He has further stated that the appellant fell on the right side and the motorcycle fell on the left side. He has further stated that the rider of the motorcycle had fallen on the left of the road and suffered slight scratches. In his cross-examination, he has stated that when he saw the motorcycle for the first time at a distance of about 30 metres it was on his left side. After the accident, the truck stopped on the edge. CW5/Shaiklh Abdul Sattar has stated that he was riding the motorcycle on 19/05/1996 and was returning from Karwar. He has further stated that when they were ascending the slope at a slow speed a truck driven by respondent no.1 in a fast speed came from opposite direction and the driver side bumper dashed against his motorcycle. He has further stated that he was at a distance of half a metre from the edge of the tar road and upon the dash his father fell down along with him. In the cross- examination, he has stated that immediately after the accident the truck was stopped on the left side of the road at a distance of about 8 to 10 metres from the point of impact. He has further stated that 7 his father was immediately shifted to the primary health centre, Canacona and he along with the driver of the truck and the conductor of the truck accompanied the appellant to the hospital. The Tribunal while appreciating the evidence on record has come to the conclusion that the accident had occurred on account of the fault of the rider of the motorcycle driven by the son of the appellant. The learned Tribunal has also come to the conclusion that the respondent no.1 cannot be blamed for the said accident. The learned Judge has also noted that Investigating Officer had come to the conclusion that as the fault could not be ascertained, the case was closed as a case of pure accident. The learned Judge has found that CW5/Abdul Sattar was trying to improve the case of the appellant and, as such, came to the conclusion that he could not be trusted. 7. The relevant portions of the evidence adduced by the appellant has been extracted herein above and on the basis thereof, I find that considering the width of the road as well as the other circumstances as found at the site, the respondent no.1 cannot be said to be solely responsible for the accident. Considering the width of the road, the respondent no.1 has not adduced any evidence to substantiate that there was any attempt made by him to 8 avoid the said accident. The motorcycle was ascending the slope and the truck was descending and it is well known that the preference is to be given to the vehicles which are climbing the slope. In such circumstances, it cannot be accepted that the motorcyclist was ascending the slope at a high speed and was solely responsible for the said accident. As such, I find considering the material on record and the evidence of CW2/Nandakishore Mirajkar and CW5/Shaikh Abdul Sattar which are otherwise not disputed by the respondents, that there was composite negligence on the part of the rider of the motorcycle as well as respondent no.1 which resulted in the said accident. The composite negligence of the rider of the motorcycle is to be fixed at 50%. Considering the material on record, the learned Tribunal has erred in coming to the conclusion that the accident was solely on account of the motorcyclist. Lack of diligence on the part of the respondent no.1 in taking the necessary precaution in avoiding the accident on such a road itself would establish rashness on the part of the respondent no.1. 8. While assessing the compensation payable to the appellant the amount assessed by the Tribunal on account of medical expenses, transportation charges and loss of salary and towards 9 pain cannot be faulted. But, however, the compensation awarded on account of permanent disability appears to be on the lower side. The evidence on record discloses that the appellant has suffered a permanent disability on account of the compound fractures sustained by him in the said accident. The certificate produced by the appellant discloses that the injuries sustained by him in the said accident resulted in permanent disability of 15%. The appellant also had to undergo operations to recover from the injuries sustained by him in the said accident. Considering the over all evidence on record, I find that the amount of Rs.25,000/- awarded by the Tribunal is to be enhanced to Rs.50,000/- as compensation on account of permanent disability. To that extent, the impugned judgment is to be modified. The total amount, as such works out to Rs.75,429.27 which is rounded up to Rs.75,430.00. Considering the composite negligence of 50%, for the reasons stated herein above the appellant would be entitled to a sum of Rs.37,715/- together with interest thereon at the rate of 6% per annum from the date of filing of the Claim Petition up to actual payment. The point for determination is answered accordingly. 9. In view of the above, I pass the following order: 10 O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 30/11/2004 is quashed and set aside and the respondents are directed to pay jointly and severally the said sum of Rs.37,715/- together with interest thereon at the rate of 6% per annum from the date of filing of the Claim Petition up to actual payment. (iii) Any amount paid by the respondent no.3 under Section 140 of the Motor Vehicles Act shall be deducted from the said amount. (iv) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-