1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.392 OF 2003 1. Santu Sitaram Date Age : 56 yrs, Occu : Agriculturist ...Appellants 2. Arjun Santu Date Age : 28 yrs, Occu : Agriculturist Both R/o.Talegaon, Tal. & Dist.Nasik V/s. 1. Baburao Sakharam Pagar Age : 59 yrs, Occu : Agriculturist and Milk Vendor R/o.Talegaon, Tal. & Dist.Nasik 2. Sau.Anusayabai Baburao Pagar Age : 56 yrs, Occu : business R/o.Mahirwani, Tal.& Dist.Nasik 3. Chandrakishor Budhamal Mundada Age : Major, Occu : Business ...Respondents R/o.Mahirwani, Tal. & Dist.Nasik 4. Bhagwan Bapurao Shinde Age : 30 yrs, Occu : Labourer R/o.C/o.Shantu Sitaram Date R/o.Talegaon, Tal.& Dist.Nasik WITH FIRST APPEAL NO.393 OF 2003 1. Santu Sitaram Date Age : 56 yrs, Occu : Agriculturist ...Appellants 2. Arjun Santu Date Age : 28 yrs, Occu : Agriculturist Both R/o.Talegaon, Tal. & Dist.Nasik 2 V/s. 1. Baburao Sakharam Pagar Age : 59 yrs, Occu : Agriculturist and Milk Vendor R/o.Talegaon, Tal. & Dist.Nasik 2. Chandrakishor Budhamal Mundada Age : Major, Occu : Business ...Respondents R/o.Mahirwani, Tal. & Dist.Nasik 3. Bhagwan Bapurao Shinde Age : 30 yrs, Occu : Labourer R/o.C/o.Shantu Sitaram Date R/o.Talegaon, Tal.& Dist.Nasik WITH FIRST APPEAL NO.394 OF 2003 1. Santu Sitaram Date Age : 56 yrs, Occu : Agriculturist ...Appellants 2. Arjun Santu Date Age : 28 yrs, Occu : Agriculturist Both R/o.Talegaon, Tal. & Dist.Nasik V/s. 1. Smt.Annyabai Chabu Nimbekar Age : 61 yrs, Occu : agri. R/o.Talegaon, Tal.& Dist.Nasik 2. Chandrakishor Budhamal Mundada Age : Major, Occu : Business ...Respondents R/o.Mahirwani, Tal. & Dist.Nasik 3. Bhagwan Bapurao Shinde Age : 30 yrs, Occu : Labourer R/o.C/o.Shantu Sitaram Date R/o.Talegaon, Tal.& Dist.Nasik Mr.M.S.Karnik, advocate, for the appellants Mr.C.T.Chandratre, advocate, for the respondents 3 CORAM : A.S.OKA, J. DATE : 26ND FEBRUARY, 2008 COMMON JUDGMENT . The appeals were taken up for final disposal on the last date i.e.on 12nd February, 2008 and today these appeals are kept for dictation of Judgment. 2. The appeals can be disposed of by a common Judgment as the appeals arise out of a common Judgment and Award by the Motor Accident Claims Tribunal at Nasik on 20th June, 2002. By the commmon Judgment and Award, four different Claim Petitions arising out of the same accident were disposed of. The present appeals are preferred by the original opponent Nos.1 and 2 to the Claim Petition. The contesting respondents are the original claimants in the Claim Petition. 3. One Gokul Baburao Pagar was plying a motor cycle on 25th December, 1995 at about 8.00 P.M. Along with him, his father Baburao and his servant 4 Tanaji were the pillion riders. At the relevant time a tractor owned by the second appellant came from opposite direction and gave a dash to the motor cycle. As a result of the impact, the three persons sitting on the motor cycle were thrown out. The said Gokul and Tanaji died on the spot. Baburao suffered injuries. There were four Claim Petitions filed. The owner of the motor cycle filed a Claim Petition claiming compensation on account of damage to the motor cycle involved in the accident. The mother and father(Baburao) of the deceased Gokul filed a Claim Petition claiming compensation on account of death of her son Gokul. Tanaji's mother had also filed a Claim Petition claiming compensation on account of demise of Tanaji and Baburao filed a Claim Petition on account of injuries suffered by him. In so far as a Claim Petition filed by owner of the motor cycle is concerned, there is no appeal preferred as the compensation awarded is only Rs.3,750/-. In a Claim Petition filed by Baburao, compensation awarded is Rs.78,000/- with interest thereon at the rate of 9% per annum. In the Claim Petition filed 5 by Gokul's mother, the compensation awarded is Rs.75,000/- with interest thereon at the rate of 9% per annum and in the Claim Petition filed by Tanaji's mother, the compensation awarded is Rs.52,000/- with interest thereon. The present appellants have been held liable to pay the compensation. These amounts have been fixed by making 25% deduction in the total compensation amount to which the claimants were found entitled to. 4. The learned member of the Tribunal held that contributory negligence of the driver of the offending tractor was to the extent of 75% and the negligence on the part of the deceased Gokul was to the extent of 25%. 5. The submission of the learned advocate appearing for the appellants is that the very fact that there were three persons sitting on the motor cycle at the time of the incident shows that there was gross negligence on the part of the deceased Gokul who was driving the motor cycle as well as 6 the persons who were sitting on the motor cycle. He submitted that by no stretch of imagination the driver of the tractor was negligent. He has invited my attention to the oral and documentary evidence on record. The learned advocate appearing for the original claimants has supported impugned Judgments and Awards. 6. I have carefully considered the submissions. I have perused a compilation tendered on record by the appellants containing copies of pleadings and the notes of evidence. The claimants examined the said Baburao Pagar. He admitted that he along with his son Gokul and Tanaji were travelling on the motor cycle. His version is that they were travelling from West to East. Near Talegaon Phata, a tractor attached with trolly came from opposite direction in a fast speed and the said tractor gave a dash to the motor cycle. According to him, the second appellant was driving the tractor. In the cross examination he admitted that on the next day after the incident his statement was recorded by the police. He was confronted with the said 7 statement made by him before the police. However, he denied a portion recorded in the said statement which indicated that he had covered his face with a muffler for protecting him from severe cold. In the cross examination he admitted that the day on which the accident occurred was a day of severe cold. 7. One Kalidas Pagar was examined as a witness by the claimants. He claimed that he was travelling by the tractor involved in the accident. He deposed that when the tractor was proceeding from Nasik via Nasik-Trimbakeshwar road, he could notice one light from opposite direction. He stated that the tractor was being driven in a fast speed and the tractor had no head lights. He heard a noise of dash of motor cycle and tractor and he could see motor cycle and three persons lying on the road. He stated that the persons were lying on the right hand side of the road. 8. In the cross examination he stated that on the said road there is always a traffic upto 10.00 8 to 11.00 P.M. He admitted that he did not disclose the incident to anyone except to one Vilas. He could not explain as to why in his statement recorded before the police he had stated that he was watching Television with the members of his family at 9.30 P.M. on the same day. He stated in the cross examination that for the first time he came to know that said Baburao met with the accident when Vilas told him about the accident. According to him, he stated before the police that when he was going to common place, Vilas met him and informed him about the fact that Baburao met with an accident. He stated that this aspect has not been recorded by the police in his statement. Another witness examined by the claimants Damu Date is not an eye witness and therefore, his evidence is not relevant. 9. It will be necessary to refer to the findings recorded by the learned member of the Tribunal. In paragraph eight of the Judgment the learned member of the Tribunal has held thus :- “It has come in the evidence of Kalidas that the tractor was driven from the middle line 9 of the road. The width of the road was 14 feet with metal road of 3 feet width on either side. When the accident took place, it was dark. Even if it is presumed that the tractor was driven witout head light, the motor cycle had its light and it was possible for Gokul who was driving the motor cycle to see that the tractor was approaching from the opposite direction. Further, from the noise of the tractor, he must have apprehended that the tractor was coming from opposite direction. When the tractor was driven on the middle line to its right side, half portion of the road was vacant for the motor cyclist to pass through. The motor cyclist did not move his motorcycle to his left to avert the accident. Admittedly, three persons were travelling on the motor cycle due to which while passing from near the tractor, Gokul could not have kept balance. The accident in question thus occurred due to rash and negligent driving of the motor cycle of Gokul and of the tractor by Arjun. Subsequently chargesheet was filed against Bhagwan, however, there is no evidence to prove that Bhagwan was driving the tractor when it met with accident. Baburao C.W.1 and Kalidas C.W.2 both have stated that when accident occurred, tractor was driven by Arjun. The driver who was driving a tractor had more liability to drive carefully to see safety of the others, especially those who were travelling by two wheelers. If negligence is to be apportioned then 75% is that of driver of the tractor and 25% that of driving of motor cycle.” 10. If the aforesaid evidence is considered and even if the findings recorded by the Tribunal are taken as correct it is very difficult to accept that the negligence of Gokul was only to the extent 10 of 25%. As observed by the learned member of the Tribunal it was possible for Gokul to notice the approaching tractor from opposite side. The learned member also noted that the tractor must have made a lot of noise. It is not as if that the tractor was being driven by the wrong side of the road. The tractor was being driven on it's correct side by the centre of the road. Therefore, ½ portion of the road was available to the motor cyclist to avoid accident. It must be noted that said Gokul had allowed two pillion riders to sit on the motor cycle especially when the capacity of the motor cycle was to carry only one pillion rider. Both the pillion riders were grown up persons. They were aware that only one pillion rider could have sat on the motor cycle. It is true that the driver of the tractor i.e. The second appellant was driving the tractor knowing that the head lights of the tractor were not working. He has not made any efforts to avoid the accident. Therefore, going by the evidence, negligence ought to have been apportioned as 50-50 and to that extent the appeals must partly succeed and compensation amount will 11 have to be reduced accordingly. The Tribunal has committed an error in not making deduction from the compensation payable to the said Baburao and the mother of Tanaji. The said claimants could have recovered compensation from the appellants only to the extent of appellants' liability. The appellants will be liable to pay only 50% of the compensation to the claimants in these claim petitions. 11. Hence, I pass the following order. (i) The appeals are partly allowed with no order as to costs (ii) The impugned Awards are modified by directing that the compensation payable to the claimants will be as under :- Claim No. Amount (A) 389/96 Rs.50,000/- (B) 387/96 Rs.39,000/- (C) 482/96 Rs.26,000/- (iii) The Award made for payment of interest and proportionate costs is confirmed. (iv) Civil Applications do not survive and are 12 disposed of. (A.S.OKA, J.)