: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.8 OF 1995 Managing Director, Mazgaon Docks Ltd., Dockyard Road Bombay-400010 ... Appellant V/s. Vinodbhai Mohanlal Patel ... Respondent Mr.S.R. Singh for Appellant Mr.R.S. Darandale i/b R.S. Datar for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: SEPTEMBER 22, 2009 ORAL JUDGMENT: 1. The First Appeal challenges the judgment and award of the Motor Accident Claims Tribunal, Thane in Motor Accident Claims No.294 of 1988. By this judgment, the Tribunal has awarded a sum of Rs.4,35,800/- together with interest @12% p.a. from the date of the application till realisation to the respondent herein. Both opponent Nos.1 and 2 before the Tribunal were directed to pay this amount jointly and severally. By the order dated 17.9.2009 passed by this Court, the name of the insurance company arrayed as appellant has been permitted to be deleted. Thus, the present appeal has been filed by the owner of the offending vehicle. 2. The respondent claims that the accident occurred on 17.2.1988 at about : 2 : 11.15 am when he was proceeding from Turbhe naka towards Sector 17, Vashi on his motor cycle. The respondent was accompanied by a pillion rider. The respondent claims that he was riding his motor cycle with a moderate speed and had exercised due care and caution by riding it on the left side of the road. The driver of motor jeep bearing No.MMF-2147 owned by the appellant, avoided a ditch and banged into the respondent’s motor cycle by driving on to the extreme right of the road, rather than keeping towards the left. Both the respondent and the pillion rider suffered injuries. They were taken first to a hospital in Navi Mumbai and were given first aid. Thereafter the respondent was removed to Nanavati hospital, Mumbai. He underwent medical treatment in the hospital for almost a month as an indoor patient. Thereafter he continued to be treated as an outdoor patient for 2 years. After being discharged from the Nanavati hospital, the applicant respondent who was a civil engineer lost his job. He developed headaches and giddiness during his work. The respondent claims that his movements were restricted since he suffered epileptic fits which occurred without warning. The respondent was treated at a reputed Hospital in for his neurological disability which occurred due to the accident and in fact was undergoing that treatment even when the application was filed. 3. The respondent filed an application under the Motor Vehicles Act initially claiming compensation of Rs.4 lacs in respect of injuries sustained by him. The amount claimed was later enhanced to Rs.7 lacs during the pendency of the application. The application contained a description of how the respondent met with the accident. The details regarding the compensation claimed by the respondent were also included in the claim application. : 3 : 4. The appellant filed a written statement in which it was contended that the accident occurred due to the negligence of the motor cycle rider i.e. the respondent herein. It was contended that the driver of the jeep had taken due care and caution while driving the jeep. It was pleaded that the jeep was proceeding towards Trombay and that the Respondent suddenly swerved the motor cycle to the right in order to avoid a ditch in front of him and dashed against the right side of the jeep. It is pleaded that the driver of the jeep had no opportunity to avoid the accident though he had applied the brakes. 5. Evidence was led by the respondent before the Court. He examined himself as well as Dr.Thorat, who had treated him immediately after the accident in Navjeeal hospital, Vashi. Significantly, the appellant did not examine any witness to support its case that it was the motor cycle rider who was negligent and had swerved the motor cycle rashly thus colliding with the jeep. 6. Mr.Singh, appearing for the owner of the jeep i.e. the appellant herein, submits that the Tribunal has not taken into consideration the totality of the evidence on record. He points out that had the Tribunal considered the same it would have been apparent that there was no evidence on record to establish that the driver of the jeep was negligent. He then submits that in view of the fact that there was a collision between two vehicles the Tribunal ought to have held that there was contributory negligence on the part of both the applicant as well as the driver of the jeep. He relies on the judgment in the case of T.O. Anthony v/s. Karvarnan & Ors., (2008) 3 SCC 748 in support of his submission. He points out that the principles laid down in the aforesaid case have been restated by the Apex Court in the case of Andhra : 4 : Pradesh State Road Transport Corporation & Anr. v/s. K.Hemlatha & Ors., (2008) 6 SCC 767. He also relies on the judgments in the case of Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors., (2006) 3 SCC 242 and Maharashtra State Road Transport Corporation & Ors. v/s. Ramchandra Ganpatrao Chincholkar & Ors., 1993 ACJ 165 in support of the same proposition. 7. Mr.Singh then submits that most of the injuries, except one on the occipital region, were trivial in nature and therefore the respondent was able to work after his treatment has completed. He submits that there is no evidence on record to indicate that the work of the respondent had suffered in any manner since there was no long term injury sustained by the applicant. He further submits that the Tribunal has considered various reports of the Nanavati hospital without those documents being proved as required in law. He submits that no nexus has been established between head injury sustained by the respondent and the epileptic fits that he suffered from occasionally. The learned advocate then points out that the disability certificate is dated 16.6.1988 and indicates the disability of 40% to 50%. However, the Nanavati hospital has not issued any certificate indicating that the Applicant had suffered any disability. As regards damages, the learned advocate points out that the figures accepted by the Tribunal are inflated and in fact, at best considering the nature of the accident and the injury sustained by him, the suffering caused to the respondent could have been alleviated by awarding him Rs.20,000/- as general damages in respect of the pain and suffering. As regards special damages, he submits that there is no evidence on record to indicate why the Tribunal has accepted that the earning capacity of the respondent had been reduced for two years. : 5 : 8. Mr.Singh relies on several judgments in support of his contention that the quantum of compensation awarded to the applicant was excessive. In the case of North West Karnataka State Road Transport Corporation v. M.S. Shettar & Anr., 2002 ACJ 215 to submit that in a similar situation, the Supreme Court has observed that since the claimant had not approached any specialist in orthopaedics, the disability sustained by the applicant could not have been rectified considerably. Considering all the aspects before it, the Supreme Court observed that even assuming that there was impairment of the movement of the wrist by 25% the total sum of one lakh would be just and reasonable compensation payable to Respondent No.1. The learned advocate then relies on the judgment of the Supreme Court in the case of Tejinder Singh Gujral v/s. Inderjit Singh & anr., (2007) 1 SCC 508 in which the Supreme Court considered the facts before it and held that although the appellant who was in the legal profession had suffered some injuries his rise in the profession could not be at stake merely because of these injuries. The other judgment cited by Mr.Singh is that of the Division Bench of this Court in the case of Taj Tours and Travels v/s. Dr.Priti N. ParikhParikh, 1996(1) ALL MR 237. The Division Bench held that since the applicant before it had not established that she would have suffered any loss of income in the future due to the injuries sustained, it could not be taken into account. The learned advocate also relies on the judgment in the case of Ebrahim Fakir Ansari v/s. Sitaram Kamalaksha Kamat & Anr., 1990 ACJ 465 in support of his submission that the compensation awarded by the Tribunal was far greater than what was reasonable. 9. The Apex Court in the case of T.O. Anthony (supra) has considered the concepts of composite negligence and contributory negligence and has observed thus: : 6 : “5. The Tribunal assumed that the extent of negligence of the appellant and the first respondent is fifty:fifty because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned. 6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.” 10. In the case of Andhra Pradesh State Road Transport Corporation & Anr. v/s. : 7 : K.Hemlatha & Ors, (2008) 6 SCC 767, the Supreme Court has reiterated the law propounded in T.O. Anthony’s case (supra). 11. Mr.Darandale, appearing for the respondent, submits that the written statement which has been filed by the appellant owner of the jeep indicates how according to the appellant the accident occurred. He submits that no positive evidence was led by the appellant to indicate that there was contributory negligence on the part of the respondent. According to him, the Tribunal has rightly drawn adverse inference and has accepted the contention of the respondent that it was the driver of the offending jeep who was negligent and had collided with the motor cycle. He points out that the injuries sustained by the respondent indicated that he had suffered a disability of 40% to 50% as assessed by the doctor. The learned advocate urges that there was sufficient evidence on record to indicate that although the respondent had recovered to a certain extent from some of the injuries, he still had to cope with the injuries he sustained on the occipital region due to which he suffered from epileptic fits occasionally. The learned advocate points out that the evidence led by the applicant to establish that these bouts of epilepsy started occurring only after the accident, had not been controverted by the appellant. In fact, there was no suggestion to the applicant that he was suffering from such epileptic fits even prior to the accident. He further submits that the brake marks which were noticed on the road as recorded in the Panchanama would indicate that it was the jeep which was being driven in a fast speed. He submits the brake marks of 20 feet would indicate that the driver of the jeep was negligent and had driven the jeep rashly on a 30’ wide road. He relies on the judgment in the case of Hemant Krishnanath Wadke v/s. Patheja Forging & Auto Parts Manufacturing Co. Pvt. Ltd. & Ors., 2005 ACJ 1202 in : 8 : support of his submission that contributory negligence must be pleaded and established by the person raising that issue. He then relies on the judgment of the Division Bench of this Court in the case of Madhav Sakharam Shilotri & Ors. V/s. State of Maharashtra & Ors., 1997 ACJ 857 in support of his submission with regard to the appreciation of the evidence. The Division Bench has observed that where in a collision between two vehicles the driver of one vehicle who was the only eye witness to the accident was not examined, an adverse inference could be drawn. He also relies on the judgment of the Division Bench in the case of Aparna wd/o. Manohar Indapwr & Ors. v/s. Bacchubhai Karsanbhai Rathod & Ors., 2007 (3) Mh.L.J. 472 in support of his submission that when the brake marks are seen on the road an inference could be drawn that the vehicle was being driven in a very high speed. 12. With the assistance of the learned advocate for the parties, I have perused the evidence led before the Tribunal. I find that there is absolutely no contrary evidence to the claim made by the applicant that it was because of the rash and negligent driving of the jeep driver that the accident occurred. The respondent has described the manner in which he sustained injuries to his right wrist and serious injuries to his head. He had also dislocated his arm. In the cross-examination, the respondent was questioned about the manner in which the accident occurred. He has stated that he saw the jeep from a distance of 30’ to 40’. He has also stated that he slowed down his vehicle and had taken it to the extreme left of the road. He has denied the suggestion that the impact took place after he passed the ditch in the center of the road. He has also denied the suggestion put to him that he had swerved his vehicle to the right in order to avoid the ditch in the center of the road. : 9 : He stated that the handle bar of his motor cycle, on the right came in contact with the jeep and got stuck in front of the bonnet of the jeep. He has further stated that the jeep driver neither applied the brakes nor blew the horn before the impact. He has also stated that there was no heavy traffic on the road at the time when the accident occurred. 13. This evidence has not been controverted at all by the appellant. Therefore, the Tribunal in my opinion, has rightly drawn an adverse inference and has held that the accident occurred because of the rash and negligent driving of the driver of the appellant. In the written statement, the appellant has stated thus: “2b) This opp. Party say and submit that their vehicle was proceeding towards Trombay from the correct side, however, the applicant to avoid a ditch in front of him, suddenly swered to its right and dashed against from right portion of the opp. party’s jeep. This opp. Party further say and submit that their driver was driving the vehicle with due care attention but however the applicant came in contact with the vehicle suddenly and that there was no opportunity for the driver to avoid the same though brakes were applied.” 14. This pleading is diametrically contrary to what was contended in the application and in the evidence led before the Court. If it was the appellant’s case that the accident had occurred in the aforesaid manner, pleaded in its written statement, it was necessary for the appellant to lead cogent evidence in that behalf. The only reason stated by the appellant for not examining the driver is that he was no longer in their employment. In my opinion, this is hardly an acceptable reason for not : 10 : examining the jeep driver who was an eye witness to the incident. The best evidence to controvert the evidence of the applicant who was also an eye witness to the accident would have been the testimony of the jeep driver. Since this evidence was not produced without any sufficient cause, the Tribunal has rightly drawn an adverse inference against the appellant. The Tribunal has therefore held that there was no contributory negligence on the part of the respondent. The Division Bench in the case of Hemant Krishnanath Wadke (supra) has observed that the onus to prove contributory negligence is on the party pleading the same. It has been held that it was incumbent on the respondent in that case, who contended that it was a case of contributory negligence, to prove that the appellant had the time to move to his left and that there was no obstruction on the left. The Division Bench observed that these facts were not pleaded nor proved. The principles enunciated by the Supreme Court in the case of T.O. Anthony’s case (supra) do not in any manner obviate the necessity of proving contributory negligence by leading cogent evidence. In the present case the appellant has failed to prove that there was contributory negligence on the part of the respondent. The tribunal has rightly held that there was no contributory negligence on the part of the Respondent. 15. The question now remains whether the appellant is right in contending that the compensation payable to the respondent is excessive. 16. The Tribunal has considered the documents on record including the certificates issued by the Hospital which indicated that the respondent was being treated for a neurological disorder which he suffered from as a consequence of the accident. The Tribunal has considered the physical disability as described by the : 11 : certificates issued by Dr.Thorat who testified in Court. The Tribunal has also taken into account the nature of injuries sustained by the applicant and has awarded the compensation. The applicant was admitted to Nanavati hospital for a period of four months. He had produced the bills for medical expenses which accounted for Rs. 60,792/- and which in fact were not disputed by the opponent. Besides this, the applicant had established that another amount of Rs.40,000/- was required for commuting to the hospital frequently from his residence in Vashi to Churchgate, for treating his neurological ailment. The Tribunal has then considered the loss of salary sustained by the applicant for two years and has awarded special damages to the tune of Rs.155,800/-. 17. As regards the general damages, the Tribunal has awarded Rs.2,80,000/-. This figure has been arrived at after considering that the respondent was 33 to 35 years of age at the time of the accident and that he had secured a job after the accident in another establishment on a monthly salary of Rs.3,500/-, which was far lower than his earlier salary. The Tribunal has considered all these factors and has awarded Rs.280,000/- as general damages. In my view, the Tribunal has committed no error by awarding such damages. The submissions made on behalf of the appellant with respect to damages quantified are in a nature of conjectures. There is no material at all on record to indicate that the respondent had not sustained the injuries as mentioned by him and that he did not suffer a disability of 40’ to 50 as accepted by the Tribunal with respect to his movements and other orthopaedic disabilities. There is also no evidence at all led by the appellant to controvert the submission on behalf of the respondent that he was undergoing continuous treatment for the epileptic fits that he was suffering from as a consequence of the accident. : 12 : The evidence on record does not indicate that the applicant was suffering from such fits prior to the accident. Therefore in my opinion, the award must be upheld. 18. The judgments relied on by Mr.Singh to submit that the compensation should be reduced are based on the facts and circumstances in those cases. In the present case, it has been proved that the respondent was a Civil Engineer and because of the accident he had restricted movements and was unable to stand for long hours which a Civil Engineer may be expected to do at a construction site. Besides, he suffered from a neurological disorder as a result of the injury sustained on his occipital region in the accident. 19. Taking into account all these factors, in my opinion, there is no need to interfere with the award. The Appeal is dismissed. No costs.