1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1175 OF 1996 Narendra Bhiwaji Poman Appellant versus 1. The Chief Officer, Zilla Parishad, Sangli. 2. The Block Development Officer, Panchayat Samiti, Tasgaon, Dist. Sangli. 3. The Director of Insurance (deleted) 4. Pandurang Hindurao Jadhav Respondents Mr.T.S.Ingale, Advocate for appellant. Mr.Ramesh D. Rane, Advocate for respondents 1 and 2. CORAM : A.S.OKA, J. DATE : 03rd December 2009 JUDGEMENT :- 1. The appellant is the original claimant in a claim petition filed under section 110(A) of the Motor Vehicles Act, 1939 has preferred this appeal. He claimed compensation on account of injuries sustained in a motor accident. The Tribunal found that the appellant is entitled to compensation of Rs.88,760/-. However, the Tribunal recorded a finding that the appellant himself has contributed to the accident to the extent of 60% and, therefore, out of the compensation amount of Rs.88,760/- the Tribunal granted compensation of Rs.35,504/- with interest @ 12% p.a.. The first question which arises is what should be the quantum payable to 2 the petitioner and second question is whether there is any contributory negligence on the part of the appellant. 2. On 22nd December 1988 at about 8.00 a.m. the appellant was proceeding on Bhilawadi-Tasgaon road on his bullet motorcycle alongwith his friends. At that time a jeep owned by the first and second respondents which was driven by the fourth respondent came in a very high speed from the opposite direction. While overtaking a cyclist, the fourth respondent could not control the jeep which gave a dash to the appellant's motorcycle. According to the case of the appellant, he was a prominent basket-ball player at the school level and state level. He was NCC cadet. As a result of permanent disability, he suffered monetary loss. According to him, he was selected as a Merchant Navy cadet by a company in United Kingdom where he was offered monthly emoluments of 1,400 dollars. Total claim made by the appellant was Rs.3.00 lakhs. 3. First and second respondents filed a written statement contending that the appellant was driving a motorcycle in a very high speed and in rash and negligent manner. They contended that the appellant is son of Police Sub Inspector and is guilty of driving the motorcycle in rash and negligent manner. The fourth respondent also filed his written statement. He also raised similar contentions and stated that in fact there were two pillion riders occupying the pillion seat of the motorcycle of the appellant. The appellant contended that he was driving the motorcycle in a slow speed and he was driving the motorcycle cautiously. The appellant examined himself and produced various documents. He examined Dr.Milind Kulkarni. The fourth respondent stepped into the witness box and the first and second respondents examined the Block Development Officer. 4. The appellant in his examination-in-chief stated that at the time of accident his father was serving as Police Sub Inspector at Tasgaon. The age of the appellant at the time of accident was around 19 years. He 3 stated that he alongwith his friend Sanjay were proceeding to Audumbar from Tasgaon on his bullet motorcycle. He stated that the said Sanjay was plying a separate motorcycle and one Raju Kumbhar was pillion rider. He stated that the said Sanjay alongwith the Education Officer were on Rajdoot motorcycle which was ahead of him. He stated that one Chavan alongwith one Sase were following him on Suzuki motorcycle. According to him he was travelling at the speed of 30 kilo meters per hour. At that time he saw one cyclist coming from the opposite direction and there was a jeep behind the cyclist. He stated that the jeep came in very high speed and while overtaking the cyclist it came on wrong side and gave a dash to his motorcycle. In the cross examination he admitted that one Momin was also a pillion rider on his motorcycle. 5. The learned counsel appearing for the appellant submitted that merely because there were two persons sitting on the pillion seat at the time of accident, one cannot jump to the conclusion that the appellant himself was negligent. He placed reliance on a decision of Madhya Pradesh High Court in case of Devisingh Vs. Vikramsingh and others (2008-ACJ-393). He submitted that the Full Bench of Madhya Pradesh High Court has taken a view that presence of two pillion riders will not raise any presumption of contributory negligence. He pointed out that a similar view has been taken by the Madras High Court in case of Kattabomman Transport Corporation Ltd. Vs. Vellai Duraichi and others (2004-ACJ-510). Inviting my attention to the evidence of fourth respondent driver of the jeep and the evidence of the appellant he submitted that negligence was clearly on the part of the driver of the jeep. He invited my attention to various documents placed on record relating to academic performance of the appellant as well as performance of the appellant in the field of sports. He submitted that considering the extent of disability of 42% the compensation awarded is on the lower side. He submitted that right leg of the appellant has been shortened by 1 c.m.. He submitted that the compensation awarded by the Tribunal is extremely on the lower side. He pointed out that the Tribunal has not awarded any 4 compensation on account of medical expenditure likely to be incurred in future. 6. The learned counsel for the first and second respondents supported the impugned judgement and award. He submitted that the evidence on record shows that the appellant and his two other friends were plying two different motorcycles and were driving the motorcycles in very high speed. He submitted that the evidence of the fourth respondent shows that the appellant himself was guilty of negligence. He submitted that there is absolutely no evidence for proving the negligence against fourth respondent. He submitted that exorbitant amount has been claimed by way of compensation by the appellant. He submitted that the finding regarding contributory negligence on the part of the appellant is proper and no interference is called for. He also invited my attention to the evidence on record which shows that the appellant fell down on his knees as a result of which his injuries were aggravated and, therefore, 42% disability assessed by the medical practitioner was not the disability on account of the accident. 7. I have carefully considered the submissions. I have perused the record and proceedings. The version of the appellant is that his two friends were plying two other motorcycles. One was ahead of him and one was behind him. His version is that he was plying the vehicle at the speed of 30 kilo meters per hour. He stated that the fourth respondent who was driving the jeep was coming from the opposite direction. While attempting to overtake a cyclist, he came on his wrong side and gave a dash to the motorcycle. As a result of which he sustained injuries. 8. In the cross examination he stated that there were two persons sitting along with him on the pillion seat of the bullet motorcycle. There is one more witness examined by the appellant namely witness no.3 Dilip. He stated that he was a Panch witness called by the Police. He stated that at the place of the accident the width of the tar road is 12 feet and 5 there is rough road of five feet on both sides. He states that the road runs in East-West direction and the jeep was seen toppled on the Northern side of the road and there was damage to the jeep on its right side indicator and left side bumper. The fourth respondent stated that before the accident three motorcyclists were trying to overtake each other and were plying the motorcycles in a very high speed. He stated that one of the motorcycle was used by three persons. He stated that while the motorcyclists were in the process of overtaking, one motorcyclist went past the jeep and the other motorcycle on which three persons were sitting lost control and gave a dash to the mudguard of the front side right wheel of the jeep. He stated that he applied breaks as a result of which the jeep went towards left side of the road. He stated that after the impact he came near the injured persons and ensured that they are sent to Tasgaon. He stated that though he approached Tasgaon Police Station to lodge the report, the Police did not accept the report as the appellant was the son of a Sub Inspector attached to the Tasgaon Police Station. He stated that a Morcha was taken to the office of Tahsildar but no enquiry was held by the Tahsildar. He stated that the case filed against him has resulted into acquittal. In the cross examination he denied the suggestion that a bicycle was proceeding ahead of him. He admitted that for the first time he saw the motorcycle coming towards him when it was at a distance of 1000 feet. He admitted that after the impact the jeep turned turtle and fell on its right side. The witness Narayan Dhumal was driving the jeep at the relevant time. He also stated that the distance of about 1000 feet was visible from the jeep at that time. 9. The location of the vehicles after the impact in many cases has a very little significance. It depends on facts of each case. Looking to the damage sustained by the jeep, it is not a case of head on collision. The photographs of the damaged motorcycle have been placed on record. I have perused the photographs. The photographs indicate that this was not a case of head on collision. There is a damage to the motorcycle. Looking to the photographs at Exhibit-61 and evidence of the witnesses, 6 this is not a case where the jeep travelling in high speed came on its wrong side and gave a dash to the motorcycle. Exhibit-61 rule out the possibility of head on collision. It is true that only on the basis of the fact that there were two pillion riders along with the appellant at the time of accident, no inference or presumption can be drawn regarding negligence on the part of the person who was carrying two pillion riders. It is not in dispute that only one pillion rider could have been carried by the appellant. Assuming that the case made out by the appellant that there was a negligence on the part of fourth respondent is proved, the question which arises is whether any attempt was made by the appellant to avoid the accident. Going back to the deposition of the appellant, in paragraph 1 he has stated that he saw a cyclist coming from the opposite direction and behind the cycle there was a jeep. According to him the jeep while overtaking the cyclist came on wrong side and gave dash to the motorcycle. The learned counsel for the appellant tried to submit that the impact was so much that the jeep turned turtle and it was on the wrong side of the road. The appellant admitted that he had seen the jeep coming behind the cyclist. According to him the jeep was driven in a very high speed. In such an emergent situation, the question is whether presence of two pillion riders affects the ability of the motorcyclist to avoid the accident. It is obvious that on a pillion seat which is meant for only one person, if two persons are allowed to sit, the capacity of the person plying the motorcycle to control the same is bound to be reduced. Therefore, considering the facts of the case it cannot be said that the appellant has not contributed to the negligence. In fact, there is contribution made by the appellant himself. The question which remains is as to whether the extent of contributory negligence was 60%. 10. Now, coming back to the apportionment of the negligence. The fourth respondent as well as the Block Development Officer have stated that the motorcycle of the appellant was visible from a distance of 1000 feet. Therefore, there was enough time for the fourth respondent to avoid the accident. At the same time, the appellant had also an opportunity to 7 avoid the accident as he had also seen the jeep following the cyclist. In the circumstances, it must be held that the contribution of the appellant and fourth respondent as far as accident is concerned is equal and, therefore, deduction will have to be made from the compensation amount to the extent of 50%. 11. The learned Member of the Tribunal had granted a sum of Rs. 46,760/- for medical expenses on the basis of bills at Exhibits-87 and 88 amounting to Rs.46,751=68. The learned Member of the Tribunal has granted a sum of Rs.5,000/- for physical pain and sufferings, Rs.10,000/- for loss of sporting life, Rs.10,000/- for mental shock and sufferings and Rs.5,000/- for loss of amenities. He has granted a sum of Rs.12,000/- towards the costs of the special diet, conveyance charges etc.. As stated earlier, out of the compensation of Rs.88,760/-, only a sum of Rs.35,504/- has been granted to the appellant. 12. At this stage it will be necessary to deal with the evidence of the medical practitioner Dr.Milind Kulkarni. He stated that on 12 th December 1988 the appellant was admitted to his hospital on account of compound signmental fracture of tibia, fibula (right side). On the very day he underwent a surgery. On 10th March 1989 he underwent a surgery for bone grafting. On 6th May 1989 the wounds were required to be cleaned under general anesthesia. Two more surgical procedures were undergone by the appellant on 6th May 1989 and 9th June 1989. The doctor stated that the leg of the appellant has been shortened by 1 c.m.. According to him there was 42% permanent disability of right lower limb. He stated that the total bill amount charged by him to the appellant was Rs.37,870/- out of which he has received Rs.10,000/-. He stated that the patient i.e. the appellant was advised to have exercise of knee bending and he was advised to have passive exercises. It is true that theory of subsequent fall has been brought on record by the first and second respondents. But the fact remains that the a leg of the appellant has been shortened by 1 cm.. The learned counsel for first and second respondents 8 submitted that even that deformity may not survive. It is very difficult to accept the said submission. The shortening of the size of leg by 1 cm. was directly due to the accident and even the doctor has not stated that the said disability can be latter on cured. The said deformity certainly is a permanent disability. However, in the cross examination Dr.Kulkarni stated that on 7th June 1990 the patient i.e. the appellant was in position to walk as well as was in position to run. A perusal of the cross examination of Dr.Kulkarni shows that there is no serious challenge to the statement in the examination in chief that the total bill payable to him by the appellant was Rs.37,870/- out of which he has received Rs.10,000/-. There was a long hospitalisation of the appellant and Dr.Kulkarni stated that the appellant will have to undergo further surgery requiring expenditure of about Rs.15,000/-. 13. Now, coming back to the finding on quantum recorded by the learned Member. Medical expenditure to the tune of Rs.46,760/- has been permitted on the basis of the bills produced by the appellant. In my view, some amount ought to have been granted to the appellant on account of expenditure which is required to be incurred by the appellant in future for further surgery. A sum of Rs.15,000/- deserves to be granted on the said count. 14. As stated earlier, a total sum of Rs.30,000/- has been granted on account of mental pain and sufferings, loss of sporting life, mental shock and loss of amenities. In fact, the amounts could not have been awarded under four separate headings. However, the amounts awarded under the said four sub heads taken together are reasonable considering the fact that the accident is of the year 1988. As far as loss of income is concerned, the case made out by the appellant in the claim petition has not been substantiated and in fact the said case seems to have been given-up at the time of trial. 15. As stated earlier, the compensation amount will have to be 9 enhanced by Rs.15,000/-. Therefore, the total compensation will be Rs. 1,03,760/-. The amount can be rounded off to Rs.1.04 lakhs. therefore, the amount payable to the appellant will be Rs.52,000/-. 16. The accident is of the year 1989 and the claim petition is also of the year 1989. In the recent past the rates of interest have been considerably reduced. Now the additional amount payable to the appellant will be Rs. 16,496/-. On the said additional amount, interest will have to be awarded @ 7.5% from the date of claim petition till realisation. Therefore, the award needs modification to the aforesaid extent. 17. Hence, I pass following order :- (A) In addition to the amount awarded under the impugned award, the first, second and fourth respondents shall jointly and severally pay to the appellant further compensation of Rs.16,496/- together with interest thereon @ 7.5% p.a. from the date of filing of the claim petition till realisation or till the date of deposit of the amount with the Tribunal; (B) The first and second respondents shall pay proportionate costs of this appeal to the appellantl (C) Time of four months is granted to the first, second and fourth respondents to comply with the direction issued under this judgement. The additional amount of compensation to be deposited with the Tribunal. After the amount is deposited, the Tribunal shall pay the said amount to the appellant by an account payee cheque; (D) The appeal is partly allowed in above terms. (A.S.OKA, J.) 10 S.S.DALVI