: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2148 OF 2007 FIRST APPEAL NO.2148 OF 2007 FIRST APPEAL NO.2148 OF 2007 Jaishree Anil Khodke & Ors. ...Appellants V/s. Keru Murlidhar Wagh & Ors. ...Respondents Mr.P.N. Karlekar, Advocate, for the Appellants. . Ms.Urmila Sanil, Advocate, for the Respondents. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 7TH APRIL, 2008. DATE : 7TH APRIL, 2008. DATE : 7TH APRIL, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. On 29th November, 2007 notice for final disposal of this Appeal at the stage of admission was issued. The submissions of the Advocates appearing for the parties were heard on 27th March, 2008. However, Judgment could not be dictated on the same day on account of paucity of time. 2. A challenge by the appellants-claimants in this Appeal is to the Judgment and Award dated 25th January, 2007 passed by the learned Ad-hoc District Judge and Member of the Accident Claims Tribunal at Nasik. It will be necessary to refer to the facts of the case in brief. 3. The claimants filed a Petition for compensation under Section 166 of the Motor Vehicles : 2 : Act, 1988. The Claim Petition was filed claiming compensation on account of death of one Anil Khodke. The 1st appellant is the widow of the deceased. The 2nd and 3rd appellants are the children of the deceased and the 4th appellant is the mother of the deceased. 4. On 4th October, 2003 at about 9:30 a.m. deceased was driving a moped. The deceased was proceeding by his moped from CIDCO, Nasik. While he was proceeding to the place of his work, there was a collision between a truck bearing No.MH-04-C-1169 which was being driven ahead of the moped. The deceased came under the wheel of the truck and died on the spot. The allegation is that the accident occurred due to rash and negligent driving of the truck by the 1st respondent. The truck was admittedly owned at the relevant time by the 2nd respondent and the 3rd respondent was the insurer of the truck. 5. The claim was contested by the 2nd respondent by filing written statement. His contention is that the truck was proceeding in a moderate speed and the deceased was driving his moped in a speed. It was contended that the deceased gave a dash to the truck which was ahead of him. The 3rd respondent-Insurance : 3 : Company filed written statement supporting the aforesaid plea raised by the 2nd respondent. However no dispute was raised regarding existence of a valid insurance policy on the date of the accident. The parties led evidence. The Tribunal dismissed the claim petition on the ground that the appellants have failed to establish that the accident occurred due to negligence on the part of the driver of the truck. The Claim Petition was accordingly dismissed by the learned Member of the Tribunal by recording a finding that in fact the deceased himself was negligent. 6. The learned Advocate appearing for the appellant has taken me through the pleadings and notes of evidence as well as other documents on record. He contended that the evidence of the 2nd witness examined by the appellants clearly proves the negligence on the part of the driver of the truck. He submitted that the police papers which are admitted in evidence clearly show negligence on the part of the driver of the truck. He pointed out that the driver of the truck was not examined and therefore adverse inference will have to be drawn. He submitted that the evidence on record clearly proves the negligence on the part of the driver of the truck and therefore the Tribunal committed an error by holding that the : 4 : deceased himself was negligent. The learned Advocate for the 3rd respondent submitted that there was no evidence on record to prove the negligence on the part of the driver of the truck. It is submitted that as there was a speed breaker ahead of the truck, the driver of the truck had to apply brakes and as the deceased was driving his moped without noticing the speed breaker, the entire negligence is on the part of the deceased. It is submitted that the deceased ought to have noted the speed breaker ahead of the truck and therefore the deceased should have taken proper care while driving his Moped. Placing reliance on a decision of the learned Single Judge of this Court in the case of Smt.Ushakiran Shridhar Shinde & Ors. V/s. Arunkumar Kisanlal Kalal and Ors. [2001 (4) ALL MR 21], it was submitted that even assuming that the panchanama and other police papers were admitted in evidence, unless the contents of the said documents were proved, contents thereof could not have been read in evidence. 7. I have carefully considered the submissions. The first question will be whether the appellants have established negligence on the part of the driver of the truck. The second question will be as regards the quantum of compensation payable which will have to be : 5 : considered only in the event the finding on the issue of negligence is in favour of the appellants. 8. The 1st appellant stepped into witness box. Obviously she has no personal knowledge as regards the accident. In her evidence the certified copy of the F.I.R., certified copy of the panchanama, certified copy of the inquest, certified copy of the police report have been exhibited on record. The 1st appellant was cross-examined only by the Advocate for the 3rd respondent. There is no cross-examination on the aforesaid documents and the cross-examination is limited to the income of the deceased and other material particulars. There is nothing on record to show that any objection was raised while exhibiting the aforesaid documents as no such objection has been noted in the deposition of the said witness by the learned Member of the Tribunal. Thus, the aforesaid documents have been exhibited without any objection from any of the respondents. 9. The 2nd witness examined by the appellants is one Ukha Deoram Choudhary whose deposition is relevant on the issue of negligence. His deposition reads thus:- : 6 : "1. On the date of the incident there was Dasara and I went to Bazar for purchasing Puja articles. There was accident of M-80 & Truck. Persons who was driving M-80 sustained injuries and he was immediately shifted to the hospital Police recorded my statement. I have narrated the incident to the police. CROSS EXAMINATION BY SHRI V.P. HIRE FOR THE OPPONENT NO.2. 2. It is not correct to say that this accident took place prior to reaching me on the spot. It is not correct to say that I did not see the accident personally due to heavy traffic. It is correct to say that truck was ahead of the M-80 and both the vehicles were proceed towards same direction. It is correct to say that there was speed breaker on the way ahead where this accident took place. IT is correct to say that truck was slow down there, and truck driver had applied the brakes. It is correct to say that M-80 gave the dash to the truck from backside, I can not say whether there was no fault of the truck driver." 10. Perusal of the deposition of the said witness shows that all the material particulars regarding accident have been brought on record during the course of cross-examination of the said witness made by the Advocate for the 2nd respondent. In the cross-examination, the witness stated that the truck was ahead of the moped and both the vehicles were proceeding in the same direction. The witness further stated that there was a speed breaker on the way ahead : 7 : where this accident took place. He stated that the truck slowed down there and the truck driver had applied brakes. Thus what has been brought on record by his evidence is that when the truck approached the speed braker, the truck driver applied brakes and thereafter the moped gave a dash to the truck. The learned Advocate for the appellants has placed reliance on the police papers. Reliance was placed on certified copy of the F.I.R. The said document by no stretch of imagination will be relevant for conclusively deciding the issue of negligence. Reliance is placed on the panchanama of the spot of offence. The said certified copy of the panchanama has been marked as Exhibit-38 in the deposition of the 1st appellant without any objection from any of the respondents. 11. It will be necessary to refer to the decision of the learned Single Judge of this Court in the case of Smt.Ushakiran Shridhar & Ors. (supra). This was a case wherein a Claim Petition filed under Section 166 of the said Act of 1988. The insurer of the vehicle was relying upon panchanama. In paragraph No.13 of the said decision, the learned Single Judge held thus:- : 8 : "13. Merely proving panchnama in evidence is not a substitute for proving the contents of panchnama and therefore if at all the insurance company wants to rely upon the panchnama, it was obligatory upon the insurance company to get the contents proved through the witness who was examined to prove the panchnama. What has been done by the said witness Dinkar Mahadu Nankar is that the panchnama was merely shown to him and he admitted the same to be the same panchnama. This is no proof as required by law. Panchnama cannot be looked into even though it is a document exhibited on record unless its contents are proved." . Thus this was not a case where the panchanama was exhibited in evidence without there being any objection by any of the parties. In the said case before the learned Single Judge a witness was examined who was shown the panchanama. However witness did not depose regarding the contents of the panchanama. On plain reading of the Judgment of the learned Single Judge it appears that it was not a case where the panchanama was admitted in evidence without objection from the contesting parties. In the factual situation before the learned Single Judge, it is held that unless the contents of the panchanama are proved, it cannot be read in evidence. In the present case, as stated above, in the examination-in-chief of the 1st appellant the certified copy of the panchanama was marked as exhibit. In the deposition, the learned : 9 : Judge has not noted any objection raised by any of the respondents for exhibiting the panchanama. In the cross-examination there is no challenge to the said document. Thus neither the 2nd respondent nor the 3rd respondent who were contesting the claim petition raised any objection for admitting the certified copy of panchanama in the evidence. If they were really interested in objecting to admitting the panchanama in evidence, they would have raised a specific objection so that appellants could have examined the concerned witnesses for proving the contents of the panchanama. The panchanama has gone in evidence as an exhibit without any objection from any of the respondents and now in Appeal for the first time a grievance cannot be made by the 3rd respondent that the contents of the panchanama cannot be read in evidence. We are dealing with the Judgment of the Tribunal which is not bound by the strict rules of evidence. Even otherwise, when a document is marked as exhibit without any objection from the contesting respondents before the Tribunal, now it cannot be argued in Appeal that the document was not admissible in evidence apart from the fact that it was a certified copy of the panchanama. Therefore, the decision of the learned Single Judge of this Court will not help the 3rd respondent. : 10 : 12. It must be noted that the 2nd witness examined by the appellants stated that there was a speed breaker ahead of the truck and when the truck approached the speed breaker, the driver applied the brakes. Therefore the fact that there was a speed breaker ahead of the truck and brakes were applied by the driver is duly proved. The panchamama records the fact that there was a speed breaker. Therefore, even if panchanama is ignored from consideration, the evidence of the 2nd witness examined by the appellants proves that while approaching the speed breaker, the driver of the truck applied brakes and thereafter a dash was given by the moped to the truck. As pointed out earlier, all these facts have come on record in the cross-examination of the said witness made by the Advocate for the 2nd respondent. Surprisingly there is no cross-examination made by the Advocate for the 3rd respondent. 13. Here one crucial aspect has to be noted. This is a case where a leave was not granted in favour of the 3rd respondent under section 170 of the Motor Vehicles Act, 1988. In any case this was a case where the insured defended the claim by filing a written statement and by cross-examining the witnesses examined by the appellants. Therefore there is a : 11 : serious doubt whether such contentions on merits on the issue of negligence could have been raised by the 3rd respondent-insurer. Nevertheless, I have considered the said submissions as the 2nd respondent-owner has not appeared notwithstanding the service of notice. 14. Surprisingly no attempt has been made to examine the driver of the truck. If the case made out by the 2nd and 3rd respondents that the driver had to apply brakes as there was a speed breaker ahead of him, it was necessary to lead evidence to show that the driver of the truck gave a signal before suddenly applying brakes when he noticed the speed breaker. Before negligence is attributed to the deceased, it was necessary for the 2nd and 3rd respondents to prove that the driver of the truck acted as any other prudent driver ought to have acted in the situation by giving a signal before applying the brakes or atleast at the time of applying the brakes. That evidence is completely lacking. Only the driver of the truck could have explained whether he gradually slowed down the truck or he suddenly applied brakes after noticing the speed breaker. The Tribunal has come to the conclusion that the accident took place only due to rash and negligent driving of the deceased himself. : 12 : The said conclusion has been drawn without there being any evidence in that behalf. Therefore, the scenario which emerges from the perusal of the evidence is that when the driver of the truck saw the speed breaker, he applied brakes. As a result, the deceased who was plying the moped behind the truck gave a dash to the truck. If there was evidence on record to show that the driver of the truck took all precautions before or while applying the brakes and that he gradually slowed down his vehicle after noticing the speed breaker, the entire blame could have been shifted on the deceased. Surprisingly, in the cross-examination of the 2nd witness examined by the claimants, it is not even suggested that the speed breaker was visible to the deceased who was plying moped just behind the truck. Therefore, it is impossible to say that the accident occurred only due to the negligence on the part of the deceased who was driving the moped. However, there is no evidence on record to show that the deceased made any attempt to avoid the accident by applying brakes. Considering all these aspects, this was the case where the Tribunal ought to have recorded a finding that there was negligence on the part of both the driver of the truck as well as the deceased. There was no option but to record such a finding as the driver of the truck was not examined. Therefore, this was a : 13 : case where the contribution of both the drivers was to the extent of 50% each. 15. That takes me to the determination of the quantum of compensation. In the claim petition appellants have come out with the case that the age of the deceased was 47 years and he was employed with a company by the name Crompton Greaves. The case made out in the claim petition is that he was drawing salary of Rs.9,000/- to Rs.10,000/- per month. Later on he gave up the job. It is stated that as during the course of his employment he had some experience of the construction work, he was undertaking small jobs of construction. It is alleged that he was working with M/s. Ravi Construction as a Supervisor on part time basis. It is stated in the claim petition that he was drawing salary of Rs.4,000/- from M/s. Ravi Construction and he was earning Rs.6,000/- to Rs.7,000/- per month by executing small contracts of construction work. In her deposition the 1st appellant has stated in paragraph No.1 thus:- "1. My husband was 47 years when died. My husband was serving in Crompton Grieves Co. He left that job. He was working with Ravi Construction and was also taking small contracts. My husband was getting Rs.9,000/- to Rs.10,000/- per month." : 14 : 16. Admittedly no document has been produced on record to show the salary which was earlier drawn by the deceased from Cromption Greaves company. In any case the 1st appellant came out with the case in her deposition that the deceased had left the said job and was working with M/s.Ravi Construction on part-time basis and was also taking small contracts. Even as regards his alleged employment with M/s.Ravi Construction, there is no documentary evidence produced on record. As pointed out earlier in paragraph No.1 of her deposition, the 1st appellant has stated that the deceased was taking small contracts of construction work. Perusal of the cross-examination made by the 3rd respondent shows that the challenge in the cross-examination is confined to employment of the deceased with the Crompton Greaves Company and with M/s.Ravi Construction. Not even a suggestion is given in the cross-examiantion as regards the statement made by the 1st appellant that the deceased was taking small contracts. Therefore though it may not be possible to accept the case made out by the appellants that the deceased was drawing income of Rs.9,000/- to Rs.10,000/- per month, a reasonable amount will have to be taken as the income of the deceased. As far as : 15 : age of the deceased is concerned, the 1st appellant deposed that his age was 47 years and there is no challenge in the cross-examination to the said aspect. In my view the income of the deceased will have to be taken as Rs.4,000/- per month. Thus his yearly income will come to Rs.48,000/- per month. Deduction of 1/3rd will have to be made on account of personal expenditure. After making the all deduction, multiplicand will be Rs.32,000/-. As the age of the deceased was 47 years, multiplier of 9 will have to be applied. By applying multiplier of 9, the total compensation payable comes to Rs.2,88,000/-. To that usual amount of Rs.25,000/- will have to be added on account of loss of consortium, funeral expenses etc. Thus the total amount payable will be Rs.3,13,000/-. In view of the finding recorded on the issue of negligence, the liability of the respondents to pay compensation will be only to the extent of 50%. Thus dividing the said amount by two, the compensation payable will be Rs.1,56,500/-. 17. Considering the fact that the accident is of the year 2003, the rate of interest will be of 7.5% p.a. from the date of filing of the claim petition till the payment of the amount. : 16 : 18. Hence the Appeal must succeed in part and I pass following order :- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Award dated 25th January, 2007 is set aside and Motor Accident Claim Petition No.144 of 2004 is hereby partly allowed. (b). The 2nd and 3rd respondents are jointly and severally ordered to pay a sum of Rs.1,56,500/- to the appellants together with interest thereon at the rate of 7.5% p.a. from the date of filing of the claim petition till realisation of the amount. (c). The appellants will be entitled to proportionate costs of the claim petition as well as proportionate costs of the First Appeal. (d). Time of four months is granted to the concerned respondents to comply with this Order. : 17 : (e). After the amount is deposited, the learned Member of the Tribunal will pass appropriate order of disbursement / withdrawal of the said amount by the claimants after hearing the claimants. (f). The Appeal is partly allowed in above terms. (g). Writ of this order to be sent down early. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]