-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.172 OF 1994 APPEAL NO.172 OF 1994 APPEAL NO.172 OF 1994 Ramchandra Bhagwan Pawar ...Appellant vs. 1.Vishwas Vasant Kawale 2.Mehboob Imamuddin Shaikh 3.The Oriental Insurance Company Ltd. Asstt.Branch Manager,Sawantwadi, Dist.Sindhudurg ...Respondents Mr.S.S.Shah for the Appellant Mr.J.S.Chandnanai for Respondent No.3 Mr.A.B.Vagyani for Respondent No.1 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 4, 2008 : FEBRUARY 4, 2008 : FEBRUARY 4, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard Advocates for the parties. The Appeal is by the original claimant in a claim petition filed under section 166 of the Motor Vehicles Act,1966. The challenge is to the impugned Judgment and Award dated 22nd June 1993 passed by the learned Joint District Judge and Ex-Officio Member of the Motor Accident Claims Tribunal, Ratnagiri. According to the case of the Appellant, he was running a grocery shop and he had taken over one industrial unit in November 1990 for manufacturing stainless steel utensils. He had purchased a motor cycle. On 26th January 1991 at about 7.30 p.m. he left his industrial unit at Kasarde, Taluka Kankavli and was proceeding towards his village Ramgad along with Bombay Goa highway. According to his case, he reached near Brahmandevwadi, he saw one Maruti Van and one Maruti car coming from the opposite direction and they were indulging in -2- racing and trying to overtake each other. According to the Appellant, the Maruti van gave a dash to him. The first Respondent is the owner of the Maruti van and the second Respondent was driving the same at the relevant time. The third Respondent is the insurer of the said vehicle. According to the case of the Appellant, he suffered several injuries in the accident. He suffered 25% permanent partial disability. He also lost earnings as he remained confined to bed. The claim of Rs.3,00,000/- was made by the Appellant towards compensation. 2. The first Respondent opposed the claim petition by pointing out that the Appellant himself was driving his motor cycle in a rash and negligent manner. The second Respondent also filed a written statement raising the same contention. 3. The learned Member of the Tribunal held that the Appellant himself has contributed to the accident by his own negligence. The contribution of the Appellant was to the extent of 75% and the contribution of the second Respondent was to the extent of 25%. He awarded compensation of Rs.50,000/- with interest at the rate of 9%. 4. The submission of the Advocate for the Appellant is that the learned Member of the Tribunal ought not to have relied upon the certified copy of the panchnama produced on record as the same was not proved by examining a panch witness. He -3- submitted that the panchnama was produced only to prove the factum of the accident. He submitted that as per rule 254 of Maharashtra Motor Vehicles Rules, 1989 the Appellant was required to produce a certified copy of the panchnama along with the claim petition. He submitted that there was no evidence adduced on behalf of the Respondent to show as to how the accident occurred. He submitted that the finding of contributory negligence has been erroneously recorded by the tribunal. He submitted that in absence of any evidence adduced by the Respondents, the case made out by the Appellant ought to have been accepted. He submitted that he has suffered permanent partial disability to the extent of 25% and there was disfigurement of his face as established by his own evidence. He submitted that the loss of income and compensation on account of pain and suffering is not at all considered by the learned Member of the tribunal and only a lumpsum compensation of Rs.50,000/- has been fixed. He submitted that the compensation awarded under all the heads is on the lower side. The learned Advocate for the third Respondent supported the impugned Judgment and Award. 5. I have given careful consideration to the submissions. I have perused evidence on record and findings recorded by the learned Member of the tribunal. The Appellant in his evidence described as to how the accident occurred. In the examination-in-chief the Appellant has stated thus : . ...The accident took place on Bombay-Goa highway near -4- Brahanwadi, Kasarde. I was proceeding by the left side of the road. From the front side one Maruti van and one Maruti car were coming over taking each other. In the race, Maruti van dashed against me, bearing No.MZN 3040. The said Maruti van was belonging to one Kavale the opponent No.1 and it was being driven by the Opponent No.2..." 6. It must be stated here that in the examination in chief the Appellant has not at all stated that the offending Maruti van came on its wrong side. He has only stated that he was proceeding by the left side of the road. He has also not stated that he was driving the motor cycle in a moderate speed. All that he has stated is that Maruti van and maruti car coming from the opposite side were indulging in racing and while doing so, the maruti van of the first Respondent gave a dash to him. In the cross examination he denied the correctness of the suggestion that as he could not control his motor-cycle, it went on the wrong side and dashed against the Maruti van. 7. The certified copy of the panchnama was produced by the Appellant along with the list at Exh-5. On the said list, the Advocate for the contesting respondents recorded no objection for exhibiting the said panchnama. The said panchnama was exhibited by the tribunal not at the time of filing the claim petition or at the stage of application under section 140 of -5- the said Act of 1988 but at the stage of final hearing on 13th April 1992. The panchnama was exhibited as Exh.16 along with several other documents filed by the Appellant on 13th April 1992. Assuming that the Appellant filed a certified copy of the panchnama as it was the requirement of the rules, the Appellant could have always pointed out to the tribunal not to exhibit the panchnama as he was not relying upon the said panchnama. The Appellant allowed the panchnama produced by him to be exhibited without raising any objection and that is how the panchnama was exhibited and was rightly read in evidence by the learned Judge. The tribunal has observed thus: "13. ....Now the accident appears to have taken place at a distance of 5’ 5’’ from western side. It means the Petitioner came to his wrong side crossing at a distance of about 18’ tar road which s left in the eastern side. From the record it appears that to the eastern side of the road there were heaps of metal and also the metal was spread on the tar road, but it was to the extent of 9’. thus 8’ to 8 1/2’ tar road is left open to the right side of the Maruti van for the use of the Petitioner. But it appears that the Petitioner had gone in wrong side and it dashed against the motor van at a distance of 5’ 5" from the west edge of the tar road. It mans the accident took place at a distance of 17’ 7" from the eastern border of the tar road..." -6- In paragraph 15, the learned Member of the tribunal has observed thus : "15. Had the Petitioner was any control over his motor cycle he would have definitely stopped his vehicle as soon as he experienced that his motor cycle was brushing against the Maruti Van. He could not control the motor cycle immediately but it went behind the car to the extent of 22’ where it fell down and thus it stopped. This further indicates that his motor cycle was also in high speed. Thus, both the vehicles were in high speed but the motor cycle rider i.e. Petitioner was also in wrong side at the time of accident." Thus, on the basis of the panchnama, the learned Member of the tribunal held that at the time of the accident, the motor cycle of the Appellant was on its wrong side. Even after considering all the aforesaid aspects, the learned member of the tribunal has not stated that the entire negligence was that of the Appellant, but he has recorded a finding that the second Respondent has made a contribution to the accident to the extent of 25%. It is difficult to find fault with the finding recorded by the learned Member of the tribunal. The said finding will have to be confirmed. 18. The appellant has produced various documents on record for showing the expenses incurred on the medical treatment. -7- At exh.45, he has produced about 78 bills. At Exh.46, he has also produced a large number of bills. Even at Exh.33 certain bills have been produced by him. All these documents have been marked as exhibits by the consent of the parties. The total amount of the said bills comes to Rs.97,795/-. Therefore, the said figure can be taken at Rs.1,00,000/-. Injury certificate at Exh.52 shows that the Appellant has restricted movements of Right Elbow and joints and permanent disability in that behalf is estimated at 25%. 19. Both the medical certificates do not refer to any injury on the face. Therefore, a sum of Rs.40,000/- can be awarded on account of mental pain and suffering and the disability suffered by the Appellant. 20. According to the case of the Appellant, his age at the time of accident was 43 years. As there is no actual evidence of income of the Appellant, even if the notional income is taken and appropriate multiplier is applied, the amount will not exceed the sum of Rs.40,000/- or 50,000/-. After taking the entitlement of the Appellant to the compensation of Rs.2,00,000/-, considering the 75% contribution of the Appellant, the compensation awarded of Rs.50,000/- appears to be reasonable. Interest at the rate of 12% has been granted by the Tribunal. 21. Hence, there is no merit in the Appeal and the same is -8- accordingly dismissed with no order as to costs. JUDGE JUDGE JUDGE