ash 1 fa-815to818 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.815 OF 1996 FIRST APPEAL NO.816 OF 1996 FIRST APPEAL NO.817 OF 1996 FIRST APPEAL NO.818 OF 1996 FA NO.815 OF1996 Shri Mukund Kamalakar Shetye. .. Appellant Vs Mr. A.S.G. Castelino & Another. .. Respondents -- FA NO.816 OF 1996 Kumar Amit Chandrakant Bobhate, Through his father Shri Chandrakant Laxman Bobhate. .. Appellant. Vs Mr. A.S.G. Castelino & Another. .. Respondents -- FA NO. 817 OF 1996 Mrs. Mansi Mukund Shetye. .. Appellant Vs Mr. A.S.G. Castelino & Another. .. Respondents -- FA NO.818 OF 1996 Shri Mukund Kamalakar Shetye. .. Appellant Vs Mr. A.S.G. Castelino & Another. .. Respondents -- Shri G.S. Hegde along with Shri C.M. Lokesh for the Appellant. ash 2 fa-815to818 CORAM : A.S. OKA, J DATED : 14TH JULY, 2011 ORAL JUDGMENT : . Submissions of the learned counsel appearing for the Appellants were heard yesterday. These four Appeals can be disposed of by a common judgment as the same arise out of a common judgment and award passed by the learned Member of the Motor Accident Claims Tribunal. These four claim petitions were decided by a common judgment arising out of the same accident. 2. On 28th October, 1990, one Mukund Kamalakar Shetye, the Appellant in First Appeal No.815 of 1996 and First Appeal No.818 of 1996, along with his wife Manasi who is the Appellant in First Appeal No.817 of 1996 and Amit Chandrakant Bobhate who is the Appellant in First Appeal No.816 of 1996 were proceeding by a motor-cycle of the said Mukund towards Lonavala for picnic. The said Amit is nephew of the said Mukund. The age of the said Amit was 10 at the time of accident. According to the case of the Claimants, in the morning between 8.00 to 8.15 a.m., when Mukund was driving his motor-cycle on his proper side on Bombay Pune National Highway, a luxury bus owned by the 1st Respondent and insured with the 2nd Respondent came from opposite direction. It was overtaking a truck. The said Mukund ash 3 fa-815to818 was driving his motor cycle by the extreme left side of the road. The bus gave a dash to the motor cycle of Mukund. It is alleged that the accident occurred due to rash and negligent driving of the driver of the bus. The said Mukund suffered head injuries in the said accident. Moreover, the said Amit also sustained injuries. The said Manasi also sustained injuries. Therefore, there were three claim petitions filed claiming compensation on account of personal injuries and the fourth claim petition was filed by the said Mukund claiming compensation on account of damage to his motor cycle. None appeared for the Respondents 3. The Tribunal held that the said Mukund was entitled for compensation of Rs.1,01,500/-. Mukund’s wife was granted compensation of Rs.9,000/-. The said Amit was granted compensation of Rs.2,27,000/- and as far as damage to the motor cycle is concerned, the compensation of Rs.7,000/- was granted. However, the Tribunal held that the contribution of the said Mukund was to the extent of 40% and hence only 60% of the compensation was made payable to the claimants. 4. Learned counsel appearing for the Appellant has taken the Court through the notes of evidence. He submitted that merely because there were three persons sitting on a motor cycle, that by itself was not a ground to hold that the said Mukund was also negligent. He stated ash 4 fa-815to818 that the dash was given when the bus came on its wrong side. He submitted that it is nobody’s case that the motor cycle plied by Mukund was on its wrong side and that he was plying the same on the correct side. He submitted that there is no question of any negligence on the part of the said Mukund. He submitted that looking to the injuries sustained, the compensation granted is on the lower side. 5. I have considered the submissions. I have perused the notes of evidence. 6. As far as Mukund is concerned, Dr. Subodh Sharad Mehta stated that one of his leg has been shortened by 1½” x 4” and it is mentioned in the certificate at Exhibit – 32 that the permanent partial disability has been assessed at 8%. As far as Mukund’s wife is concerned, considering the evidence adduced by her, the compensation of Rs.9,000/- with interest has been granted. As far as the minor Amit is concerned, the compensation of Rs.2,27,000/- has been granted. His disability was found to be 58%. As far as damages to the motor-cycle is concerned, the compensation of Rs.7,000/- has been granted. However, the Tribunal held that only 60% of the amount specified as above with interest shall be paid to the Claimants. 7. As far as the accident is concerned, the version of Mukund ash 5 fa-815to818 reads thus:- “I reached near Kalkokhe village on Bombay Pune National High way at about 8 to 8.15 p.m. I was driving my motor cycle through my proper side. I saw one bus from opposite side was trying to overtake one vehicle. I took my motor cycle to extreme left. Even though that but gave dash to my motor cycle. I was injured and became unconscious.” 8. In the cross-examination and in particular Paragraph 7, he stated thus:- “Total width of the road is 32’. It is not true to say that strip portion of the road was suitable for driving. For passing motor cycle safely way of 3 or 3-1/2’ width is sufficient. It is true to say that to the right side of overtaking bus about 7’ portion of strip and tar road was open. At that movement ahead to me at a distance of 12’ to 13’ there was two-wheeler of my brother-in-law and two heavy vehicles. Vehicle of my brother-in-law safely passed. It is not true to say that when vehicle of my brother in law passed, process of overtaking was there. It is not true to say that vehicle of my brother in law was at a distance of 5’. My brother-in-law and his wife were on that motor cycle. It is not true to say that only two were on the vehicle of my brother in law and hence he could pass safely.” 9. Now turning to the findings recored by the Tribunal, it must be stated that it is nobody’s case that Mukund was driving the motor cycle on the wrong side of the road. In Paragraph 15, of the Judgment, learned Member of the Tribunal considered the spot ash 6 fa-815to818 panchanama. He stated thus:- “15. Exh.28 is a certified copy of the panchanama. Correctness and genuineness of this document has not been challenged. It shows that at the place of the accident the width of the road was 22 feet. On both the sides of the road there were strips of 5 feet. At the place of the accident the bus MCT 2971 was found parked leaving 3/4th road portion from the northern side. The motor cycle MZG 8953 was lying near the bus. The driver’s side head lamp of the bus was found broken. Radiate was found damaged. Side glass was found damaged. From this damages, it appears that the dash was given to the driver side bumper at the place of the radiator. P.W. 1 Mukund in his cross-examination stated that it is true to the right side of overtaking bus about 7 feet portion of strip and tar road safely way of 3 or 31/3 feet width is sufficient”. 10. The learned judge has noted that the width of the bus and the width of the truck was 8½ ft. In Paragraph 15, he further observed thus:- “From the evidence on record at the relevant time it may be four vehicles one truck was ahead to the bus. One motor cycle was ahead to the motor cycle of Mukund. The width of the bus is of 8 ½ feet. Similar is the width of the truck. The width of the tar road was 22 feet. It means leaving sufficient space position of the road at the place of the accident was such it was easy to overtake for the luxury bus leaving sufficient space open to the right side.” 11. Thus, the finding itself indicates that the deceased was on the correct side of the road. Moreover, considering the width of the bus and the truck noted by the Tribunal and considering that the width of ash 7 fa-815to818 the tarred portion of road was 22 ft., it is obvious that the bus came on the wrong side. 12. It is true that the nephew of Mukund was sitting on the motor-cycle along with the wife of the Mukund. There is nothing on record to show that the fact that three persons out of which one was 10 year old boy were sitting on the motor-cycle has caused the accident. The driver of the bus did not depose to explain as to how the accident occurred. 13. In the circumstances, the finding of the Tribunal that 40% of the amount will have to be deducted on account of contributory negligence on the part of Mukund cannot be upheld. In fact, the entire negligence was of the driver of the bus and, therefore, deduction of 40% made by the Tribunal is totally incorrect and the entire compensation was payable by the Respondents. 14. Now turning to the quantum, after having perused the medical certificate, the awards which are subject matter of a common judgment will have to be confirmed as far as the compensation part is concerned. The total compensation fixed by the Tribunal appears to be reasonable and, therefore, no case is made out for enhancement. However, it will have to be held that the Claimants are entitled to the ash 8 fa-815to818 entire compensation and not only 60% of it. 15. Hence, I pass the following order;- ORDER : (a) The impugned judgments and awards are modified. (b) The compensation amount determined under the impugned judgments and awards is confirmed. (c) However, it is made clear that the Appellants in these Appeals shall be entitled to entire compensation amount without deduction of 40%. (d) Thus, while confirming compensation amount fixed, the only modification made is that the Claimants shall be entitled to the entire amount of compensation. (e) The Appeals are partly allowed with no orders as to costs. ( A.S. OKA, J )