:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.814 OF 1996 Hemant Krishnanath Wadke R/o 276, Guruchhaya building, Parvatigaon, Pune-411 009. ....Appellant V/s. 1. M/s.Patheja Forging & Auto Parts Manufacturing Co.Pvt.Ltd. 39, A.V.P. Road, Opp.Congress House Bombay, and E20, MIDC Estate, Bhosari, Pune-411 026. 2. Niyamtuall Gani Kazi, R/o Pankar Chawl, Kasarwadi Pune and C/o Respondent No.1. 3. New India Assurance Co.Ltd., Nehru Memorial Hall, 3rd Floor, Ambedkar Road, Pune-411 001. ....Respondents Mr.G.S. Hegde for the Appellant. Mr.M.G. Barve for Respondent No.3. CORAM : S. RADHAKRISHNAN & S.J. VAZIFDAR, JJ. DATED : 16TH SEPTEMBER, 2004. ORAL JUDGMENT (PER S.J. VAZIFDAR, J.) : 1. This is an Appeal against the judgment of the Additional Member, Motor Accident Claims Tribunal :2: ordering the Respondents to pay only a part of the amount claimed by the Appellant in his Claim Application No.125 of 1984, filed under the Motor Vehicles Act. 2. Niyamatuall Gani Kazi - Respondent No.2 was the driver of the vehicle owned by Respondent No.1. Respondent No.3 is the New India Assurance Co.Ltd. with whom the said vehicle was insured. 3. The Appellant claimed various amounts from the Respondents on account of the injuries sustained by him as a result of rash and negligent driving by Respondent No.2. Mr.Hegde has restricted his submissions to only three major claims. . The learned Judge came to the conclusion that Respondent No.2 was guilty of rash and negligent driving. The learned Judge, however, did not award the entire amount claimed on various grounds which we shall deal with in the judgment. In respect of the claim for loss of income and for loss of future earnings, the learned Judge allowed only fifty percent of the claim on the ground that the Appellant was guilty of contributory negligence. :3: 4. It would therefore be convenient to deal with the Appeal under the following heads :- I). The accident. II). Whether the Appellant was guilty of contributory negligence. III). Injuries sustained by the Appellant and the medical treatment for the same. IV). Claims. . The Respondents have neither filed an Appeal nor cross objections against the impugned judgment. RE. : THE ACCIDENT 5. We will first set out the Appellant’s case. The Appellant’s case is that he was twenty six years old when the accident occurred. He is married and has a son, who at the time of the accident, was only a year old. On 7th September, 1983, the Appellant was proceeding on his scooter bearing registration No. MXP-1904 on the Mumbai - Pune Highway. He was riding the scooter with due care and caution and by observing :4: the traffic rules and regulations. Around the site of the accident, the Appellant saw a truck proceeding from the opposite direction and took his scooter to the extreme left. However, a Fiat car bearing registration No. MRH-8593 driven by Respondent No.2 and owned by Respondent No.1 came from behind the truck at a very high speed and was driven in a rash and negligent manner. While overtaking the truck, the car was driven on the wrong side of the road and collided with the scooter. The Appellant was seriously injured and became unconscious on the spot. We shall deal with the nature and extent of the injuries suffered by the Appellant later. 6. The Appellant examined himself. In his evidence, he stated that he was driving the scooter at about 20 to 25 k.m.p.h. He further stated that the car came from behind the truck and when it had almost overtaken the truck it collided with him. The handle of the scooter was broken. The Appellant was tossed up and fell on the bonnet of the car. He thereafter fell down and was dragged for a distance of about 30 to 40 ft. The Appellant estimated the speed of the car at about 70 to 80 k.m.p.h. The Appellant further stated that he was on the correct side of the road at the time of the accident. :5: 7. The cross-examination of the Appellant did not shake his testimony at all. There was a mere suggestion that the Appellant was driving fast, as he was in a hurry to reach his workshop, as he was late. There is nothing to suggest that the Appellant was late. Nor is there anything to suggest that he was in a hurry to get to his workshop. Much less is there anything to suggest that the Appellant was driving fast. . It is important to note at this stage that a specific case was put to the Appellant that he dashed against the truck. As we shall demonstrate shortly this case was false and contrary to the Respondents’ case in the pleadings. . It was further put to the Appellant that he was driving in the middle of the road. He denied the same. 8. Apart from the above, the cross-examiner has merely put the case to the Appellant that he falsely stated that the car was driven at a speed of about 70 to 80 k.m.p.h. and that in fact the car was being driven only at about 30 to 40 k.m.p.h. :6: 9. The panch witness, who was examined by the Appellant, deposed that the car was on the wrong side of the road - a fact which is firmly established. He further deposed that the road was 40 ft. wide and that at the spot of the accident there was about 8 to 9 ft. of tar road and 5 to 6 ft. of "kaccha" road to the left of the Appellant. He further stated that to the left of the accident spot was a workshop. The scooter was at a distance of about 150 ft. from the spot of the accident in the direction opposite to the one in which the Appellant was travelling. There were blood stains and two pieces of the Appellant’s bones at the accident spot. The car itself was at a distance of about 30 to 40 ft. from the spot of the accident in the same direction in which it was proceeding. There were brake marks of the car for about 30 to 40 feet. The cross-examination of this witness brought nothing in favour of the Respondents. On the other hand, it supports the Appellant’s case. It establishes the fault of Respondent No.2 to the hilt. 10. The effect of the above evidence is that admittedly the car was being driven by Respondent No.2 on the wrong side of the road and that when the accident occurred, the car was on the wrong side of the road and the Appellant was on the correct side of the :7: road. Even before us, this fact was not seriously sought to be controverted. 11. To reiterate, the evidence does not destroy the Appellant’s case at all. We are entirely in agreement with the learned Judge in so far as he has held that there was negligence on the part of Respondent No.2 and that Respondent No.2 drove the car rashly and negligently, as a result whereof the accident occurred. 12. The learned Judge however came to the conclusion that the appellant was guilty of contributory negligence. The learned Judge further held that though Respondent No.2 had not entered the witness box, there was clear evidence which showed the manner in which the accident occurred. He therefore held that there was no question of drawing any adverse inference against the Respondents. We are, with respect, unable to agree with the entire reasoning of the learned Judge on this aspect. 13. The learned Judge held that the statement in the examination-in-chief that the Appellant was thrown on the bonnet of the car and was dragged upto the distance of about 30 to 40 ft. was an after-thought, because the same was not stated in the application. :8: 14. Firstly, we do not see why merely because this fact was not stated in the Application it is an after-thought and cannot be believed. It must be remembered that the Application was filed while the Appellant was still in hospital. Secondly, we do not see how in the facts and circumstances of the case, it would make any difference to the claim by the Appellant stating this fact. Nothing has been suggested either before the learned Judge or in the cross-examination which would justify the conclusion that the statement was an after-thought. 15. The learned Judge also held that this statement is falsified by the evidence of the panch witness. The evidence of the panch witness does not falsify the same in any manner. We have been through the entire evidence of the panch witness’. The learned Judge does not state which part of his panch witness’ evidence falsifies this case. Mr.Barve, the learned counsel appearing on behalf of Respondent No.3, did not indicate anything in the evidence of the panch witness which falsifies the case. We have been unable to find anything to this effect either. In the cross-examination, no reasons have been attributed or suggested for the same. The learned Judge, relying :9: upon the panch witness’ evidence, has held that it is obviously improbable that blood and pieces of bone would happen to lie at the place of the accident, if in fact the Appellant was thrown on the bonnet of the car and dragged to the distance of about 30 to 40 ft. He therefore held that the Appellant exaggerated the facts. 16. With great respect to the learned Judge, we are unable to agree with the entire line of reasoning. We do not see why it logically follows that blood cannot be found splattered at the accident spot merely because the victim, after being hit by the speeding car, fell on the bonnet and was dragged. There is every possibility that on impact blood could have splattered immediately and thereafter the body dragged on the road. There is absolutely no evidence which justified such a conclusion. 17. As we have observed earlier the Respondents led no evidence whatsoever. They neither examined themselves nor any other witness. In the facts of this case, we see no reason to disbelieve the Appellant’s case. We are reinforced in this view after examining the Respondent’s case. The learned Judge has categorically held that the car while overtaking the :10: truck had gone on the wrong side of the road and accordingly held that Respondent No.2 was guilty of rash and negligent driving. We are entirely in agreement with this finding of the learned Judge. . RE. : CONTRIBUTORY NEGLIGENCE 18. This brings us to the question of whether the Appellant was guilty of contributory negligence. We have observed earlier that the learned Judge has held that Respondent no.2 was guilty of rash and negligent driving, and that when he overtook the truck and caused the accident the car was on the wrong side of the road and the Appellant was on the correct side of the road. Despite this, the learned Judge held the Appellant guilty of contributory negligence. 19. It would be convenient at this stage to refer to the relevant provisions of the Motor Vehicles Act, 1939. The accident occurred in 1982. The application in which the impugned judgment was passed was filed under section 110-A of the 1939 Act. 20. Section 78(1) of the Motor Vehicles Act, 1939 reads as under :- :11: "78 (1) Every driver of a motor vehicle shall drive the vehicle in conformity with any indication given by (a mandatory traffic sign) and in conformity with the driving regulations set forth in the Tenth Schedule, and shall comply with all directions given him by any police officer for the time being engaged in the regulation of traffic in any public place. (emphasis supplied) Regulations 1, 2, and 4 of The Tenth Schedule read as under :- "1. The driver of a motor vehicle shall drive the vehicle as close to the left hand side of the road as may be expedient, and shall allow the traffic which is proceeding in the opposite direction to pass him on his right hand side. 2. Except as provided in regulation 3, the driver of a motor vehicle shall pass to the right of all traffic proceeding in the same direction as himself. .................................... 4. The driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself - (a) if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction, or (b) where a point or corner or a hill or an obstruction of any kind renders the road ahead not clearly visible." :12: 21. Section 217 (1) (a) of the 1988 Act saves the regulations made under the 1939 Act. Sections 217 (1) and (2) (a) read as under :- "217. Repeal and saving : "217. Repeal and saving : "217. Repeal and saving : (1) The Motor Vehicles Act, 1939 (4 of 1939) and any law corresponding to that Act in force in any State immediately before the commencement of this Act in that State (hereafter in this section referred to as the repealed enactments) are hereby repealed. (2) Notwithstanding the repeal by sub-section (1) of the repealed enactments, - (a) any notification, rule, regulation, order or notice issued,or any appointment or declaration made or exemption granted,or any confiscation made, or any penalty or fine imposed, any forfeiture, cancellation or any other thing done, or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made; granted, done or taken under the corresponding provision of this Act; (emphasis supplied) 22. The learned Judge however disallowed a part of the claim inter-alia on the ground that the Appellant was guilty of contributory negligence. Negligence on the part of the Respondents has been :13: proved and if we may add, beyond doubt. We are not at all sure whether the principle of contributory negligence applies in a case such as this where the Respondent is on the wrong side of the road driving rashly and negligently and the Claimant is on the correct side of the road, to wit, where the Respondent is in breach of the law and the Claimant is not. As in the facts of this case it is not necessary to decide this point, we refrain from doing so. We shall proceed on the basis that the principle is applicable. 23. However, even assuming that the principle of contributory negligence applies to a case, such as this, the onus of proving contributory negligence is on the party alleging the same - in this case, the Respondents. To hold otherwise would not only be contrary to the principles of onus of proof but would put a premium on rash and negligent drivers and drivers who flout the rules and regulations under the Motor Vehicles Act. 24. We are unable to appreciate the basis on which the Appellant has been held guilty of contributory negligence. According to us, the Respondents have failed miserably to prove any contributory negligence on the part of the Appellant. :14: The Respondents have led no evidence to show how according to them the accident occurred. It was for the Respondents to prove that the Appellant could have avoided the accident. Before considering what the Respondents failed to prove and the impugned judgment on this aspect, it is important to consider the Respondent’s case in pleading and in the cross-examination of the Appellant on behalf of the Respondents. As we shall demonstrate, the Respondents have pleaded not merely contradictory, but three patently false cases with a view to depriving the Appellant of compensation. 25. The first case of the Respondents is to be found in the written statement filed on behalf of Respondent No.1 (and adopted by Respondent No.2 i.e. the driver of the vehicle) it is alleged that the accident was caused wholly because of the negligence of the Appellant, who was not going on the correct side of the road. This case is ex-facie false. The Appellant was on the correct side of the road and Respondent No.2 was on the wrong side of the road. The basis of this defence is therefore false. The falsity of this case is exposed by the averment in the earlier paragraph where Respondent No.1 stated that the Appellant "was not keeping to his correct extreme :15: left side of the road, but was proceeding almost near to the centre of the road". It is not their case here that the Appellant was on the wrong side of the road. . Further, Respondent No.1 alleged that the Appellant thus could not control his scooter and collided with the car. No evidence to this effect has been produced. . The statement in the written statement that the Appellant "came rashly from the opposite direction" while Respondent No.2 was overtaking the truck has also not been proved. No evidence to this effect has been produced. 26 (a). The second case of the Respondents appears in the written statement of Respondent No.3. Mr.Barve, the learned counsel appearing on behalf of Respondent No.3 i.e. New India Assurance Co. Ltd stated that the written statement of Respondent No.3 was prepared on the basis of the instructions received from Respondent Nos.1 and 2. It is important to note here that Respondent Nos.1 and 2 deliberately gave false instructions and information to Respondent No.3. Respondent No.3 in its written statement has come out with a totally contradictory and false case which is :16: best exposed by extracting paragraph 2 of the written statement which reads as under :- "2. That this Opponent denies the occurrence of the alleged accident as narrated by the Applicant in para-22 of the claim application and also the negligence on the part of Opponent No.2. The Applicant is called upon to prove his contentions strictly. According to the information this Opponent, on the material date i.e. on 7.9.1983, Opponent No.2 was cautiously proceeding on Bombay Poona Road in the SAME direction as that of the Applicant. The Applicant who was driving his scooter in the excessive speed overtook the car driven by the Opponent No.2 and after going some distance stopped his Scooter suddenly. On seeing the Scooter stop suddenly ahead of him Opponent No.2 in order to avoid any impact swerved his car to his right, while he was so doing, he noticed one loaded truck coming in speed from the opposite direction. In order to avoid collision with the on - coming truck, the Opponent No.2 had to take his car back to its original position. In doing so the car hit the scooterist who had negligently stopped his scooter without proper signal and suddenly without taking into consideration the traffic then plying on the road. . From the facts stated above it will be crystal clear that the accident was caused by the applicant. Further, the applicant in order to brand the Opponent No.2 as negligent has concealed the fact of his having earlier overtaken the car." (emphasis supplied) :17: (b). The following contradictory and false statements appear above - - that Respondent No.2 and the Appellant were proceeding in the "SAME" direction, - that the Appellant overtook the said car, - that the Appellant after going some distance stopped his scooter suddenly, - that Respondent No.2 in order to avoid any impact swerved his car to the right and while doing so, noticed the said truck, - that the truck was coming from the opposite direction and - that in order to avoid collision with the on coming truck, Respondent No.2 had to take his car back to its original position. 27. The Respondents came up with a third contrary and patently false case during the evidence. In cross-examination, the case put to the Appellant by the Respondents was that the Appellant dashed against :18: the truck. 28. Mr.Barve did not even attempt to establish these contradictory cases. He could not. Nor did he contend that the cases are contradictory and mutually destructive of each other. They quite clearly are. 29. We are constrained to state that the Respondents have pleaded false cases and have committed perjury. They appear to have little regard for the truth, much less concern for the harm and injury caused to the Appellant and his family. As a result thereof, the Appellant has been made to suffer this long and needless litigation for 22 years now. Respondent No.3 filed its written statement on 31st October, 1984. Respondent No.1 filed its written statement on 10th December, 1984. This written statement was adopted by Respondent No.2. Either Respondent No.3 on its own filed a patently dishonest written statement or it did so, as stated by Mr.Barve, on the instructions of Respondent Nos.1 and 2. That the written statement filed by Respondent Nos.3 is deliberately false and constitutes perjury is clear. The only question is whether Respondent No.3 did so on its own or whether it was pursuant to such instructions from Respondent Nos.1 and 2. Either way :19: this certainly has contributed to a large extent to the failure on the part of the Appellant in recovering a substantial part of the compensation and in having his already pitiable condition aggravated for twenty two years during the pendency of this litigation. 30. This conduct of the Respondents makes it difficult to accept their case on facts. 31. The learned Judge held the Appellant guilty of contributory negligence on the basis that there was allegedly 8 to 9 ft. of tar road and 5 to 6 ft. "kaccha" road on the left of the Appellant which would have enabled him to avoid the accident by moving to the left. The learned Judge has held that it was not the case that the car had suddenly come on the wrong side of the road to overtake the truck when the accident occurred. 32. We are unable to understand how the learned Judge could have proceeded on this basis when there was no evidence to substantiate the same. The onus being clearly on the Respondents to prove contributory negligence it was incumbent on them to prove at the least that the Appellant had time to react and move to his left and that there was no obstruction to the :20: left. These facts were not even pleaded, far less proved. The evidence in fact establishes that to the left there was also a shop. Had a case of contributory negligence been pleaded and sought to be proved the Appellant would have had an opportunity of dealing with the same. There is no evidence that at the time of the accident the road to the left was clear of obstruction and traffic. There is no evidence that the Appellant had enough time to react. It is not the Respondents’ case that the Appellant was, when Respondent No.2 started overtaking, on the left and that he thereafter moved to the right. Nor do the Respondents say that Respondent No.2 was taken by surprise when he saw the Appellant. This is important for it establishes that what the Respondents in effect say is this : ‘Yes, Respondent No.2 was on the wrong side of the road when overtaking. Yes the Appellant was on the correct side of the road at that time. Nevertheless the Appellant was bound to permit Respondent No.2 to illegally overtake the truck.’ Even if we were to accept this rather unpalatable attitude to constitute in law a defence of contributory negligence, we find there is no evidence to support the same on facts. 33. It is further important to note that the :21: learned Judge has completely failed to consider the fact that the Respondents have pleaded not only contradictory cases but completely false cases and are in fact guilty of perjury. 34. In the circumstances, we overrule the judgment in so far