1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEALS NOS.161 OF 2007, 163 OF 2007, 236 OF 2007 AND CROSS-OBJECTION NO.8 OF 2008 FIRST APPEAL NO.161 OF 2007 The New India Assurance Co. Ltd. Velho Building, 3rd Floor, Panaji-Goa. …. Appellant V/s 1. Smt. Kalpana @ Roshan Ramakant Naik, resident of House No.5, Shantinagar, Ponda-Goa. 2. Ms. Bhagyashree Ramakant Naik, resident of House No.5, Shantinagar, Ponda-Goa. 3. Hemaxi Ramakant Naik, resident of House No.5, Shantinagar, Ponda-Goa. 4. Mr. Ashokan Pandiyan Panikar, driver of tanker No.GA-01-V-6040, resident of House No.124, Mai De Deus Mira, Sangolda, Bardez-Goa. 5. Mr. Ratnakar Tatyarao Joshi, Owner of tanker No.GA-01-V-6040, Karaswado, Mapusa-Goa. …. Respondents Mr. E. Afonso, Advocate for the Appellant. Mr. N.K. Sawaikar, Advocate for Respondents Nos.1 to 3. WITH FIRST APPEAL NO.163 OF 2007 The New India Assurance Co. Ltd. Velho Building, 3rd Floor, 2 Panaji-Goa. …. Appellant V/s 1. Govind Tiwari, resident of Parimal Housing Society, Bungalow No.1, Dhavli, Ponda-Goa. 2. Ms. Suhasini Tiwari, resident of Parimal Housing Society, Bungalow No.1, Dhavli, Ponda-Goa. 3. Chinmay Tiwari, resident of Parimal Housing Society, Bungalow No.1, Dhavli, Ponda-Goa. 4. Mr. Ashokan Pandiyan Panikar, driver of tanker No.GA-01-V-6040, resident of House No.124, Mai De Deus Mira, Sangolda, Bardez-Goa. 5. Mr. Ratnakar Tatyarao Joshi, Owner of tanker No.GA-01-V-6040, Karaswado, Mapusa-Goa. …. Respondents Mr. E. Afonso, Advocate for the Appellant. Mr. Y.V. Nadkarni, Advocate for Respondent No.3. WITH FIRST APPEAL NO.236 OF 2007 The New India Assurance Co. Ltd. Velho Building, 3rd Floor, Panaji-Goa. …. Appellant V/s 1. Mrs. Usha J. Mayee, aged about 53 years, resident of Flat No.S II, 3 Shubham Karoti Apartment, Shantinagar, Ponda-Goa. 4. Mr. Ashokan Pandiyan Panikar, driver of tanker No.GA-01-V-6040, resident of House No.124, Mai De Deus Mira, Sangolda, Bardez-Goa. 5. Mr. Ratnakar Tatyarao Joshi, Owner of tanker No.GA-01-V-6040, Karaswado, Mapusa-Goa. …. Respondents Mr. E. Afonso, Advocate for the Appellant. Mr. Sudin M.S. Usgaonkar, Advocate for Respondent No.1. AND CROSS-OBJECTION NO.8 OF 2008 1. Mrs. Usha J. Mayee, aged about 53 years, resident of Flat No.S II, Shubham Karoti Apartment, Shantinagar, Ponda-Goa. …. Cross-objectionist V/s 1. The New India Assurance Co. Ltd. Velho Building, 3rd Floor, Panaji-Goa. 2. Mr. Ashokan Pandiyan Panikar, driver of tanker No.GA-01-V-6040, resident of House No.124, Mai De Deus Mira, Sangolda, Bardez-Goa. 3. Mr. Ratnakar Tatyarao Joshi, Owner of tanker No.GA-01-V-6040, Karaswado, Mapusa-Goa. …. Respondents 4 Mr. Sudin M.S. Usgaonkar, Advocate for the Appellant/Cross- objectionist. Mr. E. Afonso, Advocate for Respondent No.1. CORAM : F.M. REIS, J. DATE : 8th JULY, 2011 JUDGMENT : All the above appeals were taken up together for final disposal as the motor accident claims arise from the same accident. The Counsels appearing for the respective parties also have consented in the disposal of the appeals by a common judgment. 2. By the impugned awards, the Motor Accident Claims Tribunal has partly allowed the claim petitions filed by the claimants and awarded specific compensation to respective claimants. The Tribunal came to the conclusion that there was composite negligence on the part of the driver of the NE Fiat car in which the claimants were travelling and the driver of the tanker which was involved in the said accident. The Tribunal further came to the conclusion that the appellants/Insurance Company has not established the breach of any of the terms of the policy, which would entitle them to be exonerated from the payment of the compensation to the claimants. Being aggrieved by the judgment 5 passed in the said claim petitions, the appellants/Insurance Company have preferred the above appeals. 3. Shri E. Afonso, the learned Counsel appearing for the appellants/Insurance Company has assailed the impugned judgment on three counts. It is his first submission that there is no evidence on record to substantiate the contentions of the claimants to the effect that there was rashness and negligence on the part of the driver of the tanker which was insured with the appellants. The learned Counsel has pointed out that the sketch of the accident spot itself discloses that the NE Fiat car in which the claimants were occupants, was on the wrong side of the road and the vehicle driven by the driver of the tanker was on its correct position and, as such, the question of holding that there was rashness and negligence on the part of the driver of the tanker would not arise. The learned Counsel further submitted that the sketch itself discloses that there was another vehicle such as a bus which was being overtaken by the driver of the NE Fiat car and, as such, the accident occurred on account of the negligence of the driver of the NE Fiat car and, as such, the negligence is to be attributed solely to the driver of the NE Fiat car. The learned Counsel further 6 submitted that the learned Tribunal has not at all appreciated the evidence on record and has not considered the fact that there was no negligence on the part of the driver of the tanker which resulted in the accident. The next contention of the learned Counsel appearing for the appellants/Insurance Company was that there was a breach of the terms of the policy in as much as the driver of the vehicle did not have a requisite driving licence to drive a hazardous tanker at the relevant time. The learned Counsel has taken me through the provisions of Section 14 of the Motor Vehicles Act and pointed out that for the purpose of driving the tanker carrying hazardous substance a special training is to be given to such driver and according to him there was no evidence on record to establish that the driver had such requisite expertise. The learned Counsel, as such, submitted that the Insurance Company was not liable to pay any compensation to the claimants. The third link of arguments of the learned Counsel appearing for the appellants/Insurance Company is that the compensation which has been awarded is exorbitant and according to him there was no evidence on record adduced by the claimants to establish the salary and/or income which they were deriving at the relevant time. The learned Counsel further submitted that such income of the 7 claimants was not established and, as such, the question of Tribunal granting such high compensation would not arise. The learned Counsel has taken me through the evidence on record and pointed out that though the salary certificate was produced from the Companies, nevertheless, there was no evidence to establish the actual amount paid as according to him the wage registers were not produced by the claimants. The learned Counsel, as such, pointed out that there is total erroneous appreciation of evidence by the Tribunal and, as such, the impugned judgment deserves to be quashed and set aside. 4. The Counsel appearing for the claimants have joined issue with the submissions advanced by the learned Counsel appearing for the appellants and pointed out that the evidence conclusively establishes that the accident occurred on account of rashness and negligence on the part of the driver of the truck. The learned Counsel have further pointed out that the distance from the point of impact to the place where the tanker itself has stopped disclosed that the tanker was approaching the Fiat vehicle on the opposite direction at a very high speed. The learned Counsel has taken me through the evidence on record and specially the evidence of Mrs. 8 Usha Mayee and pointed out that she was the only person present at the time of the accident and her evidence conclusively establishes that the accident occurred on account of the rashness and negligence on the part of the driver of the truck. As far as the contention of the learned Counsel appearing for the appellants to the effect that there was breach of the terms of the policy in as much as the driver of the truck did not have an effective driving licence, the learned Counsel pointed out that the burden to establish such aspect is solely on the part of the Insurance Company and no evidence has been adduced by the Insurance Company to establish the said aspect. The learned Counsel has taken me through the evidence of the witnesses examined on behalf of the Insurance Company and pointed out that the licence has not been produced nor the RTO Inspector examined to establish the fact that the driver of the truck did not have an effective driving licence at the relevant time. The learned Counsel further pointed out that as the appellants/Insurance Company failed to discharge the burden to establish that there was any breach of the terms of the policy, the question of exonerating the Insurance Company with regard to the payment of compensation to the claimants would not arise. With regard to the contention of the learned Counsel appearing for the 9 Insurance Company to the effect that compensation awarded is exorbitant the learned Counsel have pointed out that the claimants have produced the salary certificate and it was not incumbent on them to produce any further evidence to establish actual salary. The learned Counsel further submitted on going through the cross- examination by the Insurance Company, that the authenticity of the said certificate was not at all doubted. The learned Counsel further submitted that in any event the income assessed by the Tribunal is between Rs.3,000/- to Rs.3,500/- per month and by no stretch of imagination the said amount can be considered to be excessive. The learned Counsel further submitted that there is no substance in all the appeals preferred by the Insurance Company and the same deserve to be rejected. 5. Mr. Usgaonkar, the learned Counsel appearing for the Cross- objectioners has point out that according to him there was no question of coming to the conclusion that there was composite negligence on the part of the driver of the Fiat vehicle. Learned Counsel further submitted that it was solely on account of the rashness and negligence on the part of the driver of the tanker that the accident occurred and, as such, the question of holding that 10 there was composite negligence on the part of the driver of the Fiat vehicle would not arise. The learned Counsel further pointed out that there was also another discrepancy in the impugned judgment in as much as the Tribunal did not consider that there was permanent disability which occasioned to the claimant in his case whereby he is unable to speak. The learned Counsel, as such, pointed out that the impugned judgment deserves to be modified to that extent. 6. Shri Afonso, the learned Counsel appearing for the appellants/Insurance Company in reply to the submissions advanced by the learned Counsel appearing for the claimants has pointed out that in the records before the learned Judge there is a letter along with the certificate produced by the advocate appearing for the claimants which discloses that the driver of the vehicle was holding a licence to drive the transport vehicle which was valid for three years. The learned Counsel, as such, pointed out that the licence in favour of the driver was not valid only for one year as is contemplated under the provisions of Section 14 of the Motor Vehicles Act with regard to the licence required for driving the tankers carrying hazardous substance. The learned Counsel, as 11 such, pointed out that the Insurance Company has established the breach of the terms of policy and, consequently, the appellants deserve to be exonerated from paying compensation to the claimants. 7. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the present appeal: POINTS FOR DETERMINATION: (i) Whether the Tribunal was justified to come to the conclusion that there was composite negligence on the part of the driver of the Fiat vehicle, and the driver of the tanker which resulted in the said accident. (ii) Whether the Tribunal was justified to come to the conclusion that the appellants/Insurance Company have failed to establish the breach of the terms of policy to the effect that the driver of the vehicle did not have an effective driving licence. (iii) Whether the amount awarded by the Tribunal to the claimants can be said to be excessive. 8. Dealing with the first point for determination, there is no dispute that the accident occurred when both the vehicles driven by 12 the driver of the motor car and the driver of the tanker were coming in the opposite direction on the main Panaji-Ponda highway. On perusal of the sketch which is part of the record before the Tribunal, I find that at the spot of the accident, the road was sufficiently broad and was a straight road. Apart from that the sketch further discloses that after the impact with the tanker the motorcar turned 180 degrees and was found in the opposite direction. The sketch further discloses that the tanker after the impact had proceeded to a distance of about 20 metres and had stopped in a cross-direction. 9. On perusal of the evidence of the Investigating Officer, I find that he has stated that the point of impact was in the middle of the road. Shri Usgaonkar, the learned Counsel appearing for the claimants was trying to show that there was infirmity in the finding of the Tribunal to the effect that the Tribunal has recorded that the Investigating Officer has admitted that the motorcar was in the wrong direction. I find that the said aspect would be immaterial for the purpose of deciding as to whether the findings of the Tribunal to the effect that there was composite negligence on the part of the driver of the motorcar is justified or not. In the present case, it 13 cannot be disputed that it was a head on collusion. The point of impact is found to be in the middle of the road. There is no evidence on record to show that the motor car driver had taken any precaution to avoid the accident. Apart from that on perusal of the sketch as well as the evidence on record, specially the evidence of said Mrs. Usha Mayee, it is evident that the tanker which was coming in the opposite direction came at a very high speed. The very fact that the truck had stopped at a distance of more than 20 metres itself suggests that the truck was coming in the opposite direction at a very high speed. As such, the contention of Shri Afonso, learned Counsel appearing for the appellants/Insurance Company that the accident did not occur on account of the rashness and negligence of the driver of the tanker cannot be accepted. Dealing with the contention of Mr. Usgaonkar, learned Counsel appearing for the claimant that negligence was only that of the driver of the tanker, I find that the same cannot be accepted. The very fact that there is no evidence to show that the driver of the car did not take any steps to avoid the accident itself establishes that there was composite negligence on the part of the driver of the Fiat car as the road at the relevant spot was broad. Lack of caution on the part of the driver of the Fiat car itself can be attributed as the 14 degree of negligence on his part. As such, the Tribunal was justified to come to the conclusion that there was composite negligence on the part of the driver of the Fiat car. The contention of Shri Afonso that the driver of the car was overtaking a bus has not been established by any evidence on record. The existence of any bus at the spot of the accident is not found even in the sketch produced on record. I find no infirmity in the findings of the Tribunal to the effect that the composite negligence on the part of the driver of the motor car is to be fixed at 25% and negligence on the part of the driver of the tanker is to be fixed at 75%. To that extent, the impugned judgment deserves to be confirmed. The first point for determination is answered accordingly. 10. With regard to the contention of Shri Afonso, the learned Counsel appearing for the appellants to the effect that there was a breach of the terms of the policy which entitled the Insurance Company from being exonerated from paying compensation, I find that the Tribunal is justified to come to the conclusion that the Insurance Company/appellants have failed to establish that there was any such breach of the terms of the policy. The Manager of the Insurance Company, who has been examined has not even 15 taken any pains to produce the original licence. Apart from that, the authorities of the Transport Department have not been examined to establish the said aspect. So also during the examination of the Investigating Officer there is nothing brought on record to the effect that the driver of the said tanker did not have an effective driving licence. The contention of the learned Counsel appearing for the appellants/Insurance Company to the effect that the inference is to be drawn on the basis of the certificate which is on record produced by the claimants cannot be accepted. Endorsements on the driving licence would be material to establish that there was any breach of the terms of the policy. Having failed to produce the driving licence of the driver of the tanker, nor examining the officials from the Transport Department the appellants/Insurance Company have failed to discharge the burden caste on them to establish that there was any breach of the terms of the policy which would entitle them to avoid the payment of the compensation to the claimants. In any event there is no evidence on record to show any nexus between the so called breach on the part of the driver of having a special training to deal with hazardous substances and the accident to claim any exemption in the payment of the compensation by the appellant as otherwise the 16 driver of the tanker had a licence to drive a transport vehicle valid for three years. The second point for determination is answered accordingly. 11. With regard to the third point for determination, whether the amount of compensation fixed by the Tribunal can be said to be excessive or not, the compensation is fixed on the basis of the fact that the salary of the claimants is between Rs.3,000/- to Rs.3,500/- per month. Considering the wages prevailing at the relevant time it cannot be said that the assessment of the income of the claimants is excessive. Apart from that there was documentary evidence produced by the claimants to establish the income at the relevant time. The contention of Shri Afonso to the effect that the wage register ought to have been produced by the claimants cannot be accepted. I find that there was no challenge to the said documents nor the authenticity of the said documents was at any time doubted by the Insurance Company. As such, it cannot be said that the amount of compensation fixed by the Tribunal is excessive. The third point for determination is answered accordingly. 12. With regard to the contention of Shri Usgaonkar to the effect 17 that disability in connection with the speech of the claimants in his case has not been considered cannot be accepted. I find that on going through the finding in the impugned judgment the learned Presiding Officer has assessed the compensation considering the permanent disability of the claimant and all other relevant aspects. It is not necessary to effect any separate payment on account of each permanent disability suffered by the claimant. 13. In the overall view of the matter, I find that the Tribunal has rightly assessed the compensation and no interference is called for in the amount of compensation awarded. 14. For the reasons stated herein above, I find no reasons to interfere in the impugned judgment. Consequently, all the appeals stand dismissed. Cross-objection also stands dismissed. Hence, all the above appeals and cross objections stand disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-