1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 958 OF 2007 Mahasing S/o Daulat Golwal, Age : 59 Years, Occu. : Business, R/o Plot No. 71, New S.T. Colony, Meenatai Thakre Nagar, N-2, CIDCO, Aurangabad. .. .. .. APPELLANT (Orig. Claimant) Versus 1. Mrs. Kamla W/o Krishna Pillai, Age : Major, Occu. : Business, R/o Krishna Building, Shastri Nagar, Parbhani, District Parbhani. 2. The New India Assurance Co. Ltd. Through its Divisional Manager, LIC Building, Town Center, CIDCO, Aurangabad. .. .. .. RESPONDENTS Shri V. M. Chate, Advocate for the Appellant. The Respondent No. 1 served - absent. Shri A. B. Kadethankar, Advocate for the Respondent No. 2. CORAM : N. D. DESHPANDE, J. DATE : 07TH NOVEMBER, 2009. 2 ORAL JUDGMENT : 1. The present appeal is directed against the judgment and award dated 07.09.2006 in Motor Accident Claim Petition No. 35/2006 passed by the Member Secretary Motor Accident Claims Tribunal Aurangabad under the Motor Vehicles Act 1988, hereinafter referred to as the "Said Act". The appeal is purported to be under Section 173 of the said Act for Rs. 2,50,000/- on account of compensation which was disallowed by the learned Tribunal. The initial claim was for Rs. 5,00,000/- vide appellants application under Section 166 of the said Act, mainly filed against the respondent No. 2, the New India Assurance Company Ltd and also against the respondent No. 1 named above, the alleged owner of the offending vehicle. 2. The appellant who is original claimant is the victim of road accident which took place on 12.02.2005. He was a pillion rider of the motor bike of his son who was driving and both were going along Jalna-Aurangabad road. The accident took place near Hasnabadwadi while taking a turn to the right side for going to Rajput Restaurant which belongs to the claimant, at some distance on the right side. Before the motorcycle could take turn to the right side for going to the right side of the road, it was hit from the behind and there was a dash of Indica car bearing No. MH-22/D-1828 which was coming in a high speed. The said car was driven by the driver of the respondent No. 1 who is the owner of the Indica car (offending vehicle), who applied breaks immediately after the accident and stopped at 30 feet distance. 3 3. The First Information Report came to be lodged against the driver of the indica car for rash and negligent driving. 4. The appellant had sustained considerable injuries all over the body. The motorcycle also had some scratches. The appellant was admitted in the hospital for 49 days and had under gone surgery three times. He had sustained fracture to his head. He was also admitted in I.C.U. for 22 days and also sustained head injury. 5. After recovery, the appellant was advised to file claim petition under Section 166 of the said Act. The learned Tribunal directed notice to the Insurance company and the respondent owner. An inquiry was conducted. Oral evidence of appellant who is claimant was recorded which was subjected to cross examination by the respondent Insurance Company. The claimant also relied on medical bills for purchase of medicine, surgical items and also bills of hospital charges. The disability certificate was also filed to the extent of 28% in support of his total claim of Rs. 5,00,000/-. It is stated that, the respondent No. 2 admitted the medical bills and hospital bills. However, the respondent No. 2/Insurance Company denied the claim of Rs. 5,00,000/- on account of sole negligence of the motorcycle rider and driver of the offending vehicle was innocent. The respondent No. 2/Insurance company admitted its policy and liability of third party in the accident case. It is the case of the appellant that, driver of indica car (offending vehicle) was rash and negligent and ran over the motorcycle and was mainly responsible for the accident. His son was driving motorcycle had taken all precaution and gave signal while taking turn and, 4 therefore, appellant assailed the finding of contributory negligence of 50% recorded by the learned Tribunal for rejecting his 50% claim and it was reduced to 2,50,000/-. Hence this appeal for re- consideration of the claim and filed for re-appreciation of the evidence on the point of alleged contributory negligence and its percentage. 6. Heard arguments of Shri V. N. Chate, the learned counsel for the appellant at length. He relied on the decision of Apex Court reported in 2008 A.C.J.2170, Andhra Pradesh State Road Transport Corporation and another vs. K. Hemlata and others. Mainly on the point of composite negligence and contributory negligence to work out the ratio or the percentage of the negligence. It has been pointed out that, the accident involve two vehicles the smaller one is the motorcycle of the appellant and the offending vehicle is indica car, and therefore, it would be a case of 25% and 75% respectfully for negligence of both the vehicles in case the finding of the learned Tribunal is accepted for the contributory negligence. The appellant mainly urged for the total claim of Rs. 5,00,000/- saying that, there was no negligence of motorcycle rider is proved. No witness is examined by the respondent No. 2. The driver of the offending vehicle is also not examined. 7. Shri Chate, the learned counsel for the appellant also relied on the judgment of learned Single Judge of this Court Kantabai W/o Sureshchandra Doshi and another Vs. Ahmadkhan S/o Chandkhan deceased by his L.R.s Makhatyarbee W/o Ahmadkhan reported in 2006(4) Mh.L.J. 161, to substantiate his 5 claim of pain and suffering in an accident case where victim is injured seriously. The amount of Rs. 6,000/- which was allowed by the learned Tribunal is inadequate, with regard to his claim of Rs. 20,00,000/- before the learned Tribunal. 8. Shri Kadethankar, the learned counsel for the respondent No. 2/Insurance Company made his submissions admitting the liability of the insurance company/respondent No. 2 as per the policy issued to third party and is bound to comply the order passed by the learned Tribunal and accordingly the Insurance Company has paid the amount. So nothing is due. He relied on the judgment and award passed by the learned Tribunal on merits of the case and in a given fact and situation. He took me through the entire judgment and various observations made by the learned Tribunal. I have also gone through the panchanama of seen of offence. The record was also available for perusal. 9. It is not a case of disallowing the claim, but claim of the appellant has been awarded and decreed for Rs. 2,50,000/- without challenging bills of purchase of medicine and hospital bills as submitted. The other claims are also not denied by the Tribunal, which it considered to be reasonable except for decreeing the whole claim, it came to the conclusion that it was not only the driver of the offending vehicle of the respondent No. 1 was negligent, but motorcyclist who is son of the appellant, was also found responsible for such accident while taking turn to the right in going to his Rajput hotel which is opposite side of the road. I have gone through the oral testimony of the appellant and the claim petition itself. It is also 6 mentioned that, while taking turn to the right, the car was coming from behind, and dashed to motorbike. The motorcyclist gave signal while turning and not before. Both the vehicles were coming from same direction and motorcyclist ought to have given signal in advance before he took a turn to the right side or for coming to right side for taking turn to the opposite side of the road. The Jalna- Aurangabad road is a high way and normally vehicles are going in speed. The care should have been taken by the motorcyclist who was going to the right side alone for turn to the extreme right for his safety from the vehicles coming in speed from behind. It seems that, the motorcyclist erred in his judgment and met with an accident. These are the usual accidents taking place on road because of want of due care and attention. There are break marks showing that the driver of the offending vehicle applied break. 10. Though, there are sever bodily injuries sustained by the appellant as a pillion rider, no injuries are mentioned on the body of the motorcyclist who was driving the motorcycle and no serious damage to the motorcycle which was dashed from behind. Still in such road accident cases insurance company is held liable on account of the policy inforce and is its duty to indemnify the third party for whom the polices are purchased by the owner of the vehicle. As such, to get the evidence of negligence and to record finding on that point in a summary proceeding before the learned Tribunal is a difficulty. The focus of the claim Tribunal while holding an inquiry into the claim for making a award is determination of the amount of compensation which should be just and not to indemnify every losses sustained by the claimant as injured or his legal heirs of the deceased 7 victim of the accident. 11. It is not a money suit for recovery of money claim, regularly tried before the Civil Court for a decree. The scope of the inquiry is very limited and pin pointed to the determination of compensation which is the compensation as aforesaid. Therefore, not going much into the controversy about the contributory negligence and its percentage, the appellate Court normally do not interfere into the findings and the conclusion recorded by the learned Tribunal who was holding the inquiry into such claim. Thus the scope of appeal under Section 173 of the said Act, in that regard cannot be extended for reappraisal of the evidence at the instance of the appellant whose claim is allowed not to what he states, but what is been awarded as "just compensation" by the learned Tribunal. 12. In that view of the matter, there is no satisfactory material or irregularity or illegality I noticed after going through the impugned judgment and the award passed by the learned Tribunal. Thus, the learned Tribunal has properly appreciated the material on record and holding motorcyclist liable for the accident and as such, for pains and sufferings also of father, son motorcyclist is also responsible. It is an accident and cannot be a deliberate act and, therefore, son must be also feeling sorry about such pain and suffering which his father had suffered. Thus additional compensation on account of pain and suffering, therefore, cannot be directed against the insurance company who had conceded to the award passed by the learned Tribunal. The learned Tribunal has fully considered the case of the appellant on all counts and merely because award is reduced 8 to Rs. 2,50,000/- holding motorcyclist as responsible for that, the same is not vitiated. No interference required. The impugned award is upheld. Appeal therefore, stands dismissed, however, there is no order as to costs. [ N. D. DESHPANDE, J.] bsb/Nov. 09