1 fa388-99-j IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO. 388 OF 1999 1. Mr. Baban Rauji Molawade, ] Adult, Occupation – Agriculturist, ] R/o. Mhavshi, Taluka Patan, ] District – Satara. ] 2. Mr. Vijay Shankar Molawade, ] Adult, Occupation – Not known, ] R/o. Mhavshi, Taluka Patan, ] District – Satara. ] .. Appellants Versus 1.Mr. Khashaba Dongari Molawade ] (Since deceased through his legal heirs)] 1. Smt. Suman Khashaba Molawade, ] Age–55 years, Occupation­Household] 2. Vithal Khashaba Molawade, ] Age­35 years, Occupation­Nil, ] 3. Ganesh Khashaba Molawade, ] Age­30 years, Occupation­Nil, ] 4. Miss. Surekha Khashaba Molawade, ] Age 23 years, Occupation­Nil, ] 5. Miss. Kamal Khashaba Molawade, ] Age 21 years, Occupation – Nil, ] All R/o. Mulgaon, Taluka – Patan, ] .. Respondents District – Satara. ] .... Mr. Mohan N. Dhamale for the appellants. Mr. Mahesh Rawool i/b. Mr. P.B.Shah for Respondent Nos. 1 to 5. .... 2 fa388-99-j CORAM : A. S. OKA, J. DATE : DECEMBER 15, 2010. JUDGMENT :­ Heard the learned counsel appearing for the Appellants and the learned counsel appearing for the legal representatives of the respondent. By this first appeal, the appellants have taken an exception of the Judgment and Award dated 21st January, 1988 passed by the learned Member of the Motor Accident Claims Tribunal on a claim petition filed by the original respondent. 2. In the claim petition, a case was made out that on 5th August, 1992 the first respondent was walking along Patan Chiplun Road. At about 11.00 a.m., a Moped of M­80 make came from the side of Patan which was being driven by the second appellant. The said moped gave a dash to the respondent. As a result of the dash, the respondent sustained injuries. It is stated that on the very day, the respondent was admitted to Krishna Hospital at Karad. It is contended that he sustained serious injuries and was required to be operated upon. It is stated that the respondent was an indoor patient in the hospital till 28th August, 1992, and even after his discharge, for a period of six months he 3 fa388-99-j was undergoing treatment. The first appellant was impleaded as a party opponent to the claim petition in his capacity as the owner of the Moped. 3. The appellants contested the claim by filing a written statement. It was contended that the respondent has suffered the injuries on account of his own fault. It was submitted that the respondent had earlier suffered a fracture to his leg and as he was suffering from diabetes, he left Bombay and starting residing in his village. It was contended that the respondent suffered fracture of the bone where he had earlier suffered a fracture. It was contended that the respondent had no income. 4. The Tribunal held that the accident occurred due to the rash and negligent driving of the second claimant and that the respondent suffered permanent disability as a result of the injuries sustained in the accident. On the basis of injury certificate on record and the evidence of a medical practitioner, the Tribunal accepted the case made out by the respondent on the basis of disability. The Tribunal Awarded a sum of Rs. 26960/­ on account of total loss of income. Apart from the said amount, the Tribunal 4 fa388-99-j granted a sum of Rs.2,399/­ on the basis of medical bills produced. A sum of Rs. 1,000/­ was granted on account of treatment taken by the respondent in the private hospital. A sum of Rs.500/­ was granted towards traveling charges and other expenses. A sum of Rs. 5,000/­ was granted towards pain and suffering and a sum of Rs. 5,000/­ was granted on account of loss of amenities of life. Thus, total compensation of Rs. 42,859/­ was granted together with interest thereon at the rate of 12 % per annum from the date of the filling of the claim petition. 5. The learned counsel appearing for the appellants submitted that in fact, the second appellant was acquitted by the criminal Court. He submitted that the case of the appellants was that the Moped slipped due to wet condition of the road and the respondent got confused and fell down on the said moped. The learned counsel submitted that the disability certificate was not proved by the respondent by examining any medical practitioner. He submitted that there was no evidence on record to show that the respondent was deriving any income at the age of 60 years. He submitted that even assuming that the age of the respondent is 52 years, loss of income of Rs.26,960/­ is exorbitant 5 fa388-99-j and excessive. He submitted that the amount granted on account of pain and suffering and loss of amenities in life is also exorbitant. The learned counsel appearing for the legal representatives of the respondent supported the impugned Judgment and Award. 6. I have given careful consideration to the submissions. The original respondent stepped into witness box, his version of the accident appearing in his evidence reads thus : “ I was returning by Patan­Karad road proceeding towards Patan, by the left side of the road. At the time, on M­80 bearing No. 7657 came from opposite direction, in fast speed and dashed against me, as a result of which, I fell on ground on southern side Nala. The said M­80 was being driven by opponent No.2 Vijay Molawade. I sustained serious injuries to right side leg, right hand and other parts of the body. I was conscious for some time, after accident, but thereafter I became unconscious. When I was conscious, immediately after accident, I asked opponent No.2 to shift me to hospital, but he did not pay any heed and went away. At that time, I realised that opponent No. 2 was under the influence of liquor.” 7. The respondent was cross examined by the advocate for the appellants. The thrust of the cross examination was on affected vision of the respondent as a result of eye operation underwent by 6 fa388-99-j him. As far as the cause of accident is concerned, the second appellant was examined. His version can be found in paragraph No. 3 of the evidence which reads thus. “At the time of the accident, I was returning to my house from Patan, to Mhavshi village, on M­80 Motor Cycle, by left side of the road. There 5 to 6' Kachha road, on both sides of the tar road. While tar road is about 12' to 15' width, at the place of accident. As there was raining, the road had become slippery and wet, and my M­80 was slow and moderate. There are speed brakers on the road and also office of M.S.E.B. Speed of my M­80 was very slow. That time claimant Khashaba came out of the M.S.E.B. gate for coming on the road. The road, Kaccha road is 5' to 6' distance from the M.S.E.B. gate and then, there is tar road. The claimant started & came on the tar road, i.e. Kachha road. I gave horn of my M­80. I gave horn and applied the brakes. But, as the road was wet and slippery, my M­80 slipped. Then claimant was confused and fell on my M­80. 8. Thus, involvement of the Moped in the accident is not seriously disputed, but, it is contended that it was the respondent who fell down on the Moped. The second appellant was cross examined at length on this aspect. The evidence of the second appellant has been carefully considered by the learned Member of the Tribunal. The FIR was lodged against second appellant alleging that the accident occurred due to his negligence. The Tribunal did not accept the case made out by the second appellant 7 fa388-99-j in his evidence. Taking the examination in chief of the second appellant as it is, it is not possible to understand as to how the respondent himself fell down on the Moped. The theory that the respondent fell down on the moped cannot be believed as the second appellant has not explained as to how the respondent could fall down on the moped. The case made by the second appellant has been disbelieved on the basis of the oral and documentary evidence on record. The Tribunal established under the Motor Vehicle Act, 1988 (hereinafter referred to as the “said Act”) is not bound by strict rules of evidence. The acquittal by criminal court will not bind the Tribunal. The Tribunal rightly held that it was established that the moped driven by the second appellant gave a dash to the respondent. The inference of negligence drawn by the Tribunal is justified. 9. The respondent examined a medical practitioner Dr. Pandurang Shrirang Pawar. In his evidence he proved the disability certificate at Exhibit 52. he deposed in his evidence as under : “I examined him and he had following injuries on his person : 8 fa388-99-j 1.There was shortening of right leg, right wrist movements were affected, due to radial inner palsy. There was deformity of right left tibia. Tenderness was present. There was total permanent disability was 14%.” 10. The disability certificate at Exhibit 52 records that there was shortening of right leg apart from other injuries and the total permanent disability was assessed at 14 percent. It is not possible to disbelieve the case made out on the basis of the certificate at Exhibit 52 and the evidence of Dr. Pandurang S. Pawar regarding permanent disability suffered by the respondent. 11. As far as the evidence regarding income allegedly earned by the respondent is concerned, perusal of the evidence of the respondent shows that except for bare words, there is absolutely no evidence regarding the income allegedly earned by him. There is no basis whatsoever for granting the amount of Rs. 26,960/­ on account of loss of income in the absence of any cogent evidence on record to prove that the respondent was earning. 12. In any event, when the claim petition was decided, under section 140 of the said Act on account of no fault liability, 9 fa388-99-j compensation of Rs.25,000/­ was payable on account of permanent disability. In the present case, compensation granted is Rs. 43,859/­ . Even after rejecting the claim on account of loss of income, the respondent will be entitled for compensation of Rs. 25,000/­ with interest. It appears that during the pendency of the appeal the principal amount of Rs. 43,859/­ has been deposited by the Appellant. Taking the entitlement of the respondent at Rs. 25,000/­, after broadly taking into consideration the interest on the said amount from the date of filing of the claim petition, the compensation of Rs. 43,859/­ inclusive of the interest payable to the respondent is certainly reasonable. Hence, only modification required to be made in the impugned Award is that interest part will have to be deleted. 13. Hence, I have pass the following order : :: O R D E R :: i. The impugned Award is modified and it is declared that the original claimant is entitled to total compensation of Rs. 42,859/­ inclusive of interest and costs. 10 fa388-99-j ii. As the entire amount has been deposited by the appellants with the Tribunal, permission shall be granted by the Tribunal to the legal representatives of Respondent to withdraw the said amount, with interest accrued, if not withdrawn till date. iii. Appeal is partly allowed on the above terms with no order as to costs. JUDGE