1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.426 OF 1995 1) Madhukar Sakharam Mali, Age-32 years, Occu:Driver, R/o-Kazi Moholla, Bodwad, Tq-Bhusaval, Dist-Jalgaon, 2) Ratanlal Manakchand Gupta, Age-47 years, Occu: Trade, R/o-Baherpeth, Gandhi Chowk, Bodwad, Tq-Bhusawal, Dist-Jalgaon. 3) Ladkabai Laxmansingh Pardeshi, Age-47 years, R/o-Bodwad, Tq-Bhusawal, Dist-Jalgaon. .... APPELLANTS. VERSUS 1) Bharat Bhaskar Chavan, Age-19 years, 2) Bhaskar Sadashiv Chavan, Age-47 years, 3) Dhandabai Bhaskar Chavan, Age-32 years, Both represented by Special Power of Attorney  Respondent No.4. 2 4) Baburao Arjun Lohar, Age-67 years, All R/o- Bodwad, Tq-Bhusawal, Dist-Jalgaon. .... RESPONDENTS. ... Mr. A.S. Bajaj Advocate for the Appellants. Mr. G.V. Wani Advocate for Respondent Nos. 1 to 3. ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 12TH JUNE, 2009. JUDGMENT PRONOUNCED ON: 19TH JUNE, 2009 JUDGMENT : 1. The present First Appeal preferred by original opponent Nos. 1 to 3 against the Judgment and award dated 18th October, 1995 passed by the Motor Accident Claims Tribunal, Jalgaon in Motor Accident Claim Petition No.263 of 1988. The Appellants are original opponent Nos. 1 to 3 and Respondents are original plaintiffs. 3 2. The Claim Petition arising out of the accident which took place on 21st May, 1988 in which 12 years boy i.e. Respondent No.1 injured. On 21st May, 1988 at about 1.30 noon, the Respondent No.1 was coming back to Bodwad by Nandgaon  Bodwad road. It is the case of the Respondents that the Respondent No.1 was going by left side of the road on horse of his grand father and when he came near office of the Market Committee, the tractor along with trolley attached to it, came from opposite direction. It is the case of the Respondent No.1 that the driver of the said tractor along with trolley was driving the tractor rashly and negligently and gave dash to the horse on which the Respondent No. 1 was riding. Because of the dash, Respondent No.1 failed down on a ground from the horse and right side wheel of trolley run over his right leg. Because of the said accident, the Respondent No.1 sustained injuries in the form of fractures. It is the case of the Respondent No.1 that thereafter he was hospitalized in Civil Hospital, Jalgaon for about 5 and ½ months. The Respondent No.1 stated that his grand father, some time sister of his mother used to look after him when he was admitted in the hospital. It is the case of the Respondent No.1 that his grand 4 father used to spend for medicines. During that period, his family incurred expenses to the tune of Rs.25,000/- to Rs.30,000/- on medicines, conveyance charges, special diet etc. Therefore, Respondent Nos. 1 to 3, original claimants preferred Motor Accident Claim Petition No.263 of 1988 before the Motor Accident Claims Tribunal, Jalgaon, under Section 110-A of the Motor Vehicle Act, 1939 and claimed compensation to the tune of Rs.1,00,000/-. After hearing both the sides, the learned Tribunal passed Judgment and award dated 19th October, 1995 and directed the Appellants herein above, jointly and severally to pay to Respondent No.1 a sum of Rs. 45,000/- along with proportionate cost on the said amount and interest at the rate of 10% p.a. 3. Being aggrieved by the said Judgment and award dated 18th October, 1995 passed by Motor Accident Claims Tribunal, Jalgaon in Motor Accident Claim Petition No.263 of 1988, the Appellants preferred present First Appeal on the ground that the Tribunal erred in coming to the conclusion that because of rash and negligent driving of the tractor driver, the accident took place. Learned counsel for the 5 Appellants further submitted that the learned Tribunal erred in coming to the conclusion that the Appellants are liable to pay a sum of Rs.45,000/- along with interest at the rate of 10% p.a. to the Respondent No. 1. Learned counsel appearing on behalf of the Appellants further submitted that the findings arrived at by the Tribunal as regards holding the tractor driver driving the vehicle at high speed and rashly and negligently, is unsustainable in view of the record, evidence and law. He further submitted that the Tribunal has committed error in not holding that there is no evidence brought on record by claimants to show that the speed of the tractor at the relevant time was high or rash or driver was negligent. He further submitted that the reliance placed by the trial Court on the Spot Panchanama in which the finding of the blood stain on mud, is totally wrong for the simple reason that the blood stains were found on the other side of the road than what the learned Tribunal has observed. This fact itself is sufficient to show that the horse was on the wrong side, and the blood stains were found on the left of the tractor and trolley. Learned counsel appearing on behalf of the Appellants further submitted that it is crystal clear 6 from the Panchanama at Exhibit 64 that Respondent No.1 was traveling from wrong side and therefore the accident took place. He further submitted that Respondent No.1 failed to prove the medical certificate Exhibit 63 through the medical officer who issued the same and therefore Respondent No.1 is not entitled any compensation in respect of the accident which took place on 21st May, 1988. 4. On the other hand learned counsel appearing on behalf of Respondent Nos. 1 to 3 i.e. Original claimants, submitted that the Tribunal rightly held that the driver of the tractor was rash and negligent in driving the tractor on 21st May, 1988 and because of that only the accident took place. He further submitted that because of the said accident, the Respondent No.1 was admitted in the Civil Hospital, Jalgaon for 5 and ½ months and relatives of despondent No.1 were required to spent a sum of Rs.25,000/- to Rs.30,000/- for medicines, conveyance charges, special diet etc. He further submitted that after discharge from the hospital, the Respondent No.1 was required to take treatment for about 1 and ½ year. Inspite of such a long treatment, the Respondent No.1 was not in 7 position to walk without help of crutches. Even at the time of giving evidence in the Court on 3rd August, 1995, Respondent No.1 came with the help of crutches only. Learned counsel appearing on behalf of the Respondents submitted that Respondent No.1 used to assist his grand father in welding work and other work of black smith. But because of permanent disability due to injuries sustained to Respondent No.1 s right leg in the accident dated 21st May, 1988, Respondent No.1 is not in a position even to walk continuously. Therefore, the Respondent No.1 claimed a sum of Rs. 1,00,000/- as compensation on all counts. Though the Respondent No.1 produced all relevant documents on record to justify the claim of Rs.1,00,000/-, the Tribunal awarded only Rs.45,000/- along with interest at the rate of 10% per annum from the date of Petition till the entire amount is paid to Respondent No.1. The compensation awarded by the Tribunal is already on lower side. On the basis of these submissions, learned counsel for Respondent Nos. 1 to 3 submitted that there is no merit in the present First Appeal and the same is liable to be dismissed with costs. 5. With the assistance of learned counsel for the 8 parties, I have gone through the Record and Proceedings of the present case. On the basis of above mentioned submissions, the point for determination arise in the First Appeal, is : POINT FOR DETERMINATION FINDING Whether it is necessary to interfere the findings of Tribunal in its Judgment dated 18th October, 1995? No. 6. Learned counsel for the Appellants submitted that the Tribunal erred in coming to the conclusion on the basis of Exhibit 64 i.e. Panchanama that the trolley practically went to the another end of the road and because of that the accident took place. He further submitted that the Tribunal erred in coming to the conclusion that because of the negligence on the part of the driver of the tractor, the accident took place. Learned counsel for the Appellants relied on Exhibit 64 i.e. Copy of Panchanama along with map to 9 show that the Tribunal is wrong in holding that the driver of the tractor was rash and negligent in driving the tractor at the time of accident. He pointed out that Respondent No.1 was proceeding on horse from Nandgaon to Bodwad whereas the tractor along with trolley was proceeding from Bodwad to Nandgaon. These facts are stated by PW1 and DW1 In their evidence. Learned counsel for Appellants pointed out from the map at Exhibit 64 that Respondent No.1 was proceeding from Nandgaon to Bodwad on wrong side because the map shows that the police authority found blood stains on extremely left hand side of the road from Bodwad to Nandgaon. Learned counsel for Appellant submitted that this itself shows that Respondent No.1 was proceeding from wrong side and therefore the accident took place. On the basis of these submissions learned counsel for Appellant submitted that the Tribunal erred in coming to the conclusion that the accident took place because of rash and negligent driving on the part of the tractor driver. In support of his submission, learned counsel for the Appellant relied on the Judgment in the matter of Mohan Govind Naik and others vs. Sudhakar V. Gurav and others, reported in 2008 (6) Bom.C.R. Page No.224. In this 10 Authority Bombay High Court held that it was necessary for the claimant not only to prove that an accident had taken place, but also it was due to rashness or negligence of driver/owner of the vehicle. In the present case, even the Tribunal on the basis of evidence of PW1 and other documents, held that the accident took place because of rash and negligent driving of the tractor driver. 7. It is pertinent to note here that the said Panchanama which is at Exhibit 64, is not proved by any witness. After going through the said Panchanama at Exhibit 64, I found that no where it is stated in the said Panchanama how the accident took place. In the said Panchanama it is just stated about position of tractor and trolley. Therefore the document which is not proved as per the procedure, cannot be relied for coming to the conclusion that Respondent No.1 was proceeding from wrong side. 8. Learned counsel for the Appellant submitted that the Tribunal erred in coming to the conclusion that Respondent No.1 sustained permanent disability. He submitted that Respondent No.1 failed to produce a 11 single iota of evidence to show that he suffered permanent disability. Learned counsel for the Appellant further submitted that the Respondent No.1 failed to produce medical certificate from competent doctor showing that because of the accident which took place on 21st May, 1988, he suffered permanent disability. It is true that Respondent No.1 has not produced single document on record to show that he suffered permanent disability due to the accident, but at the time of recording his evidence on 3rd August, 1995, the Tribunal observed in Para 2 of the evidence of PW1 that: Witness was standing with the help of crutches in witness box. Not only that, the rear wheel of the trolley run over the Respondent No.1 s right leg below knee and he sustained fractures. The said trolley was loaded with fertilizer bags. This itself is sufficient for coming to the conclusion that because of the said accident the Respondent No.1 suffered permanent disability in walking i.e. in his right leg. Therefore, there is no substance in the submission of the learned counsel for Appellant that Respondent No.1 failed to discharge the burden to prove that he suffered permanent disability because of the accident. 12 9. The next submission made by learned counsel for the Appellants that the Tribunal awarded compensation at higher side. He further submitted that Respondent No.1 failed to produce a single documentary evidence to show that he was earning some amount before the accident took place. Learned counsel for the Appellant submitted that at the time of accident, Respondent No. 1 was 12 years boy. He further submitted that the Tribunal erred in coming to the conclusion that Respondent No.1 was helping hand to his family members and therefore loss of income to his family must not be less than Rs.2000/- per year. For assessing the future loss, the Tribunal held Rs.50/- per month as earning of Respondent No.1. Learned counsel for the Appellant submitted that for want of any documentary proof and or any other evidence, the Tribunal should have rejected the claim of Respondent No.1. On the other hand learned counsel for Respondents submitted that Respondent No.1 specifically stated in his evidence that he was helping hand in his grant father s business and there is no effective cross examination on this point. It is true that there is no documentary evidence on record to show that Respondent No.1 was 13 earning any amount at the age of 12 when the accident took place. Except the bare statement in his evidence at Exhibit 62 there is no other documentary proof to show that Respondent No.1 was earning any amount. It is to be noted that there are some aspects of human life which are capable of monetary measurement. But the totality of the human life is like the beauty of sun rise or the splendors of star beyond the reach of monetary tape measurements. The determination of damages for the injury sustained to the human life is extremely difficult task and it becomes all the more baffling when the victim is child and/or non earning person. The future of child is uncertain. Therefore, at the time of fixing the compensation payable to the child who sustained injury in the accident, some guess work is required to be done. In the present case the Respondent No.1 in his evidence specifically stated that he was assisting to his grand father in welding work and other work of black smith. Considering these facts, the Tribunal awarded a sum of Rs.45,000/- with interest at the rate of 10% pa. including medical expenses, conveyance charges, special diet etc. It is to be noted that Respondent No.1 was admitted in Civil Hospital, Jalgaon for 5 and ½ months. He further 14 stated in his evidence that he required to take treatment thereafter for about 1 to 1 and ½ years. These facts are sufficient to justify the compensation awarded by the Tribunal in the present case. 10. In the above mentioned facts and circumstances, I do not find any merit in the present First Appeal preferred by the Appellants/ original Respondent Nos. 1 to 3, and the same is dismissed with cost. 11. In view of dismissal of First Appeal itself, nothing survive for consideration in the Civil Applications and all pending Civil Applications are dismissed. [K.K. TATED] JUDGE. asb/JUN90/fa426.95