ash 1 fa-92.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.92 OF 1993 Eknath Antaram Sahare. .. Appellant Vs Shri Ankush Anandrao Landge, since deceased through his L.H. 1A) Asha Ankush Landge, 1B) Rahul Ankush Landge, 2. Shri Gulab Bajaba Gaikwad, & 3. New India Assurance Company Ltd. .. Respondents -- Shri P.B. Shah for the Appellant. Smt. A.A. Agarwal for rEspondent Nos.1 and 2. Shri D.R. Mahadik i/by Shri S.R. Singh for Respondent No.3. -- CORAM ; A.S. OKA, J DATED : 4TH JULY, 2011 ORAL JUDGMENT: . By this Appeal, the Appellant who is the claimant in a claim petition under Section 110A of the Motor Vehicles Act, 1939 has challenged the judgment and award dated 6th January, 1992 passed by the learned Member of the Motor Accident Claims Tribunal, Pune. 2. The Appellant was employed in M/s. J.G. Glass Ltd. at Pimpri, District Pune. The Appellant was a resident of village Chakan, ash 2 fa-92.93 Taluka – Khed, District Pune. The accident occurred on 14th February, 1987 at about 5.45. p.m. From the place of work, the Appellant was proceeding towards Chakan by Pune Nashik Road. According to the case of the Appellant, he was plying his motor-cycle by correct side of the road. At that time, a jeep bearing Registration No. MFM-9640 came from the opposite side in a very high speed. The 1st Respondent was driving the said jeep which gave dash to the motor-cycle of the Appellant. He stated that the Appellant sustained multiple injuries. According to him, from the date of the accident till 30th March, 1987, he was under medical treatment. He suffered from multiple fractures. The 2nd Respondent was impleaded as a party in his capacity as a owner of the jeep. The 3rd Respondent is the insurer of the jeep. Initially, the Appellant claimed compensation of Rs.1,50,000/- which claim was later on enhanced to Rs.3,00,000/-. 3. The 1st Respondent filed a written statement and denied that he was driving a vehicle at the relevant time. The 2nd Respondent filed a separate written statement. It is contended in the written statement that he has never used his jeep for carrying the passengers for hire or reward and he has never committed any breach of the terms and conditions of the policy. He denied that there was any negligence on the part of the driver of the jeep. It is contended that the Appellant himself was under the influence of liquor and as a result thereof, he lost ash 3 fa-92.93 control over his vehicle. It was also contended by the 2nd Respondent that his vehicle was not involved in the accident. In the alternative, it was submitted that there was no negligence on the part of the driver of the jeep. 4. The 3rd Respondent-Insurer filed a written statement contending that the jeep standing in the name of the 2nd Respondent was insured as a private vehicle. It is submitted that the jeep could not have been used for the purposes of carrying persons on hire or reward. It was contended that the driver of the jeep was prosecuted under Sections 42 and 123 of the Motor Vehicles Act, 1939. It is contended that on account of breach committed by the 2nd Respondent, the 3rd Respondent was not liable to pay any amount. 5. The Tribunal by the impugned judgment and award held that the vehicle of the 2nd Respondent was involved in the accident and there was negligence on the part of the driver of the said jeep. The Tribunal held that even the Appellant was negligent to the extent of 30%. The Tribunal held that the jeep was carrying the passengers for hire or reward and, therefore, the 3rd Respondent was not liable to pay any amount. The Tribunal granted a sum of Rs.14,000/- on account of medical expenses, a sum of Rs.50,000/- on account of loss of future income due to disablement and a sum of Rs.6,000/- on account of pain ash 4 fa-92.93 and suffering. Thus, the total compensation amount of Rs.70,000/- was granted, out of which the Appellant was held to be entitled to 70% of the amount. 6. The learned counsel appearing for the Appellant in support of the claim for enhancement submitted that the evidence on record shows that the Appellant was plying his motor-cycle on the correct side of the road and no negligence can be attributed to the Appellant. He submitted that the Appellant was granted back wages from 26th March, 1989 by his employer and, therefore, there was no reason to deny compensation on account of loss of salary from the date of accident till 26th March, 2009. He submitted that the compensation granted on account of loss of future income was on the lower side. He submitted that the compensation under the head of pain and suffering was on lower side. He submitted that no compensation has been granted for special diet and for conveyance. He submitted that the finding that the 3rd Respondent has proved the breach of terms and conditions of the policy is erroneous and deserves to be set aside. 7. The learned counsel appearing for the 2nd Respondent supported the impugned judgment and award to the extent of quantum and negligence. The learned counsel appearing for the 3rd Respondent pointed out that in the police statement of the 1st Respondent, he has ash 5 fa-92.93 admitted that the jeep has been used for the purposes of hire or reward and, therefore, the breach of the terms and conditions of the policy has been established. 8. I have given careful consideration to the submissions. 9. On the first issue of negligence, the Appellant examined the so called eye witness Kalavati Nathu Karpe. She has not stated whether at the time of impact, the motor-cycle was on its correct side. The same is the case of the witness Sukanya Madhukar Lokhande. The Appellant examined the panch witness who has no knowledge as to how the accident occurred. The Appellant examined himself. In his evidence, he has stated thus:- “On the day of accident my duty was from 7-30 a.m. To 5.p.m. I used to come by motor cycle from Chakan. After office hours, I started from company towards my house at Chakan on motor cycle. I was maintaining proper side. My speed was 30 kms per hour. At the relevant time one scooter was coming from opposite side. It was coming towards Pune whereas I was going to Chakan. One jeep was coming in high speed from opposite side. It was trying to over take the scooter. The jeep was turned to wrong side and dashed with my motor cycle. I fallen down on the ground. The jeep stopped at 35 ft distance.” ash 6 fa-92.93 10. The aforesaid stand taken by the Appellant in his evidence shows that he had seen the jeep coming in high speed from the opposite side. The cross-examination of the Appellant is mainly on the issue whether the driver of the jeep had stopped the vehicle after the accident or not ? A suggestion was given to him that he has falsely stated that the jeep was stopped and he noted down the number of the jeep. The Appellant denied the correctness of the said suggestion. 11. As far as the evidence of the 1st Respondent is concerned, it is of denial by contending that he was not driving the offending vehicle on the date of the accident. He admitted that the police arrested him on 18th February, 1987. The Respondent No.1 admitted in his evidence that his statement was recorded by the police, but it was recorded by force. He stated that the contents of his statement that he was driving the jeep at the time of accident are false. In the cross- examination, he came out with a new case that as he tried to help one Gulab Gaikwad (Respondent No.2) at Chakan Police Station when the said Gulab had heated conversation with the police officers on 17th February, 1987, Police involved him in false case. He admitted that he has not filed any complaint against the police officers of Chakan Police Station. Moreover, the Respondent No.1 did not plead in his written statement about the incident of Gulab Gaikwad. Therefore, after considering all these aspects, the Tribunal rightly discarded the case ash 7 fa-92.93 that he was not driving the jeep at the time of accident and held him guilty of negligence. In Paragraph 11 of the judgment, the learned Member of the Tribunal has observed thus:- “11. I have taken the part of applicant in accident prior to the discussion of the evidence against the opponent driver. The reason is that the opponents have denied the accident in toto and involvement of their vehicle. I will take this point at the later stage. At this stage, it is to be stated that the jeep driver had not stopped his vehicle by seeing that one motor cycle was coming from opposite direction. There is evidence of Kalavati Kappe, A.W.2 (Exhibit 40) and Sukanyan Lokhande A.W. 3 (Exhibit 53). These witnesses are saying that there was another two wheeler in front of the jeep. If the situation as stated by me inn para supra, is considered, it will be seen that the jeep driver has not taken care to avoid the accident by avoiding first two wheeler which was ahead to his vehicle. In that process, the jeep had given dash to the motor cycle of the applicant. In other words, it should be stated that the drivers of both the vehicles have not taken their vehicles to one side. They have not stopped their vehicles by seeing other vehicle. The question which driver would have avoided the accident, it not material in this case. The reason is that both the drivers could have avoided the accident. I therefore, hold that the drivers of both the vehicles are responsible for the accident. I will apportion the liability while discussing the point of granting compensation.” 12. Looking to the nature of the aforesaid evidence, as discussed above, it is obvious that some negligence will have to be attributed to the Appellant and, therefore, deduction of 30% made on account of his contribution is reasonable. ash 8 fa-92.93 13. Now turning to the quantum of compensation against the bills of Rs.13,816/- on account of medical expenses, a sum of Rs. 14,000/- has been granted to the Appellant which is reasonable. While considering the head of loss of pay due to injury, the learned Member of the Tribunal has held that the Appellant was a permanent servant of the Company. He was entitled to leave and other benefits and that he has been reinstated with backwages. The order of the Labour Court directing the reinstatement of the Appellant is on record. The said order shows that the back wages were granted to the Appellant from 26th March, 1989. The Appellant examined an officer of his employer Shri Hemant Pandharinath Raderaskar. He deposed that from the month of January, 1997, the pay of the Appellant was Rs. 1,672/-. He stated that the Appellant was reinstated from 1st September, 1989 and that from 14th February, 1987 to 31st August, 1989, the Appellant was not in the service of the said Company. In the cross examination, he admitted that after the hospitalisation of the Appellant was over, he was again allowed to work in the same capacity. He admitted that the salary for the period for which the Appellant was absent has not been given to the Appellant. It must be noted here that the Labour Court did not grant back wages to the Appellant for the period between 14th February, 1987 to 26th March, 1989. The Tribunal proceeded on erroneous footing that back wages have been paid to the ash 9 fa-92.93 Appellant. The loss of income equivalent to salary at the rate of Rs. 1,675/- per month for the aforesaid period will have to be granted. For the period of 25 months, the amount under the said heading will be Rs.41,875/- which deserves to be granted to the Appellant. 14. The learned counsel appearing for the Appellant made criticism of the fact that on account of pain and suffering only a sum of Rs.6,000/- has been granted. However, for loss of future income due to disability, the Tribunal has granted an amount of Rs.50,000/-. As far as the heading of pain and suffering is concerned, only a sum of Rs.6,000/- has been granted. As per the evidence of Dr. Rajiv Arora, the Appellant suffered four compound fractures of temoral shaft, lateral condyl Tibia, Tibia fibula and calcancum. His permanent disability is assessed at 65%. Though the amount of Rs.50,000/- granted under the heading of loss of future income due to disablement appears to be on the higher side, for four fractures, a reasonable amount will have to be granted. Hence, grant of Rs.50,000/- cannot be disturbed. A further a sum of Rs.5,000/- deserves to be granted on account of special diet and conveyance charges considering the long treatment undergone by the Appellant. 15. The burden of proving the breach of the terms and conditions of the policy was on the 3rd Respondent. The 3rd Respondent ash 10 fa-92.93 has only relied upon the statements recorded by the police during investigation under Section 161 of the Code of Criminal Procedure, 1973. The said statements never constitute evidence and at highest, the Appellant or 1st Respondent could have been confronted with their respective statements recorded under Section 161 of the said Code. The 1st Respondent denied in the cross examination that there were passengers taken on hire in the ill fated jeep at the relevant time. There was no evidence adduced by the 3rd Respondent to discharge the burden. The findings of the Tribunal on this aspect from paragraphs 15 to 17 are completely erroneous and the burden was not discharged by the 3rd Respondent. Therefore, that part of the impugned award by which the 3rd Respondent was not held liable will have to be quashed and set aside. 16. Considering the loss of income at the rate of Rs.1,675/- per month for a period of 25 months, the amount of Rs.41,875/- will have to be granted to which a sum of Rs.5,000/- will have to be added on account of conveyance charges and special diet. Thus, the Appellant is entitled to enhancement of Rs.46,875/-. When the claim petition was filed and decided, the rates of interest of nationalised banks on fixed deposits were very high. Therefore, the interest rates have been considerably reduced. Thereafter, on additional amount, interest will be payable at the rate of 8% per annum. ash 11 fa-92.93 17. Hence, I pass the following order:- (a) The impugned judgment and award is modified and it is directed that the 2nd and 3rd Respondents shall jointly and severally pay compensation equivalent to 70% of the amount of Rs.1,16,875/- ( inclusive of no fault liability ) to the Appellant. (b) The enhanced amount of 70% of Rs.46,875/- will carry interest at the rate of 8% per annum from the date of filing of the claim application till the deposit of the said amount with the Tribunal. (c) Time of four months is granted to the 2nd and 3rd Respondents to comply with the modified award. (d) Rest of the impugned award including interest awarded stands confirmed. (e) The Appeal is partly allowed on above terms with no orders as to costs. ( A.S. OKA, J )