1 FA.125.99 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 125 OF 1999 Sampatrao Sitaram Chavan. ... Appellant Versus Sachin Mohan Jadhav and others. ... Respondents -------- Mr. T.S.Ingale for the Appellant. Mr. V.B.Rajure for Respondent No.1. Mr. S.S.Vidyarthi i/b Mr. S.M.Vidyarthi for Respondent No.3. -------- CORAM : A.S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED : 21 st December, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 16 th March, 2011. JUDGMENT: 1 By this first appeal, the Appellant has taken an exception to the judgment and award dated 7 th January, 1998 passed by the learned Member of the Motor Accident Tribunal at Sangli. Respondent No.1 in 2 FA.125.99 the appeal is the original claimant in a claim petition filed under Section 110 A of the Motor Vehicles Act, 1939 (hereinafter referred to as “the said Act”). The Appellant is the 2 nd opponent to the claim petition filed by Respondent No.1. Respondent Nos.2 and 3 to the appeal are the 1 st and 3 rd opponents to the claim petition filed by Respondent No.1. 2 According to the case of Respondent No.1, on 24 th December, 1988 around 5:30 in the evening, the Respondent No.1 was playing along with other children near Vazar – Alasand Road at village Alasand. At that time, a tractor owned by the Appellant, which was driven by the Respondent No.2 was going from Alasand to Kirloskarwadi. According to the case of Respondent No1, the tractor came from the wrong side and gave a dash to him. As a result of the dash, he fell down and his both legs came under the wheels of the trolley attached to the tractor. Serious injuries were sustained by the Respondent No.1. He was admitted to Krishna Charitable Hospital, Karad from 25 th December, 1988 and he continued as indoor patient till 25 th February, 1989. According to the case made out in the claim petition, the tractor was insured with 3 FA.125.99 Respondent No.3 on the date of the accident. The allegation is that the tractor was being driven in rash and negligent manner. 3 The Appellant filed written statement. It was denied in the written statement that the Appellant was driving the tractor in a rash and negligent manner. It was stated in the written statement that on 24 th December, 1988, in the trolley attached to the tractor, sugarcane grown in the field of the relative of Appellant was being for plantation in the field of the Appellant for plantation. It is stated that while the tractor was being driven on its correct side in a slow speed, an attempt was made by Respondent No.1 to take out one sugarcane stick from the trolley. In an attempt to take out sugarcane stick, the Respondent No.1 lost balance and his legs came under the right wheel of the trolley. It is contended that the accident occurred due to negligence on the part of Respondent No.1. Respondent No.3 – insurer of the tractor also filed a written statement. It was contended that the permit granted to the tractor and trolley was for carrying Appellant’s own goods. It is contended that at the time of accident, the tractor and trolley were being used for carrying 4 FA.125.99 sugarcane to Yashwant Co-operative Sugar Factory and the tractor and trolley was hired by a third party. It was contended that Respondent No.3 had insured the said vehicle as a private vehicle and the policy does not cover liability arising when the tractor and trolley were hired. It is contended that use of the tractor and trolley in breach of the material conditions of the permit amounts to breach of the terms and conditions of the policy of insurance. Therefore, Respondent No.3 was not liable to satisfy the award, which may be passed against the Appellant insurer. It was contended that on the date of the accident, the Appellant was not holding a valid driving license. 4 Respondent No.1 examined his mother as a witness. Apart from the mother, Respondent No.1 examined one Mr.Jagannath Jadhav as a witness. Respondent No.3 – Insurance Company examined one Mr.Mansing Shivaji Patil, an employee of Yashwant Co-operative Sugar Factory. One Mr.Shahaji Narsing Kamble was also examined by Respondent No.3. 5 FA.125.99 5 The learned Member of the Tribunal held that the accident occurred due to rash and negligent driving of the tractor by second Respondent who was the Appellant’s driver. It was held that Respondent No.3 has proved that Appellant has committed breach of terms and conditions of the policy. The learned Judge answered the issue No.3 regarding driving license by holding that the second Respondent was holding a license to drive only a tractor and not a combination of tractor with trolley. The learned Member of the Tribunal granted compensation of Rs.1, 14,000/- with interest thereon at the rate of 12% per annum. The compensation was made jointly and severally payable by the Appellant and Respondent No.2. The Respondent No.3 – insurer was exonerated and the claim petition against Respondent No.3 was dismissed. 6 The learned counsel appearing for the Appellant invited attention of the Court to the findings recorded as regards the allegation of negligence. He submitted that only the alleged eye-witness examined by Respondent No.1 by the name Jagannath, who has deposed before the Court as regards negligence against the driver of the tractor, is not a 6 FA.125.99 reliable witness. He invited attention of the Court to a sketch which is tendered by him on record. He submitted that the said sketch shows that even going by the case of Respondent No.1, the tractor never came on its wrong side. 7 He submitted that if the said sketch is perused, it is apparent that the theory propounded by the claimant cannot be believed. He submitted that the negligence on the part of the driver of the tractor has not been established and as far as the negligence is considered, it is a case of no evidence. He submitted that in any event, the compensation granted of Rs.1,17, 910/- is excessive and exorbitant and is contrary to the evidence adduced. He submitted that compensation of Rs.72, 000/- granted for rehabilitation of the claimant is exorbitant and excessive. 8 The learned counsel appearing for the Appellant submitted that the finding of the learned Tribunal regarding breach of the terms and conditions of the insurance police is perverse. He submitted that there is no evidence to show that the tractor and trolley was hired at the time of 7 FA.125.99 accident and the burden of proving that the tractor and the trolley were hired has not been discharged by the Insurer. He submitted that act of carrying agricultural produce like sugarcane cannot be termed as fundamental breach of the terms incorporated in the insurance policy. He submitted that the learned Tribunal has committed an error by coming to the conclusion that the tractor and trolley were not used for private purpose at the time of accident. He submitted that the Insurer is liable to satisfy the award. 9 The learned counsel appearing for Respondent No.1 – claimant supported the impugned judgment and award and submitted that the compensation granted is reasonable considering the nature of the injuries sustained by Respondent No.1. The learned counsel appearing for Respondent No.3 – Insurer submitted that the said respondent has discharged the burden of proving breach of the terms and conditions of the insurance policy and therefore, the learned Tribunal has rightly held that Respondent No.3 is not liable. 8 FA.125.99 10 I have given careful consideration to the submissions. There is no dispute regarding the involvement of the tractor owned by the Appellant in the accident. The first question will be whether the negligence on the part of the driver of the tractor has been established. The first witness examined by Respondent No.1 is his mother. At the time of accident, the age of Respondent No.1 was around 12 years. The mother of Respondent No.1 is not an eye-witness. She came to the spot after the accident. In the cross-examination, she stated that both the trolleys of the tractor were fully loaded with sugarcane. She admitted that the driver of the tractor was present there and that the sugarcane was being taken to Nagewadi Sugar Factory. 11 One Jagannath Maruti Jadhav was examined by Respondent No.1. He is the grand-father of Respondent No.1. In the examination-in- chief, he stated thus: “The accident in question took place prior to 8-9 years, at about 5 or 5.30 P.M. on Alsund-Wazar Road. I was coming from my field and was going towards my house. My house is situated on Wazar Road. I witnessed the said accident. At that time, one tractor came in the fast speed from the side of village Wazar. At that time 2-4 boys were 9 FA.125.99 playing on the road. My grand-son Sachin came under rear wheel (north-side) of the trolley of the tractor. I asked to driver Kolekar to stop his tractor, there, but he i.e. tractor driver did not stop the tractor there. By that time, one person who was ahead of the tractor, stopped the tractor. The tractor was proceeding towards village Balavadi. The rear wheel of the trolley of the tractor passed over both the legs of Sachin Jadhav.” 12 In the cross-examination, he admitted that the tractor was having two trolleys and both the trolleys were loaded with cut-sugar cane eyes (for plantation). He stated that the road in question runs east-west. He denied the correctness of the suggestion that the boys were chasing the tractor and trolleys for the purposes of pulling out sugarcane sticks. He denied the correctness of the suggestion that Respondent No.1 was trying to pull sugarcane from the northern side of the trolley of the tractor and that while doing so, he lost his balance. In the cross-examination made by the learned counsel appearing for Respondent No.3, he stated that he was not aware whether the sugarcane in the trolleys was of one Mr.Vasudeo Ganpati Chavan of village Tandulwadi. He stated that he had no idea whether the sugarcane was being taken to Nagewadi Sugar Factory. 10 FA.125.99 13 On the aspect of negligence, it must be noted that no witness was examined by the Appellant and even the driver of the tractor was not examined. Only the driver of the tractor could have deposed as regards the manner in which the accident occurred. The Appellant made no efforts to examine the driver, who was the best witness available. It must be stated that the learned Tribunal constituted under the said Act is not bound by the strict rules of evidence. The case of the Appellant was that Respondent No.1 was trying to pull out a sugarcane stick from the northern side of the trolley and in that process, he fell down and that is how his legs came under the wheel of the trolley. Suggestion given to this effect has been denied by the eye witness Jagannath examined by Respondent No.1. The necessary implication of giving such suggestion is that the fact that the tractor and trolley were involved in the accident and injuries were caused to Respondent No.1 was admitted by the Appellant. However, the Appellant has not discharged the burden of proving the case that the accident occurred in an attempt by Respondent No.1 to pull a sugarcane stick from the trolley. The learned counsel 11 FA.125.99 appearing for the Appellant has made a submission by producing a hand sketch that the theory of negligence on the part of the driver of the tractor cannot be accepted. In the facts of the case, the said submission is not open. Once involvement of the tractor and trolley is admitted, it was for the driver of the tractor to explain in what manner the accident has occurred. In fact this was a fit case where adverse inference ought to have been drawn against the Appellant for making no effort to examine the driver of the tractor. Therefore, it is not necessary to interfere with the finding on the issue of negligence. 14 The second question is regarding the quantum of compensation. The mother of Respondent No.1 has stated the manner in which the Respondent No.1 underwent treatment. She stated in her deposition that: “Therefore, my son Sachin was taken to the hospital of Dr. Katkar at Vita. At Katkar’s hospital, full treatment could not be given, therefore, my son Sachin was taken to Krishna Charitable Hospital, Karad. Both legs of my son – Sachin were operated and were put under plaster. Firstly, muscles of upper arm were removed for grafting, but they were not useful, therefore, his thighs’ muscles were removed for grafting. The steel rod (nailing) was fitted into the left leg of my son. My son Sachin was admitted for 63 days, at 12 FA.125.99 Krishna Charitable Hospital, Karad. Myself and my brother-in-law Baban stayed at Hospital for the service to my son. We were required to spend Rs.50/- per day for ourselves. My son Sachin was kept on special diet such as milk and fruit. For purchase of milk and fruit, we required to spend Rs.50/- per day. My son Sachin was on special diet in the hospital and thereafter, for 2 months in the house. I produced medicine bills and medical bill on the record. Due to the accident in question, my son Sachin could not attend the school for one year. I claimed the compensation for loss of schooling of my son Sachin. After the discharge from Krishna Charitable Hospital, Karad, we visited to the said hospital twice for removing plaster and bandage. Even to-day, the injuries of my son Sachin are not fully recovered. I have claimed the compensation for the loss of earning capacity of my son Sachin and for suffering and pain.” 15 There are two medical certificates on record at Exhibit – 67 and Exhibit – 102. While making a reference to the medical certificates, the learned Member of the Tribunal has observed thus: “..... The contents of the certificates given by the Ortopaedic Surgeon Exhibit 67 and Exhibit 102 are not in dispute. In the certificate Exhibit 67 it is mentioned that dislocation and it was of 1st matatarsal base 3rd and 4th Matatarsal left side. The certificate Exhibit 67 was issued on 14th March 1989. The second certificate Exhibit 102 was issued by the Orthopaedic Surgeon the contents of which are also not in dispute. In the said certificate, it is mentioned that when Sachin was examined on 1st July 1991 nearly about 2½ years after the accident, he had weakness in the extenor halluois longer and extenor digsforum longers of left foot and the disability was 10 per cent. Sachin’s mother in her evidence stated that even after 6 years from the date of the accident, Sachin’s 13 FA.125.99 injuries were not cured.” 16 The learned Member of the Tribunal observed that because of the disability, the Respondent No.1 is not in a position to walk properly and his chances of employment have been seriously affected. The learned Member of the Tribunal has observed that there was certainly a loss of earning capacity in future. On account of the disability, pain and suffering, the learned Member of the Tribunal granted compensation of Rs.72,000/-. The learned Member has considered the evidence adduced in the form of vouchers of the expenditure on the medical treatment. The leaned Member of the Tribunal has noted that Respondent No.1 had to remain away from the school for a period of one year. Taking the overall view of the matter, he has come to the conclusion that total compensation payable will be Rs.1,17,910/-. Looking to the oral and documentary evidence on record and the extent of disability, the said compensation is reasonable. 17 Now the only issue which survives for consideration is 14 FA.125.99 whether Respondent No.3 is liable to satisfy the award. The Respondent No.3 examined one Shahaji Narsing Kamble. He was working as a clerk in Permit Section of RTO Office, Sangli. He stated that the tractor and the trolleys involved in the accident are registered with RTO, Sangli. He stated that there was no permit issued for the tractor as it was a non- transport vehicle. He stated that permit was issued only to the two trolleys. He produced true copies of the relevant entries in the register of the permits. He stated that the permit was given to transport the agricultural goods. He stated that under the permit, the owner was supposed to use the trolleys for transporting his own agricultural goods. He stated that the permit issued to the trolleys was not for using the same for hire. In the cross-examination, he admitted that the tractor can be used for carrying owner’s seeds and fertilizers. 18 At this stage, it must be noted that Respondent No.1’s mother stated that the trolleys were fully loaded with sugarcane. She stated that the sugarcane was being taken to Nagewadi Sugar Factory. The Respondent No.1’s mother cannot have any personal knowledge 15 FA.125.99 about the destination of the sugarcane carried in the tractor. The eye witness Mr.Jagannath in his cross-examination stated thus: “..... Both the trolleys were loaded with cut-sugar cane eyes (for plantation).” In the cross-examination, he stated that he had no idea whether the sugarcane was being taken to Nagewadi Sugar Factory. He denied the correctness of the suggestion that the sugarcane in the trolleys was not meant for plantation. He stated that he had no idea whether the sugarcane was of one Vasudeo Ganpati Chavan of village Tandulwadi. This witness as well as the Respondent No.1’s mother cannot have any personal knowledge as regards the ownership of sugarcane crop in the trolleys and the purpose for which the sugarcane was to be used. Surprisingly, the Appellant or the driver of the tractor and the trolleys, who were the best persons to depose on this aspect did not enter the witness box. The Respondent No.3 – Insurance Company examined one Mr.Mansing Shivaji Patil, who was working as a fieldman in Yashwant Sahakari Sugar Factory, Nagewadi. In paragraph No.1 of his deposition, he states thus: 16 FA.125.99 “As per the summons, to-day I have brought original papers for perusal and I produce the xerox copies of the documents, as per the list, at exh. 33. I have produced xerox copies of certificate of registration of the motor vehicles of tractor MXW 8292 and trolleys nos MWE 3402 and 3401 and they are at exhs. 34, 35, 36 respectively. Sampatrao Sitaram Chavan entered into agreement with Yashwant Sahakari Sakhar Karkhana limited, Nagewadi for transporting sugar-cane for the year 1988-89. To-day, I have brought the original agreement dated 12-10-1988 for perusal. The xerox copy just shown to me is correct as per the original. The original contract bears signature of Sampatrao Sitaram Chavan. The contents of the agreement are correct.” 19 In the further part of his examination-in-chief, he deposed that as per the agreement, Sampatrao Chavan agreed to transport sugarcane to the factory by the said tractor. In paragraph No.3 of his deposition, he deposed thus: “3. On 23-12-1988, Sampatrao Chavan transported the sugar-cane of Pralhad Nivrutti Chavan, resident of Tandalwadi. 4. On 24.12.1998, Sampatrao Chavan transported sugar-cane of Vasudeo Ganapati Chavan, resident of Tandalwadi and Pralhad Nivrutti Chavan of Tandalwadi. On 25-12-1998, Sampatrao Chavan transported the sugar- cane of Bajirao Khashaba Chavan of Tandalwadi and Vasudeo Ganapati Chavan. On three dates, the sugar- cane was transported to the factory by tractor MXW 8292 alongwith trolleys MWE 3401 and MWE 3402. The sugar 17 FA.125.99 factory paid the transport charges to Sampatrao Chavan of said three dates. At the time of taking delivery of sugar- cane at the factory, the officials of sugar factory issued the weight-slips of sugar cane to the tractor owner. Original weight-slips are in the possession of the tractor owner i.e. Sampatrao Chavan.” 21 The learned counsel appearing for the Appellant relied upon cross-examination of the said witness made by the learned counsel appearing for Respondent No.1 – claimant. He submitted that when the accident occurred, considering the location of the sugar factory, it is obvious that the sugarcane was not being taken to the sugar factory. There is no dispute that accident occurred on 24 th December, 1988, documentary evidence has been produced on record by the said witness to show that there was an agreement between the Appellant and the sugar factory and that on 24 th December, 1988, the Appellant transported sugarcane on one Vasudeo Ganapati Chavan of village Tandalwadi. 22 The learned counsel appearing for the Appellant stated that considering the direction in which the tractor was moving, the sugarcane 18 FA.125.99 was not being taken to the sugar factory. For the reasons best know to him, the Appellant has avoided to step into witness box. The Respondent No.3 discharged the burden of proving the breach of the terms of the policy by establishing that on the day of the accident, the tractor and the trolleys were used for transporting the sugarcane of a third person to the sugar factory. It was for the Appellant to prove that the sugarcane was being carried to his own field. As the Appellant has not chosen to step into witness box or lead any documentary evidence, it is very difficult to disturb the finding of the learned Member of the Tribunal that the Appellant has committed breach of the terms and the conditions of the policy and permit. Therefore, the findings on this aspect will have to be confirmed. 23 Hence, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. 24 If any amount deposited by the parties is pending in this Court, the same shall be transferred to the concerned Tribunal and the 19 FA.125.99 learned Tribunal shall pass an appropriate order regarding withdrawal/disbursement of the said amount. [ A.S.OKA, J ]