First Appeal No. 188 of 1994

22nd March, 2001

Petitioner Counsel: Mr. NITIN MHATRE
Respondent Counsel: Mr. M. G. BARVE

Cases Cited:
Oriental Insurance Co. Ltd. Vs. Cheruvakkara Nafeessu, 2001 ACJ 1 [Para 6]

JUDGMENT

JUDGMENT :- Heard counsel for the appellants and respondent No.3 - Insurance Company. Nobody appeared for the respondent Nos. 1 and 2, even though served.

2. Appellants were the claimants before the Motor Accidents Claim Tribunal, Dhule. They filed claim petition claiming compensation of Rs. 10,00,000/- from the opponents, who were the driver of the Matador, the owner of the vehicle and the insurance company. The claim arose out of the accident caused to Shridhar G. Shinde - the husband of the appellant No.1, who was medical officer posted in General hospital at Dhule. The incident took place on 3.11.1987 at 7.45 a.m. that he was going on his Awanti Moped. According to the claimant, the accident took place because of the rash and negligent driving of the Matador by the respondent No.2. Dr. Shinde received fatal injuries and died within 4 days.

3. MACT dismissed claim petition on the ground that the opponent driver was not negligent but the deceased himself was negligent in driving the vehicle, and therefore this appeal. Counsel for the appellants pointed out that the entire approach of the MACT in coming to the conclusion about the guilt of the deceased was wrong and contrary to the facts and circumstances on record. My attention, in particular, was drawn to the written statement and different stand taken by the driver of the Matador who had earlier filed his written statement and has given a go-by to the said written statement and given oral evidence which was inconsistent with the same. Counsel for the appellants pointed out that these contradictions were sufficient to come to the conclusion that the driver was responsible for the accident.

4. On the other hand counsel for the insurance company vehemently opposed the submissions made by the counsel for the appellants. He contended that a perusal of the panchnama, map of the site and the evidence of the driver of the Matador will clearly show that firstly the driver of the Matador was not at all negligent. Secondly, the deceased was negligent to the extent of 90% and driver of the Matador to the extent of 5% to 10% only. Thirdly, according to him claimants must succeed on the strength of their own case and they cannot rely upon the witnesses of the opponents. Fourthly, according to him there is no contradiction in the written statement and oral evidence of the driver of the Matador.

5. So far as the compensation part is concerned, counsel for the appellants contended that the MACT has considered this aspect and has come to the conclusion that amount of Rs. 5,00,000/- was the compensation to which the claimants would be entitled in case they succeed in proving the negligence of the driver. However, counsel for the appellants fairly conceded that the multiplier of 25% applied by the MACT was wrong and multiple of 17 should be applied considering the age of the deceased which was 35 years. Therefore, according to him accepting the salary of the deceased at Rs. 2,300/- per month and after applying the multiple of 17 the amount (2300x22x17) comes to Rs. 3,06,000/- over and above which is Rs. 50,000/- has been arrived at by the MACT is compensation for loss of consortium, love and affection. Therefore, according to him in any case and in the least the claimants would be entitled to Rs. 3,56,000/- with interest and with costs of the appeal as well as before the MACT.

6. Counsel for the appellants also relied upon the judgment of the Supreme Court reported in 2001 ACJ 1 Oriental Insurance Co. Ltd. Vs. Cheruvakkara Nafeessu and others wherein the Supreme Court held that the insurance company is liable to pay the entire amount of compensation to the claimant with a right to recover whatever is over and above the insured amount from the person insuring.

7. As against this, counsel for the respondent No.3 contended that firstly the insurance company is not at all liable because the driver can not be said to be negligent or responsible for the death of the deceased Dr. Shinde. Secondly, according to him this was a case of contributory negligence where the extent of negligence of the deceased was about 90%, therefore the liability of the driver of the Matador would be bigger but not in any case exceeding to Rs. 5,000/- to Rs. 10,000/-. Thirdly, according to him in any case the insurance company cannot be made liable to pay anything more than Rs. 1,50,000/-.

8. Both the sides took me through the evidence on record which is very short because admittedly the claimants did not have any personal knowledge about the manner in which the accident took place but what they proved was the income and other aspects so far as the compensation part is concerned. One more witness P.W. 2 Dinkar Mangoji Garud was examined as witness of the claimants. Admittedly, he was not an eye witness and he does not say anything about the matter. Respondent No.2 Vasant Mahadu Nankar - driver of the Matador also examined himself.

9. The first question that arises is whether there is deviation in the evidence given by the driver -opponent Vasant Mahadu Nankar before the MACT and in the written statement filed by him before the MACT. Because according to the counsel for the respondent No.3-insurance company the evidence of the Matador driver is consistent with the stand taken in the written statement.

10. In para 7 of his written statement the opponent No.2 - driver of the Matador has stated as follows:

"Moreover, the accident which has occurred has unfortunately occurred due to the exclusive mistake (error) of the deceased Dr. Shridhar Shinde. The brakes of two wheeler vehicle of the deceased was not in a working order and that the deceased was driving the vehicle by a right hand side by a (wrong side) with a high speed and negligently. The deceased was not attentative towards the vehicle approaching from the opposite direction and when he came to know (about it) he was confused and confounded and as the brake could not be applied (he) dashed against the compound-wall-nearby- and dashed against the Matador and unfortunately he received injury and died after some days. In that, the opponent No.2 is not at all wrong. As soon as the opponent No.2 got an idea of the confusion of the deceased he stopped his vehicle on the spot by applying the brakes."

As against this, Driver of the Maruti in his evidence has stated as under :

"I was driving tempo MTS/6719. I was proceeding from Prakash Theatre to the Milk Centre which is behind Natraj Theatre. At the corner of Natraj Theatre I turned to left hand. At that time a Luna rider came from opposite direction in heavy speed. He was coming of his wrong side. He saw the tempo. He tried to apply brake of Luna but the brake failed. Luna did not stop. He was very much confused. He tried to go in open space which was by the side of the road. In that attempt Luna dashed against the wall. He fell down. I halted my tempo."

11. It was strongly urged by the counsel for the insurance company firstly that there is no contradiction in the evidence and in the written statement of the driver, and secondly according to the oral evidence of the driver Mr. Shinde, deceased who was riding the luna tried to apply brakes but the brakes failed and therefore the accident occurred. This part of the evidence of the driver is required to be outright rejected because it is impossible for driver of a Matador to observe and note in a fraction of second when the accident occurs that Mr. Shinde had applied brakes to his luna but the brakes failed. This is nothing but an attempt to shift his responsibility and liability and it is also an exaggeration because the accident took place at sharp turn where the Matador was turning to its left (as is seen from the sketch map and the panchnama) and this is impossible to believe that Vasant, driver of the Matador while taking turn and while observing the traffic on the road would be able to observe, note and find that the brakes were applied by deceased Shinde but the brakes failed.

12. So far as the contradiction in the evidence and in written statement of the driver Vasant is concerned. In his examination-in-chief this witness Vasant does not utter a word about any dash being given by luna to the Matador or about any collusion between Matador and luna. What he has stated is that Luna dashed against the wall. The luna rider fell down and this witness halted the tempo. If therefore this statement is taken as it is it means and shows that the Matador did not even touch luna. There was no physical contact between luna and Matador and the rider of luna died as a result of dashing against the wall. This evidence falsifies the case of the driver that he was not negligent. It is totally contradictory with his written statement and it negatives the contentions urged by the counsel for the insurance company. This is not a case where even by stretch of imagination it can be said that the luna rider was negligent. This is a case firstly where the driver who being the witness and participant in the accident, to shurk his responsibility has made false statement on oath before the court and has taken stand which is contradictory to his written statement and therefore his claim and contention that he was not at all negligent and that the luna rider was negligent is liable to be outright rejected. MACT committed a grave error in coming to the conclusion about the negligence of luna rider, firstly, in the absence of any positive evidence in that regard and secondly in spite of the aforesaid contradictory unpalatable statement of the driver of the Matador.

13. Counsel for the insurance company repeatedly urged that a perusal of the panchnama and map prepared by him on the basis of the panchnama would show that it is a case of contributory negligence and that too where the negligence of the luna rider was 90% and that of the Matador driver was 5% to 10%. No doubt he made submissions repeatedly but they are required to be rejected outright because there is no basis for the submissions. There cannot be any dispute about the proposition that the panchnama is a record of the observations made by the witnesses on the spot and contents of the panchnama are required to be independently proved. Merely proving panchnama in evidence is not a substitute for proving the contents of panchnama and therefore if at all the insurance company wants to rely upon the panchnama, it was obligatory upon the insurance company to get the contents proved through the witness who was examined to prove the panchnama. What has been done by the said witness Dinkar Mahadu Nankar is that the panchnama was merely shown to him and he admitted the same to be the same panchnama. This is no proof as required by law. Panchnama cannot be looked into even though it is a document exhibited on record unless its contents are proved. Any submission on the basis of the fact in a case like this must have basis in the evidence when the trial proceeds and in the evidence that is recorded by the trial court. If at all it is an attempt of the insurance company to show that luna rider was 90% negligent and driver of Matador was 10% negligent and if these submissions are made on the basis of the panchnama, then firstly they are liable to be rejected because panchnama is not proved. Secondly, they are to be rejected because the witness P.W. 2 does not utter a word about the contents of the panchnama or what were his observations about the scene on the spot.

14. Therefore, for these two reasons the submissions made by the counsel for the insurance company regarding contributory negligence are required to be rejected. Secondly, even though it is accepted that appellants must succeed on the strength of their own case, the court cannot overlook the glaring omissions, contradictions, falsities in a case when the driver of the Matador has entered the witness box and given evidence on oath. Therefore, on facts the submissions of contributory negligence or non-negligence of Matador driver are required to be rejected. MACT has obviously not considered these facts in proper perspective. The MACT has also relied upon the panchnama in the absence of any evidence about the contents of the panchnama, therefore the inference drawn and the findings arrived at by MACT on the basis of the panchnama are totally perverse and liable to be set aside.

15. Lastly, comes the question of compensation and quantum. Counsel for the insurance company contended that multiplier of 16 and not 17 as urged by the appellants should be applied. He also contended that the calculations made in this multiple which is Second Schedule to the Motor Vehicles Act is wrong. He also relied upon the judgment of Supreme Court in that regard. However, neither the judgment helps him nor the wrong calculations in the multiple can help him. Firstly, because this multiple contains schedule apart from multiplier for the purpose of registration. The court has to decide which multiplier applies in a given case and then on the basis of income of the deceased the multiple is to be applied for arriving at figure of compensation. Therefore, even if certain part of the second schedule is wrong and there are arithmetical mistakes that will not help the insurance company, in any manner.

16. Now the question is which multiple is to be applied in the instant case. There are two entries in the second schedule which lays down age of 15 above 30 years but not exceeding 35 years multiple 17, above 35 years but not exceeding 40 years multiplier 16. The age of the victim in this case was 35 years and no serious issue should have been raised by the counsel for the respondent No.3 - insurance company whether multiplier of 17 or 16 should be applied, particularly, when no attempt was made in the cross-examination to prove the age of the deceased below 35 years. Therefore, as suggested by the counsel for the appellants the multiple 17 has to be accepted in the instant case.

17. The trial court has accepted income at Rs.2,300/- per month of the deceased, even on that count the insurance company has serious objection because according to them the widow of the deceased was a nurse and was earning Rs.2,100/- per month. However, earning of the widow cannot result in reducing the dependency factor. Apart from his service it is the case of the claimants that the deceased was having private practice, he was having income from different sources but those aspects were not considered by the MACT to the benefit of the insurance company. Therefore, I am not inclined at all to accept the contentions of the insurance company that any further reduction is required to be made because the widow was earning some amount out of the service which she got might be on the compassionate ground after the death of his husband as nurse.

18. Therefore accepting the income of the deceased as Rs. 2,300/- applying the multiplier of 17 comes to Rs. 3,06,000/- adding to this is the amount of Rs. 50,000/- towards loss of consortium, love and affection, therefore, the total amount comes to Rs. 3,56,000/-. In the result I pass the following order :

ORDER

Appeal is allowed. Judgment of the MACT dated 28.9.1993 is set aside and quashed. Claim of the appellants is granted to the extent of Rs. 3,56,000/-. Appellants-claimants will be entitled for 12% interest from the date of the application till payment. In addition appellants will be entitled to recover Rs. 5,000/- each towards cost of this appeal as well as before MACT. Prayer for stay of operation of this order is rejected. Certified copy expedited.

Appeal allowed.