First Appeal No.482 of 1997

15th January, 2007

Petitioner Counsel: SUNIL MANOHAR
Respondent Counsel: S. N. DHANAGARE

Cases Cited:
Kanu Ambu Vish Vs. State of Maharashtra, AIR 1971 SC 2256 [Para 8]
M/s. Sanjay Cotton Co. Partnership Firm Vs. M/s. Omprakash Shioprakash, AIR 1973 Bom. 40 [Para 8,15]
Ramji Dayawala & Sons (P) Ltd. Vs. Invest Import, (1981)1 SCC 80 [Para 8]
S. P. Mittal Vs. Union of India, AIR 1983 SC 1 [Para 8]
Bama Kathari Patil Vs. Rohids Arjun Madhavi, 2004(2) ALL MR 290=2004(2) Mh.L.J. 752 [Para 8]

JUDGMENT

A. B. CHAUDHARI, J.:- Being aggrieved by the judgment and order dated 17-6-1997 passed by the Motor Accident Claims Tribunal, Amravati, in Motor Accident Claim Petition No.18 of 1991 dismissing the entire claim petition, the appellants who are the original claimants have filed the instant appeal.

2. Factual matrix :

The appellants filed claim petition under section 166 read with section 254(1) of the Motor Vehicles Act and claimed compensation to the tune of Rs.16,25,164/- with future interest and costs. The appellants stated in the claim petition that on 20-7-1990, at about 2.00 p.m., the deceased Manohar Indapwar along with his son Yatindra Indapwar, Nilkanth, Sushila Khamdeo, Ushabai Deshmukh and Sayabhamabai Raich started their journey from Nagpur to Amravati in a Fiat Car having registration No.MZQ-750 owned and driven by deceased Manohar. Deceased Manohar, Yatindra and Nilkanth were sitting on the front seat. The car was being driven by deceased Manohar. Sushilabai, Satyabhamabai and Ushabai Deshmukh were sitting at the back seat of the car. The car was being driven at a moderate speed.

3. After the car crossed mouza Mozari on National High Way No.6 - Nagpur-Amravati Road, and was proceeding towards Amravati, a loaded truck bearing registration No.GJ-3/T-525 owned by respondent Nos.1 and 4 driven by respondent No.2 came from Amravati side in excessive speed and in between village Shendola Khurd and Fattepur, about 29 kms. from Amravati, dashed against the Fiat car. Respondent No.2 who was driving the truck rashly and in excessive speed had lost his control over the truck. The dash against the car was so severe that the car which was going towards Amravati changed its direction towards Nagpur. The entire front portion of the car as also the complete driver side and major portion of left side of the car was badly damaged. Due to severe impact of the truck with the car, the driver of the car Manohar died on the spot and the other occupants of the car were thrown on the road and sustained several internal and external injuries. The truck involved in the accident was insured with respondent No.3 and the fiat car was insured with respondent No.4.

4. The appellants/claimants then averred that the deceased Manohar was an architect and was serving as Assistant Professor in Architecture at Visvesvaraya Regional College of Engineering, Nagpur, since 4-4-1974 and on the date of accident the basic pay of deceased Manohar was Rs.4,825/- which was revised to Rs.5,700/- with effect from 1-1-1986 and his total emoluments were Rs.7,444/- per month. On 1-4-1991 his total emoluments would have been Rs.7,609/- and on the date of superannuation his total emoluments would have been Rs.8,401/-, as certified by the Principal of the College vide letter dated 7-1-1991. It was further stated in the claim petition that the pension at the rate of Rs.2,753/- effective from 1-11-1995 would have been receivable by him. The deceased Manohar was working as Co-ordinator for construction work of V.R.C.E. Nagpur and as Architect for various projects of the Amravati University since 1987-88 and his average income from the said work was Rs.20,000/- per year. It was then averred that the deceased Manohar would have survived up to the age of 70 years efficiently. The total claim ultimately was for Rs.16,25,164/-.

5. The claim petition was heard ex parte against respondents 1, 1-A, 2 and 4. The respondent No.3 United India Insurance Co. Ltd. contested the claim petition and filed their written statement (Ex.40) denying the averments in the claim petition. The defence that was raised by the respondent No.3 was by and large on the basis of spot panchanama (Ex.53). The respondent No.3 stated that due to over crowding on the front seat, the driver-deceased Manohar at the relevant time could not control the car and as the car was in a high speed he lost the control of the car and dashed with the truck being registration No.GJ-3/T-525 which was coming from the opposite side. In other words, it was the driver of the car who was fully responsible for the accident. The Insurance Company thus prayed for dismissal of the claim in entirety.

6. The parties to the claim petition went on trial. On behalf of the appellants, Suresh Jade (P.W.1), Assistant Registrar, V.R.C.E. Nagpur, Yatindra Indapwar (P.W.2)- the son of deceased Manohar Indapwar, who was sitting in the car near his father and Ramesh Ingle (P.W.3)- the Principal of V.R.C.E. were examined and cross-examined. No witness was examined on behalf of the respondents nor any of the respondents filed any document.

7. After hearing the parties, the Tribunal held that the deceased Manohar was driving the car rashly without taking proper care and gave a dash to the truck as no brake marks were noticed behind the car. The fact that excess damage was caused to the right side of the car, indicate that the car was being driven in a high and uncontrolable speed. Relying on the spot panchanama (Ex.53) the Tribunal drew this conclusion and consequently held that there was no evidence to suggest that there was negligence on the part of the truck driver. Insofar as the issue regarding quantum of compensation is concerned, the Tribunal held that multiplier of six was liable to be applied. Ultimately, the Tribunal came to the conclusion that the total loss to the family was Rs.55,000/- plus Rs.10,000/- for damages for loss of company. However, since the claim petition itself was being dismissed, there was no occasion for the Tribunal to award any compensation.

8. Submissions of appellants :

Mr. Manohar, learned Counsel for the appellants, streneously contended that the finding recorded by the Tribunal holding the car driver responsible for driving the car rashly and negligently was based on spot panchanama (Ex.53). He urged that the spot panchanama (Ex.53) could not be read in evidence as the same was not proved as required by law. He contended that the Tribunal could not have relied on the spot panchanama as the statements made in the spot panchanama did not have any evidentiary value and the contents there of can be used to corroborate or contradict the substantive evidence. He referred to the decision of Supreme Court in the case of Kanu Ambu Vish Vs. State of Maharashtra, reported in AIR 1971 SC 2256. He contended that the spot panchanama was not admitted by the appellants and mere exhibition of a document is an administrative Act and cannot amount proof thereof. No attempt was made by the respondents to prove the said document and its contents by examining the witnesses to the spot panchanama or the Police Officer who had drawn it. He then went on to urge that none of the respondents could shatter the testimony of eye-witness Yatindra (P.W.2) in the cross-examination and, as such, his evidence was liable to be accepted. No evidence in rebuttal was adduced by the respondents. Merely because other occupants of the car were not examined the testimony of Yatindra, being unimpeached, could not be brushed aside. He relied upon the decisions of this Court as well as of Apex Court in (i) M/s. Sanjay Cotton Co. Partnership Firm Vs. M/s. Omprakash Shioprakash, reported in AIR 1973 Bom. 40; (ii) Ramji Dayawala & Sons (P) Ltd. Vs. Invest Import, reported in (1981)1 SCC 80 and (iii) S. P. Mittal Vs. Union of India, reported in AIR 1983 SC 1 in support of his argument that mere exhibition of a document is not sufficient, nor by mere exhibiting the document stands proved. He also relied upon the decision of this Court in the case of Bama Kathari Patil Vs. Rohidas Arjun Madhavi, reported in 2004(2) Mh. L.J. 752 : [2004(2) ALL MR 290] in support of the argument that those who prepared the spot panchanama and singed the same as witnesses were not examined to prove the spot panchanama and, therefore, the same cannot be read in evidence. He then submitted that even otherwise the spot panchanama was recorded more than five hours after the accident and the fact that the truck was found to be parked at a distance of more than 15 feet from the car, clearly indicated that the position of the vehicles were changed before the spot panchanama was drawn. He, therefore, argued that the impugned judgment and order dismissing the claim in entirety on the ground that the driver of the car was driving the car rashly and negligently is perverse and contrary to the evidence on record and that the said finding is liable to be quashed and set aside.

9. On the point of quantum of compensation, Mr. Manohar relied upon the certificates dated 7-1-1991, 3-4-1996 and 8-1-1991 (Exhs.44, 45 and 47) respectively. He also referred to the evidence of Suresh (P.W.1) and Ramesh (P.W.3) who proved the aforesaid certificates. He then submitted that looking to the salary of deceased Manohar at Rs.7,609/- as on 1-4-1991, the annual income would be around Rs.90,000/-. He has calculated the amount of pension which the deceased would have received considering the life expectancy of 70 years at Rs.3,18,642/-. He claimed amount of Rs.20,000/- for loss of company.

10. Respondents No.1, 1-A and 2 though served remained absent.

11. Submissions of respondents 3 and 4.

Mr. S. N. Dhanagare, learned Counsel for respondents 3 and 4, contested the claim of the appellants. He contended that the spot panchanama (Ex.53) clearly showed that there were brake marks behind the truck while there were no such brake marks at all behind the fiat car in the direction towards Nagpur. It was, therefore, obvious that the truck driver had applied brakes to avoid accident and the car driver did not apply brakes and that is why the car being driven in a high speed dashed against the truck resulting into the accident. Referring to the spot panchanama, he argued that the car was damaged on its right side, i.e. driver's side, and the car was not to its extreme left side but was to its right side and, therefore, the car had gone in the wrong direction while the truck was on its correct side. He therefore, urged that the finding recorded by the Tribunal is based on the spot panchanama which cannot be termed as perverse and the said finding is liable to be maintained.

12. Mr. Dhanagare objected to the argument of learned Counsel for the appellants that the spot panchanama could not be read in evidence on the ground that the appellants never disputed the contents of the spot panchanama nor contested the said document and, on the contrary, on their own volition consented to exhibiting the said document without demur and the appellants cannot be allowed to challenge the proof of evidentiary value of the spot panchanama. He then argued that the appellants remained contented by examining only Yatindra (P.W.2) as an eye-witness, admittedly when other four persons sitting in the car, who could be termed as independent witnesses, could have been examined. The testimony of Yatindra being interested was not liable to be accepted.

On the question of quantum of compensation, Mr. Dhanagare argued that the same was considered by the Tribunal in paragraphs 12 to 15 of its judgment and the monthly salary of Rs.7,190/- taken by the Tribunal for the period 1-4-1991 to 1-4-1992 was the proper measure for working out the quantum of compensation. He then argued that the claim of Rs.20,000/- per annum for the period of five years, i.e. Total Rs.1,00,000/- towards the deceased Manohar acting as a co-ordinator as liable to be rejected inasmuch as the deceased was not entitled to carry on the said work, he being in Government college. On the claim regarding additional claim of Rs.3,00,000/- shown as income from private practice after retirement as Architect, Mr. Dhanagare submitted that there is absolutely no certainty of any future life or future income as such and, therefore, the claim cannot be granted. Finally, Mr. Dhanagare urged this Court to dismiss the claim made by the appellants and maintain the judgment and order of the Tribunal.

13. Points for determination :

(i) Whether the appellants have proved that the death of deceased Manohar Indapwar is the result of rash and negligent driving of respondent No.2, who was driving the truck bearing registration No.GJ-3/T-525 ?

(ii) If yes, what is the quantum of compensation which the appellants are entitled to, and on what count ?

(iii) What is the rate of interest to which the appellants/claimants are entitled to on the awarded amount of compensation ?

(iv) What award and costs ?

14. Consideration :

Having heard both the learned Counsel at length and having perused the entire oral as well as documentary evidence on record, we find that the material evidence of Yatindra (P.W.2), who is the son of deceased Manohar and admittedly an occupant of the car, has not at all been shaken in the cross-examination. He deposed as under :

"My father was driving vehicle. On front seat myself and Nilkanth Bhoyar were putting along with the deceased. Three person were in rear seat of the vehicle. We came near Shendora Khurda after Mozari towards Amravati. Our vehicle was proceeding between the speed 40-50 km. per hour. We reached near the stop between 5.30 to 6.00 p.m. Our vehicle was left side of the road. I have seen that the trust coming from opposite direction. It was in speed. By consideration the speed of the truck my father reduced the speed of our car and took the vehicle towards left. The truck which was uncontrolled came and dashed to the care. Due to the heavy impact our car took turn towards Nagpur. The rear and front side the impact. As damage was caused to the cleaner side of the care but it got opened. On that myself and Bhoyar were thrown out of the vehicle and the driver were died on the spot. The person who were sitting on ear side of the care were also thrown out of the car. Due to that they received injuries."

In the cross-examination of this witness, nothing material has been brought on record to disbelieve his evidence. Merely because Yatindra happens to be the son of the deceased and a claimant and merely because other independent witnesses were not examined, there is no reason to reject his evidence.

15. The record nowhere shows that the contents of the document (Ex.53) were admitted by the appellants. It appears from the endorsement made on the list of documents (Ex.4) that the Counsel for respondent No.3 agreed that the spot panchanama may be exhibited so as to dispense with the formal proof thereof. Accordingly, Exhibit number was put on the said document as Ex.53. The appellants have nowhere admitted contents of spot panchanama. They were never asked to admit the contends of the said document. No witness was examined by the respondents to prove the contents of the spot panchanama. The law laid down by this Court in the case of M/s. Sanjay Cotton Col. Partnership Firm Vs. M/s. Omprakash Shioprakash, reported in AIR 1973 Bom. 40 is squarely applicable to the facts of the present case wherein an endorsement was made to dispense with the formal proof of documents. Consequently, Exhibit numbers were given to the documents by the trial Court. This was sought to be treated as admission or proof of documents dispensing with the necessity to prove the contents of the documents. The learned Single Judge in the said case held that such endorsement neither results in admission of the documents nor it dispenses with the necessity of proving the contents of the documents. Thus, following the law laid down by this Court, if the document (Ex.53) is excluded from consideration, then what remains in the field is the evidence of Yatindra (P.W.2) a sole eye-witness; which we have already held that his evidence is trustworthy and cannot be excluded from consideration for the reasons already recorded hereinabove. His evidence further demonstrates that the car was not in a high speed and, as claimed by him, the speed was about 40-50 kilometre per hour. None of the respondents examined a single witness on the spot panchanama or any witness or the driver of the truck in order to rebut the evidence of the sole witness Yatindra (P.W.2). Non-examination of the truck driver by the respondents cannot be considered as a factor against the appellants. If the respondents wanted to establish their case/defence; it was for them to examine their witnesses or the truck driver. Further, the fact that after the dash given by the truck the car changed its direction towards Nagpur side, speaks about the nature of impact of the dash given by the truck to the car. There is no evidence on record to suggest nor there is any suggestion to Yatindra (P.W.2) in the cross-examination that the movement of the deceased driver was restricted because total three persons including the driver were siting on the front seat of the car. The observations made by the Tribunal to this effect is nothing but an imagination. Similarly, the major damage caused to the car to its right side is not necessarily indicative of the fact that the car was driven in a high speed. The record shows that damage was also caused to the left side and it may be that the major portion of the right side was damaged because of the dash given by the truck.

16. Even assuming for the sake of arguments that the spot panchanama (Ex.53) is treated as proved and admissible in evidence, even then we find that the recitals in the spot panchanama that there were no brake marks towards Nagpur direction behind the car demonstrates that the car was not in a high speed and, as claimed by Yatindra, the speed was 40-50 kilometre per hour. For these reasons, we have come to the conclusion that the killer truck bearing registration No.GJ-3/T-525 was being driven in a high speed and had given dash to the car with such an impact that the car changed its direction from Amravati to Napgur side. We, therefore, answer point No.1 in affirmative.

17. As regards point No.2 regarding grant of compensation, at the outset, we find that the Tribunal has recorded a detailed finding after discussion of the evidence on record in paragraphs 12 to 15 and ultimately held that the appellants were entitled to compensation to the tune of Rs.05,05,000=00 + Rs.10,000 towards damages for the loss of company that is that Rs.05,15,000=00. This finding recorded by the tribunal has not been challenged by the respondents in the present appeal by lodging cross-objection. In other words, the respondents have accepted this finding regarding quantum of compensation. We have carefully gone thought the said finding recorded by the Tribunal, so also the various documents as well as oral evidence tendered in support of the claim for quantum of compensation. Having gone through the same, we find that the findings recorded by the Tribunal in paragraphs 12 to 15 is in accordance with the oral as well as documentary evidence tendered by the appellants, and therefore, we agree with the said finding recorded by the Tribunal. There is no reason for us to differ from the said finding on any count and, therefore, we confirm the same. Consequently, we hold that the appellants are entitled to compensation to the tune of Rs.05,05,000=00 + Rs.10,000=00 towards damages for loss of company, that is total Rs.05,15,000=00.

18. As regards grant of interest, we find that the appellants are entitled to interest on the amount of compensation as the delay in payment of compensation to the appellants is not attributable to the appellants at all. Grant of interest at the rate of 6% per annum on the amount of compensation of Rs.05,15,000=00 would subserve the ends of justice. We, therefore, hold that the appellants are entitled to interest at the rate of 6% per annum on the amount of compensation awarded.

19. In the result, we set aside the impugned judgment and order date 17-6-1997 rendered by the Motor Accident Claims Tribunal, Amravati, and allow the appeal with costs in this Court as well as in the Tribunal. We award the compensation of Rs.05,15,000/- to the appellants recoverable from respondents 1 to 4 jointly and severally. We also grant interest at the rate of 6% per annum on the amount of compensation of Rs.05,15,000=00 from the date of filling of the Claim Petition, i.e. 17-1-1991, till actual payment to the appellants. Decree/Award be drawn accordingly.

Appeal allowed.