Sabino Tolentino Fernandes vs Rohidas N. Naik

U.V. Bakre, J.—Heard Mr. Almeida, learned Counsel appearing on behalf of the appellants, Mr. Keny, learned Counsel appearing on behalf or respondent No. 1 and Mr. Kakodkar, learned Counsel appearing on behalf of respondent No. 2. Admit. By consent, heard forthwith.

By this Appeal, the appellant have challenged the judgment and award dated 6th July, 2013 passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Margao (''the Tribunal'') in claim Petition No. 60/2010. Respondent No. 1 was the claimant; appellants were respondent Nos. 1 and 2, being rider and owner of the offending vehicle; and respondent No. 2 the Insurance Company, was respondent No. 3 in the said Claim Petition No. 60/2010. Parties shall, hereinafter, be referred to as per their status in the claim petition.

The claimant has filed the said petition u/s 166 of the Motor Vehicles Act, 1988 (''M.V. Act'' for short) for compensation of Rs. 3,00,000 on the account of grievous injuries sustained by him in a motor vehicular accident which injuries resulted in permanent disability. The claimant alleged that on 21st July, 2009, he was proceeding from Margao to Cuncolim and on reaching to Panjorconi, he took his motorcycle bearing registration No. GA-08/H-9715 to fill petrol and was then proceeding towards Cuncolim. On reaching at Kakanamodi, Cuncolim, barely 500 metres away from the Petrol Pump, he noticed a bus stopped on the left side of the road for the passengers to alight and a scooter bearing registration No. GA-08/B-2004 behind the said bus was one faces from Margao towards Cuncolim. The claimant was riding the motorcycle at a slow speed and since front view was clear and as there was no other vehicle coming from opposite direction, he decided to overtake the bus to go ahead. However, the rider of the motorcycle No. CA-08/B-2004, all of a sudden, took his scooter in the middle of the road in a rash and negligent manner without taking any precaution and without looking on the road, in order to enter the right side of the village Kakanamodi, and in that process, gave dash to the motorcycle of the claimant and then dragged him to the right. The passengers from the bus got down and helped the claimant who was shifted to NUSI Hospital at Panjorconi and, thereafter, to Apollo Victor Hospital at Margao. The claimant suffered injuries to his leg apart from other fracture injuries thereby hampering his work and earning capacity. The claimant sustained permanent disability or 20%. The claimant was 35 years old as on the date to accident and was working as motorcycle pilot and thereby earning Rs. 10,000 per month. Due to the injuries sustained by him, the claimant was confined to the house for almost six months and his future prospects had also become bleak. The claimant claimed compensation as under:

There was amendment carried out to the claim petition subsequently to add that the claimant was called at the Cuncolim Police Station by Head Constable U. Naik who obtained signature of the claimant on various papers and asked him to go and that the claimant had not received any checking memo from the police to whom he had paid Rs. 800.

Respondent Nos. 1 and 2 filed their written statement alleging that the accident was the outcome of the fast speed, rashness and negligence of the claimant himself and that since the negligence was on the part of the claimant himself, an offence u/s 184 of the M.V. Act for driving dangerously on the road was booked against him and the claimant admitted his guilt and paid the fine. Thus, respondent Nos. 1 and 2 alleged that they were not liable to pay any compensation. Respondent No. 3 had disputed its liability on the ground that respondent No. 1, who was riding the offending vehicle, did not possess a valid and effective driving licence/on the date of the accident and, therefore, it was not liable to pay any compensation as the respondent No. 2 had authorised respondent No. 1 to drive the said vehicle and thereby contravened the condition of policy.

Accordingly, issues were framed by the Tribunal and the claimant examined, four witnesses. Respondent Nos. 1 and 2 did not examine any witness. Respondent No. 3 examined the Motor Vehicles Inspector.

Upon consideration of the entire evidence on record, the learned Tribunal held that there was contributory negligence on the part of the claimant and respondent No. 1. It was held that the claimant had sustained injuries, which resulted in permanent disability. The Tribunal further held that there was breach of insurance policy since respondent No. 1 did not hold a valid and effecting driving licence. An amount of Rs. 2,44,800 was awarded on account of the permanent disability; and amount of Rs. 2,000 towards travelling expenses; and amount of Rs. 2,000 towards service of attendant and an amount of Rs. 24,850 towards medical treatment and medical bill, an amount of Rs. 20,000 towards pain and suffering all added up to Rs. 2,93,650. Since there was contributory negligence at the instance of the claimant, the compensation was reduced by 30% to Rs. 2,05,555. Ultimately, respondent Nos. 1 and 2 jointly and severally have been held liable to pay the said compensation of Rs. 2,05,555 to the claimant along with interest @ 9% p.a. from the date of application till the date of award further interest at the same rate in case the said amount is not paid within a month, till the payment. Respondent No. 3-Insurance Company has been absolved of the liability to indemnify respondent No. 2 as there was breach of insurance policy.

Respondent Nos. 1 and 2, being aggrieved by the said judgment and award, have preferred the present appeal.

Mr. Almeida, learned Counsel appearing on behalf of the claimants submitted that the claimant was riding his motorcycle from the back of the scooter ridden by respondent No. 1 and, therefore, it was the duty of the claimant to alert respondent No. 1 but in spite of doing that he gave dash to the scooter of respondent No. 1 and himself fell down and sustained injuries. He submitted that the guilt of the claimant was admitted by him before the police and had compounded the offence u/s 184 of the M.V. Act and had paid Rs. 800, towards compounding fees. According to learned Counsel, therefore, the claimant could not have been held to be entitled to any compensation. He invited my attention to the sketch of the spot of accident and showed that the motorcycle of the claimant is on the wrong side of the road, if one proceeds from Margao to Cuncolim. He submitted that there was no corroboration between AW 1 and AW 2. Mr. Almeida, learned Counsel for respondent Nos. 1 and 2 submitted that the degree of the care, precaution and vigilance and duty on the part of the claimant was more than that of respondent No. 1 since claimant could have avoided the accident by blowing horn and giving idea that he is coming from behind to overtake the bus. According to the Counsel, even otherwise, the claimant was more negligent as compared to respondent No. 1 and therefore reduction of compensation by only a small amount was not proper. He relied upon the case of The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, He, therefore, prayed that the appeal be allowed and the Claim Petition be either dismissed or the compensation be reduced adequately.

On the other hand, Mr. Keny, learned Counsel appearing on behalf of respondent No. 1 submitted that the evidence on record duly establishes that the claimant was proceeding on the road slowly and that since the bus had stopped and behind it the respondent No. 1 had also stopped with his scooter, and further since there was no vehicle coming from opposite direction, the claimant had decided to overtake the said bus, respondent No. 1 suddenly took his scooter towards right hand side and gave dash to the motorcycle of the claimant. He invited my attention to the oral evidence of the claimant i.e. AW 1 and submitted that there is corroboration to it from an independent witness i.e. AW 2 who was standing in the field with his animal on the right hand side of the road, if one proceeds from Margao towards Cuncolim. He showed from the sketch the said field on the right hand side of the road and submitted that from that place one could see what was happening on the backside of the bus which had stopped. He, therefore, submitted that the Tribunal had rightly held that the respondent No. 1 was rash and negligent. He further submitted that even otherwise, the claimant also has been held responsible by way of contributory negligence and, therefore, the appropriate reduction in the compensation amount has been made and the claimant has accepted the said reduced compensation. He submitted that just and reasonable compensation has been awarded and no interference of whatsoever is called for with the impugned judgment and award.

Mr. Kakodkar, learned Counsel appearing on behalf of respondent No. 3 submitted that respondent No. 3 examined the Motor Vehicles Inspector attached to the office of the Assistant Director of Transport at Margao and, through him, has proved that respondent No. 1 was not holding valid driving licence to ride a two wheeler i.e., Honda Activa Scooter as on 21st July, 2009. He submitted that insurance policy has also been produced on record at exhibit 64 which reveals that there was a breach of condition of policy committed by respondent No. 2. He, therefore, submitted that the Tribunal has rightly held that respondent No. 3 was not liable to indemnify respondent No. 2.

I have gone through the original record and proceedings. I have considered the submissions advanced by the learned Counsel for the parties. I have also considered the judgment relied upon by the learned Counsel for respondent Nos. 1 and 2.

The first point that arises for determination is as to who was rash and negligent whether it was the respondent No. 1 or the claimant himself or whether both were rash and negligent and if yes to what extent.

The evidence of AW 1, the claimant, reveals that he was proceeding with the motorcycle from Margao to Cuncolim and on reaching Kakanamodi, he saw the scooterist stopped behind the bus on the extreme left side as one faces from Margao to Cuncolim, which bus had also stopped to alight the passengers. AW 1 stated that he had been riding his motorcycle at a very slow speed and since the view ahead was clear and as no vehicles were coming from opposite direction, he decided to overtake the bus to go ahead at which time, respondent No. 1 all of a sudden, took his scooter in middle of the road, in rash and negligent manner without any precaution and without looking on either side of the road in order to enter the village Kakanamodi on the right hand side and in that process, gave dash to the motorcycle of the claimant and, therefore, dragged him and his motorcycle to the right side of the road. A perusal of the cross-examination of AW 1 reveals that his testimony in the examination-in-chief was not at all skaken. In his cross-examination, he denied that the police issued challan to him u/s 184 of the M.V. Act. He stated that he had paid the said amount, since he was asked by the police to do so.

The testimony of AW 1 has been corroborated by one independent witness namely Vishnu Dessai i.e., AW 2. AW 2 stated that at the time of accident, he was in the paddy field on the right hand side of the road proceeding from Margao to Cuncolim with his animal. He saw the minibus stopped at the bus stand at Kakanamodi and one scooterist behind the bus to the extreme left hand side, if one faces from Margao to Cuncolim. He stated that Rohidas was riding his motorcycle at a slow speed and was proceeding towards Cuncolim and suddenly, the rider of the scooter took the same in the middle of the road in a negligent manner and gave dash to the motorcycle of the claimant, as a result of which, the motorcycle fell down and was dragged to some distance towards the right hand side of the road, He stated that Rohidas was shifted to NUSI Hospital at Panjorconi. AW 2 specifically stated that the accident took place due to rash and negligent driving of the scooter by respondent No. 1. The testimony of AW 2 was also not materially shaken in the cross-examination. No doubt, in his cross-examination, AW 2 stated that the bus had stopped to alight the passengers and around 4 to 5 people had alighted from the bus and that at the time when the bus had stopped, the scooter was coming at the back of the bus to proceed towards Cuncolim. I do not think that there is any discrepancy between the testimonies of AW 1 and ''AW 2''. It was nobody''s case that the respondent No. 1 had already stopped at the place where the bus stopped to alight the passengers. The scooter of the respondent No. 1 had come from behind the bus but after the bus stopped and after the scooter reached near the bus, it also stopped behind the bus,

There is on record the Panchanama of the scene of accident and the sketch as Exhibit 42 colly, which have been duly proved by AW 3 Shri Subhash Naik. The said Panchanama and the sketch are consistent with the evidence as given by AW 1 and AW 2.

It is pertinent to note that respondent No. 1, in spite of being the rider of the scooter, did not step into the witness box to prove his case that it was the claimant, who was rash or negligent.

In the circumstances above, the learned Tribunal has rightly held that the claimant was partly rash and negligent. Though nothing was coming from the opposite direction, it was the duty of the claimant to have blown horn before overtaking the said bus. Besides the above, it is a fact that he had compounded the offence punishable u/s 184 of the M.V. Act which is evident from the challan, which is at exhibit 36, produced in cross-examination of AW 1.

Hence, it was duly proved that the accident had occurred due to the fault of the respondent as well as of the claimant. The Tribunal rightly held that there was contributory negligence.

In the case of "Laxman Iyer and Another" (supra), the Hon''ble Supreme Court has explained as to what is contributory negligence. It is observed that where the accident is due to negligence of both the parties substantially, there would be contributory negligence and both would be blamed. It is held that in a case of contributory negligence, the crucial question on which liability depends would be whether either party could by exercise of reasonable care have avoided the consequence of the others negligence. It is held that whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligence act or omission was a proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident and the other circumstances by which the injury was caused would not afford a defence to the other. It is held that it is now well settled that in the case of contributory negligence, Courts have the power to apportion the loss between the parties as seems just and equitable. It is held that apportionment in that context means that damage is reduced to such as extent as Court thinks just and equitable, having regard to the claim shared in the responsibility for the damage.

The contention of the learned Counsel for the respondent No. 1 that since the claimant did not alert the respondent No. 1 and other passengers alighting from the bus, major fault was of the claimant is not acceptable. No one from the bus was involved in the accident. In fact, it was the respondent No. 1 who could have avoided the accident by looking on all sides before suddenly coming towards the right side. The major fault was of the respondent No. 1 though there was also contributory negligence on the part of the claimant. The apportionment of 70% negligence to the respondent No. 1 and 30 % to the claimant, as is done by the Tribunal is proper.

The next question is on the quantum of compensation. AW 1 has produced the extract of the medico-legal register of NUSI Hospital which mentions the injuries sustained by AW 1. The evidence of AW 4, Dr. Satendra Dessai proves that the claimant had sustained permanent (disability of 20% due to seizures. It is stated by AW 4 that the claimant had sustained injuries to head and face and the CT scan showed fracture of right Xygoma and both Orbital lateral walls. The claimant was admitted to NUSI Hospital on 21st July, 2009 and discharged on 23rd July, 2009 and according to him thereafter he was admitted to and treated at Apollo Hospital at Margao. The certificate issued by AW 4 is at exhibit 46. The Doctor has also confirmed that the medical bills, which are at exhibit 47 colly pertain to the medicines which were prescribed for patient. In such circumstances, the amount of Rs. 24,850 has been rightly awarded towards medical treatment and medical bills. A meagre amount of Rs. 2,000 towards travelling and Rs. 2,000 towards service of attendant have been awarded by the Tribunal to the claimant and the respondents cannot dispute the said amounts. The claimant had proved that he was a motorcycle pilot and was aged 36 years. The fact that the claimant was earning money by working as a motorcycle pilot, was not denied. The claimant was married and had a family of wife and daughter and a mother depending on him. AW 1 stated that he was working as motorcycle pilot from Cuncolim motorcycle stand and used to earn Rs. 9,000. He stated in his cross-examination that though he continues to work as motorcycle pilot, he cannot work as before. Thus, it was not denied by the respondent Nos. 1 and 2 that the claimant was working as motorcycle pilot. In my view, it has been rightly held that the monthly income of the claimant was Rs. 6,000. On account of permanent disability, which affected the earning capacity of the claimant, an amount of Rs. 2,44,800 has been awarded to the claimant and towards pain and sufferings, an amount of Rs. 20,000 has been awarded. Thus, total compensation of Rs. 2,93,650 was calculated, but since there was contributory negligence on the part of the claimant, 30% reduction was made and total compensation of Rs. 2,05,555 has been awarded. Considering that the negligence on the part of respondent No. 1 was more as compared to the negligence on the part of the claimant, the apportionment of loss, in my view, has been correctly assessed by the learned Tribunal. Thus, no interference with the quantum of compensation is called for.

It was duly proved that there was a breach of insurance policy on the part of respondent No. 2 and, therefore, it was rightly held that respondent No. 2 was absolved of its liability to indemnify respondent No. 2 i.e. registered owner of the offending vehicle.

Considering all the facts and circumstances, I am of the view that the impugned judgment and award is in accordance with the settled principles of law, based on corrected appreciation of evidence on record. No interference is called for with the same. In the result, the appeal is dismissed.