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Judgment
Kingaonkar V.R., J.—This appeal is directed against Judgment and order rendered by learned Ex Officio Member of Motor Accident Claims Tribunal, Latur, in a claim petition (M.A.C.P. No. 30/1991) whereby original claimants have been awarded compensation of Rs. 1,50,000/- alongwith interest at rate of 12 % per annum from the date of the claim petition till realisation of the entire amount.
The appellants are original opponents No. 1 and 2 being owner and driver of tractor vehicle bearing registration No. MAB-3082. They are aggrieved by the impugned Judgment in as much as entire liability to pay the compensation is fastened on them.
Respondent No. 1 - Balaji filed claim petition, seeking compensation to the tune of Rs. 2,50,000/- u/s 166 of the Motor Vehicles Act, 1988. He was aged about 25 years at the relevant time when he was involved in an accident which occurred due to use of the tractor vehicle, bearing registration No. MAB-3082. Admittedly, on day of incident, he was travelling on the tractor vehicle which was hired by him. While the tractor was proceeding towards Ahmedpur on 6th July, 1990, at about 1 p.m., a truck vehicle bearing registration No. MTB-1161 came from behind. The driver of the truck vehicle decided to overtake the tractor vehicle.
Briefly stated, the claimant''s case before the Tribunal was that the truck vehicle No. MTB-1161, driven by opponent No. 3 Bhimrao, came from behind in high speed and gave passing dash to the tractor vehicle. The tractor vehicle was pushed aside, slipped and fell in a ditch by side of the road. He was injured as a result of the accident. He became unconscious. He was shifted to private hospital of Dr. Ugile. He was thereafter rushed to Civil Hospital at Latur in an ambulance. He sustained multiple injuries. He was required to obtain treatment at various hospitals including Osmaniya Hospital at Hyderabad and J.J. Hospital at Bombay. He incurred heavy medical expenses. He has been permanently disabled. He was unable to carry out daily pursuits without help of an assistant. He has become paraplegic. Consequently, he sought compensation from the appellants as well as the driver, owner and insurer of the truck vehicle.
The owner of the truck vehicle resisted the claim petition. He alleged that the accident occurred due to rash and negligent driving of the tractor vehicle. He alleged that while giving side to the truck vehicle, the tractor vehicle was turned towards wrong side and, therefore, it slipped due to softness of soil at the spot. He denied that the truck vehicle was being driven in rash and negligent manner. He categorically denied that the truck vehicle gave dash to the tractor vehicle and, therefore, it was pushed aside. The Insurance Company of the truck vehicle also resisted the claim petition on same premises. The insurer adopted usual defences viz. absence of driving licence with the driver of the truck vehicle and exoneration of the liability for such reason.
The appellants did not file their written statement.
The driver of the truck vehicle-Bhimrao was set ex parte. He did not participate during hearing of the claim petition in this Court.
Mr. Chandole, learned Advocate, would submit that the liability could not have been fastened only on the appellants. He would submit that the appellants were not liable to pay the compensation amount because the claimant himself asserted that the accident was result of rash and negligent driving of the truck vehicle in question. He would submit that the learned Member of the Tribunal drew incorrect and improper inference only on basis of certain opinion expressed in the spot panchanama (Exh-4/40). He contended that the Tribunal ought not to have exonerated the owner of the truck vehicle and the insurer thereof. Mr. Mundada, learned Advocate for respondents No. 3 and 4, however, supports the impugned judgement. Mr. Sontakke-Patil also supports the impugned judgement.
At the outset, it may be mentioned that Mr. Chandole fairly concedes that the quantum of compensation awarded by the Tribunal is quite proper. The Tribunal has considered nature of the injuries sustained by the claimant. The Tribunal further considered the plight of the claimant. He was required to seek medical treatment at various hospitals. It is but natural that he was required to undertake travel for obtaining the medical treatment. The medical evidence shows that he has become paraplegic. Naturally, he would require attendant to move from the bed and undertake his daily pursuits. The respondents No. 3 and 4 i.e. owner and insurer of the truck vehicle have not filed any appeal or cross-objection. Hence, it is not necessary to consider whether compensation is reasonable or on higher side. The issue will have to be treated as foreclosed.
On perusal of the impugned judgement, it emerges that the Tribunal proceeded to consider recitals of the spot panchanama (Exh-4/40) in support of its finding that the accident was result of rash and negligent driving of the tractor vehicle. The Tribunal observed that since the truck vehicle had not received any damage as such, the negligence on part of the driver of the truck vehicle could not be inferred. The relevant observations of the Tribunal may be reproduced as below:
If really, the truck had given a dash to the tractor by force, the truck would have certainly received major damage. But in the absence of any damage to the truck, 1 find extremely difficult to accept the uncorroborated testimony of the injured-claimant. At this Juneture, I would like to mention that the injured-claimant has not at all averred in the claim-petition that the truck, which came from opposite direction gave dash to the tractor from front side. It is simply stated in paragraph 1 of the claim-petition that because of rash and negligent driving of both the drivers unfortunate accident has occurred.
At this juncture, it may be stated that the claimant approached the Tribunal with a specific case that due to rash and negligent driving of the drivers of both vehicles, the unfortunate accident had occurred. The claimant did not examine driver of the tractor vehicle. However, that could not be the reason to draw any adverse inference. The Tribunal was much impressed by the fact that there was no head-on collision between the two (2) vehicles. This observation of the learned Member of the Tribunal is quite improper and incorrect in the fact situation of the present case. Whether it is head-on collision or not is really immaterial. For, it is nobody''s case that the accident was result of head-on collision between the (2) vehicles. What was the case of the claimant is rather not properly appreciated by the learned Member of the Tribunal. The case of the claimant is that the tractor vehicle was proceeding towards Ahmedpur and the truck vehicle came from behind. The claimant asserted that the truck vehicle gave a passing dash to the tractor vehicle and, therefore, the tractor was pushed aside, slipped and fell in a ditch. Obviously, it was required to be seen whether the truck vehicle gave a passing dash to the tractor vehicle in an attempt to overtake that vehicle.
There is eye witness account of the claimant in this behalf. He narrated as to how the accident occurred. His version purports to show that the truck vehicle gave dash to the tractor vehicle and, therefore, he fell down in unconscious condition. His version reveals that he had hired the tractor vehicle for loading of sand required by him. The copy of the F.I.R. is not considered by the learned Member of the Tribunal. The F.I.R. (Exh-4/39) purports to show that A.S.I. Ganpat Patil lodged the F.I.R. on basis of the information given by driver of the truck vehicle. The F.I.R. further purports to show that the truck vehicle was proceeding from Ahmedpur towards Shirur Tajband and an attempt was made to overtake the tractor vehicle. The truck driver informed the police official that the truck was about to dash the tractor, but he had stopped the same, yet, the tractor left the road and dashed an electric pole and thereafter, turned turtle and fell in a ditch. The driver of the truck vehicle did not enter the witness box in order to support such kind of information given to the Police. Nor any attempt was made to examine the cleaner of the truck or any other witness to show that the accident was result of rash and negligent driving of the tractor vehicle alone.
The mere fact that the truck did not receive damage could not be proof of absence of negligence on the part of the driver of the truck vehicle. The evidence on record reveals that version of the claimant was not seriously disputed by the respondents No. 3 and 4. Moreover, driver of the truck vehicle did not explain whether the driver of the tractor vehicle had agreed to give side to the truck vehicle. As per the traffic rules, unless the vehicle driver of the vehicle which was proceeding ahead had given signal, indicating that side was being given, the truck vehicle ought not to have been rashly taken ahead in order to overtake the tractor vehicle. The recitals of the F.I.R. (Exh-4/39) go to show that the driver of the truck vehicle was asking for giving of the side. So, it was the unilateral act of the truck driver. There is nothing on record to show that the driver of the tractor vehicle agreed to give the side and indicated his willingness for passing of the truck vehicle in the process of overtaking the said vehicle. It is conspicuous that truck vehicle did not keep safer distance from the tractor vehicle. No attempt was made to avoid the accident. Nor there is any proof to show that the truck vehicle driver took necessary care and precaution, while overtaking the tractor vehicle. It is probable, therefore, that the truck vehicle gave a passing dash to the tractor vehicle which caused panic and, hence, the driver of the tractor vehicle attempted to take the same on extreme left side. Unfortunately, the soil at the place was soaked and, therefore, the tractor slipped. The Tribunal was wrong, therefore, while exonerating the owner of the truck vehicle and the insurer thereof from the liability.
Considering the fact situation of the present case, it ought to have been held that both the vehicle drivers were equally responsible for the accident. If passing dash would have been given by the truck vehicle, which is a heavy vehicle, no visible damage could have been seen to the truck. Hence, mere absence of damage to the truck vehicle does not furnish proof of absence of negligence on part of the truck driver. In view of the fact that both the drivers did not come forward to explain as to how the accident occurred, I am inclined to hold that it is a case of contributory negligence on their part. The liability of both the owners ought to have been, therefore, held as 50 : 50.
For the reasons aforestated, the appeal is partly allowed. The impugned judgment is set aside to the extent of exoneration of the respondents No. 3 and 4 from the liability. It is modified. The original opponents No. 1 and 2 i.e. present appellants as well as the original opponents No. 4 and 5 i.e. respondents No. 3 and 4 herein are equally liable to pay amount of compensation of Rs. 1,50,000/- to the injured claimant, alongwith interest at rate of 12 % per annum, from the date of claim petition till realisation of the entire amount. The liability of the appellants will be to the extent of 50% whereas that of the respondents No. 3 and 4 to the extent of 50%. The proportionate costs also shall be equally paid by them. The amount deposited by the appellants be remitted to the Tribunal for disbursement in the course of execution. The appellants and the respondents No. 3 and 4 shall pay cost of the appeal to the respondent No. 1 to the extent of 50 : 50.