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Judgment
,
These three appeals, involve claims for compensation, arising out of the same vehicular accident, as such, they are being disposed of by this",
common judgment.,
The accident in question occurred at about 11:15 p.m. on 12.06.2008, near Procter and Gamble Company on the Valpoi-Honda road. One Sher",
Ali (since deceased) was driving a mini bus bearing no. GA-04/T-5593 and was proceeding from Valpoi to Honda. The other vehicle involved in the,
accident is a bus bearing No. GA-01/U-2434, which was coming from the opposite direction and was being driver by one Gangadhar Ghadi, who was",
injured in the accident. Sher Ali died of the injuries suffered in the accident. Three claim petitions arose out of the said accident, giving rise to these",
three appeals. Â,
First Appeal No. 11/2013:,
The parents of deceased Sher Ali, filed Claim Petition No. 17/2009, against the driver of the bus bearing no. GA-01/U2434 and the National Insurance",
Company, seeking a compensation of Rs.15,50,000/-, on the ground that the accident occurred solely due to the rash and negligent driving of the bus",
by the respondent no. 1, Gangadhar Ghadi. The widow and the daughter of the deceased were arrayed as respondent nos. 4 and 5 in the claim",
petition as well as in the appeal, who have subsequently been transposed as appellant nos. 3 and 4.Â",
The Tribunal by the impugned judgment and award dated 07.09.2012 dismissed the petition, holding that Sher Ali was solely responsible for the",
accident and thus, the claimants were dis-entitled to any compensation. Nonetheless, the Tribunal has conducted the exercise of determination of",
the quantum of compensation and has come to the conclusion that the claimants would have otherwise been entitled to a compensation of,
Rs.10,73,000/-, in respect of the death of Sher Ali, but for the accident having occurred due to his own negligence. Feeling aggrieved, the present",
appeal is filed.,
First Appeal No. 37/2016:,
Claim Petition No. 29/2014 was filed by Gangadhar Ghadi, against the widow of Sher Ali and the owner of the mini bus bearing no. GA-04/T-5593",
and its insurer, the Oriental Insurance Company Limited, seeking a compensation of Rs.5,00,000/- on account of the permanent disablement sustained",
by him in the accident. The Tribunal found that the claimant had sustained 10% permanent disablement due to shortening of the left lower limb and,
has awarded a compensation of Rs.1,18,400/- in addition to the compensation of Rs.25,000/- on no fault liability basis alongwith interest. The",
claimant feeling aggrieved by the inadequate compensation granted, has filed the present appeal for enhancement.",
First Appeal No. 38/2016:,
The appellant (the owner of the mini bus bearing no. GA-01/U-2434) had filed claim petition no. 30/2014 against the widow of Sher Ali and the owner,
and the insurer of the bus bearing no. GA-04/T-5593, seeking a compensation of Rs.1,50,000/- for damage suffered to the mini bus in the accident.",
The Tribunal has dismissed the petition on the ground that the claimant has failed to produce the evidence that the bus was totally damaged and was,
sold as a scrap for Rs.25,000/- and also on the ground that the claimant did not avail of the claim from it's own insurance company i.e. the National",
Insurance Company Limited. Feeling aggrieved, the claimant has filed the present appeal.",
I have heard the learned Counsel for the parties. With the assistance of the learned Counsel for the parties, I have gone through the record.Â",
The following points arise for my determination in these appeals.Â,
(i) Whether, the accident occurred solely due to the rash and negligent driving of the bus bearing no. GA-04/T-5593, by now deceased Mr. Sher Ali",
? OR,
(ii) Whether, there was any contributory negligence of Mr. Gangadhar Ghadi, driver of bus bearing no. GA-01/U-2434, in the occurrence of the",
accident ? If yes, how the contributory negligence is to be apportioned ?",
(iii) Whether, the legal representatives/dependents of Sher Ali are entitled to compensation, if yes, what amount ?Â",
(iv) What is the compensation to which the appellant Gangadhar Ghadi is entitled to, in respect of permanent partial disablement suffered by him ?",
(v) Whether, the appellant Kishore Hanjunkar is entitled to a compensation in respect of damages to the bus bearing no. GA-01/U-2434 ? If yes, to",
what extent ?,
Point Nos. (i) and (ii):,
The claims as raised in the present appeals are based on tortuous liability, arising out of negligence. In order to fasten liability, it has to be found as",
to whether, the driver of the particular vehicle was responsible for the accident i.e. for having driven the vehicle in a rash and negligent manner. Â",
In a case involving two vehicles, the question is also about the contributory negligence of the two drivers, if any, and the extent of such contributory",
negligence. The owner of the vehicle becomes vicariously liable on account of the master and servant relationship vis-a-vis the driver of the,
vehicle. The liability of the insurance company arises out of the contract of indemnity in the form of insurance policy. Thus, the question of",
negligence is the very basis of the liability to pay compensation. It is therefore necessary to see the cause of the accident. In this case, the Tribunal",
has held, the deceased Sher Ali, to be solely responsible for the accident and has therefore, refused to grant any compensation to his legal",
heirs/dependents. The first question to be addressed is whether, indeed, the accident occurred due to rash and negligence of Sher Ali or whether,",
Gangadhar Ghadi was also responsible for contributory negligence and if yes, the extent thereof.Â",
Negligence is breach of duty to take care. The question of negligence has to be decided on the basis of direct evidence, if available, and",
tendered, alongwith the circumstantial evidence in the form of spot panchanama on the basis of principle of res ipsa loquitur. In the present case,",
we have the benefit of having ocular as well as the evidence in the form of spot panchanama, in order to decide the issue of negligence.",
Gangadhar Ghadi examined himself as claimant in Claim Petition No. 29/2014 and he was also examined on behalf of the claimant in Claim,
Petition No. 30/2014 as AW-2. The claimants in Claim Petition No. 17/2009 have examined one Amanulla Khan (AW-3), who claims to have",
witnessed the accident. The Tribunal has disbelieved the evidence of this witness and has placed reliance on the evidence of Gangadhar Ghadi in,
coming to the conclusion that Sher Ali was solely responsible for the accident, without there being any contributory negligence on the part of",
Gangadhar Ghadi.Â,
There is a spot panchanama alongwith the sketch of the spot of occurrence, which was produced before the Tribunal and one Amanulla Khan",
(AW-3), who was one of the pancha witnesses has been examined. It is necessary to state that the accident occurred at 11:15 p.m., while the",
panchanama was prepared on the following morning between 9:00 to 9:30 a.m. The panchanama shows that the road at the spot of the accident is a,
pucca road, having a width of 5.50 metres with about 0.24 metres of kucha patch on either sides. The actual spot of accident was ascertained on the",
basis of the glass splintered on the road. The spot panchanama indeed shows that the bus bearing no. GA-01/U-2434, driven by Gangadhar Ghadi",
and which was proceeding towards Valpoi was pushed back to the extent of 12.15 metres. This circumstance has weighed with the Tribunal in,
Annual Income (Rs.6,500 x 12 months) :","Rs.   Â
78,000/-
Add: 40% towards future prospects :,"Rs.   Â
31,200/-
,"Rs. 1,09,200/-
Less: ¼th towards personal and living expenses of the deceased :,"Rs.   Â
27,300/-
,"Rs.   Â
81,900/-
Compensation towards loss of dependency (Rs.81,900 x 18) :","Rs.14,74,200/-
Add: Towards loss of estate :,"Rs.   Â
15,000/-
Add: Towards funeral expenses :,"Rs.   Â
15,000/-
Add: Towards loss of consortium :,"Rs.   Â
40,000/-
Total Compensation :,"Rs.15,44,200/-
Annual Income (Rs.6,500 x 12 months) :","Rs.   Â
78,000/-
Add: 40% towards future prospects:,"Rs.   Â
31,200/-
,"Rs. 1,09,200/-
Compensation in the event of permanent  total  disablement
(Rs.1,09,200/- x 16) :","Rs.17,47,200/-
Compensation admissible (10% of Rs.17,47,200/-)","Rs. 1,74,720/-
Add: Towards pain and suffering :,"Rs.   Â
50,000/-
Add: Towards medical expenses :,"Rs.     Â
7,000/-
Add: Towards special diet and travelling expenses.  :,"Rs.   Â
25,000/-
Total CompensationÂ,"Rs. 2,56,720/-
(v) The respondent no. 4 shall be entitled to receive quarterly interest on such deposit, to be applied towards the welfare of the minor.Â",
FIRST APPEAL NO. 37/2016,
(i) First Appeal No. 37/2016 is partly allowed.,
(ii) The impugned judgment and award dated 09.12.2015, passed by the Tribunal in Claim Petition No. 29/2014 is hereby modified.Â",
(iii) The respondent nos. 2 and 3 shall jointly and severally pay an amount of Rs.1,54,032/- to the appellant alongwith interest at the rate of 7% per",
annum from the date of the petition, till realisation. The said compensation shall be inclusive of the compensation granted under no fault liability.",
FIRST APPEAL NO. 38/2016,
(i) First Appeal No. 38/2016 is partly allowed.,
(ii) The impugned judgment and award dated 09.12.2015, passed by the Tribunal in Claim Petition No. 30/2014 is hereby set aside.Â",
(iii) The respondent nos. 2 and 3 shall jointly and severally pay an amount of Rs.65,000/- to the appellant alongwith interest at the rate of 7% per",
annum from the date of the petition, till realisation.Â",