Shri Alexander Rebello vs Shri Shashikant

G.D. Kamat, J.—Claim petition No. 100/85 had been instituted by the present appellant claiming a compensation of Rs. 4,18,000/- before the Motor Accidents Claims Tribunal at Margao. According to the appellant the claim had arisen on following facts: On 8th May, 1985 his daughter aged about 20 years when about to start her motorcycle of Luna make all of a sudden and without blowing any horn a pickup bearing No. GDZ 5653 driven by the first respondent and owned by the third respondent collided with Melba as a result of which Melba was thrown down and the Luna was also damaged. Melba suffered compound fracture of the right parietal-temporal region, profuse bleeding from her right ear and also another serious injury of compound fracture of right tibia and fibula. She was immediately taken to Hospicio Hospital at Margao and for lack of facilities she had to be shifted within 3 to 4 hours to Salgaonkar''s Hospital where she was treated by Dr. Lad for about 6 weeks. From there she had to be taken to Masina Hospital at Byculla and after about 8 to 10 days she was shifted to J.J. Hospital, Byculla at Bombay. Despite all efforts Melba succumbed to her injuries on 28th June, 1985.

The Tribunal in the impugned Award rendered on 31st January, 1989 held that the accident was solely due to the fault of Melba. According to the Tribunal, Melba drove her Luna in a rash and negligent manner, on a road on which only one way traffic was permitted and she was driving on the fateful day in contravention of the permitted traffic rules. The Tribunal also held that the pickup GDZ 5653 which was laden with beer bottles came from the old market side proceeding towards center of Margao and had taken the one way road which was the right way for the pickup to go through the accident had taken place almost on a curve on that one way street. Tribunal, therefore, absolved the respondents from any responsibility in the accident and rejected the claim petition instituted by the appellant.

The Tribunal, however, and castellan held that in the event it was held that appellant was entitled to be compensated then an award of Rs. 65,000/- is just and reasonable. This Rs. 65,000/- was made up of two sums, namely, (1) Rs. 35,000/- on the head of special damages being expenditure involved for travelling, medicines, doctors'' fees, hospital charges etc., and Rs. 30,000/- towards the loss of human life viz., financial loss, loss of company and mental anguish.

This Award is now under challenge. In support of the appeal Shri Rebello, learned Counsel for the appellant, says that there is no evidence to suggest that the street on which the accident had taken place had been notified to be a one-way street for traffic. In the absence of cogent evidence in that behalf, according to him, the Tribunal was in error in coming to the conclusion that since Melba was driving her Luna in contravention of the traffic rules and in the prohibited direction, she was solely responsible for the fateful accident on 8th May, 1985. He urged that even on the basis of the evidence available on record that the concerned street was available for both ways traffic, in that event the claim petition was likely to succeed and then it is for this Court to make an proper Award of the compensation upon taking the various factors on record and not merely restrict to what is already awarded, which, according to him, is a compensation on the lower side.

It is an admitted position that on the fateful afternoon Luna was driven by Melba and one Miss Katy Veira was a pillion rider. As a result of the collision she also suffered some injuries. Katy Veira has been examined as AW. 2 and she has deposed that alongwith Melba she left the office between 2.00 or 3.30 p.m. on that day and they were going towards Bombay old bus stand as they wanted to see off some relatives who were going to Bombay. According to her they came from Pajifond Road and in front of the house of one P. Pinto and when they were about to negotiate a turn, which is on the right hand side, the pickup came in the opposite direction in full speed and dashed against their Luna. According to her she lost her consciousness. She affirms that Melba was employed as a Stenographer and was receiving by way of salary Rs. 500/- p.m. In her cross-examination she emphatically denied the suggestion that Melba was driving her Luna on a ''No Entry Road''.

The Tribunal came to the conclusion that Melba was driving her Luna on a prohibited road which was meant only for one way traffic on the basis of Rajiv Kunde''s (AW. 7) evidence and this is clear from paragraph 7 of the impugned Award.

It, therefore, becomes necessary to view the evidence of Rajiv Kunde (AW. 7). It must be mentioned in the first instance that Rajiv Kunde was examined in the case as a panch witness. He attested the panchanama of the site of the accident which was drawn by the police soon after the accident. In his deposition he says that the accident was between the Luna and pickup, that the pickup was facing towards Margao on the left side and Luna was fallen in front of the pickup. According to the panch a sketch was drawn at the same time which was signed by him. In the cross examination, however, he says that Luna involved in the accident was being driven on a road which had no entry. He also affirms that the accident took place on a sharp turn and that the pickup was driven on a road which had a valid entry.

It is really not known as to how the Tribunal in paragraph 7 of the impugned Award could have at all observed thus:

The evidence on record fully supports the defence case that the accident was due exclusively to rashness and gross negligence on the part of the deceased. In fact, it has come in the statement of AW. 7 Rajiv Kunde, who was the panch witness at the time of the police drew the panchanama at the scene of accident, that the deceased was plying her moped along the prohibited road.

Nowhere in the evidence of AW. 7 Rajiv Kunde it is come that he had seen Melba driving the Luna before or at the time of the accident or that he had himself seen the accident. From the evidence of this witness it is clear that he was merely a panch attesting the panchanama of scene of accident. It is, therefore, not possible to conclude that deceased Melba was driving her Luna along the prohibited road.

It is indeed true that AW. 7 Rajiv Kunde mentioned that that was a one way road. We have already mentioned earlier that when suggestion was made to the pillion rider Katy Veira, she denied that the street on which she was travelling with deceased Melba was a one way street. When the case of the defence is that Melba was driving her Luna on a prohibited road which was only meant for one way traffic coming from the opposite direction, it was necessary to prove the same. In our view there is merit in the contention made by the learned Counsel for the appellant that there is no cogent evidence that the street on which the accident took place was a one way street or that the Luna driven by Melba was in the ''No Entry'' zone. There is another factor which lends support to the conclusion that we have arrived at that nowhere in the panchanama it is mentioned that there is a sign board by which it was shown that the concerned street was a ''no entry'' street.

It is indeed true that Sashikant Prabhu Dessai, the driver of the pickup involved in the accident in his evidence mentioned that at the time of the accident Luna rider was riding on a ''no entry'' road. Barring this statement there is nothing to indicate that in reality the street concerned was meant for one way traffic. He does not make reference to any signboard. It must not be lost sight of that Sashikant (RW. 1) whose pickup collided with the Luna tendered self serving evidence, It is difficult to base any conclusion upon self serving evidence and come to the conclusion that the concerned street was a ''no entry'' street for persons coming from Margao town and going towards old market side. We may also mention that matters relating to regulation of traffic are notified in Official Gazettes and needless to say that the District Magistrate from time to time depending upon the traffic brings about changes in the Regulation of traffic. This is done by publication of the concerned Notifications in the Government Gazette and at the same time put up signboards which are mentioned under the Schedule of the Motor Vehicles Act. When defence was taken something was done against the traffic regulations, it was not difficult for the respondents to have brought the concerned notification that the street where the accident had taken place was or had been declared as one way traffic. We may, however, make it clear that this observations is confined to the facts of the present case.

We have already enumerated elsewhere in the judgment that the Tribunal in all awarded a sum of Rs. 65,0007- on two sub-heads. The unclenching evidence on record is that after completing XI standard Melba was employed as a Stenographer with one Gopal Tandon, who happens to be a Distributor for several well known products. In the matter of wages of Rs. 500/- evidence has been tendered by Gopal Tandon (AW. 5), who has also proved the concerned certificate issued by him. This was a case where a young girl of 21 years died. What is, however, not possible to be ignored is that the deceased Melba suffered a terrible injury on the right tempo-parietal region so much so that the brain was visible to the naked eye. According to the certificate produced by Uday Borkar (AW. 4) who is the Administrator of Salgaokar Medical Research Centre, it is seen that Melba had to be operated twice. The first craniotomy was performed soon after her admission in hospital on 8th May, 1985 but unfortunately on 16th May, 1985 the wound broke down and the brain matter again became visible. The second craniotomy was done and the wound was attempted to be closed. Despite these two surgical interventions patient continued leaking CSF and continued to be restless. She developed weakness on the left hand side. The patient did not show any improvement. The appellant thereafter shifted her to Bombay and first lodged her at Masina Hospital, Byculla and thereafter transferred her to J.J. Hospital. She, however, succumbed to her injuries on 28th June, 1985. Needless to say that deceased Melba suffered mental agony apart from pain, shock and violent trauma. Along with her needless to say the appellant, who is the father and her mother also suffered for a long spell of time from 8th May, 1985 to 28th June, 1985. Having regard to all these factors, in our view, there is some justification on the complaint that the amount of compensation granted in the sum of Rs. 65,000/- is on the lower side. It is true that the appellant made a very large and enormous claim. It is equally true that deceased Melba when she met with the accident was 21 years old and that within a few years that was bound to be married and would go to her matrimonial house. Grant of compensation is always a difficult task and assessment of damages and exact mathematical calculation is not possible and some element of discretion always creeps in. Taking into consideration several factors which we have already highlighted and regard being had to the suffering undergone, not only by the deceased, but also by her parents for over a period of 6 to 7 weeks a lump sum compensation in the amount of Rs. 80,000/- is just and reasonable that is required to be awarded in the present case. We pass the following order in the appeal:

Appeal partly succeeds. The impugned Award dated 31st January, 1989 is set aside. A lumpsum compensation of Rs. 80,000/- is directed to be paid by the respondents jointly and severally together with interest at 12% p.a. from the date of the application until satisfaction. The sum of Rs. 15,000/- already paid to the appellant under no fault liability shall be adjusted from the compensation awarded. Parties are, however, left to bear their own costs in this appeal.