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Judgment
F.M. Reis, J.—Heard Shri A. R. S. Netravalkar, learned Counsel appearing for the appellants and none for the respondent though served. The above appeal was heard partly on 16.04.2012 and an opportunity was given to the respondent to appear before this Court today and argue the matter but however none appeared for the respondent when the matter was taken up for final disposal.
The above appeal challenges the judgment and award dated 31.10.2006 passed by the Presiding Officer of the Motor Accident Claims Tribunal, Panaji Goa, in Claim Petition No. 106/1999 whereby the claim petition filed by the respondent came to be partly allowed and the appellants were directed inter-alia to pay a sum of Rs. 25,000/- as compensation to the respondent on account of an accident involving the vehicle driven by the respondent with the truck driven by the appellant no. 1.
A claim petition came to be filed by the respondent on the ground that on 08.05.1998 at about 11.30 a.m. he was driving the vehicle bearing No. GA-01-T-5290 and he was proceeding from Usgao to Panaji and thereafter when he has reached at Muslimwada Bhoma, a truck bearing No. GA-01-T-2628 which was driven by the appellant no. 1 suddenly came on the main road in reverse and dashed against the vehicle of the respondent. It is further the case of the respondent/claimant that on account of the said accident, the respondent sustained injuries and that the accident occurred solely on account of rashness and negligence on the part of the appellant no. 1. The respondent accordingly put up a claim for compensation on account of permanent disability to the tune of Rs. 1,67,000/-. The appellant no. 1 did not file his written statement but however a written statement came to be filed by the appellant no. 2 who has inter-alia denied the accident and has stated that the accident was caused due to the rashness and negligence on the part of the respondent herein. The appellant no. 3 has also filed the written statement and admitted that they had insured the truck referred to herein above driven by the appellant no. 1. The learned Tribunal after framing the issues and recording of evidence by the impugned judgment and award dated 31.10.2006 partly allowed the claim petition and inter-alia held that the accident occurred on account of contributory negligence on the part of the respondent and consequently apportioned the liability at 50% to the appellants and as such directed that 50% of the compensation as fixed by the learned Tribunal be ordered to be paid by the appellants herein jointly and severally together with interest thereon. Being aggrieved by the said judgment, the appellants have preferred the above appeal.
Shri Netravalkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that according to the learned Counsel there was no rashness and negligence on the part of the appellant no. 1 which resulted in an accident. The learned Counsel further pointed out that the evidence on record suggest that the vehicle driven by the appellant no. 1 was at a slow pace on account of oncoming vehicles from the opposite direction and that the vehicle driven by the respondent was on the rear side and which was driven at a fast speed and as the respondent no. 1 lost control of the vehicle, came and dashed against the rear side of the truck driven by the appellant no. 1. The learned Counsel further points out that as per the Regulation 23 of the Rules of the Road Regulations, 1949, it was incumbent upon the respondent to take necessary precautions to ensure that such situation would not result in an accident. The learned Counsel has taken me through the said Regulations and pointed out that considering the said Regulations, the question of contending that there was rashness and negligence on the part of the appellant no. 1 would not arise at all. The learned Counsel has further taken me through the evidence of CW4 as well as the evidence of RW1 and pointed out that there is sufficient material on record to suggest that the accident solely occurred on account of rashness and negligence on the part of the respondent/claimant. The learned Counsel as such submits that the findings given by the learned Tribunal to the effect that there was negligence on the part of the appellant no. 1 deserves to be quashed and set aside. Shri Netravalkar, learned Counsel appearing for the appellant further pointed out that without prejudice to his first submission in any event the learned Tribunal was not justified to award the compensation on account of pain and suffering to the extent of Rs. 10,000/- and further a sum of Rs. 15,000/- on account of fact that the respondent has suffered a fracture. The learned Counsel further pointed out that once the compensation on account of pain and suffering has been awarded, the question of granting any further compensation would not arise. The learned Counsel as such submits that as far as the compensation on account of fracture awarded by the learned Tribunal of Rs. 15,000/- is to be quashed and set aside. The learned Counsel has relied upon the judgment of the Kerala High Court reported in Prasanna v. Kerala State Road Transport Corporation, 2009 ACJ 2719 . The learned Counsel as such submits that the impugned judgment deserves to be quashed and set aside.
The respondent though served failed to remain present at the time of hearing of the above appeal as referred to herein above.
Upon hearing the learned Counsel and on perusal of the records, the following point arises for my determination in the present appeal :
POINT FOR DETERMINATION
Whether the learned Tribunal was justified to come to the conclusion that the accident occurred on account of contributory negligence of both the drivers namely the respondent and the appellant no. 1 and award the compensation as per the impugned judgment ?
I have carefully considered the submissions of the learned Counsel and I have also perused the records of the proceedings and the impugned judgment. No doubt, as per the Regulation 23 of the said Regulations relied upon by the learned Counsel appearing for the appellants, it is clearly provided therein that the driver of the motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop but in the present case, it is not in dispute that the vehicle driven by the appellant no. 1 was in front and the vehicle driven by the respondent/claimant was on the rear side. In such circumstances, in view of the said Regulation 23, it was incumbent upon the respondent to maintain necessary distance to ensure that the vehicle driven by the respondent did not collide with the vehicle driven by the appellant no. 1. But however, the evidence further discloses that the vehicle of the appellant no. 1 had slowed down but however it is the contention of the appellant no. 1 that his vehicle had slowed down on account of some oncoming vehicles from the opposite direction. In the present case, the appellants have not examined any independent witnesses nor brought any material on record to show such oncoming vehicles were coming from the opposite direction. But however, considering the facts and circumstances of the case and taking note of the fact that the panchanama of the vehicle driven by the respondent does not disclose any heavy damages to the front side of the pick up driven by the respondent, I find that the contention of Shri Netravalkar to the effect that the accident had occurred solely on account of rashness and negligence on the part of the respondent cannot be accepted. The evidence further discloses that the road at the site was a flat road. In such circumstances, unless there is sufficient material on record to establish that there was any special reason to slow down the vehicle driven by the appellant no. 1, it is not possible to accept that there was no lack of diligence on the part of the appellant no. 1 while driving such a vehicle on the straight road on the highway to avoid the collision with the vehicle driven by the respondent. The respondent in his deposition has stated that the vehicle driven by the appellant no. 1 was coming in the reverse direction at the relevant time. The learned Tribunal on the basis of appreciation of evidence has come to the conclusion that such allegations have not been established by the respondent/claimant. The findings of the learned Tribunal to the effect that the vehicle driven by the appellant no. 1 was in the moving position in front of the vehicle of the respondent has to be accepted on the basis of the evidence on record. But however, taking note of the fact that the vehicle driven by the respondent was coming behind the vehicle driven by the appellant no. 1, it was incumbent upon the respondent to take necessary precautions even in case the appellant no. 1 had to slow down his vehicle. This shows lack of caution on the part of the respondent herein. In view of the fact that the panchanama on record suggest that there were no brake marks shown of the vehicle driven by the respondent, the contributory negligence fixed by the learned Tribunal at 50% appears to be not justified. In the facts and circumstances of the case and taking note of the fact that the respondent was coming behind the vehicle driven by the appellant no. 1, I find it appropriate that the contributory negligence of the respondent is to be fixed at 65%. The remaining 35% is on account of rashness and negligence on the part of the appellant no. 1, for the reasons stated herein above.
Considering the findings on the said aspect, the judgment in the case of Prasanna V/s Kerala State Road Transport Corporation ( supra ) relied upon by the learned Counsel appearing for the appellants is not applicable to the facts of the present case. The reasons recorded by the learned Tribunal are that there was contributory negligence on the part of the respondent which resulted in the accident. The evidence does not disclose that the accident occurred solely on account of rashness and negligence on the part of the respondent.
With regard to the next contention of Shri Netravalkar, the learned Counsel appearing for the appellants to the effect that the compensation awarded by the learned Tribunal is on the higher side towards the fracture suffered by the respondent, I find that the said contention cannot be accepted. Admittedly, the respondent has suffered a fracture to his leg. Such fracture naturally result in discomfiture to the respondent which the learned Tribunal has assessed the compensation on such count at Rs. 15,000/-. The said amount cannot be said to be exorbitant or excessive which calls for interference by this Court in the present appeal. In the facts and circumstances of the case, the total compensation fixed by the learned Tribunal at Rs. 50,000/- is just and proper and does not call for interference by this Court subject to what has been held herein above. The point for determination is answered accordingly. In view of the above, I pass the following :
ORDER
(i) The appeal is partly allowed. The impugned judgment and award dated 31.10.2006 is modified.
(ii) The appellants are directed to pay to the respondent jointly and severally a sum of Rs. 17,500/- together with interest at the rate of 6% per annum from the date of filing of the claim petition up to the actual payment.
(iii) The appeal stands disposed of accordingly with no order as to costs.