Smt. Lila wd/o Bhujang Salve & Anr. vs Bandu s/o Laxman Nilawar & Ors.

. Heard Mr. M. A. Deo, learned Counsel for the Appellants, Mr. H. N. Verma, learned Counsel for the Respondent No.2 and Mr. R. S. Bhalerao, learned Counsel for the Respondent No.3. None appeared for the Respondent No.1, though served.

In the present Appeal, challenge is to the Judgment and Award dated 16/8/2019 passed by the Motor Accident Claims Tribunal, Chandrapur in MACP No. 43/2017.

In the present Appeal, claim of the Appellants is only to the extent that the learned Tribunal has wrongly reached to the conclusion that it is a case of contributory negligence on the part of deceased upto 30% in causing accident. The said part of the Judgment and order be quashed and set aside.

It is stated that the Claim Petition was filed before the Tribunal on the basis of police case stating that the offending truck bearing No. MH-29/M-0660 came from back side and gave dash to the vehicle i.e. Honda Activa Moped bearing registration No. MH-34-AZ-2965, which was driven by the deceased Bhujang Kawadu Salve and thereby the deceased Bhujang suffered grievous injuries. Thereafter he was referred to the General Hospital, Chandrapur for medical assistance, where he succumbed to the injuries. As such, according to the Appellants they are entitled for the compensation of Rs.14,02,272/-.

To substantiate the submission, the learned Counsel for Appellants has relied upon the Enquiry Report submitted by the Police Enquiry Officer, Police Station, Ramnagar and stated that on telephonic information he went to the spot, where accident was occurred, and prepared the report. In First Information Report it is recorded that on 25/8/2016 at about 5.30 p.m. to 6.00 p.m. on Chandrapur-Nagpur High Way infront of Hero Honda Showroom, the deceased was riding Honda Activa Moped along with his wife i.e. Appellant No.1 Smt. Leela Bhujang Salve as a pillion rider and they were returning to their village from Chandrapur-Nagpur High Way. At that time, the offending truck came from backside and gave a violent dash to the Honda Activa Moped, and therefore, the deceased and his wife fell down on the road. Hence, on this count, the offence punishable under Sections 279, 337, 338, 304-A of Indian Penal Code read with Section 184 of Motor Vehicles Act, 1988 was registered against the driver of the offending truck.

On the strength of this First Information Report, it is the submission of the Appellants that there was no fault on the part of the deceased while driving his vehicle, and therefore, assessment of contributory negligence upto 30% on the part of deceased in causing accident, observed by the learned Tribunal is not justified, and therefore, indulgence of this Court is necessary.

Per contra, learned Counsel for the Respondent No.2/Insurance Company stated that the specific defence was taken before the Tribunal that it is a case of contributory negligence. In support of his submission, he has placed reliance on the recitals of the spot panchanama (Exhibit-33) and map drawn therein and submitted that the deceased had taken right turn while driving his Active Moped and had come on the centre portion of the road. It is further stated that he has slowed down the speed, and therefore, the Moped was slipped and deceased and his wife were fell down. The offending truck, which was coming from back side, gave a slight dash to the already fallen down Moped, and therefore, the offending truck cannot be held responsible for the accident.

In the background of the submissions made by the learned Counsel for both sides, it is clear that in the present matter neither the driver of the offending truck was entered into witness-box nor the Appellant No.1, who was the pillion rider of the Activa Moped at the time of accident, has entered into witness-box. Therefore, whole case is depend upon the Police Enquiry Report and the spot panchanama (Exhibit-33).

In view of this, I have perused the spot panchanama, which according to me, is the most relevant document in the matter. The spot panchanama clearly shows that the road, on which accident had occurred, was a cement road. When the police visited to the spot, they found that Hero Honda Activa Moped, which was driven by the deceased, was lying on the South side of the road and scratch was found on the right side of the Moped. It is further recorded in the spot panchanama that the offending truck was found standing ahead of the said Moped and the driver of the offending truck was ran away from the spot. However, in the impugned Judgment, particularly, paragraph Nos.14 and 15, wherein the findings are recorded about the spot panchanama, which according to me, are contrary to the spot panchanama recorded by the police authority.

After going through the spot panchanama I am of the opinion that if the right side of the Moped was damaged or scratched by the offending truck, the findings recorded by the learned Tribunal, particularly in paragraph Nos.14 and 15 are perverse in nature. The spot panchanama shows that the vehicle of the deceased got scratched on the right side and the offending truck was found to be ahead of the vehicle of the deceased. Therefore, it is clear that because of slight dash given by the offending truck, the deceased fell down on the road. The road being cement road, the injuries must have caused to the deceased.

This fact is fortified from the postmortem report, wherein the cause of death is mentioned due to “Head Injury with polytrauma”. Hence, considering this fact, I am of the opinion that the deceased cannot be held responsible for the contributory negligence.

In the present matter, the Appellant No.1 clarified that as the driver of the offending vehicle did not take a defence of contributory negligence nor denied the occurrence of the accident recorded in the First Information Report and spot panchanama, there was no reason for her to enter into the witness-box. According to the Appellants, if the Insurance Company is taking a stand that it was a case of contributory negligence, then it was the responsibility of the Insurance Company to examine the driver of the offending truck and get it proved, but no steps were taken by the Respondent/Insurance Company in the matter.

In the light of these circumstances, learned Counsel for the Appellants has rightly relied upon the Judgment of the Hon’ble Supreme Court of India in the case of Minu Rout and Another V/s Satya Pradyumna Mohapatra and Others, (2013) 10 Supreme Court Cases 695, wherein the Hon’ble Supreme Court has observed in paragraph No.17 as under :

One more aspect, which was brought to the notice of this Court by the learned Counsel for Appellants during the course of argument is that before the Tribunal as well in the present Appeal there were two legal heirs of the deceased, who have claimed compensation, as such, under the head of “loss of consortium” each one was entitled for Rs.40,000/-, however, the learned Tribunal has awarded only Rs.40,000/-. Hence, according to him, Rs.40,000/- is required to be added in the compensation amount. I find that the learned Counsel for Appellants is right in making this submission and the same is required to be considered in the matter. In the result, I proceed to pass following order.