High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 485 OF 2015SHIVAJI S/O MAHADEO BAHIRVERSUSCHHAGAN S/O SUDAM GAWAIM. S. Kokate, Advocate for the appellantMr. M. M. Parghane, Advocate for the respondent CORAM: R. M. JOSHI, J.DATE: 10th JANUARY, 2024P.C. :-1.This appeal is filed under Section 173 of the Motor Vehicle Act (forshort ‘the Act’) by respondent owner against award dated 10/04/2014passed MACP No. 759/2011 whereby the claim petition under Section166 of the Act filed by the claimant was allowed.2.Claimant is an Advocate by profession and also an agriculturist. On13/12/2010 he met with an accident while proceeding on his motorcyclebearing No. MH-20-AP 6798 as a pillion rider. According to him at thetime of the accident Tata Indigo Car bearing No. MH-14 AM 4674 camefrom opposite side in high speed and dashed against his motorcycleresulting into causing of accident. Claimant sustained fracture to his legand other injuries. He was hospitalized from 13/12/2010 to 19/12/2010initially at Rural Hospital, Sindhkhedraja and thereafter in Samyak940.fa485.15.odt1 of 6 Hospital, Jalna he was operated and treated there. Rod was inserted inhis leg. He claims to have caused permanent disability to him owing tothe injuries and claimed damages/compensation of Rs. 4 lakhs. It isaverred that offence came to be registered against the driver of the carvide Crime No. I-95/2010. Claim was filed against the owner of the car.3.Owner appeared before the Tribunal and by filing written statementdenied the contentions of the claimant. It is alleged that the accident inquestion has occurred due to the negligence of the rider of themotorcycle and that no fault can be attributed to the driver of the car.Contentions of the claimant about causing of injuries, hospitalizationtreatment, income etc were denied.4.Tribunal framed issues at Exhibit 19. Claimant examined himselfand relied upon police papers i.e. FIR, spot panchnama, accident form,injury certificate, discharge card, medical bill, driving license etc. He alsoexamined his wife at Exhibit 36 and Dr. Jinturkar at Exhibit 40. Theowner examined himself at Exhibit 90. Learned Tribunal accepted theclaim of the claimant and directed owner to pay compensation ofRs.2,35,200/- along with interest at the rate of 9% per annum to theclaimant.5.Being aggrieved by the said award present appeal is filed with the940.fa485.15.odt2 of 6 contentions that the Tribunal has failed to consider the fact thatnegligence of the rider of the motorcycle is also involved in accident andas such the entire negligence ought not to have been attributed to thedriver of the car. It is also contended that on the basis of evidence onrecord Tribunal has committed error in considering the injuries andpermanent disability of the claimant. Award is also challenged on theground being excessive, including the interest granted at the rate of 9%per annum.6.The initial burden on the claimant to prove that accident inquestion has occurred due to the negligence of the driver of the car. Inorder to prove the same claimant examined himself at Exhibit-21.Claimant being pillion rider has witnessed the accident. He deposedcandidly about the driver of the car coming in high and excessive speedfrom opposite direction and giving dash to the motorcycle. To furthersupport his contention claimant has relied upon first information reportlodged against the driver of the car and spot panchnama. During thecross-examination of claimant nothing is elicited by the owner in order tocreate doubt about his version of occurrence of incident. Claimant hasfurther deposed about causing of injuries to him. The injuries caused tohim and treatment taken by him is duly proved by examining witness i.e.Dr. Jinturkar (Exhibit 40). Once claimant discharges burden upon him to940.fa485.15.odt3 of 6
Legal Reasoning
prove the accident, negligence of the driver of the offending vehicle andcausing of injuries, the onus shifts on the owner to prove otherwise.Though owner examined himself at Exhibit 90 since he is not witness tothe accident his evidence cannot be considered for the purpose ofdeciding the manner in which the accident has occurred the ownertherefore has failed to prove otherwise. On the basis of evidence onrecord learned Tribunal has rightly come to the conclusion that theaccident has occurred solely due to the negligence of the driver of thecar. Apart from this, claimant was pillion rider on the motorcycle andhence not responsible for accident in any manner. It is choice of theclaimant to seek damages / compensation from joint for feasors fromboth or any one of them. Thus, non joinder of the rider and the owner ofthe motorcycle does not affect maintainability of the claim. Moreover,there is no material on record to hold that the driver of the motorcyclecontributed in occurrence of the accident.7.Claimant is an Advocate by profession. In order to prove the samehe placed on record certificates of practice issued by Secretary of DistrictBar Association, Aurangabad as well as by Principal District and SessionsJudge, Aurangabad. There is no dispute made by the owner of the saidfact. Apart from this it is the case of the claimant that he has familyagricultural land and also was working there and deriving income940.fa485.15.odt4 of 6 therefrom. Learned Tribunal has considered the income of the injured atthe rate of Rs.9000/- per month. The claimant had put in 2 years and 4months of practice on the date of accident. Though it is true that for anyprofessionals including an Advocate require some time to establish in theprofession. However, at the same time it is matter of common knowledgethat even junior lawyers earn by assisting the Senior colleagues by doingwork of drafting, filing of the proceeding and also by doing othermiscellaneous work. In such circumstances in the year 2015 if theaverage income of even a lawyer is considered at Rs.9000/-, the samecannot be held to be excessive.8.As far as the causing of injuries and permanent disability caused tothe injured is concerned, claimant has examined Dr. Jinturkar who isOrthopedic Surgeon and had issued injury certificate at Exhibit 41.According to him on 19/12/2010 claimant with fracture of tibia fibula onright side was operated with nailing on 15/12/2010. He issued dischargecard (Exhibit 86) and injury certificate (Exhibit 87). He assesseddisability of the claimant and disability certificate (Exhibit 84) is issued.Tribunal has considered nature of injuries caused to the claimant, hasaccepted permanent disability to the extent of 8%. The said findingrecorded by the Tribunal cannot be held to be perverse having regard tothe evidence of Dr. Jinturkar. In the cross-examination though he has940.fa485.15.odt5 of 6
Decision
accepted the fact that patient is completely recovered, however, hedenied the suggestion that no permanent disability is caused to theclaimant. Having regard to the facts and circumstances of the case,Tribunal has awarded compensation on the various said including loss ofincome, further operation, medical expenses, future medical expenses,pains and suffering and conveyance. This Court therefore finds noperversity in the said assessment done by the Tribunal.9.Section 171 of Motor Vehicle Act gives discretion to the Tribunal todirect payment of interest on the amount of compensation determinedfrom the date of filing of the claim. Though the phrase may is usetherein, however, considering the fact that the claimant isdeprived/denied of the rightful compensation and hence the interestmust be awarded on compensation amount. In the present case, interestat the rate of 9% is awarded by the Tribunal, which is not excessive.10.In view of above discussion, no interference is called for in theimpugned judgment and award. Hence, appeals stands dismissed.Pending application, if any, stands disposed of. (R. M. JOSHI, J.)ssp940.fa485.15.odt6 of 6