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2010 DIGILAW 383 (BOM)

Kadamba Transport Corporation v. Suchita Furtado

2010-03-09

R.M.SAVANT

body2010
JUDGMENT (ORAL) R.M. Savant, J.- This Appeal and cross objections take exception to the Judgment and Award dated 6.5.2000 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, South Goa, Margao, by which the Claim Petition has been allowed to the extent mentioned in the operative part of the Award. The cross objections have been filed by the original Claimant seeking enhancement in respect of the compensation awarded. 2. The above First Appeal arises out of the Claim Petition which is filed by the Respondent above named on account of the permanent disability suffered by her as a result of the injury sustained by her in a vehicular accident. 3. The parties would be referred to as per their status in the Trial Court. 4. It was the case of the Claimant that on 29.11.1991 at about 4.00 p.m. she was travelling as a passenger in a minibus bearing No. GDZ 2734 driven by the Respondent No.3 which was proceeding from Margao to Chinchinim. When the minibus had reached at Jakniband, Navelim, it met with an accident with mini bus bearing No. GDX-185 belonging to the Respondent No. 2 in the Claim Petition and driven by the Respondent No. 1 which according to the Claimant came at a very fast speed and there was a head-on collision between both the buses. It was the case of the Claimant that the accident had occurred on account of the rash and negligent driving of the vehicles involved by their respective drivers and, therefore, it was the case that all the Respondents were jointly and severally liable to pay the compensation. It was further her case that in the said accident she has sustained injuries to her face and other parts of the body including loss of teeth a and fractures of her facial as well as nasal bone. She therefore claimed compensation of Rs. 6,10,588/-. 5. The Claim Petition came to be contested by all the Respondents. The Respondent Nos. 1 and 2 denied their liability and it was their case that the accident was not caused on account of bus bearing No. GDX-185 of the Respondent No. 1 which was coming from opposite direction at a high speed. 6,10,588/-. 5. The Claim Petition came to be contested by all the Respondents. The Respondent Nos. 1 and 2 denied their liability and it was their case that the accident was not caused on account of bus bearing No. GDX-185 of the Respondent No. 1 which was coming from opposite direction at a high speed. It was further their case that the road was straight and there was enough space for both the vehicles to pass without any difficulty but that the accident occurred because the Respondent No. 3 was driving the minibus in the middle of the road. 6. Considering the pleadings on record, the Trial Court framed the following issues : (1) Whether the claimant proves that the accident was due to rash and negligent driving on the part of the Respondent No.1? (2) Whether the claimant proves that in consequence of the accident, she sustained grievous injuries to her face with fracture of facial and nasal bones with loss of several teeth on both the jaws resulting in permanent disablement? (3) Whether the claimant proves that she is entitled to a total compensation of Rs. 6,10,588/-? 7. The Claimant in support of her case had examined six witnesses. The Claimant herself as CW 1, the Investigating Officer as CW 2, Dr. Vikas Dhupar, Assistant Professor from G.M.C. as CW 3, Dr. Ajit Dirikar, Professor of Oral Medicine and Radiology Department of Goa Dental College, Bambolim as CW 4, Vilas Kolvekar, Divisional Manager of New India Assurance Company as CW 5, and Maya Kakode who was an eye witness as CW 6. The Respondent No. 1 in the said Claim Petition had examined one P.B. Dewari, a practicing Advocate as RW 1. 8. Since the Appellant has challenged the liability fixed on it by the Tribunal, it would be relevant to consider the evidence on record indicating the manner in which the accident had occurred thereby implicating the Appellant in the accident and resultantly the payment of compensation. In so far as the evidence of the claimant is concerned, it has come in her cross examination that she did not know when the accident took place or as to how the accident took place. She also does not remember whether the said minibus was so over crowded that even some of the passengers were standing outside the door hanging to the door. She also does not remember whether the said minibus was so over crowded that even some of the passengers were standing outside the door hanging to the door. Now coming to the evidence of CW 6, she has deposed that the accident took place between the KTC bus i.e. the bus of the Appellant and minibus. She has further deposed that the Claimant Suchita Furtado was also a passenger in the minibus and she was sitting just behind the driver and that she was severely injured in that accident. She has further deposed that she was sitting on the second a last seat on the left hand side and there were about 10 to 15 passengers in standing position. Her further deposition is to the effect that she was unable to say after what distance from the spot the minibus had stopped. The evidence of the said two witnesses therefore does not take the case of the Claimant any further in so far as the liability of the Respondent No. 1 is concerned. In so far as the witness of the Respondent No. 1 i.e. one Shri Pandurang Devari is concerned, it was his evidence that the accident was in the middle of the road and therefore both the buses were responsible for the accident. It was further his evidence that the mini bus was also at the same speed as that of the KTC bus and since there was construction material lying on the left hand side of the road, the KTC bus had to come to the middle, of the road and as the road was broad enough the mini bus had to come to its left side. Taking into consideration the said evidence of RW 1 a question that arises is whether it would be possible for a passenger to gauge the speed of the bus coming from opposite direction in a precise manner as is sought to be deposed by the said witness of the Respondent No.1. The position of the buses as disclosed by the said witness is also highly improbable in view of the fact that admittedly there was construction material lying on the left hand side of the road on which the KTC bus was traversing, the said bus was bound to be more towards right hand side. Therefore, the evidence of the said witness cannot be accepted. 9. Therefore, the evidence of the said witness cannot be accepted. 9. Now coming to the panchanama of the scene of accident and sketch drawn at the scene of accident which were exhibited as 18 and 19. The said sketch shows that the mini bus was pushed behind and was partly outside the road on its left hand side after the impact. From the said sketch therefore as also the evidence of the Investigating Officer CW 2 only one conclusion could be drawn, that it was the Respondent No. 1 who drove the KTC bus in a rash and negligent manner and caused the accident and that the Respondent No. 3 i.e. the driver of the mini bus did not have any chance to avoid the accident. 10. On behalf of the Appellant, it is sought to be contended that in the teeth of the evidence of CW 1 and CW 6 the liability could not be fastened on the Appellant i.e. the Respondent No.1, and had to be shared equally between the Respondent No. 1 and Respondent No. 3. Though it is true that the evidence of CW 1 and CW 6 does not in terms support the case that the Respondent No. 1 is to be solely made liable. The evidence of RW 1 also does not support the case of the Respondent No. 1 and in fact has to be discarded. The only other evidence which can therefore be relied upon is the panchanama at Exhibit 17 and sketch at Exhibit 18 which have been drawn immediately after the accident has taken place as also the evidence of the Investigating Officer. The submission of the learned Counsel for the Appellant therefore cannot be accepted in the teeth of the aforesaid evidence in so far as fastening the liability on the Respondent No.2 is concerned. 11. In so far as the compensation aspect is concerned the learned Counsel for the Appellant tried to argue on the various sums awarded to the Claimant but none of the submissions were made with any conviction, except in respect of the amount of Rs. 16,750/- which is the total amount of the medical bills Exh. W1/A for Rs. 6869.30 and Exh. W1/B-1 to 35 for Rs. 9861.95 totalling Rs. 16731/- rounded of to Rs. 16750/- on account of which a claim was made by the Claimant. 16,750/- which is the total amount of the medical bills Exh. W1/A for Rs. 6869.30 and Exh. W1/B-1 to 35 for Rs. 9861.95 totalling Rs. 16731/- rounded of to Rs. 16750/- on account of which a claim was made by the Claimant. Though the Claimant has accepted the position that an amount of Rs. 24,350/- has been paid, it has come in the evidence that the Claimant was paid an amount of Rs. 57,000/- by her employer towards the medical bills and therefore the Tribunal was wrong in awarding the said two sums to the Claimant on the basis that the said two bills were unpaid. The said amount therefore would have to be deducted from the total amount which the Claimant has been awarded by the Tribunal. In so far as rest of the amounts which have been awarded, there is no merit in the challenge raised to the said amounts awarded. The above Appeal is therefore partly allowed by deducting the said amount of Rs. 16,750/- from the total amount which has been awarded to the Claimant. The Claimant therefore would be entitled to the balance after deducting the said amount. The rest of the directions as contained in the Award are not interfered with. 12. In so far as cross objections are concerned in my view considering the amount which has been awarded under various heads were even the amount of Rs. 81,000/- on account of permanent disability coupled with other amounts, in my view no further enhancement can be granted to the Claimant. There is also miscalculation on the part of the Tribunal. Out of total compensation of Rs. 2,34,210/- an amount of Rs. 25,000/- which is on account of loss of disability suffered by the Claimant consequent to the psychological trauma from severe disfigurement of the face would have to be deducted. So the final amount comes to Rs. 2,09,210/-. The amount of Rs. 16,750/- would have to be deducted from Rs. 2,09,210/- and the Claimant would be entitled to the balance amount. The amount of interest as directed by the Tribunal on failure to pay within a period of 30 days only would be on the principal sum excluding the interest amount. The cross objections are accordingly rejected. Appeal partly allowed.