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2012 DIGILAW 95 (BOM)

Sunil Haribhau Pandao v. Sandhya Shaligram Yende

2012-01-13

A.B.CHAUDHARI

body2012
Judgment Being aggrieved by the judgment and award dated 6.8.1994 passed by the learned member, Motor Accident Claims Tribunal, Buldana in Claim petition No.14/1987 by which the present appellant-owner of the Jeep was saddled with liability to pay compensation of Rs. 35,000/-with 12% interest from the date of filing of the petition i.e. 10.4.1987, the present Appeal was filed by the appellant-owner of the Jeep. 2. In support of Appeal, Shri D.P. Jaiswal, learned counsel for the appellant, argued that the spot Panchnama as well as FIR which are placed on record coupled with the pleading in paragraph 10 of the Claim Petition clearly show that the truck had come from the opposite direction and hit the Jeep in which the deceased was sitting on the rear side and was killed because of the dash given by the Truck. According to Mr. Jaiswal, the Jeep owner, i.e. appellant and even the Driver of the Jeep were at no fault; whereas the real fault lay with the Truck Driver who had deliberately dashed the jeep in which the husband of the claimant-Sandhya was killed. He therefore, submitted that the owner, Driver and Insurance Company of the Truck ought to have been made necessary parties to the Claim Petition and in absence of the same, the Tribunal could not have saddled liability on the appellant-Jeep Driver and, as such, the Claim Petition ought to have dismissed for non-joinder of necessary parties. He argued without prejudice to the above contentions, that the Tribunal erred in awarding 12% interest on the amount of compensation from the date of filing of the petition i.e. 10.4.1987, which is too cumbersome, particularly when the Jeep-owner was at no fault, which is evident from the case record. 3. Per contra, Shri A.V. Bhide, learned counsel for respondents /claimants opposed the claim and supported the impugned judgment of the Tribunal and argued that nothing was proved by the appellant-Jeep owner as required by law. In fact, the appellant or Driver of the jeep was never examined before the Tribunal and, therefore, there was nothing in the rebuttal of the evidence tendered by the claimant-Sandhya. There is no cross-examination of Sandhya on the material point. He therefore, prayed for dismissal of the Appeal. 4. I have gone through the impugned judgment and award and the evidence of the parties that was tendered before the Tribunal. There is no cross-examination of Sandhya on the material point. He therefore, prayed for dismissal of the Appeal. 4. I have gone through the impugned judgment and award and the evidence of the parties that was tendered before the Tribunal. I have also heard learned counsel for the rival parties. Following points arise for my determination:- (A) Whether the Tribunal committed an error in not dismissing the Claim Petition for non-joinder of necessary parties, namely, owner, Driver and Insurer of the Truck, which had hit the Jeep in which the husband of Sandhya died? (B) Whether the Tribunal erred in saddling liability on the Jeep owner, when the jeep owner or Driver was not at fault; but the offending Truck had hit the Jeep in which Shaligram was killed? (C) Whether the Tribunal was justified in awarding interest at the rate of 12 per cent per annum with effect from 10.4.1987 ? (D) What order ? 5. At the outset, it is seen that the appellant, after filing written statement, kept completely quiet. He did not even enter the witness box nor produced his Jeep driver to testify about the incident. In other words, the appellant did not disprove the case proved by the claimant nor led any evidence in rebuttal. Furthermore, the appellant remained satisfied only by filing the written statement and did nothing more. Nothing prevented the appellant from entering the witness box or getting the spot Panchnama or FIR proved in accordance with law rather than simply relying on the same. Submission by Mr. Jasiwal about the reading of the spot Panchnama or FIR does not appeal to me in the absence of any ocular evidence which could quite possibly be tendered by the driver of the Jeep. No explanation has been furnished by the appellant as to why the driver of the Jeep was not examined who survived in the unfortunate accident. I, therefore, hold that the appellant failed to prove that it was the truck which hit the Jeep in which Shaligram died as a result of said accident. In her evidence, Sandhya categorically stated that there was an accident of Jeep but she has not mentioned a word about the truck and surprisingly enough this evidence of Sandhya has gone unchallenged. In her evidence, Sandhya categorically stated that there was an accident of Jeep but she has not mentioned a word about the truck and surprisingly enough this evidence of Sandhya has gone unchallenged. It is true that this evidence of Sandhya regarding accident of the Jeep was in contradiction to her pleading in paragraph 10 of the Claim Application. But then it was for the appellant to invite her attention to the contradictory pleading and destroy her evidence. But that was not done and her evidence as it was, without pleading, has been accepted by the Tribunal and, in my opinion rightly in the above background. 6. For the death of Shaligram, the Tribunal has awarded compensation of Rs. 35,000/-only. Shaligram was of 32 years of age and was a Compounder with a Doctor. Sandhya deposed that though her husband was a compounder, he was going in a Jeep to examine a patient. This shows that deceased Shaligram must have been earning by illegally practicing medicine in the villages. To grant compensation of Rs. 35,000/-in the whole background, appears to be on lower side but then there is no Appeal. That apart, I am satisfied that the compensation of Rs. 35,000 for death of Shaligram is quite reasonable and no interference is required to be made with the same. 7. However, I find that the Tribunal awarded interest @ 12% from the date of the Claim Petition i.e. 10.4.1987. In the first place, rate of interest at the rate of 12 % per annum, could not have been granted by the Tribunal. Secondly, the same should not have been awarded from the date of Claim Petition as it would be cumbersome for the Jeep-owner to make such a huge payment of compensation. In my opinion, interest at the rate of 6% should have been awarded by the Tribunal, but since number of years have passed, I think the appellant should not be over-burdened with the liability. In that view of the matter and balancing the interest of both sides, I make the following order : ORDER (i) First Appeal No 558/1994 is partly allowed. (ii) Award of compensation of Rs. 35,000/-is confirmed. (iii) The said amount of Rs. 35,000/-shall carry interest at the rate of 6% per annum from the date of judgment of this Court i.e. 13th January, 2012 till its realization. (ii) Award of compensation of Rs. 35,000/-is confirmed. (iii) The said amount of Rs. 35,000/-shall carry interest at the rate of 6% per annum from the date of judgment of this Court i.e. 13th January, 2012 till its realization. (iv) Rest of the award regarding apportionment shall stand confirmed. (v) No costs.