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2020 Supreme(Bom) 1056
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. Jawalkar, J.
M/s. Kadamba Transport Corporation Ltd. – Appellant
Versus
Anacleta Henriquina Ilda Fernandes & Another – Respondents
First Appeal No. 68 of 2014
Decided On : 17-12-2020
Advocate Appeared:
For the Appellant :A.R. Kantak, Advocate.
For the Respondent:V.G.P. Dukle, Advocate.
The main legal point established in the judgment is the assessment of contributory negligence in a motor accident claim and the modification of compensation based on the percentage of contributory negligence and the deceased's income.
Headnote:
Contributory Negligence - Motor Accident Claims - [M.V. Act] - Summary: The court considered the contributory negligence of both the deceased and the bus driver in a motor accident claim. It discussed the evidence, panchanama, and sketch map to conclude that both parties contributed equally to the accident. The court modified the compensation awarded, considering the deceased's income and the percentage of contributory negligence.
Fact of the Case:
The deceased was involved in a motor accident and his wife claimed compensation. The appellant contested the claim, arguing contributory negligence and excessive compensation. The court analyzed the evidence and concluded that both parties contributed equally to the accident, modifying the compensation awarded.
Finding of the Court:
The court found that both the deceased and the bus driver contributed equally to the accident, leading to a modification of the compensation awarded.
Issues: Contributory negligence, assessment of compensation, evidence evaluation
Ratio Decidendi: The court considered the evidence, panchanama, and sketch map to conclude that both parties contributed equally to the accident. It also assessed the compensation based on the deceased's income and the percentage of contributory negligence.
Final Decision: The court partly allowed the appeal, modified the compensation awarded, and held the respondents jointly and severally liable to pay the modified compensation amount.
JUDGMENT :
1. Heard Mr. A. R. Kantak, learned Advocate for the Appellants and Mr. V. G. P. Dukle, learned Advocate for the Respondents.
2. The present appeal is filed by original respondent no.2 i.e. M/s. Kadamba Transport Corporation Limited, (KTC), being aggrieved by the judgment and award dated 28th April, 2014 passed by the Motor Accident Claims Tribunal, Margao, in Claim Petition No. 103 of 2012.
3. The case of the claimants before the Claims Tribunal was as under:
That on 13.04.2012, at about 9.00 a.m., the deceased was proceeding to Margao from Bali for marketing and when he reached near Cuncolim Police Station, the bus bearing no. GA-01-X-049 driven by respondent no. 1, came in rash and negligent manner and dashed the scooter of the deceased bearing no. GDH 3834 from behind and the deceased was dragged along with the bus causing bodily injuries. He was shifted to GMC, Bambolim, where he expired on the same day. The claimant is the wife of the deceased, has claimed compensation of Rs.12,65,000/- on account of the death of her husband. The claimant claimed that the respondent no.1, being driver of respondent no.2 and respondent no.2 being owner of the offending vehicle, are liable to pay.
4. It is the contention of appellant that the amount awarded is exorbitant, moreover, respondent no.1 is not at fault and total fault was on the part of the deceased. The learned Tribunal while coming to the conclusion that there is 50% contributory negligence, has not taken into account the evidence led by the respondents. The learned Tribunal erred in holding that driver of the KTC bus was rash and negligent. Considering the fact that the bus had halt at Bali Bus Stop which is near the spot of accident, therefore, speed of the bus would not be more than 40 k.p.h. The learned Tribunal failed to appreciate that the deceased was of 74 years of age and was driving the scooter and therefore his reflexes were bound to be slow.
5. It is further submitted that from panchanama, it is very much clear that scooterist was totally to his wrong side. The respondent no.1 in his evidence sufficiently established that scooterist suddenly turned to the right side without showing any signal. The sketch corroborates this fact, the spot of impact, if seen, it is 1.30 metres to the right side. No eye witness is examined by the claimant. The learned Tribunal ought to have considered that bus after negotiating a curve, suddenly found the deceased attempting to cross across the right way of the KTC bus and driver made all attempts to save an accident by taking his bus to the right hand side. It is also contended that there is nothing on record to show that earning of the deceased was Rs.20,000/- per month. There is nothing on record to show that the Bar which, is registered in the name of the deceased, was in running condition and he was earning out of that business Rs.20,000/-. It is submitted that the Claim Petition ought to have been rejected considering the evidence on record.
6. Learned Counsel Mr. Kantak for the appellant has relied on the following citations:
(i) Shrimanti & Ors. vs. Krishna Deva Madiwal & Ors., (contributory negligence)
(ii) The Manager, Reliance General Insurance Company Ltd., Salem, vs. Selvi & Ors. decided on 15.06.2017 passed in CMA No.2815 of 2015. (Madras High Court)
(iii) National Insurance vs. Pranay Sheti & ors. (2017) 16 SCC 680.
(iv) (2013) 6 BCR 783 - Pukhraj vs. Jagannath Atchut Naik
7. As against this, learned Advocate for respondent no.1/original claimant, Shri V. G. P. Dukle, submitted that the 6 learned Tribunal erred in holding 50% contributory negligence on the part of the deceased without there being any evidence on record. It is also pointed out that learned Tribunal framed additional issue on the day of judgment itself about the contributory negligence and, therefore, there was no opportunity to lead any evidence on t
