Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.Sonak, J.
Franky Carvalho – Appellant
Versus
Raju Jaswant Singh – Respondent
First Appeal No. 109 of 2017
Decided On : 01-07-2022

Advocates Appeared:
C.A.Coutinho Almeida, Advocate, Ivan Santimano, Advocate, C.Afonso, Advocate

The main legal point established is the consideration of contributory negligence and determination of compensation in a motor accident claim.

Headnote:
Motor Accident Claim - Rashness and Negligence - Sec. 279 IPC, Bimblesh and ors. vs. New India Assurance Co. Ltd., (2010) 8 SCC 591, The Agricultural Produce Marketing Committee, Bangalore vs. The State of Karnataka and ors., 2022 LiveLaw (SC) 307
Fact of the Case:

The Appellant's claim petition was dismissed by the Motor Accident Claims Tribunal, attributing the accident to the Appellant's rashness and negligence. The Tribunal did not compute the compensation amount. The Appellant appealed against this decision.
Finding of the Court:

The Court found that the accident was a case of contributory negligence, with both the Appellant and the truck driver responsible. The Court determined the compensation amount at Rs.2,50,000, holding Respondents 4, 5, and 6 jointly and severally liable.
Issues: The issues were the determination of rashness and negligence and the quantum of compensation.
Ratio Decidendi: The Court considered the standards of proof in criminal prosecution and claim petition, the evidence of the parties, and the contributory negligence of both parties to decide the case.
Final Decision: The Appeal was partly allowed, and the compensation of Rs.2,50,000 was determined, to be paid by Respondents 4, 5, and 6 jointly and severally.

JUDGMENT

1. Heard Mr. C.A. Coutinho Almeida for the Appellant and Ms. C. Afonso for Respondent No.3.

2. The record indicates that all the Respondents have been served, though there is no appearance on behalf of Respondents No.1, 2, 4, 5, and 6.

3. The challenge is to the impugned Judgment and Award dtd. 15/11/2014, by which the Motor Accident Claims Tribunal, at Margao (Tribunal), dismissed the Appellant's Claim Petition No.200/2010 by holding that the accident was due to the rashness and negligence of the Appellant and not the truck No.GA-02/T-5429. The Tribunal did not even bother to compute the compensation amount that the Appellant might have been entitled to, but for this finding on rashness and negligence.

4. The Hon'ble Supreme Court in Bimblesh and ors. vs. New India Assurance Co. Ltd., (2010) 8 SCC 591. and The Agricultural Produce Marketing Committee, Bangalore vs. The State of Karnataka and ors., 2022 LiveLaw (SC) 307. has made it clear that the Courts and the Tribunals should dispose of all issues together and not adopt shortcuts by deciding the matters only on one of the issues that may arise. The Tribunal, in this case, by not determining all the issues, has breached this principle.

5. Mr. Coutinho submits that the evidence on record does not justify the finding of the Appellant's alleged rashness and negligence. He submits that the Appellant and several other commuters were only attempting to overtake a line of parked trucks. Therefore, he submits that no negligence can be attributed on this count. He refers to the defense of the driver of truck No.GA-02/T-5429 to submit that the same, to a certain extent, corroborates with the Appellant's version and proves that it is the truck driver who was negligent in the matter.

6. Mr. Coutinho submits that the evidence on record justifies the finding that the Appellant's income was Rs.30, 000.00 per month. He submits that there is evidence about the expenses incurred by the Appellant due to the accident and to maintain his business as a truck owner/driver during the period when the Appellant was immobilized. He submits that the Appellant is entitled to compensation towards future medical expenses, pain and suffering, and loss of expectation of life. He handed in a calculation sheet to submit that the just compensation, in this case, would come to Rs.7, 75, 840.00.

7. Ms. C. Afonso appears for Respondent No.3, i.e., the insurer of truck No.GA-09/U-2182 that was coming from the opposite side and is alleged to have damaged the Vespa Scooter that the Appellant was riding. She submits that there is no claim against the owner, driver, or insurer of truck No.GA-09/U-2182. She submits that there was no injury caused by the truck bearing No.GA-09/U-2182 to the Appellant. She, therefore, submits that no relief can be granted to the Appellant as against Respondents No.1, 2, and 3.

8. Based on the submissions made, mainly two issues arise for determination:-

(a) The issue of rashness and negligence; and

(b) The issue of quantum of compensation.

9. On the first issue, the Appellant has examined himself as AW.1. The driver of truck No.GA-02/T-5429 did not bother to examine himself. The evidence shows that an FIR was registered against the Appellant for the accident from which this claim arises. The Appellant was prosecuted for the offense punishable under Sec. 279 IPC for rash and negligent driving. The evidence also shows that the Judicial Magistrate First Class acquitted the Appellant at Quepem by her Judgment and Order dtd. 24/11/2011, holding that the prosecution had failed to explain the genesis of the accident or even to identify the Appellant correctly.

10. The conviction or acquittal in a criminal matter is not usually very relevant in deciding the issue of rashness and negligence in a claim petition. This is mainly because the standards of proof in the two proceedings are not the same. In a criminal prosecution, the standard is to prove beyond a reasonable doubt. In a claim pet