The court affirmed that a bus driver's heightened duty of care due to vehicle size established negligence, and clarified compensation calculations while remanding for insurance liability concerning lack of operating permits.

JUDGMENT :

M. S. SONAK, J

1. Heard the learned counsel for the parties.

2. The appellant Insurance Company challenges the judgment and award dated 15.05.2023 made by the Motor Accident Claims Tribunal, North Goa, at Panaji Goa, disposing of Claim Petition No.57/2016 by awarding the claimants i.e. respondent Nos.1 to 4 the total compensation of Rs.34,29,000/- along with simple interest at the rate of 6% per annum from the date of filing of the petition till full and final payment.

3. Mr Kakodkar submits that the finding regards negligence on the part of the bus driver i.e. first respondent suffers from perversity. He submitted that the bus driver had already turned at the circle and was about to access the side road. At this stage, the deceased, who was riding the Activa scooter in a rash and negligent manner collided with the bus thereby suffering fatal injury. He submitted that in such circumstances, the bus driver could not be said to have acted rashly and negligently. Mr Kakodkar submitted that in any event, this was a fit case for holding the bus driver and the deceased equally contributing to the accident and that this was a case of contributory negligence.

4. Mr Kakodkar submitted that the accident in this case occurred on 21.01.2008, but the claim petition was filed almost 8 years later, i.e., on 02.05.2016. He submitted that there was no explanation for this delay, and in any event, the Tribunal was not justified in awarding a 10% increase over the rates specified in National Insurance Company Limited Vs. Pranay Sethi and others , (2017) 16 SCC 680 .

5. Besides, Mr Kakodkar pointed out that there was an apparent error on the face of the record in calculating the compensation amount. Mr Kakodkar contended that there is no evidence to sustain the finding that the deceased was earning Rs.20,000/- per month.

6. Finally, Mr Kakodkar submitted that in this case the bus driver had no permit to ply the bus. The insurance policy clearly provided that the same would be subject to the bus having a valid permit. Therefore, he submitted that the appellant Insurance Company was not liable and, in any event, this was a fit case to make a pay and recover order.

7. The learned counsel Mr Menezes for respondent Nos.I to 3 and Mr Gustavo Monteiro for fourth respondent submitted that there was overwhelming evidence on record in support of finding on rashness and negligence on the part of the bus driver. They submitted that if the bus driver's case about the bus being driven slowly was correct, there was no question of an accident. They pointed out that, even otherwise, the bus is a much larger vehicle than the Activa scooter, and therefore, the duty of care expected from the bus driver was much greater. They submitted that the bus driver, when entering the side road after turning at the circle, had to be extra conscious. They submitted that the evidence on record shows that all caution was thrown to the wind, thereby causing an accident in which the deceased succumbed.

8. The learned counsel for the respondents submitted that there was nothing wrong with the calculation or the award of the 1 0°/o increase provided in the case of Pranay Sethi (supra). They submitted that such an increase has been awarded only after 2017 and not with retrospective effect.

9. The learned counsel for the respondents submitted that no limitation period was prescribed for filing claim petitions. In any event, delay was satisfactorily explained and no proper pleadings were objecting to the entertainment of this petition on the ground of delay or laches. They pointed out that not eve