Appeal against Motor Accident Claims Tribunal award dismissing claim for compensation on death in a motor accident. High Court held appeal failed due to registration delay being incurable and contributory negligence plea lacking evidence. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(Judgment) (1) F.A. No. 1969 of 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 1969 of 2018
District : Aurangabad
1. |
Daulat Sonaji Khadke |
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|---|---|---|
(Dead) through L.Rs.: |
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1a. |
Kusimbai w/o. Daulat Khadke, |
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Age : 56 years, |
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Occupation : Household, |
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R/o. Itkheda, Paithan Road,Taluka & Dist. Aurangabad. |
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1b. |
Santosh Daulat Khadke, |
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Age : 38 years, |
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Occupation : Agriculture, |
.. Appellants |
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R/o. Itkheda, Paithan Road, |
(Original |
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Taluka & Dist. Aurangabad. |
respondent |
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no.01) |
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1c. |
Bhagwan Daulat Khadke, |
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Age : 32 years, |
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Occupation : Agriculture, |
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R/o. Itkheda, Paithan Road, |
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Taluka & Dist. Aurangabad. |
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1d. |
Rekhabai w/o. Ganesh Narwade, |
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Age : 36 years, |
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Occupation : Household, |
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R/o. Babhulgaon, |
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Near Chittegaon, |
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Taluka Paithan, |
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Dist. Aurangabad. |
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versus |
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1. |
Sujata w/o. Suresh Deshpande,Age : 48 years, |
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Occupation : Household, |
.. Respondent no.01 |
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R/o. B-1, Kasliwal Garden, |
deleted. |
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N-2, Mukundwadi, CIDCO, |
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Aurangabad. |
(Judgment) (2) F.A. No. 1969 of 2018
2.Sagar s/o. Suresh Deshpande,
Age : 23 years,
Occupation : Education,
R/o. B-1, Kasliwal Garden,.. Respondents
N-2, Mukundwadi, CIDCO, (Nos.01 to 03 -
Aurangabad. Original
claimants
3.Samiksha d/o. Suresh Deshpande, &
Age : 20 years, No.05 -
Occupation : Education, Original
R/o. B-1, Kasliwal Garden, respondent
N-2, Mukundwadi, CIDCO, no.02)
Aurangabad.
4.Ankush Bhimrao Musale,
Age : 47 years,
Occupation : Driver,
R/o. Phule Nagar,
Pandharpur,
Taluka & Dist. Aurangabad.
...........
Mr. Ravindra V. Gore, Advocate, for the appellants. Respondent no.01 deleted as per Court's order dated 05-12-2019.
Mr. S.R. Deshpande, Advocate, for respondents no.02 and 03.
Notice not necessary to respondent no.04 as per Court's order dated 05-12-2018.
...........
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving
the judgment : 01st July 2019.
Date of pronouncing
the judgment : 05th September 2019.
(Judgment) (3) F.A. No. 1969 of 2018
JUDGMENT :
01.Present appeal has been filed by original
respondent no.01, challenging the judgment and award
passed by learned Member of the Motor Accident Claims
Tribunal, Aurangabad, in Motor Accident Claim
Petition No. 349 of 2011, dated 22-02-2018, whereby
the petition filed under Section 166 of the Motor
Vehicles Act, 1988 by the present respondents, was
partly allowed.
02.Original claimants had filed the said claim
petition for getting compensation on account of death
of one Suresh Laxman Deshpande in motor vehicle
accident. Said Suresh was proceeding towards Waluj,
Bajajnagar, by his motorcycle on 23-05-2009 at about
17.00 hours. When he reached in front of gate of
Shreya Company, another motorcycle bearing No. MH-
20/AV-5927, driven by respondent no.02 came from back
side in a negligent manner. The said motorcycle
driven by respondent no.02 gave dash to motorcycle
driven by Suresh; as a result of which, Suresh
sustained multiple injuries. He was admitted to
Government Hospital, Aurangabad and then shifted to
City Care Super Specialty Hospital. However, he
succumbed to his injuries on 27-05-2009. It was
contended that Suresh was a businessman getting
income of Rs. 1,12,000/- per annum. He was also
getting income of Rs. 36,000/- from agriculture. The
(Judgment) (4) F.A. No. 1969 of 2018
claimants had claimed compensation of Rs. 14,50,000/together with interest from respondent respondents no.01 and 02. Respondent no.01 is the owner of the motorcycle. [Parties are referred as per their nomenclature before the Tribunal.]
03.Respondent no.01 expired during the pendency
of the petition and his legal heirs have been brought
on record. By filing written statement, they had
contended that no such accident had occurred though
police had lodged report against respondent no.02. It
is stated that the respondent no.02 has been wrongly
prosecuted and thereafter he was discharged by the
concerned Court. It was denied that the accident had
taken place due to the sole negligence of the
deceased who was under the influence of liquor at the
relevant time. Age, occupation and income of the
deceased given in the petition has been challenged.
04.Taking into consideration the rival
pleadings, issues were framed. Only claimants had
led evidence, oral as well as documentary and taking
into consideration the evidence on record, the
Tribunal held that deceased Suresh expired in the
motor vehicle accident that had taken place on 23-05-
2009 and said accident had taken place due to the
sole negligence on the part of respondent no.02.
Respondents no.1a to 1d and 02 were jointly and
severally directed to pay compensation of Rs.
(Judgment) (5) F.A. No. 1969 of 2018
12,28,000/- to the claimants together with interest.
The said judgment and award is under challenge in
this appeal filed by the legal representatives of
original respondent no.01.
05.Heard learned Advocate Mr. R.V. Gore
appearing for the appellants. Heard learned Advocate
Mr. S.R. Deshpande appearing for respondents no.02
and 03.
06.It has been vehemently submitted on behalf
of the appellants, that the record would show that
there was failure on the part of the applicants for
about 13 months, for not even registering the
petition. Thereafter, there were no steps taken as
against respondent no.02 i.e. from 09-11-2012 to 25-
06-2014. Again there is delay in bringing the legal
representatives of original respondent no.01 on
record. Taking into consideration all these
negligent acts on the part of the claimants, the
learned Tribunal ought not to have awarded interest
for those periods. He, therefore, prayed for
reduction of interest for that period and also
submitted that the principal amount has been
deposited by respondents no.1a to 1d as per the
award. Another submission that has been made on
behalf of the appellants is that the learned Tribunal
has not taken note of the contributory negligence on
the part of the deceased on the basis of police
(Judgment) (6) F.A. No. 1969 of 2018
papers on record. It will not be out of place to
mention here, that there was no submission on behalf
of the appellants on the point of quantum.
07. Per contra, learned Advocate appearing for respondents no.02 and 03 i.e. original claimants submitted that the perusal of Roznama would show that steps were taken from time to time by the claimants to serve the respondents and there was absolutely no delay on their part. Whatever delay has been caused in bringing the legal representatives of respondent no.01 on record has been duly condoned by the Tribunal and therefore, no interference is required or change in the interest rate or duration. It is stated that the amount, including amount towards 'no fault liability' has not been paid to the claimants uptill now. No evidence was led by respondents no.1a to 1d and therefore, there is no question of holding deceased contributorily liable for the accident.
08.At the outset, it can be said that for
contributory negligence, there was no pleading by
respondents no.1a to 1d. The written statement that
has been filed on record shows that they intended to
say that the accident had taken place due to the sole
negligence of the deceased and even alternatively it
was not pleaded that the deceased had contributed to
the accident. Secondly, the position or the manner
in which the accident took place, as pleaded by the
(Judgment) (7) F.A. No. 1969 of 2018
claimants, has been proved. The motorcycle driven by
respondent no.02 had come from back side. Therefore,
how the motorcycle which is going ahead of him would
have contributorily liable itself is a question.
Thirdly, no independent evidence has been led by
examining respondent no.02 or any other eye witness
to support this type of contention; even though it
was not taken in the written statement. When
evidence was led by the claimants, in the form of
examining one of the claimants, though not an eye
witness but then it was supported by documentary
evidence in the form of first information report and
other police papers, the onus has shifted on the
respondents to disprove the contents of those
documents. When it has been tried to be submitted
that the learned Tribunal ought to have held deceased
contributorily liable to the accident, then the
appellants are impliedly accepting the fact about
involvement of the motorcycle owned by original
respondent no.01 and it was driven by respondent
no.02. Under this circumstance, when respondent
no.02 was not examined before the Tribunal; the
Tribunal was justified in drawing adverse inference
against respondent no.02. Therefore, there is no
substance in the said point.
09.As regards the alleged delay regarding
registration of the petition, steps not taken for
serving the driver or bringing the legal
(Judgment) (8) F.A. No. 1969 of 2018
representatives on record is concerned, the Roznama speaks for itself. Though the accident had taken place on 23-05-2009 and Suresh expired on 27-05-2009, the petition was filed on 05-05-2011. It has been numbered immediately thereafter and notices have been directed to be issued. The contents of the Roznama would show that on an average, steps were taken by the claimants to get the notice issued to the respondent no.02. Even if for some days, the matter was pending for taking steps, that does not mean that there was negligence on the part of the claimants. Thirdly, as regards the legal representatives are concerned, the delay has been condoned by the Tribunal. Therefore, in respect of the said point of interest also, there is absolutely no substance.
10.There is no merit in the present appeal;
hence it deserves to be dismissed and accordingly it
is dismissed with no order as to costs.
( Smt. Vibha Kankanwadi )
JUDGE
...........
puranik / resFA1969.18
3 issues framed by the court
Whether the High Court should reduce interest awarded as there was a delay in registering the petition and serving notices.
Whether the claimants should be reduced interest due to delay in bringing the legal representatives of the deceased appellant on record.
Whether the appellant should be held contributorily negligent based solely on police papers without independent evidence leading to cross-examination of the respondent.
Daulat Sonaji Khadke through L.Rs. Kusimbai w/o. Daulat Khadke, Santosh Daulat Khadke, Bhagwan Daulat Khadke, Rekhabai w/o. Ganesh Narwade
Sagar s/o. Suresh Deshpande
Samiksha d/o. Suresh Deshpande
Vibha Kankanwadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court