Allowed

Shobha Raikar. v. Anil Shinde and Anr.

Bombay HC22 Apr 2022FA/39/2015

Case brief

AI extract

What is this about?

This joint judgment allows two First Appeals against Motor Accident Claims Tribunal awards dismissing claims for negligence. The court reversed the finding of no negligence and awarded compensation for medical expenses and ancillary losses, critiquing the tribunal's evidence evaluation.

What did the court decide?

Compensation of Rs. 3,24,694.15 awarded to Mrs. Shobha Raikar and Rs. 17,401 to Miss Maya Navelkar with 7% interest on the date of petition.

Shobha Raikar. Vs Anil Shinde and Anr. — Motor Accident Claims | Bombay HC (2022)

¶1

206-FA-39 & 40-2015.DOC

¶2

Niti

¶3

IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS.39 & 40 OF 2015

¶4

FIRST APPEAL NO.39 OF 2015

¶5

Mrs. Shobha Raikar Wife of late Laukant Raikar Aged 51 years, widow, service, Indian National, resident of Flat No.62-1, IF/F-1, Ghodge Building, Datta Mandir Road, Davorlim, Navelim, Salcete Goa. …. Appellant

¶6

Versus

¶7

Mr. Anil Shinde Son of Jankiram Shinde major, married, Business, Indian National Resident of Flat No.304, Travasso Heights, Aquem, Margao Goa. 2. SBI General Insurance Co. Ltd. 2^nd Floor, Myles High Corporate Hub, 201 EDC Complex, Patto, Panaji Goa. …Respondents

¶8

AND FIRST APPEAL NO.40 OF 2015

¶9

Miss Maya Navelkar Daughter of Narayan Navelkar Aged 46 years, spinster, Service, Indian National, Resident of Flat No.70/E, Baga, Davorlim, Navelim,

¶10

Page 1 of 9 22^nd April 2022

¶11

206-FA-39 & 40-2015.DOC

¶12

Salcete Goa. …. Appellant

¶13

Versus

¶14

Mr. Anil Shinde Son of Jankiram Shinde major, married, Business, Indian National Resident of Flat No.304, Travasso Heights, Aquem, Margao Goa.

¶15

SBI General Insurance Co. Ltd. 2^nd Floor, Myles High Corporate Hub, 201 EDC Complex, Patto, Panaji Goa. …Respondents

¶16

Mr. S.S. Kakodkar, Advocate for the Appellants. Ms. Megha Salkar, Advocate for Respondent No.2.

¶17

CORAM : M. S. SONAK, J. DATE : 22^nd APRIL 2022

¶18

: ORAL JUDGMENT

¶19

1. Heard Mr. S.S. Kakodkar, learned Counsel for the Appellant in both these appeals, and Ms. Megha Salkar, learned Counsel for respondent no.2 (Insurance Company) in both these appeals.

¶20

2. Since both appeals arise out of Claim Petitions concerning the accident on 27.10.2013 at 20.40 hours at Margao, it is only appropriate that a common judgment and order dispose of them.

¶21

Page 2 of 9 22^nd April 2022

¶22

206-FA-39 & 40-2015.DOC

¶23

3. The appeals challenge two separate awards made by the Motor Accident Claims Tribunal dismissing the Claim Petition on a finding that the claimants failed to prove that the accident in which they suffered injuries was caused on account of rashness and negligence on the part of Mr. Anil Shinde (respondent no.1) - the driver of Etios Toyota bearing registration no.GA-08-F8962. The Tribunal did not bother to answer the second issue about compensation.

¶24

4. Now, in several cases decided by this Court as also the Hon'ble Supreme Court, it has been made clear that the Tribunal should decide all the issues so that if the appeal Court reverses the finding on the issue of rashness and negligence, the appeal court is not required to either remand the matter or itself take up the determination of compensation for the first time. Therefore, the approach of the Tribunal in not determining the compensation is not proper. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Bimlesh & Ors. V/s. New India Assurance Company Limited¹ .

¶25

5. Be that as it may, even the approach to deciding the issue of rashness and negligence is not proper and contrary to the law laid down by the Hon'ble Supreme Court in Anita Sharma & Ors.

¶26

1 (2010) 8 SCC 591

¶27

Page 3 of 9 22^nd April 2022

¶28

206-FA-39 & 40-2015.DOC

¶29

V/s. New India Assurance Company Limited & Anr.2,
Parmeshwari V/s. Amir Chand & Ors.3, Sunita & Ors. V/s.
Rajasthan State Road Transport Corporation & Ors.4Mangla
Ram V/s. Oriental InsuranceCompany Ltd. & Ors.5 and
Dulcina Fernandes & Ors. V/s. Joaquim Xavier Cruz &
Anr.6.

¶30

6. In all the cases above, the Hon'ble Supreme Court had held that the approach of the Courts/Tribunals when dealing with such matters has to be sensitive enough to appreciate the turn of events on the spot or the hardship that the claimants usually face in tracing witnesses and collecting information for an accident when they were themselves not present at the accident spot. Further, the Courts/Tribunals must be mindful that strict principles of evidence and standard of proof, like in a criminal trial, are inapplicable in MACT claim cases. The standard of proof in such matters is one of the preponderance of probabilities rather than proof beyond a reasonable doubt. The Courts/Tribunals have to be mindful that the approach and role of Courts/Tribunals while examining evidence in accident claim

¶31

2 (2021) 1 SCC 171

¶32

3 (2011) 11 SCC 635

¶33

4 2020 (13) SCC 486

¶34

5 (2018) 5 SCC 656

¶35

6 (2013) 10 SCC 646

¶36

Page 4 of 9

¶37

22nd April 2022

¶38

206-FA-39 & 40-2015.DOC

¶39

cases ought not to be to find fault with the non-examination of
some best eyewitnesses, as may happen in a criminal trial; but
instead should be only to analyze the material placed on record by
the parties to ascertain whether the claimant's version is more
likely than not true. The Courts/Tribunals, in matters of this
nature, are required to take a holistic view bearing in mind that
strict proof of an accident caused by a particular bus in a specific
manner may not be possible to be done by the claimants. The
Courts/Tribunals should also draw appropriate inferences from
the failure of respondents to properly cross-examining the
witnesses of the claimants or confront them with their version
despite the adequate opportunity. The courts/Tribunals must take
the legal effect of the failure to cross-examine crucial witnesses on
crucial issues must be taken into account by the
Courts/Tribunals.

¶40

7. In this matter, the Tribunal completely overlooked the fact that an Etios Toyota vehicle was a much larger vehicle compared to a Deo scooter that the two claimant sisters were riding. The Tribunal has also ignored the fact that the police, on its investigations, recorded an FIR against the driver of the Etios vehicle. The Tribunal also failed to account for the most cursory cross-examination and the failure to pose any searching or meaningful questions to the two claimants, who suffered injuries

¶41

Page 5 of 9 22^nd April 2022

¶42

206-FA-39 & 40-2015.DOC

¶43

in the accident. Finally, the Tribunal failed to draw any adverse
inference against Anil Shinde, the driver of the Etios vehicle for
his failure to step into the witness box and stand by his version
that it is the claimant Shobha, who was negligent in driving the
Deo Scooter and not him.

¶44

8. Above all, the Tribunal failed to appreciate that strict rules of pleadings do not apply in a summary jurisdiction under the Motor Vehicles Act. Both the Claim Petitions have been dismissed, relying on a solitary statement in the cross-examination where Shobha says that her scooter got entangled with the car's rear bumper as the rear bumper of the car dashed her scooter. This statement has to be construed from the context and could not have been interpreted as has been interpreted by the Tribunal. Based on this statement, there was no case made out to disbelieve the claimants' case or to exonerate the driver of the Etios vehicle, who did not even bother to step into the witness box. There is no fundamental inconsistency between this statement and the pleadings. This statement has to be construed from the context that the Etios vehicle, in a rash and negligent manner, attempted to overtake the scooter, and in the process, the rear bumper dashed against the scooter. This version is sufficiently corroborated by the police records like FIR, panchanama, and the sketch. The Tribunal has ignored all this material. The finding

¶45

Page 6 of 9 22^nd April 2022

¶46

206-FA-39 & 40-2015.DOC

¶47

that the driver of the Etios vehicle was not negligent is required to
be reversed because it is contrary to the evidence on record. The
appreciation of the evidence is also contrary to the legal principles
od evaluation that apply to such matters. This finding is
accordingly reversed.

¶48

9. Now, coming to the issue of compensation in First Appeal No.39/2015, the claimant Shobha had claimed 6,47,000/- on ₹ account of her injuries in the accident. The Tribunal has found that Shobha produced medical bills of ₹ 2,26,994.15 and the respondents raised no dispute about the authenticity of the medical bills. Besides, there is evidence that Shobha sustained a fracture of the neck of the right femur, which resulted in 40% permanent disability. A medical certificate to this effect is also on record, and even that was not challenged.

¶49

10. Moreover, Shobha was a teacher, and there is no evidence of any loss of salary even for two months though claimed. Therefore, Mr. Kakodkar quite reasonably submitted that the claim of 75,000/- towards loss of salary will not be pressed by ₹ Shobha. However, he proposed that the compensation is due to shock, pain, suffering, loss of amenities of life, traveling and other miscellaneous charges, and even loss of confidence and efficiency.

¶50

Page 7 of 9

¶51

22nd April 2022

¶52

206-FA-39 & 40-2015.DOC

¶53

11. Considering the evidence on record, compensation of ₹ 2,26,994.15 towards medical expenses cannot be denied. Further, compensation of 25,000/- towards pain and suffering, ₹ ₹ 25,000/- towards loss of amenities of life, 22,700/- towards ₹ traveling and miscellaneous charges, and further 25,000/- ₹ towards loss of longevity in life deserves to be awarded as just compensation. This means that the total compensation of ₹ 3,24,694.15 is due and payable jointly and severally to the claimant Shobha in First Appeal No.38/2015. On this amount, Shobha would be entitled to interest at the rate of 7% per annum from the date of the petition till the actual payment. First Appeal No.39/2015 is allowed accordingly.

¶54

12. The claimant in First appeal No.40/2015 is Shobha's sister Maya, who was riding pillion. She had claimed 28,000/- by way ₹ of compensation for her injuries. The Tribunal has accepted her claim to the extent of 15,401/-. However, an additional amount ₹ of 2,000/- towards medical expenses should also have been ₹ awarded. The compensation for Maya is therefore now determined at 17,401/-. The respondents will have to pay this ₹ amount now that the finding on rashness and negligence recorded by the Tribunal, even in this matter, is reversed on the grounds indicated above.

¶55

Page 8 of 9 22^nd April 2022

¶56

206-FA-39 & 40-2015.DOC

¶57

13. First Appeal No.40/2015 is also allowed, and compensation is determined at 17,401/-. This amount will carry interest at the ₹ rate of 7% per annum from the date of the petition till the actual payment.

¶58

14. The respondents, particularly respondent no.2 – Insurance Company, are directed to deposit the above amounts in this Court within six weeks from today with due intimation to the learned Counsel for the Appellant. Upon deposit, the appellants will be entitled to withdraw the same after furnishing proper identification documents and bank details.

¶59

15. The Registry to ensure that this amount, together with the interest that might have accrued on the same, should be deposited directly into the claimants' bank accounts at the earliest.

¶60

16. Both the appeals are disposed of without any order for costs.

¶61

M. S. SONAK, J.

¶62

Digitally signed by NITI K NITI K HALDANKAR HALDANKAR Date: 2022.04.23 10:58:16 +05'30'

¶63

Page 9 of 9 22^nd April 2022

Shobha Raikar. v. Anil Shinde and Anr.

Case brief

What is this about?

What did the court decide?

Shobha Raikar. v. Anil Shinde and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The New India Assuranc Company Ltd., Vs Vishwajit v. Mayekar and 5 Ors.

Jose Velho Virgilio Joaquim Coelho E Velho Vs State of Goa through L.A.O. and Anr.

North Goa Planning and Development Authority through Its Member Secretary Vs Jose Velho Virgilio Joaquim Coelho E Velho and Anr.

Maya Navelkar. Vs Anil Shinde and Anr.

Gita R. P. Navelcar and Ors., Vs State of Goa through Land Acquisition Officer

Navelcar Estates Developers Vs the Executive Engineer Workd Division Vii, PWD