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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 188/1993
Dr. Jawaharlal Mannalal Bagadiya,
aged about 40 years,
Medical Practitioner,
Resident of Ratanlal Plots,
Akola, Tq. & Distt. Akola, APPELLANT
...versus...
1) Maharashtra State Road Transport Corporation,
through Divisional Controller,
Amravati,
2) Rahamatullakhan Ibrahimkhan,
aged about 52 years, near Vitthal
Tekdi, Amravati, Tq. & Distt.
Amravati. RESPONDENTS
======================================
Shri B.N.Mohta, Adv. for the appellant.
Shri V.G.Wankhede, Adv. Respondents
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CORAM : S.R.DONGAONKAR, J
JUDGMENT RESEVED ON : 12/08/2008
JUDGEMENT PRONOUNCED ON : 21/08/2008
1/- The appellant has preferred this appeal under
Section 173 of the Motor Vehicle Act, 1988 (in short M.V.Act)
to challenge the judgment and the award of Member, Motor
Accident Claims Tribunal, Akola, in M.C.A.P. No. 80/90, dated
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12.1.1993.
2/- The appellant/original petitioner had preferred a
claim under Section 166 of the M.V.Act, for compensation
against the respondents; Respondent no.1 being the owner of
the vehicle allegedly involved in the accident bearing Bus No.
MH-31-8080 and respondent no. 2, the driver of the said bus.
It was the claim of the petitioner that he is a physiotherapist,
practicing in revenue colony of Akola. On 10.1.1990 at about
5 p.m. he was proceeding to visit one patient. He was
proceeding on his scooter i.e. Vijay Super Scooter bearing No.
MTR-7593. He started from Revenue Colony, travelled upto
main road of Akola, which runs South-North from Ashok Vatika
towards Railway Station. There is a road divider having a
platform of width of 3-4 feet. It is in between two roads,
which are in a way, “one ways”. The western side road is for
the vehicles coming from Ashok Vatika towards railway station
and Eastern side is for vehicles coming from Railway Station
side towards Ashok Vatika, on which S.T. Bus Stand is situated.
When the petitioner/appellant crossed the Eastern side road,
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he waited at the side of road divider to get clearance from the
vehicles coming from Ashok Vatika side and proceeding
towards Railway Station including the Bus Stand. According
to him, his scooter was standing. At that very moment, one
S.T. Bus allegedly driven by Respondent no.2 came from Ashok
Vatika side, which was proceeding towards Railway Station
side for Bus Stand. When the petitioner was waiting, as stated
above, for getting clearance for his way, the said bus went
upto middle portion of its body ahead, however, the bus driver
Respondent no. 2 slightly swerved it towards left side, so right
side of hind portion of the bus brushed to the scooter of the
petitioner. As a result of this, he fell down and sustained
injuries to his right leg. Bus, however, did not stop, went
ahead and entered the S.T. stand which was at a distance of
about 150 ft. from the spot of accident. It is alleged that one
person went ahead and informed the bus driver and controller
of the bus-stand regarding the accident. At that time petitioner
was shifted to the hospital of one Dr. Rathi, who is orthopedic
surgeon. The petitioner sent complaint to City Kotwali Police
Station, Akola. It is alleged that the police made inquiry and
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registered the offence vide Crime No. 22/1990 against
respondent no.2 and later on he was prosecuted. Thus, it is
alleged that because of the negligence of respondent no. 2 in
driving the said bus, petitioner had suffered accident and
consequent injuries to his right leg. It is further alleged that
the petitioner was bed ridden due to plaster put up on his leg,
for about 5 months. He was unable to carry his usual practice
of Physiotherapist for about 8-9 months.
ig He suffered
permanent disability of 10% because of mal-fracture. He thus
claimed compensation of Rs. 1,20,000/- for which the details
are mentioned in the claim petition. It may be stated that he
has given up the claim of Rs. 2,700/- to round up the figure of
compensation.
3/- The respondents resisted the claim with the
contention that there was no impact between bus & scooter of
the petitioner. According to them, the petitioner had rushed to
the road from the side lane and he came on the main road and
in order to take right turn on the Western side of the road i.e.
proceeding from Ashok Vatika towards the Station Road, his
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Scooter slipped near the road divider and he fell down and he
sustained the injury. Thus, it is alleged that the petitioner was
himself negligent and in fact the S.T. Bus was not at all
involved in the accident. The claim as preferred by the
petitioner was also denied.
4/- The learned Member, M.A.C.T. found that the
situation of the spot and the position of the petitioner at the
time of relevant accident, are such that the only inference that
can be drawn is that the petitioner himself was negligent. He
considered the evidence led by the parties and found that the
petitioner should blame himself for the said accident. It is
further his finding that the petitioner was granted no fault
liability amount of Rs. 12,000/- together with interest. He also
held that if so advised, respondent no.1 may take appropriate
action if permitted by law to recover that amount from the
petitioner. Needless to say that the claim petition was
dismissed with costs to the respondents.
5/- Learned counsel for the appellant while challenging
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this award, submitted that the petitioner has examined one
eye witness to the incident namely Ajaykumar Tapadiya, who
had seen the accident and had supported the claimant. He
also submitted that the claimant’s evidence shows that the bus
was negligently swerved on the left side and therefore, its
right backside portion had hit the petitioner whereby this
accident had occurred and the petitioner suffered injuries.
According to him, the evidence led by the respondent i.e. of
Respondent no.2 – driver – Rahemtullakhan and one shoe
shiner, who was doing his business in the precinct of the bus
stand who had allegedly seen the bus coming, saying that the
petitioner had himself lost control and scooter fell on his right
leg, so he had suffered injuries, is totally untrustworthy.
He, therefore, submitted that the evidence led by the
petitioner is quite reliable and therefore, the involvement of
the bus in the accident is clearly established. It is his
submission further that respondent no. 2 was prosecuted for
the aforesaid accident for negligent driving and the result of
his prosecution is not known and therefore, it has to be held
that respondent no.2 was negligent in driving his bus and
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therefore this accident had occurred and as such the liability as
claimed by the petitioner needs to be cast upon the
respondents. He supported the quantum of the compensation
as claimed in the petition. In the alternative, his submission is
that the appellant/ petitioner should be allowed to convert his
petition under Section 163-A of the M.V.Act and as per
structured formula, he should be granted compensation,
inasmuch as the involvement of the vehicle (bus) is apparent.
As such, according to him, this appeal should be allowed and
proper compensation should be granted. He pressed into
service the decision of the Apex Court in (2001) 2 SCC 9;
Kaushnuma Begum and others vs. New India Assurance
Co. Ltd. and others, for this submission.
6/- Per contra, Shri Wankhede, Advocate, for
respondents, submitted that the bus station chowk through
which the bus was to take immediate right turn to reach bus
station was not far away. There was considerable traffic on
the road as it was just evening time, so the bus was driven in a
very slow manner. As admitted by the claimant’s witness, the
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bus was proceeding from a distance of about 4 ft., from the
divider. The scooter of the petitioner was at about 2 ft. from
the divider on the road and as such he did not take proper
precaution to stay away from the main road on which there
was heavy traffic just by the side of the divider and as such he
was grossly negligent. According to him, the driver of the bus
was driving the bus with due care. The scooter had if at all
suffered dash, had suffered it on the back right side of the
same, for which the driver cannot be said to be negligent.
According to him, the petitioner is not entitled even for no
fault liability claim as observed by the learned Member,
M.A.C.T. According to him further, simply because
respondent no.2 was prosecuted, it does not lead to the
finding of guilt of rash or negligent driving by respondent
no.2. In fact, no panchnama of the bus was prepared and
therefore, it cannot be held that the said bus had dashed the
scooter of the petitioner. It is his contention further that the
petitioner cannot be allowed to convert the petition under
Section 163-A of the M.V.Act when complete trial is over.
Therefore, according to him, the appeal should be dismissed.
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7/- In order to consider the rival contentions of the
parties, it is necessary to see the reasons recorded by the
learned Member, M.A.C.T. for coming to the relevant
findings. He has found that the roads i.e. on the Western side
and Eastern side which are apparently one-way roads are of
sufficient width. He also noticed that the width of the divider
was about 3-4 ft.ig He has further noticed that Eastern side of
the main road, the lane coming from Revenue Colony by
which the petitioner was coming, there is a petrol pump and
on the Northern side of this lane, there is Akola S.T. Bus stand,
meaning thereby the Akola S.T. Bus Stand was on the right
side & nor far away from the spot of accident. This would
mean that the bus may not be very fast at the relevant time.
8/- Learned Member has also found that the evidence of
the alleged eye witnesses Ajaykumar Tapadiya and the
petitioner is not sufficient to show that the bus was negligently
swerved on the left side to brush it on the right side to the
petitioner from back side. He has also found that simply
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because the police has taken action and respondent no. 2 is
prosecuted, no inference about rashness or negligence can be
drawn. It is his observation that when the bus had gone ahead
of the scooter and the scooter had dashed on the back side of
the bus, the driver cannot be expected to take care as to what
is happening behind his bus. He has to look forward. The
same cannot be said to be incorrect. He has also noticed that
petitioner’s witness Ajaykumar Tapadiya has admitted that the
main road was straight (by which the bus was proceeding) and
there was no curve on the right side and as such the bus was
going in the straight line. Considering the fact that it was a
time of busy traffic, vehicles must be on either side of the bus
and therefore, the bus is expected to be driven in a straight
line at that very spot. The learned Member has found that the
bus must be going in the very slow speed inasmuch as there
was a square ahead and the bus was to take right turn for
reaching bus stand at that very square. This would show that
the bus must be driven very slow. The petitioner admittedly
was about 2 feet ahead from the divider side on the road and
the bus was at about 4 ft from the said divider. In such
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circumstances it is difficult to say that due to swerving of the
bus on the left side, which is not possible because of the
possibility of the vehicles on the left side of the bus at that
time and the road was straight, bus must not have touched
the scooter of the petitioner can be said to be unfounded. The
learned Member has further pointed out as to how the
petitioner was negligent in driving his scooter. All these
observations cannot be said to be without any basis. Thus the
findings of the learned Member that the petitioner himself
was negligent in disregarding the traffic rules that the vehicles
on main road should get first preference to proceed and the
person coming from the lane (from the Revenue Colony
by-lane), to allow such vehicular traffic to proceed cannot be
said to be incorrect.
9/- Learned counsel for the appellant/petitioner has
contended that the respondents’ witness i.e. Shoe Shiner
Hansraj cannot be said to be trustworthy, as he was sitting on
the foot-path near the exit gate of S.T. Bus stand and he could
not notice the said impact of the bus with the scooter.
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Assuming that his evidence cannot be believed, fact remains
that for that reason even the evidence of Ajaykumar Tapadiya
cannot be believed. It is necessary to bear in mind that he was
coming from his motor-cycle from Ashok Vatika side towards
Railway Station side. He has stated that he was coming from
Western half portion of the road and he arrived in front of
Rungta Petrol Pump. He has given the details as to how the
accident might have occurred, but one aspect that cannot be
missed is the fact that he was proceeding on motor-cycle and
therefore, he must be on the left side of the bus, as there was
only (approximately) 4 ft gap between the divider and the
bus. Because of the busy traffic, he could not be on the right
side of the bus. Admittedly, the accident had occurred,
according to the petitioner by dash to his scooter by the right
back portion of the bus. Therefore, unless this witness would
have been on the right side of the bus, he could not have
noticed the accident in full details and therefore, possibility of
his taking hasty action to go to bus-station and trying to book
the bus driver cannot be said to be improbable. It is pertinent
to note that in his evidence he has stated that he was the
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President of Akola Municipal Corporation. Therefore,
possibility of police taking action against respondent no. 2 in
haste to prevent uproar of the public in such cases of the
accident, cannot be overruled. In such circumstances, merely
because the result of the prosecution is not made known by
the respondents to the tribunal, that fact by itself will not
lead to the conclusion that respondent no. 2 was negligent in
driving his bus. Therefore, the inference drawn by the learned
Member that respondent no.2 cannot be held to be negligent,
cannot be said to be perverse or unreasonable.
10/- It is further pertinent to note that in cross
examination, witness Arunkumar Tapadiya has stated that the
bus had slightly turned to the left side of the spot but he could
not give the angle. It is difficult to say that while taking bus
on the left side, back portion of the bus on the right side
would shift for about 2 ft., and therefore dash the scooter of
the petitioner. The possibility, because the petitioner was in
hurry, of the petitioner’s scooter by himself dashing the bus on
the rear portion on the right side, cannot be overruled. In any
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case, in the above circumstances, the inference of the
negligent driving by respondent no. 2 cannot be drawn. In
this view of the matter, therefore, the finding of the learned
Member that petitioner has failed to prove the negligence on
the part of respondent no.2 cannot be held to be assailable. I,
therefore, agree with the learned Member in this regard.
11/- Turning to the aspect of the compensation,
ig the
learned Member in his impugned judgment has given the
reasons as to why he would say that in case the petitioner is
entitled for any compensation, he would be entitled to
Rs. 26,609/-. But for the aforesaid finding, this would be only
academic question, not warranted for the decision. This
inference also can not be said to be incorrect.
12/- Turning to the submissions of the learned counsel for
the petitioner that the petitioner should be allowed to convert
his petition under Section 163-A of the M.V.Act, suffice it to
say that once the claim petition has been decided;
unfavourable to the petitioner, in my opinion, he cannot be
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allowed to take a stand that his petition should be allowed to
be converted under Section 163-A of the M.V. Act.
13/- Learned counsel has relied on the decision of the
Apex Court in (2001) 2 SCC 9; Kaushnuma Begum and
others vs. New India Assurance Co. Ltd., and others,
wherein it has been held in paras 12, 13, 15 & 16, thus-
“12. Even if there is no negligence on the part of the
driver or owner of the motor vehicle, but accident
happens while the vehicle was in use, should not the
owner be made liable for damages to the person whosuffered on account of such accident? This question
depends upon how far the rule in Rylands vs.
Fletcher can apply in motor accident cases. The said
rule is summarised by Blackburn, J., thus:
“The true rule of law is that the person
who, for his own purposes, brings on his land,
and collects and keeps there anything likely to
do mischief if it escapes, must keep it in at hisperil, and, if he does not do so, he is prima
facie answerable for all the damage which is
the natural consequence of its escape. He can
excuse himself by showing that the escape was
owing to the plaintiff’s default, or, perhaps,that the escape was the consequence of vis
major, or the act of God; but, as nothing of
this sort exists here, it is unnecessary to
inquire what excuse would be sufficient.”
13. The House of Lords considered it and upheld the
ratio with the following dictum:
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“We think that the true rule of law
is that the person who, for his own purposes,
brings on his land, and collects and keeps thereanything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does notdo so, he is prima facie answerable for all the
damage which is the natural consequence of its
escape. He can excuse himself by showing that
the escape was owing to the plaintiff’s default,or, perhaps, that the escape was the
consequence of vis major, or the act of God;
but, as nothing of this sort exists here, it is
unnecessary to inquire what excuse would besufficient.
14………….
15. The Rule in Rylands v. Fletcher has been referred
to by this Court in a number of decisions. While
dealing with the liability of industries engaged in
hazardous or dangerous activities P.N. Bhagwati, C.J.,
speaking for the Constitution Bench in M.C. Mehta
vs. Union of India expressed the view that there is no
necessity to bank on the rule in Rylands v. Fletcher.
What the learned Judge observed is this: (SCC p. 420,
para 31)
“We have to evolve new principles and lay
down new norms which would adequately
deal with the new problems which arise in a
highly industrialised economy. We cannot
allow our judicial thinking to be constricted by
reference to the law as it prevails in England
or for the matter of that in any other foreign
country. We no longer need the crutches of a
foreign legal order.”
16. It is pertinent to point out that the
Constitution Bench did not disapprove the rule. On
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the contrary, learned Judges further said that “we are
certainly prepared to receive light from whatever
source it comes”. It means that the Constitution
Bench did not foreclose the application of the rule as
a legal proposition.”
14/- It is true that the compensation was awarded in that
case considering the provisions of Section 163-A of the M.V.
Act. However, in this context, it is necessary to bear the
principles laid down by the Apex Court in I(2004) ACC 728
Deepal Girishbhai Soni & ors. vs. United India
Insurance Co. Ltd., Baroda, wherein it has been held in para
64 thus–
“64. We, therefore, are of the opinion that Kodala
(supra), has correctly been decided. However, we do
not agree with the findings in Kodala (supra) that ifa person invokes provisions of Section 163-A, the
annual income of Rs. 40,000/- per annual shall be
treated as a cap. In our opinion, the proceedingunder Section 163-A being a social security
provision, providing for a distinct scheme, only
those whose annual income is upto Rs.40,000/- can
take the benefit thereof. All other claims are
required to be determined in terms of Chapter XII ofthe Act”.
15/- Here is the case where petitioner has alleged his
income of Rs. 5000/- per month. Therefore, he would be
obviously disentitled for claiming compensation under section
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163-A of the M.V. Act. This is not a case where the respondents
are admitting about the involvement of their vehicle in the
accident. In fact, the Claims Tribunal has found otherwise. It
is further necessary to bear in mind that it is not a death claim.
The evidence of the victim of the alleged accident and one
alleged eye witness is available on record. The claimant has
tried to lead evidence to show the involvement of the bus in
the accident causing injury to the petitioner. That evidence has
been disbelieved or atleast found unacceptable by leading to
the inference of the guilt of the driver of the bus – respondent
no.2. In such circumstances, and more so because the
petitioner has consciously filed the claim petition under section
166 of the M.V.Act, he cannot be allowed to convert the same
under Section 163-A of the M.V. Act, after disposal of his
petition on merits. No doubt, appeal is the continuation of the
proceedings, but then this after-thought plea of the petitioner
cannot be allowed to stand, for the obvious reasons & as stated
above. In this view of the matter, this contention of the
learned counsel for the appellant is far from acceptance.
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16/- It is informed that the respondents had not taken any
action to recover the amount of N.F.L. paid to the petitioner/
appellant, as such no further orders are necessary. The
submissions of the learned counsel for the appellant that in
view of the statutory enhancement of the N.F.L. quantum from
Rs. 12,000/- to Rs. 25,000/-, the appellant should be awarded
this much compensation, also cannot be accepted for the
aforesaid reasons. ig Though the evidence of the Orthopedic
Expert could have been available to him for proving the
medical expenses, the percentage of disability and his bed
riddenness, etc., the same is not led. All these circumstances
would speak against the case of the petitioner in appeal. As
such the appeal will have to be dismissed. The same is
dismissed. However, in the circumstances of the case, with no
order as to costs.
JUDGE
Rvjalit
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