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Sunanda Dhapal Shaha and ors. Vs. Baburao Shankarrao Shinde and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in2(1985)ACC282
AppellantSunanda Dhapal Shaha and ors.
RespondentBaburao Shankarrao Shinde and ors.
Excerpt:
.....ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - the unusual predicament which the scooterist faced in the middle of the road is best explained by shankar, according to whom when the scooterist came on the main road from the exit gate the petrol pump, he was confronted by a kolhapur bound bus which was coming from kagal and the truck in question which was speeding from kolhapur towards kagal shankar feels that the scooterist took a turn with a view to proceed towards. kagal as the scooterist was in a dilemma as to how to avoid the collision or being run over or dashed by the bus coming from kagal as well as a possible dash by the truck on the other half side of the road......crop sharer, he saw shaha coming out on the main road from the petrol pump when he was hit by the truck coming from kolhapur and proceeding towards kagal.4. the widow and children of shaha filed a motor accident claim no. 4 of 1981 before the tribunal at kolhapur which found the truck driver and shaha guilty of contributory negligence in equal proportion and on the concession made by the insurance company made an award of rs. 15000/- against which the present appeal has been preferred by the claimants.5. as observed earlier shankar is the only eye witness who could be put in the box by the claimants and against his word we have the story as given by shabu budhale, the driver of the truck. according to shabu he had loaded his truck to the brim with parcels and was driving from kolhapur.....
Judgment:

C.S. Dharmadhikari, J.

1. Dhanpal R. Shaha was a bank official of Kagal drawing total emoluments of Rs. 1357/- including allowances. Out of this gross amount of pay he used to make contributions towards Provident Fund and repayment of loans and his carry home packet was Rs. 1000/-.

2. On 22-8-1980 Dhanpal who was on leave took out his scooter and told the members of his family that he is proceeding to Kolhapur to get some wrist watches etc. repaired. Kagal is situated on the national highway which taken northerly leads one to Kolhapur. The road is 24' wide flanked by kachha shoulders of 11 on either side. A petrol pump is situated on the road on the western side which has to approaches so that vehicles filling their tanks with petrol can effect ingress and egress in a convenient manner. A pan beedi shop caters to the needs of the drivers.

3. According to an eye witness P.W. 3 Shankar Patil who is cultivating the land as crop sharer, he saw Shaha coming out on the main road from the petrol pump when he was hit by the truck coming from Kolhapur and proceeding towards Kagal.

4. The widow and children of Shaha filed a motor accident claim No. 4 of 1981 before the Tribunal at Kolhapur which found the truck driver and Shaha guilty of contributory negligence in equal proportion and on the concession made by the Insurance company made an award of Rs. 15000/- against which the present appeal has been preferred by the claimants.

5. As observed earlier Shankar is the only eye witness who could be put in the box by the claimants and against his word we have the story as given by Shabu Budhale, the driver of the truck. According to Shabu he had loaded his truck to the brim with parcels and was driving from Kolhapur to Bangalore. When he came near Laxmi Petrol Pump he saw a person riding a scooter coming from the exit gate towards Kolhapur side of the petrol pump. The scooterist came on the tar road and in order to avoid collision he applied brakes and took his truck towards kachha portion of the road. The scooterist did not signal as to which direction he was proceeding but came and dashed against right hand side of the truck.

6. The evidence of the truck driver does not contain any explanation as to why the scooterist coming from the exit gate of the petrol pump should traverse a distance of more than 20 feet, come on the wrong side of the road and dash against a truck when there was enough space left for him to negotiate his small two-wheeler depending upon his desire to proceed to Kolhapur or return to Kagal. The unusual predicament which the scooterist faced in the middle of the road is best explained by Shankar, according to whom when the scooterist came on the main road from the exit gate the petrol pump, he was confronted by a Kolhapur bound bus which was coming from Kagal and the truck in question which was speeding from Kolhapur towards Kagal Shankar feels that the scooterist took a turn with a view to proceed towards. Kagal as the scooterist was in a dilemma as to how to avoid the collision or being run over or dashed by the bus coming from Kagal as well as a possible dash by the truck on the other half side of the road. It hardly matters whether he intended to proceed towards Kolhapur or had changed his mind and decided to come back to Kagal. As we read the panchnama and the evidence of these two witnesses we feel that Shaha had already crossed the road and come over to the central portion of the tar road and was caught in the narrow space between the truck and the bus being driven in opposite direction. As the driver of the Kolhapur bound bus has not been examined, we are not sure as to what prompted the truck driver to apply the brakes or whether the Kolhapur bound bus had occupied the major portion of the road leaving very little leeway for the scooterist to negotiate. The position in which the scooter was found after the impact is not indicative of the direction which the scootersintended to take alter leaving petrol pump because the vehicle after being tossed could turn in any angle.

7. Admittedly the truck driver had spotted the scooterist from a distance of 100 feet and even though the scooterist cannot be absolved of the blame of contribution to the negligence in coming to the central portion of the road, we find that the truck driver who had already sighted the scooterist cannot escape responsibility in this regard. In this view of the matter we agree with the learned member of the Tribunal that the apportionment of the contributory negligence should be in equal proportion.

8. Coming now to the question of quantum of damages it would not be unreasonable to assume that Shaha whose carry home pay was Rs. 1000/- per month was making contribution of Rs. 700/- per month towards the family expenses. Shaha had about nine years to go in service and though we do not have any evidence as to whether the bank's service was a pensionable one.abank official with bis experience would surely have found some gainful avocation after his retirement. In view of this possibility we should take 10 years purchase for the purpose of computation and arrive at the figure of Rs. 84,000/- as loss of earnings. To this we would add Rs. 10000/- for the loss of consortium and scaling it down by 50% for contributory negligence we arrive at the figure of Rs. 47,000/-. The learned member of the Tribunal was wrong in effecting deduction of Rs. 21000/- which the wife has received towards Provident Fund deposited by ths deceased with the employer. The learned member of the Tribunal had allowed the company a month's time to pay the amount and we are told that the amount of Rs. 15000/- has already been deposited. The balance of the amount i.e. Rs. 32000/- shall carry the interest @ 6% p.a. from 1-9-1982 till the realisation. After the deposit is made the trial Court shall pass appropriate orders in accordance with the guidelines laid down by this Court in Nav Bharat Builders v. Smt. Pyarabai w/o Dadu Mane, 1984(2) BCR 9: 1984 (2) (DB) 424. The appeal is thus partly allowed with proportionate costs.


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