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Shalabai Alias Shanabai and ors. Vs. Chandrakant Manikeband Mardikar and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in1(1985)ACC423
AppellantShalabai Alias Shanabai and ors.
RespondentChandrakant Manikeband Mardikar and ors.
Excerpt:
.....(5) air bom r held per incuriam]. - the panchanama as well as the eye witnesses do not make out the case that the deceased deogonda was somewhere near the middle of the road and hence came to be dashed by the truck......of an approach road is closed for vehicular traffic, the pedestrians and cyclists using that road or bridge would harbour and rightly so, under the impression that no heavy duty motor vehicle is likely to come behind them and the style of using the road by such pedestrians of cyclists would become more leisurely. under these circumstances, we find that the learned member of the tribunal fell in error in holding the deceased deogonda guilty of contributory negligence.4. coming to the question of damages, the learned member has taken a multiplier of 16 and the dependency of rs. 200/- per month which cannot be faulted because the claimants themselves had put the dependency at the figure of rs. 200/- per month in the claim petition. but the tribunal has not awarded any amount on.....
Judgment:

V.V. Vaze, J.

1. Deogonda Bhau Patil was working as store attendant in Messrs. Ghatge Patil Industries, Uchagaon, Kolhapur in the pay scale of Rs. 55-100 with a dearness allowance of Rs. 263/. On 25-6-1980 Deogonda along with his colleague and friend Jinappa Chougule who was also working in Ghatge Patil Industries, started on bicycles from their village Herale and were proceeding towards their place of work at Uchagaon. Enroute when they arrived at Shiroli Naka they had a choice between two bridges which have been constructed over the river Panchganga. The vehicular traffic having been diverted to the new bridge, the old bridge had become decongested and the two cyclists preferred the old bridge to cross the river. Deogonda and Jinappa were not riding their bicycles in tandem but chose to do it abreast because probably they felt that there was no danger of any mechanically propelled vehicle coming on the road from behind. Unfortunately their suppositions were belied and Kishansing Parashramsing Hajeri did come with his truck from behind and dashed against Deogonda who was thrown on the ground and died after being admitted to the hospital. His friend Jinappa escaped unhurt.

2. On these facts the widow and children of Deogonda filed Motor Accidents Claim No. 33 of 1980 before the Claims Tribunal at Kolhapur, which awarded Rs. 25,600/- to the petitioners on the basis that the truck driver was guilty of contributory negligence to the extent of 2/3rd while the deceased Deogonda was guilty to the extent of the remaining l/3rd. The claimants appeal.

3. The fact that there were two bridges on the river Panchganga and that the old bridge had been closed for vehicular traffic for some four years before the date of the accident is an admitted position. Head constable Maruti Govind Kurade who visited the spot after the accident, saw that the truck standing in the middle of the road and that a sign-board proclaimed that four wheeler motor vehicles were prohibited on that road. Even the driver Kishansing admits that both the cycles were on the left hand side and that after the accident when the panchanama was being drawn he saw that there was a sign-board which prohibited entry of motor vehicles on that road. With this admission, it is difficult to understand how the learned, Member of the Tribunal has apportioned contributory negligence to the extent of P-l/3rd to the deceased cyclist. Probably he was influenced by the fact that two cyclists were riding abreast with the result that the deceased was cycling on the tar portion of the road while his friend was cycling on the extreme left side. The panchanama as well as the eye witnesses do not make out the case that the deceased Deogonda was somewhere near the middle of the road and hence came to be dashed by the truck. When a bridge of an approach road is closed for vehicular traffic, the pedestrians and cyclists using that road or bridge would harbour and rightly so, under the impression that no heavy duty motor vehicle is likely to come behind them and the style of using the road by such pedestrians of cyclists would become more leisurely. Under these circumstances, we find that the learned Member of the Tribunal fell in error in holding the deceased Deogonda guilty of contributory negligence.

4. Coming to the question of damages, the learned Member has taken a multiplier of 16 and the dependency of Rs. 200/- per month which cannot be faulted because the claimants themselves had put the dependency at the figure of Rs. 200/- per month in the claim petition. But the Tribunal has not awarded any amount on account of the expenditure incurred in the hospital and loss of consortium, though there is documentary evidence to prove that Rs. 2,000/- were expended by them in the hospital. To that we would add a sum of Rs. 5,000/- for loss of consortium which would bring us to the round total of Rs. 45,000/-.

5. In the result, the appeal is allowed and for the figure of Rs. 25,000/-appearing in the order an amount of Rs. 45,000/- is substituted. The other terms and conditions of the order are confirmed. On the amount of the award being realised or deposited in the Tribunal, the Tribunal shall pass appropriate orders as respects the investments etc. in consonance with the guidelines laid down by this Court in Messrs. Nov Bharat Builders and Anr. v. Smt. Pyarabai w/o Dadu Mane and Ors. : 1984(2)BomCR9 . The appeal is allowed with costs.


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