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K.L. Kasar and anr. Vs. Haribhau Savlaram Shejwal and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in1(1985)ACC492
AppellantK.L. Kasar and anr.
RespondentHaribhau Savlaram Shejwal and ors.
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power..........his bicycle dashed against an oncoming lorry belonging to kasar which was being driven by gopi chavan. as dnyaneshwar was killed in the accident, his parents, sisters and brother filed a claim before the motor accidents claims tribunal, thane, which awarded compensation of rs. 1,00,000/- against the opposite parties jointly and severally, which gives rise to this appeal by the owner of the lorry and the insurance company.3. mr. agarwal, the learned counsel for the appellants, has made two points in his arguments challenging the decision of the tribunal. in the first place mr. agarwal contends that there was no negligence on the part of the lorry driver, in as such as the deceased who was coming from the opposite direction negligently overtook a lorry and a bullock cart which was.....
Judgment:

V.V. Vaze, J.

1. Thane-Mumbra Road which is a segment of Pune-Bombay highway is a 24 feet wide one and runs Parallel to the railway track near the crossing of Kharigaon diversion and the National Machinery Manufacturers factory near Kilometre No. 142.

2. On 15-9-1979 one Dnyaneshwar, a student of 10th Standard in the New English School, Thane, was returning home from Mumbra on his bicycle on the Pune-Bombay highway. As he approached the Kharigaon diversion, his bicycle dashed against an oncoming lorry belonging to Kasar which was being driven by Gopi Chavan. As Dnyaneshwar was killed in the accident, his parents, sisters and brother filed a claim before the Motor Accidents Claims Tribunal, Thane, which awarded compensation of Rs. 1,00,000/- against the opposite parties jointly and severally, which gives rise to this appeal by the owner of the lorry and the Insurance Company.

3. Mr. Agarwal, the learned Counsel for the appellants, has made two points in his arguments challenging the decision of the Tribunal. In the first place Mr. Agarwal contends that there was no negligence on the part of the lorry driver, in as such as the deceased who was coming from the opposite direction negligently overtook a lorry and a bullock cart which was proceeding the lorry, without having any regard to the flow of vehicles coming from the opposite direction. Secondly, Mr. Agarwal challenges the quantum of damages as being excessive.

4. As regards the alleged negligence of the deceased in overtaking a lorry and a bullock cart which were moving slowly ahead of him, it appears from the evidence of Ravindra Ghute, a Constable, who was sitting in the driver's cabin of Kasar's lorry at the relevant point, that the cyclist had already overtaken the bullock cart when he dashed against the lorry. Constable Ravindra admits that his lorry was being driven at a high speed and even the lorry driver Gopi Chavan is candid enough to say that he had noticed another lorry coming from the opposite direction when it was at a distance of about 20 feet and that the speed of that other lorry, which was overtaken by the cyclist, was not more than 5 Kilometres per hour. This is, in the nature of things, how it should be; otherwise a cyclist could not have overtaken a lorry. As the road was 24 feet wide with 6 feet wide shoulders on either side, there was enough space between the lorry which was overtaken by the cyclist and the right hand side of the driver's cabin of the lorry driven by Gopi Chavan. Further on Gopi Chavan also admits that the road at the time of the accident was clear, that there was no vehicle or pedestrian or any sort of obstruction in front of the bullock cart and that there was enough leeway for Gopi Chavan to negotiate with a view to avoid the accident.

5. The panchanama shows that the lorry had stopped at a distance of 80 metres from the place where the cycle was found in a damaged condition and that the blood stains were spotted over for one metre.

6. Considering the width of the road, the density of traffic at the time of the accident, the possibility that the offending driver Gopi Chavan could have swerved his vehicle towards his left upon spotting the cyclist boy who had overtaken the bullock cart and the fact that the width of the bullock cart could not be such as to cover more than half portion of the road, we find that the learned Member of the Tribunal was right in finding the driver guilty of negligence.

7. Coming now to the question of damages, the learned Member has taken note of the fact that though the deceased was a school going boy, he had an aptitude for photography and wanted to follow the foot steps of his father who was working as a photographer in a reputed company. According to Haribhau Shejwal, who is serving as a photographer in Metal Box Company at Worki, Bombay, his son used to be commissioned for photographing certain functions like marriages, thread ceremony etc. He was also excelling in the other ancillary arts like printing, developing and enlarging, was a good sportsman, a swimmer and his father had planned to send him to London to do specialization in Industrial and Commercial Photography. Haribhau had also rented some room and installed machinery for colour processing and had negotiated for a loan from Janata Co-operative Bank for that purpose. According to Haribhau even if the boy did not make it good to the London School, he would have been taken as an apprentice on Rs. 350/- per month stipend and later on absorbed in a pay scale of Rs. 900/- rising to Rs. 3,500/- per month. Hari bhau's second son Siddheswar is physically crippled and mentally retarded and a liability to the family. In these circumstances. Haribhau and his wife were looking towards Dnyaneshwar for dependence after the former's retirement. As the boy was a student, a certain amount of guess work has indubitably to be made regarding the future prospects of a student but considering the probability of the boy in the art of photography. We feel that the reasonable expectation of the family more so with a retarded brother in the household to look after during the first 7 years would be 2/3rd of Rs. 1,000/- per month or about Rs. 8,000/- per year which brings us to a figure of Rs. 56,000/-. During the next 8 years, the boy would have married, raised a family and the allowance which his parents could have expected from him would naturally dwindle to about Rs. 500/- per month or Rs. 6,000/- per year. For this slab of 8 years the aggregate would come to Rs 48,000/-and the total on account of financial loss would come to Rs. 1,04,000/-. To that a sum of Rs. 5,000/- could be added for a loss of expectation of life which brings us to a figure of Rs. 1,09,000/-. As the claimant has restricted his claim only to Rs. 1,00,000/-, we find that the learned Member of the Tribunal was right in awarding the same, the appeal is dismissed with costs.


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