Staish Mangharam Tanwani Vs. Freight Handler and anr. - Court Judgment

Excerpt:
- section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 11,587.35. 5. the tribunal came to the conclusion that the appellant failed to prove the story of the accident as also to adduce cogent evidence in support of his case on the ground that the appellant has himself averred in his claim petition that the truck driven by govind and belonging to the respondent no. kotak, learned counsel appearing for the respondents, while opposing this appeal and that too with vehemence says that the earliest version of the accident truly came in the claim petition when the appellant had clearly averred in the claim petition that there was no dash or collision between the truck and the scooter driven by the appellant, question of appellant being permitted to change his version in the deposition before the tribunal now cannot be made the basis for awarding any compensation. kotak also points out that the story of collision is an afterthought being clear from several other circumstances, the first of which is that though the accident took place at thane creek bridge which was clearly within the jurisdiction of turbho police station, statement of the appellant was recorded by the police attached to the tilak nagar police station. it is true that in his claim petition, the appellant had clearly mentioned as follows: it is clearly necessary that when a witness takes a stand contrary to or inconsistent with his pleadings before the court, he is required to be called upon to explain the inconsistency by use of section 145 of the evidence act. section 145 of the evidence act clearly lays down how the contradiction has to be proved. in reality, the appellant failed to adduce cogent evidence in support of his case in relation to special damages.g.d. kamat, j.1. this appeal is directed against nil award dated 31.8.1989 in m.a.c. no. 260 of 1985 by the motor accidents claims tribunal, thane. the appellant had instituted a claim petition against respondent nos. 1 and 2, owner of truck bearing no. mrl 4837 and insurer respectively claiming a compensation of rs. 1,00,000/- for having suffered an accident and consequent permanent partial disability which had taken place on 12.2.1985. it was averred in the claim petition that appellant (original claimant) was then 26 years of age and he was working as sub-engineer with cidco. that on 12.2.1985 he was proceeding from mankhurd to vashi and at about 9 a.m. when he had crossed about 40 metres on thane creek bridge, truck belonging to respondent no. 1 and driven by one govind vithoba karande (opponent witness no. 1) which was passing by his left side came to his side, as a result of which the appellant was thrown down from his scooter on the divider of the road. as a result of the accident, the scooter fell on his left leg and he suffered compound fractures of tibia and fibula. that he was rendered some assistance by an owner of fiat car and soon thereafter lodged at the rajawadi hospital at ghatkopar. it is the case of the appellant that he was an indoor patient of the hospital for about 2-3 days and thereafter he took treatment in a private hospital of dr. s.b. mehta. it is the further case of the appellant that though he identified the truck from the mirror of his scooter as an open truck, he, however, could not know the number of the truck, but once he regained consciousness at rajawadi hospital, he had found a chit, on which the number of the truck had been written which had caused the accident. according to him, on the basis of this chit, a statement was recorded by the police. he, however, believed that out of the persons gathered when he had become the victim of the accident, one of them had noted down the number of the truck of respondent no. 1 and that is how placed the aforementioned chit in his pocket.2. in making a claim for rs. 1,00,000 the appellant said that he has spent about rs. 2,000/- for medical expenses and about rs. 1,000/- for other expenses such as conveyance, special diet, etc. he also claimed that as a result of the accident, he was unable to attend his work for 104 days and in accordance with the terms of his employment with cidco, he was entitled to encash his leave and as he was forced to go on leave because of his physical condition, he lost the benefit of encashment at v/2 times. as a result of the disability suffered, he asserted that his future employment prospects are dim and working capacity is reduced and considering all this including the compensation for pain and suffering, shortening of expectation of life, etc., he made a composite claim of rs. 1,00,000/-.3. the claim petition was vehemently opposed on behalf of respondent no. 1, owner and the insurer. the defence was that in reality there was no collision between the truck and the scooter driven by the appellant. being so, the question of awarding any compensation in favour of the appellant cannot and does not arise. it was also set out in the written statement that there is a heavy traffic on this thane creek bridge and it is possible that the appellant might have been hit by some other vehicle, but, however, the appellant falsely chose to implead respondent no. 1 and/or claimed that its truck has caused the accident under a mistaken identity. it was also otherwise asserted that the appellant was riding scooter on the right lane and going by his own case, it is possible that he met with an accident on his own doing and that way was thrown on the divider. that in any event, no liability of whatsoever nature can be fastened on the driver of the respondent no. 1 and, therefore, nothing is liable to be paid by way of compensation to the appellant.4. in the petition, the appellant led his own evidence and that of dr. naresh d. khanna, medical officer attached to the rajawadi hospital. as against this evidence, the driver of the truck by name govind was examined on behalf of the respondents. the tribunal, however, on appreciation of the evidence, as mentioned earlier, dismissed the claim petition and on the contrary, ordered the appellant to pay the costs to the respondents. ad cautelam the tribunal held that even if it were to accept the theory and case of the appellant that the appellant suffered accident on 12.2.1985 the appellant could be awarded only a sum of rs. 11,587.35 on all counts. for that matter, the tribunal held that at the most the appellant could be held to have proved that he is entitled to have rs. 263.35 towards medical expenses, rs. 5,000.- for fracture injury and pain and suffering and rs. 6,324/- towards leave salary in all making a total sum of rs. 11,587.35.5. the tribunal came to the conclusion that the appellant failed to prove the story of the accident as also to adduce cogent evidence in support of his case on the ground that the appellant has himself averred in his claim petition that the truck driven by govind and belonging to the respondent no. 1 had not at all dashed against the scooter or the person of the appellant whereas in his deposition before the court he took the inconsistent stand that the truck dashed against his left side of the scooter, as a result of which be was thrown down. once having reached this conclusion, the tribunal discarded sworn testimony and believed the statement of the appellant in the claim petition and held that the truck had not dashed against the scooter driven by the appellant and, therefore, no liability could be foisted on the respondents.6. mr. kudroli, learned counsel appearing for the appellant, has taken a cudgel against the impugned award whereby the claim petition has been dismissed. he asserts that a clear statement has been made by the appellant in his evidence before the court that the truck belonging to respondent no. 1 had given a dash on the rear side of the scooter, as a result of which the appellant fell down on the divider and his left leg was trapped under the scooter. this solo testimony, according to the learned counsel, could not have been brushed aside for several reasons. he claims that this version of the appellant is also believable on several grounds. in the first place, he says that the appellant has identified the unusual truck of respondent no. 1 which was an open deck heavy lorry. in the second place, it is not disputed that the lorry had made a trip from wadi-bunder, bombay, to vashi in the morning of 12.2.1985 and further it made a return trip from bolapur via thane after delivering the goods of lubrisol company. the third circumstance, according to the learned counsel, is that the appellant indeed had not identified the truck by its number but the appellant was able to give the registration plate number of the truck, no sooner he came to his senses after he was admitted to the rajawadi hospital when the police recorded his statement. according to him, he had found a chit in his pocket which must have been left by one of the persons who had seen the accident and identified the truck. upon highlighting this, mr. kudroli, learned counsel appearing for the appellant, then says that suggestions were made to the appellant in the cross-examination that the appellant was rash and negligent on that fateful day. he, therefore, urged that once this type of suggestion was made, it is liable to be accepted that the truck of respondent no. 1 was involved in the accident. he thereafter brings out that govind, driver who drove the relevant truck on that day. admits to have reached bolapur at about 10 a.m. and that the truck was being driven on the left hand side of the road which, according to the learned counsel, corroborates the statement of the appellant that he was riding his scooter on the right lane close to the divider.7. that the appellant suffered accident and for that matter compound fracture at about 9 a.m. on 12.2.1985 is not in dispute. further fact remains that the fracture related to tibia and fibula on the left leg of the appellant with the result he needed surgical intervention and which was done at the rajawadi hospital at ghatkopar. the further fact remains that the appellant's leg was in plaster for about 3-4 months and the statement that he was also treated by dr. mehta is not disputed at all. the sole controversy in the present case is whether the respondents' truck driven by govind had given a dash to the scooter driven by the appellant. mr. kotak, learned counsel appearing for the respondents, while opposing this appeal and that too with vehemence says that the earliest version of the accident truly came in the claim petition when the appellant had clearly averred in the claim petition that there was no dash or collision between the truck and the scooter driven by the appellant, question of appellant being permitted to change his version in the deposition before the tribunal now cannot be made the basis for awarding any compensation. mr. kotak contends that the statement made in the deposition is so inconsistent and contrary to the statement made in the claim petition that the version of the appellant does not become credible and, therefore, nothing can be faulted with the award of the claims tribunal where no compensation has been awarded. mr. kotak also points out that the story of collision is an afterthought being clear from several other circumstances, the first of which is that though the accident took place at thane creek bridge which was clearly within the jurisdiction of turbho police station, statement of the appellant was recorded by the police attached to the tilak nagar police station. he also says that the appellant went on improving his case. for instance, he points out that whereas the appellant claimed that he lost his 104 days' leave, the certificate produced by him from his employer speaks of 72 days' leave. according to him, there is even a discrepancy in the salary statement as' mentioned by the appellant and the certificate to that effect. in short, according to mr. kotak, the appellant has never made a version which could be relied upon so as to make him entitled to an award of compensation in money in the present case.8. on analysis of the pleadings and the evidence, the question to answer is whether the appellant was the victim of the accident of that fateful day. it is true that in his claim petition, the appellant had clearly mentioned as follows:the applicant had gone about 40 metres on the bridge when the lorry no. mrl 4837 owned by the opposite party and driven by their driver in the course of his employment with them for their benefit and on their behalf in a rash and negligent manner without caring for the safety of the other users of the road, passed the applicant's scooter from the left side in a manner as to dash against the right side of the said scooter, with the result the applicant and his scooter were thrown to their right.but however, in his evidence, the appellant on oath deposed that the body of the truck gave dash to the rear side of his scooter. the aforesaid statement in his deposition has indeed amounted to a contradiction, but it is not known as to why the respondents did not confront the appellant with his statement in the claim petition. it is clearly necessary that when a witness takes a stand contrary to or inconsistent with his pleadings before the court, he is required to be called upon to explain the inconsistency by use of section 145 of the evidence act. section 145 of the evidence act clearly lays down how the contradiction has to be proved. in the absence of appellant having not been given opportunity to explain himself, in our view, it is difficult to discard the sworn testimony given by the appellant before the tribunal and we are, therefore, inclined to accept that on that fateful day the truck belonging to respondent no. 1 driven by govind which was going by left hand side of the appellant's scooter came rashly to its right and as a result of negligent driving dashed against rear left side of the scooter driven by the appellant.9. once having come to this position, the next question is what compensation is to be awarded to the appellant. upon going through the evidence and the award, it must be recorded that the appellant has to thank his stars for getting a compensation which can be reasonable being only estimate of this court. in reality, the appellant failed to adduce cogent evidence in support of his case in relation to special damages. even when the tribunal held that the appellant at the most would have been entitled to a sum of not more than rs. 11,587.35, the tribunal had held that the appellant had proved that he had spent rs. 263.35 towards medical expenses and he was entitled to rs. 6,324 towards leave salary on the basis that he was entitled to encash only 72 days of leave and not 104. the tribunal had also awarded a sum of rs. 5,000/- towards fracture injury and pain, and suffering. taking any view of the matter, compensation as determined by the tribunal is on the lower side. though the appellant has not brought any cogent evidence insofar as the medical expenditure is concerned or actual damage caused to his scooter, the fact remains that he lost about 2 1/2 months of leave and on the head of encashment of his leave he would have got nothing else than rs. 6,000/-. the fact further remains and it is clear from dr. naresh khanna's evidence that the appellant, as a result of compound fracture of tibia and fibula, has suffered reduction in his left leg by 3/4'. doctor has further assessed this reduction as a permanent partial disability and which was put at 15 per cent. taking into consideration that the appellant's leg after the operation was also in plaster and the permanent partial disability is suffered by him, in our view, a just and reasonable compensation that could be awarded to him is the sum of rs. 60,000/-. we must say that there is no evidence that the appellant's future employment chances have been reduced or his promotion. there is no cogent evidence of his working capacity being diminished. it is also not suggested to us during the course of the hearing that the appellant has not earned his yearly increment or promotion as a result of this accident. being so, we are fortified in the view that we are taking that the compensation that we award in this case at rs. 60,000/-is commensurate with the case of the appellant being just and reasonable.10. accordingly, the appeal is partly allowed. the impugned award dated 31.8.1989 is quashed and set aside, instead claim petition, i.e., m.a.c. no. 260 of 1985 is allowed.appellant is awarded compensation quantified in the sum of rs. 60,000/-which shall be jointly and severally paid by respondent nos. 1 and 2. in the event the compensation of rs. 60,000/- is not paid within six weeks from today, it shall bear interest at the rate of 12 per cent from today.11. parties are, however, left to bear their own costs.