1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 646 of 2006
Appellants : Rajendra Prabhakar Pataskar.... since
deceased, through his legal heirs -
1) Smt Lata wd/o Rajendra Pataskar, aged
about 61 years, Occ: Household
2) Neelesh s/o Rajendra Pataskar, aged about
40 years, Occ: service
3) Rupesh s/o Rajendra Pataskar, aged about
38 years, Occ: Business
4) Akshay s/o Rajendra Pataskar, aged about
34 years, Occ: service
All residents of 301, Sai Samartha Residency
Shikshak Colony, Pimple Nilak, Dist. Pune
versus
Respondents : 1) The State of Maharashtra, through its
Collector, Amravati
2) The Conservator of Forest, Motivation Circle, M. S. Camp, Amravati ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:10 ::: 2
3) Smt Sumitra wd/o Manoharrao Bhute, aged about 50 years, Occ: Household
4) Ku Rajani d/o Manoharrao Bhute, aged about 28 years, Occ: Education,
5) Ravindra Manoharrao Bhute, aged about 27 years
6) Rajesh Manoharrao Bhute, aged about 26 years, All Nos. 3 to 6 are residents of Bhagwan Nagar, Amravati Shri S. G. Jagtap, Advocate and Shri S. S. Godbole, Advocate with him for the appellants Shri B. M. Lonare, Asst. Govt. Pleader for respondents no. 1 and 2 None appears for respondents no. 3 to 6 Coram : S. B. Shukre, J Dated : 16th November 2017 Oral Judgment
1. This appeal questions legality and correctness of the judgment and order dated 9th August 2005 delivered in MACP No. 52 of ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:10 ::: 3 2001 by the Member, Motor Accident Claims Tribunal, Amravati.
2. The original appellant has expired last year during the pendency of this appeal and the appeal is being prosecuted by his legal heirs (respondents no. 3 to 6).
3. Deceased appellant was Range Forest Officer attached to the office of Conservator of Forest, Amravati and was kept in the flying squad that was formed by the Conservator of Forest to control illicit trade in teak wood, forest produce and wild life. He had also the authority to drive the vehicles belonging to the Forest Department given the nature of his job which required taking urgent calls, paying surprise visits to various destinations and take immediate action, as may be necessary, in the fact situation of the time.
4. In the night of 14.1.2001, the deceased appellant received a message that illicit teak wood was being unloaded at Sawmill in Amravati and he was required to take immediate action without losing any time. He had a talk with his superior Shri Bhosle (PW 2) in this regard. He told his superior officer that he would call the driver of the jeep bearing registration number MGS 579 which was at his disposal and then conduct the raid. But, his superior officer asked him to not waste any time in ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:10 ::: 4 waiting for the driver lest the truck loaded with illicit teak wood would vanish. Deceased appellant, therefore, decided to himself drive the jeep in order to conduct the raid and so he started at about 11.35 pm. As a precautionary measure, he also took with him his son since it was night time. He proceeded to Mahavir Sawmill driving the jeep and when the jeep came in front of Dr Jamthe's Hospital, near Congress Nagar, Amravati, one Luna approached from the opposite direction and in no time, it came towards the Jeep and dashed against it. The rider of the Luna fell down on the road having sustained severe injuries. Deceased appellant took the rider of Luna to the hospital where he was declared dead. Deceased appellant went to Frezarpura Police Station of Amravati and lodged the report of accident. On this report, offence punishable under Section 304-A of the Indian Penal Code came to be registered against him for causing death due to rash and negligent driving. Spot panchanama, inquest panchanama and postmortem examination were carried out. Necessary investigation was made. Meanwhile, dependents of deceased Manohar Bhute filed claim petition under Section 166 of the Motor Vehicles Act seeking compensation from the deceased appellant and respondent no. 2, the employer of deceased appellant, for the untimely death of Manohar Bhute.
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5. Deceased appellant as well as respondent no. 2-employer contested the claim petition by filing separate Written statements. It was submitted by deceased appellant that he drove the vehicle in the course of discharge of his official duty and that the accident occurred solely due to rash and negligent driving of two-wheeler (Luna) by its rider, deceased Manohar Bhute and there was no fault whatsoever on the part of deceased appellant in causing the accident. Respondent no. 2 admitted that at the time of accident, deceased appellant drove the vehicle during the course of his official duty. Respondent no. 2 stated that the accident did not occur due to rash and negligent driving by the deceased and further stated that the criminal court acquitted the deceased appellant of the offence punishable under Section 304A of the Penal Code. At the same time, it also stated that if at all any compensation was to be granted, respondent no. 2 being the Government Department could not be burdened with any liability to pay the compensation.
6. On merits of the case, the Tribunal found that the deceased appellant as well as respondent no. 2 both were jointly and severally liable to pay the compensation to the dependents of the deceased and by the impugned judgment and order, granted compensation of Rs. 6,46,936/- together with interest @ 9% per annum from the date of petition till realization to the claimants who are respondents no. 3 to 6 in ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 6 the present appeal. Not being satisfied with the same, the deceased appellant filed this appeal which is now being prosecuted by his legal heirs.
7. I have heard Shri S. S. Godbole, learned counsel for the legal heirs of deceased appellant and Shri B. M. Lonare, learned Assistant Government Pleader for respondents no. 1 and 2. Nobody appears on behalf of respondents no. 3 to 6, the original claimants though duly served on merit. I have gone through the record and proceedings of the case including the impugned judgment and order.
8. Now, the following points arise for my determination:
(1) Whether the claimants have proved that the accident which took place on 14.1.2001 was a result of rash and negligent driving on the part of driver (deceased appellant) of the offending jeep ?
(2) Whether the deceased appellant through his legal representatives has proved that the accident in question had occurred only due to rashness and negligence in ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 7 riding the Luna bearing registration number MH-27/B- 2208 rode by deceased Manohar Bhute ?
(3) Whether any compensation is due and payable
to the claimants ?
9. The first two points are interlinked with each other and, therefore, they have to be dealt with together. The claimants have relied upon the sole testimony of their witness, PW 1 Sumitra and the police papers in the nature of first information report; spot panchanama; inquest panchanama' and post-mortem report (exhibits 41, 42, 43 and 44 respectively). PW 1 Sumitra does not say anywhere that she was an eye witness to the accident. Police papers also do not disclose that she was an eye witness to the accident. Rather, the picture that emerges is that P.W. 1 Sumitra had no occasion to witness the accident in any manner. Inspite of this, the Tribunal has recorded a finding that PW 1 Sumitra had witnessed the accident, which is erroneous. The Tribunal, it is seen from the impugned judgment and order, has only considered evidence of P.W. 1 Sumitra and the circumstances disclosed by police papers, particularly, the first information report; spot panchanama and inquest panchanama (exhibits 41, 42 and 43 respectively). The Tribunal has not given any importance to the evidence of deceased appellant who examined himself ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 8 as a defence witness no. 1. The Tribunal has not appreciated in any manner the evidence of DW 1 Rajendra although, admittedly, he was an eye witness to the accident. This is a perversity noticed in the impugned judgment and order. Now, this Court will be required to consider not only the evidence of P. W. 1 Sumitra, but also the defence evidence as well as the circumstantial evidence.
10. If P.W. 1 Sumitra was not an eye witness and D. W. 1 Rajendra was an eye witness to the accident, we would have to say that this is a case wherein the best possible evidence is available. If that is so, it is the duty of the Court to evaluate the worth of such best evidence available on record first.
11. DW 1 Rajendra has narrated all the facts and circumstances prior to and after the occurrence of the incident. He stated that at about 11.35 pm on 14.1.2001, he was driving the Jeep by keeping it to the left side of the road and when it approached the road near Jamthe Hospital, he saw one Luna approaching from the opposite direction. He stated that when the Luna was at a distance of 15 feet from his jeep, there was a sudden change in the direction in which Luna was being rode. According to him, the Luna drifted towards the Jeep and after noticing wayward movement of the Luna, DW 1 Rajendra suddenly applied the brakes of the ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 9 Jeep and managed to stop it on the road, but the Luna dashed against the Jeep. Now, if we look at his cross-examination, we find that not a single assertion out of all these facts so affirmatively stated by DW 1 Rajendra has been controverted or denied in any manner by the claimants. There is not a single suggestion of denial of any of these facts put to D.W. 1 Rajendra by the Advocate who conducted cross-examination on behalf of the claimants. The only circumstance that has been brought on record is that DW-1 Rajendra was not a regular driver, but that makes no difference in this cases as admittedly he had a licence to drive the vehicle and once it is accepted that he possessed a driving licence, no one can say that he had no or had imperfect skills to drive the Jeep as has been held by the Tribunal, albeit wrongly. So, it has to be taken that this evidence of D.W. 1 Rajendra has been accepted by the claimants. Same is true about respondent no. 2 which did not cross-examine D.W. 1 Rajendra. As against this, the evidence of PW 1 Sumitra to the effect that the accident took place only due to rash and negligent driving by deceased appellant, in my considered opinion, would not stand to the scrutiny of law, even for a moment, the reason being that P.W. 1 Sumitra was not an eye witness to the accident and her knowledge about the facts relating to the accident was derived from what was stated in the police papers i.e. first information report, spot panchanama and inquest panchanama. Therefore, the testimony of P.W. 1 Sumitra on the point of rash and ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 10 negligent driving of the jeep deserves to be rejected and it is rejected accordingly.
12. This would mean that the evidence of D.W. 1 Rajendra sufficiently discloses that there was a high degree of probability that the accident occurred not because of rashness or negligence exhibited by deceased appellant in driving the Jeep, but only because of rash and negligent driving of Luna by deceased Manohar Bhute.
13. The inference so drawn by me receives further support from the other evidence on record. This evidence relates to circumstantial evidence in the nature of spot panchanama (exhibit 42); conduct of the deceased appellant post accident and the acquittal of the deceased appellant of the criminal charge relating to the offence punishable under Section 304A of the Indian Penal Code for this very incident.
14. I have already stated that D.W. 1 Rajendra asserted before the Court that after seeing Luna being rode in a wayward manner, he had applied brakes of the Jeep and this evidence has not been controverted in any manner by the claimants. This evidence receives support from the spot panchanama (exhibit 42) which discloses that tyre or brake marks caused by rubbing of tyres against surface of the road were there and ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 11 these brake marks extended upto 25 feet distance at the spot of incident. This evidence obviously supports fully the version of D.W. 1 Rajendra that he was required to apply the brakes when he saw that Luna rider had lost control over the vehicle and had started approaching the Jeep.
15. There is also one more fact which is worth considering. At the time of accident, admittedly, there was no traffic on the road. It was completely empty except for these two vehicles. If that was the case, there was no reason for these two vehicles to appear in front of each other and collide with each other especially when the driver of the Jeep, PW-1, was driving the Jeep by keeping it to the left or correct side of the road. In order that such an incident takes place, there must be a situation where two vehicles appear in front of each other in such a manner as to leave no scope for drivers of either of them or both of them to apply brakes and avoid the collision. But, even such a situation on an empty road would not ordinarily emerge unless one of the drivers of the vehicles loses control over his vehicle. This seems to have happened in the present case. Here, the vehicle which went out of control was the Luna as the Jeep was on its left or correct side of the road and the brake marks were not of Luna but the Jeep. The reasons for losing of its control by the Luna rider are not known, however, the fact remains that it was this vehicle which lost control and this is the reason why it suddenly came in ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 12 front of Jeep which was in a standstill position at the time when the collision took place. It is also worthy to note at this stage that the deceased appellant has been admittedly acquitted of the criminal charge of causing death by negligence punishable under Section 304A of the Indian Penal Code. This fact when considered together with other evidence discussed so far, would support the defence of the deceased appellant. All these circumstances only bolster up the inference already drawn.
16. D.W. 1 Rajendra has also stated in his evidence that having seen the Luna rider sustain severe injuries, he took him to Jamathe Hospital for giving him medical treatment, but he was told that the doctor was out of station and, therefore, he took him to Irwin Hospital by his Jeep where he was declared dead by the medical authority. He has further stated that thereafter he went to Frezerpura Police Station and lodged a report of the accident. All these facts are not denied by the claimants. They establish that deceased appellant conducted himself in this case in a manner expected of a responsible Government officer, who also exhibited his samaritarian tendency. If the deceased appellant was really at fault, he would not have lent his help the way he has done in the present case and also would not have lodged report with the Police ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 13 Station which usually happens in cases where the drivers of such vehicles are at fault. The conduct of DW 1 Rajendra certainly speaks in his support and shows that he acted all throughout in a bonafide manner, thereby giving an assurance that the inference of no fault on his part drawn by me is correct.
17. All these material aspects of the evidence available on record have not been considered by the Tribunal and the result is of a perverse conclusion that the accident occurred in the present case due to rashness and negligence on the part of the Jeep driver and there was no fault on the part of the Luna driver. The evidence indicates, which I have already said, that it were only the deceased Manohar riding the Luna in question, who was at fault in causing of the accident. Points no. 1 and 2 are answered accordingly.
18. Having found that deceased Manohar, the Luna rider, was only at fault in causing of the accident in the present case, he would have to be termed as a tort feasor and a person entitled to receive no compensation under Section 166 of the Motor Vehicles Act, which is a provision based upon fault liability. Point no. 3 is answered accordingly.
19. This appeal deserves to be allowed and it is allowed ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 ::: 14 accordingly. Impugned judgment and order are quashed and set aside. Claim petition filed by respondents no. 3 to 6 stands dismissed. Parties to bear their own costs.
If any amount has been recovered from the deceased appellant by respondent no. 2, the same shall be refunded to his legal heirs by respondent no. 2 in three months and respondent no. 2 shall have the liberty, which it may exercise, to recover the amount which is paid to the original claimants, in accordance with law.
S. B. SHUKRE, J joshi ::: Uploaded on - 21/11/2017 ::: Downloaded on - 22/11/2017 01:04:11 :::