Hidayatbee Saber Shaikh vs The Maharashtra State Road ...
2016 Latest Caselaw 1173 Bom

                                       1                   FA 1502.2008.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                         
                         FIRST APPEAL NO. 1502 OF 2008




                                                 
                                    WITH 
                         CA/6211/2015 IN FA/1502/2008 




                                                
         The Maharashtra State Road,
         Transport Corporation, Vahatuk
         Bhavan, Mumbai through
         Divisional Controller,




                                      
         MSRTC, Division Osmanabad,
         District Osmanabad.                          ..Appellant..

         VERSUS
                              ig                  ( orig respondent)


         Heedayatbee w/o Saber Shaikh
                            
         age 26 years, Occ. Household,
         R/o Tuljapur, At present Nilegaon,
         Tq. Tuljapur, Dist. Osmanabad.           ..Respondent..
                                                (orig claimants )
      


                                       ...
   



                   Advocate for Appellant : Mr A B Dhongade
                  Advocate for Respondent : Mr P M Kulkarni  
                                       ...
                          CORAM : V.K. JADHAV, J.

Dated: April 04, 2016 ...

ORAL JUDGMENT :-

1. Heard learned counsel for the appellant as well as

the respondent.

2. Being aggrieved by the common Judgment and

Award dated 5.6.2006 in MACP No.112/2000 and

2 FA 1502.2008.odt

116/2000 by the learned Member, Motor Accident

Claims Tribunal, Osmanabd, the original respondent-

the Maharashtra State Road Transport Corporation,

Osmanabad (hereinafter referred to as 'MSRTC') has

preferred this appeal.

3. Brief facts giving rise to the present appeal are as

under :-

a]

Deceased Saber was a tempo driver serving with

Sangit Tempo Service as a driver on monthly salary of

Rs.3,000/- p.m. On 26.11.1999 deceased Saber was

driving his tempo bearing registration No.MH-13/B-32

in slow speed at left side of road from Naldurg to

Tuljapur road and on the way at about 06.40 p.m. one

S.T.Bus bearing registration No.MH-20/d-0013 came

from Naldurg Side in high speed and gave dash to the

tempo. In consequence of which deceased Saber had

sustained severe injuries and died on the spot. The

parents of the deceased Saber filed claim petition

No.116/2000 whereas the widow of deceased Saber filed

claim petition No.112/2000 for grant of compensation

under the various heads.

                                             3                     FA 1502.2008.odt

         b].     The respondent MSRTC has strongly resisted both 




                                                                                

the claims by filing written statement. According to the

Respondent MSRTC, the driver of the ST Bus was not at

fault and he had driven his bus from left side of the

road in slow speed. It is further contended that

deceased Saber had driven the vehicle tempo in rash

and negligent manner and gave dash to the S.T.Bus by

going to the wrong side. The learned Member of the

M.A.C.T Osmanabad, by its impugned Judgment and

Award dated 5.6.2006 partly allowed the claim petitions

and thereby directed the respondent MSRTC to pay

Rs.4,33,000/- to the claimants alongwith interest @

7.5% p.a. Aggrieved by the same, the respondent

MSRTC has preferred this appeal.

4. The learned counsel for the appellant submits

that, the driver of the S.T.Bus was not at fault. The

learned counsel submits that, the Tribunal has not

appreciated the evidence lead by the respondent-

M.S.R.T.C. The counsel submits that, the Tribunal has

not considered the oral evidence as well as the

documentary evidence adduced by the respondent-

4 FA 1502.2008.odt

M.S.R.T.C. Learned counsel submits that, the Tribunal

has not considered the contents of the spot panchnama

and also the fact that, after the accident crime was

registered against deceased Saber alone. Learned

counsel for the appellant-M.S.R.TC submits that, the

Tribunal in the alternate ought to have considered the

contributory negligence on the part of the deceased

Saber.

5. Learned counsel for the respondent/original

claimant submits that, the parents and widow of

deceased Saber filed two separate claim petitions and

after clubbing the said petitions, the learned Member of

the Tribunal has decided the same by common

Judgment and award. Learned counsel submits that,

the appellant M.S.R.T.C. has impleaded the widow alone

as party to the appeal and, the parents are not

impleaded as party. Learned counsel submits that, the

appeal is liable to be dismissed on that ground alone.

Learned counsel further submits that, by taking dis-

advantage of death of Saber on the spot, the driver of

S.T. Bus has manipulated all the things. Learned

5 FA 1502.2008.odt

counsel submits that, S.T.Bus was at the slope, whereas

the Tempo being driven by deceased Saber which was

loaded with goods was at the ascending side of the road.

Learned counsel submits that, in the spot panchnama,

the brake marks of the S.T.Bus are mentioned and

those brake marks are at the distance of 26 feet from

the bus where it was found stationary. Learned counsel

submits that, this fact itself indicates that the S.T.Bus

was driven in excessive speed and, even though, after

application of the brakes, the driver of the S.T. Bus

could not stop the same. Learned counsel submits that,

the Tribunal has observed that, the police authorities

have played mischief while drawing the spot

panchnama. It is also observed by the Tribunal that,

the S.T. Driver who shown the spot of the incident to the

police might have managed the police to save his job.

Learned counsel submits that, the Tribunal has

observed that the police have been managed in the

matter and the same is reflected from the contents of

the spot panchnama.

6. It appears from the contents of the spot

6 FA 1502.2008.odt

panchnama as well as oral evidence lead by the

claimants and also by the respondent M.S.R.T.C. that

the accident had taken place in the hilly area. Bus was

proceeding from higher to lower level, whereas, the

tempo was going up. The learned Member of the

Tribunal has rightly observed that for a vehicle loaded

with goods, it is not possible to drive it in a speed when

the vehicle was climbing the road. It is thus clear that

the S.T.Bus had driven in a high speed and since S.T.

Bus was on slope, the S.T.Bus gave dash to the tempo

coming from the opposite direction. The same is evident

from the contents of the spot panchnama that even

though after application of the brake at about 26 feet,

the driver of the S.T.Bus could not control his vehicle. I

do not find any fault in the reasoning adopted by the

learned Member of the Tribunal and conclusions drawn

thereby.

7. So far as quantum is concerned, I find that the

Tribunal has awarded just and reasonable

compensation by considering the income, age of the

deceased and by applying the multiplier method

7 FA 1502.2008.odt

assessed and calculated the compensation correctly. I

do not find any merit in this appeal. First Appeal is

liable to be dismissed. Hence, I proceed to pass the

following order.

O R D E R

I. First Appeal is hereby dismissed with costs.

II. Pending Civil Application, if any, stands

disposed of accordingly.

Sd/-

( V.K. JADHAV, J. )

...

aaa/-