Bombay High Court
Ashabai Ashok Pawar And Ors vs Sayad Shoukat Chandsab And Ors on 11 April, 2016
Bench: P.R. Bora
1 FA No. 581/2001
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.581 OF 2001
1) Ashabai w/o Ashok Pawar
Age: 25 Yrs./, occu. Household,
R/o Narangwadi, Tq. Omerga,
District Osmanabad.
2) Kum.Priti d/o Ashok Pawar,
Age: 6 Yrs., occu. Nil, Minor,
R/o Narangwadi, Tq. Omerga,
District Osmanabad.
3) Pavan s/o Ashok Pawar,
age: 4 Yrs., occ. Minor,
R/o Narangwadi, Tq. Omerga,
District Osmanabad.
4) Kum.Priya d/o Ashok Pawar,
Age: 2 Yrs., occu. Minor,
R/o Narangwadi, Tq. Omerga,
District Osmanabad.
(Claimant Nos. 2 to 4 are
minors under guardianship
of their natural mother -
claimant No.1.) = APPELLANTS
(Claimants)
VERSUS
1) Sayad Shoukat s/o Chandsab
Age: 35 Yrs., occu. Driver,
R/o Killari, Tq. Ausa,
District Latur.
2) Kasturabai Dnyanoba Pawar,
age: 55 Yrs., occu. Household,
R/o Narangwadi, Tq. Omerga,
District Osmanabad.
3) Mr.Mahasuklal Vadhabai Patel,
Age: 43 Yrs., ocu. Busines,
R/o Samarada, Tq. Bhenara,
Dist. Banaskntha (North Gujrat)
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2 FA No. 581/2001
4) United India Insurance Company
Through Branch Manager,
Near ST Stand, Osmanabad.
Tq. And Dist. Osmanabad.
5) Janardhan Namdeorao Sangve,
Age: 38 Yrs., occu. Service,
R/o Hatte Nagar, Latur,
Now at Janta Sahakari Bank,
Omerga branch, Dist.Osmanabad.
6) The New India Assurance Company
through Manager, Osmanabad.
Tq. And Dist. Osmanabad. = RESPONDENTS
-----
Mr.MP Tripathi, Advocate h/for Mr. KJ Ghute-Patil,
Adv. for Appellants;
Mr.SG Chapalgaonkar, Adv. for Respondent No.4;
Mr.Dhananjaya Deshpande, Adv. For Resp.no.6.
-----
CORAM : P.R.BORA, J.
th
DATE :
11 April,2016.
ORAL JUDGMENT:
1) Heard the learned Counsel appearing for
the respective parties.
2) Original claimants have filed the
present appeal taking exception to the judgment
and award passed in MACP No.170/1994 decided on
9.1.2001 by Motor Accident Claims Tribunal,
Osmanabad (for short, the Tribunal). The
claimants had filed the aforesaid Claim Petition
claiming compensation of Rs.2,00,000/- on account
of death of Ashok Dnyanoba Pawar, who died in a
vehicular accident happened on 11.09.1992, having
involvement of truck bearing registration No. GJ-
8-T-4033 and Motor cycle bearing registration
No.MH-24-2500.
3)
As is revealing from the pleadings on
record, the accident in question happened at
about 1.00 am at Jalkot Naka on Omerga -
Hyderabad road. The truck involved in the
accident while was stopped on the road near the
octroi post for the purpose of paying octroi, the
deceased, who was on the motor cycle rammed into
the said stationery truck along with the pillion
rider and in the accident so happened, both
suffered the death.
4) It was the contention of the claimants
before the Tribunal that the accident in question
happened because of absolute negligence on the
part of the driver of the aforesaid truck, since
he has illegally stopped the said truck on the
road, without keeping the rear lights or parking
lights on of the said truck so as to identify the
said vehicle. The learned Tribunal has however,
rejected the contention so raised by the
claimants and has recorded a finding that the
claimants have failed in proving the negligence
of the driver of the truck in occurrence of the
alleged accident and consequently, the Tribunal
has exonerated the owner, driver and the insurer
of the said truck from liability to pay
compensation. Consequently, the claim petition
has been dismissed. The claimants have filed the
present appeal, challenging the said judgment and
award passed by the Tribunal.
5) Shri Tripathi, the learned Counsel
appearing for the claimants, submitted that the
Tribunal has grossly erred in appreciating the
evidence on record. The learned Counsel
submitted that the claimants have examined one
witness, by name Suresh Mane, who is an eye-
witness of the alleged accident and in his
evidence he has categorically stated that the
vehicle was carelessly stopped on the road and
further that there was no parking lights on of
the said vehicle. The learned Counsel further
submitted that at the relevant time, one another
vehicle was coming from the opposite side in the
head lights of which it was not possible for the
deceased to notice the offending truck which was
carelessly stationed on the road. The learned
Counsel submitted that the Tribunal has ignored
all these facts that, the truck was stationed on
the road; that there were no parking lights; that
since a vehicle was coming from the opposite
direction, there was every possibility that in
the head-lights of the said vehicle coming from
the opposite directions, the deceased might not
have noticed the truck so stopped on the road and
thus has rammed into the said truck. In such
circumstances, according to the learned Counsel,
even if it is presumed that there was some
negligence on the part of the deceased -
motorcyclists, the Tribunal of the truck cannot
be completely absolved from his liability. The
learned Counsel, therefore, submitted that the
findings recorded by the Trial Court are contrary
to the evidence on record and hence deserve to
be set aside. The learned Counsel, therefore,
prayed for allowing the appeal and consequently
the claim petition filed by the
appellants/claimants.
6) Shri Chapalgaonkar, the learned Counsel
appearing for respondent No. 4 - insurance
company, resisted the submissions made on behalf
of the learned Counsel appearing for the
claimants. The learned Counsel, taking me
through the averments of the FIR as well as the
spot panchanama, submitted that both these
documents sufficiently indicate that there was no
negligence on part of the driver of the offending
truck in occurrence of the alleged accidnet. The
learned Counsel, relying upon the juddgment of
the Hon'ble Apex Court in the case of Oriental
Insurance Co. Ltd. Vs. Premlata Shukla and Ors. -
2007 AIR SCW 3591, submitted that the contents of
the documents cannot be partly relied upon and
once the document is taken on record, the
document has to be read as a whole and to be
relied upon as a whole. The learned Counsel
submitted that if the FIR and the spot panchanama
are read as a whole, both these documents
sufficiently indicate that there was no
negligence on part of the truck driver. On the
contrary, the situation on the sport of
occurrence volumely shows that the motorcyclist
was plying the motorcycle at the relevant time
in high and speed and negligent manner, which has
resulted in occurrence of the alleged accident.
The learned Counsel, therefore, submitted that
the Tribunal has not committed any error and the
findings recorded by the Tribunal cannot be in
any way said to be perverse or contrary to the
evidence on record. He, therefore, prayed for
dismissal of the appeal.
7) I have carefully considered the
submissions advanced by the learned Counsel
appearing for the respective parties. I have
gone through the evidence recorded in the present
case and I have also carefully perused the spot
panchanama and the FIR filed in the matter. The
findings recorded by the Tribunal, in the light
of the aforesaid documents, apparently do not
appear to be in any way perverse or contrary to
the evidence on record. It does not appear to me
that the Tribunal has recorded any incorrect
finding so far as the negligence on the part of
the driver of the offending truck. The Tribunal
has correctly analyzed the situation on the sport
and has recorded the conclusion that from the
evidence, brought on record, it is not possible
to hold that the alleged accident had happened
because of any negligence on part of the driver
of the offending truck.
8) Admittedly, the road on which the
accident had happened was 32 ft. wide. There is
no dispute that the truck was stopped near the
octroi post for the purpose of paying the octroi.
It is also not disputed that there was octroi
post near the spot of the accident. The averments
in the FIR, which was promptly lodged by the
Octroi Superintendent working on the said octroi
post, reveals that at the relevant time, the
driver of the offending truck, after paying the
octroi was proceeding towards his truck and in
the meantime, the motorcyclists rammed into the
said truck from its rear side. From the
situation on the spot, it is quite evident that
the truck was stationed at the left side of the
road and sufficient space was available for the
vehicles passing from both the sides. As has
been rightly observed by the Tribunal, there must
be sufficient light at the octroi post so as to
identify the location of the octroi post. Thus,
the stationed truck was quite noticeable from the
adequate distance. Moreover, it was quite
possible for the motorcyclist to notice the
stationed truck in the head light of his own
motorcycle from the adequate distance. The story
of other vehicle coming from the opposite side
throwing light on the eyes of the deceased
motorcyclist appears to be after thought. I
agree with the observations made by the learned
Tribunal that evidence of PW 2 - Suresh cannot
be depended upon. Moreover, on perusal of his
evidence, it is difficult to accept that he did
eye witness the alleged accident. It appears
that only after he heard the bang because of dash
given by the motorcyclist to the truck that his
attention was invited to the spot of occurrence.
From the material on record there is reason to
believe that the deceased motorcyclist was
negligent in driving his motorcycle and may be
plying the motorcycle at the relevant time at
excessive speed and that was the reason that he
could not notice the stationed truck at the side
of the road and rammed into the same from its
rear side.
9) In the above circumstances, it does not
appear to me that the learned Tribunal has erred
in recording a finding that the claimants have
failed in proving the negligence on part of
driver of the offending truck in occurrence of
the alleged accident.
10) For the reasons stated above, the appeal
deserves to be dismissed and is accordingly
dismissed without any order as to costs.
ig sd/-
(P.R.BORA)
JUDGE
bdv/
