Bombay High Court
Vidarbha Irrigation Development vs George John & Others on 16 April, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.60 OF 2005
Vidarbha Irrigation Development
Corporation, Civil Lines, Nagpur,
represented by Executive Engineer,
Lower Wardha Project Division,
Wardha (Old name, Executive
Engineer, Pench Project Division,
Ajani, Nagpur). ....... APPELLANT
ig ...V E R S U S...
1] George s/o John,
Aged about 53 years,
Occ: Private Service.
2] Mrs. Violet w/o George John,
Aged about 50 years,
Occ: Private Service.
Both R/o Mankapur, Nagpur.
3] Janardhan s/o Shyamrao Bhagalkar,
Aged about 37 years, Occ: Service in
Pench Project Sub Division No.4,
Ajani, Nagpur.
4] Mrs. Marie Aloysius Josephs
wd/o Patrick George John,
Aged 39 years, Occ: Service.
5] Ku. Shairley Patricia d/o Late Patrick
George John, Aged about 7 years,
through guardian mother.
Both No.4 and 5 R/o Mecosabagh
High School, Mecosabagh, Nagpur.
6] State of Maharashtra through
Secretary, Department of Irrigation,
Mantralaya, Mumbai. ....... RESPONDENTS
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Shri P.B. Patil, Advocate for Appellant.
Shri M.A. Kadu, AGP for Respondent No.6.
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CORAM: R.K. DESHPANDE, J.
th APRIL, 2016.
DATE: 16
ORAL JUDGMENT
1] In Claim Petition No.347 of 1989 filed under Section 166 of
the Motor Vehicles Act ("said Act" for short), the Motor Accident Claims
Tribunal at Nagpur has passed an award granting compensation of
Rs.1,66,800/- to the claimants holding the driver and the owner of the
vehicle jointly and severally liable to pay the said amount with future
interest at the rate of 6% per annum from the date of filing of the
petition i.e. 16.11.1989 till its realization. This award dated 31.08.2004
is the subject-matter of challenge in this appeal under Section 173 of the
said Act by the owner of the vehicle, which is Vidarbha Irrigation
Development Corporation, Nagpur.
2] The Tribunal has recorded the finding that the claimants
have proved that the deceased Patrick George died in an accident on
20.05.1989 due to direct result of rash and negligent driving of the water
tanker No.MTG 4596 owned by the appellant and driven by the
respondent No.3 - Janardhan s/o Shyamrao Bhagalkar. It has been held
that the tanker driver was negligent to the extent of 80%, whereas the
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deceased was negligent to the extent of 20%. Accordingly, the
compensation payable is assessed.
3] The learned counsel for the appellant has urged that there
was no negligence on the part of the driver of the tanker and the rider of
Suzuki motor cycle bearing registration No.MVJ 1138, the deceased was
solely liable for the accident which occurred on 20.05.1989. He submits
that even assuming that there was some negligence on the part of the
driver of the water tanker, it could not be more than 50% and the
Tribunal has committed an error in holding that he is liable to the extent
of 80%.
4] The point for determination is as under:
i] Whether the Tribunal has committed an error in holding
that the driver of the water tanker bearing registration
No.MTG 4596 was rash and negligent in driving the tanker,
if yes, to what extent?
5] The Tribunal has described the nature of accident in
paragraph 14 of its judgment, which is reproduced below:
14. The accident occurred on Chindwara road, which runs North
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to South. Mankapur is towards North and Nagpur city is
towards South. Deceased Patrick was coming from Mankapur
side towards City, whereas, water tanker was coming from
opposite side and was proceeding towards Mankapur. Mental
Hospital is to the west of said road i.e. Chindwara road.
Material to note that as per spot panchnama Ex.60, the width
of Chindwara road is 40 ft. and motor cycle was found lying
in the middle of the road, leaving 20 ft. road on two sides. The
head lamp of the motor cycle was found smashed. Water
tanker was found stationary at the distance of 30ft. From the
spot. Dead body of Patrick was also found lying near motor
cycle in the middle of the road as seen from inquest
panchnama at Ex.61. This goes to show that impact of the
vehicles took place in the middle of the road which is 40ft.
wide. Deceased Patrick was coming from Mankapur side and
was supposed to keep left side of the road. However,
apparently, he had come towards middle of the road, whereas
water tanker was coming from opposite direction and it ought
to have kept left side of the road i.e. towards Mental Hospital.
The Res. No.1 to 3 propounded a theory that deceased was
trying to over take one truck and in that attempt fell down on
the side of the said truck and that truck sped away. This
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theory doesn't get support from the evidence of P.W. 6 Dilip.
He has categorically denied that there was any truck ahead of
deceased and he was trying to over take the truck. The
respondent No.1 to 3 have also not examined any other
independent witness in support of the theory propounded by
them.
6] I have perused the spot panchnama and gone through the
evidence of the sole eye witness Dilip Champatrao Gotmare and the
deposition of the driver of the offending vehicle to decide the question of
negligence. On the basis of the deposition of the eye witness it can
certainly be said that the Tribunal was right in holding that driver of the
water tanker was negligent to the extent of 80%. The learned counsel
has relied upon the deposition of the driver, who has stated in his
evidence that the deceased in the course of overtaking the truck fell
down on the side of the truck in the middle of the road, and has
accordingly died. It has further come in his deposition that the tanker
and the said Suzuki did not come in contact with each other. It is not the
deposition of the driver of the offending vehicle that the deceased riding
Suzuki motor cycle dashed the truck, which was going ahead, and
accordingly died on the spot. The collision between the tanker and the
Suzuki two wheeler is established and in the light of the findings
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recorded by the Tribunal reproduced above, I do not think of any other
possible view in the matter. It cannot therefore, be said that the Tribunal
has committed an error in holding the driver of the offending vehicle was
negligent to the extent of 80%.
7] In the result, there is no substance in the appeal. The appeal
is dismissed. No order as to costs.
8]
If any amount is deposited by the appellant in this Court, it
is permitted to be withdrawn by the respondent as per the decision of
the Tribunal, if it has not been withdrawn earlier. If the amount is
withdrawn after permission and, if any security is furnished the same
shall stand discharged.
JUDGE
NSN
