Smt. N. Sujata Wd/O N. Ramchandra ... vs Sarat Srikanta Mohanta, (Deleted ...
2016 Latest Caselaw 355 Bom

                                                   1              fa190.15.odt

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                                               
                                                       
                               FIRST APPEAL NO. 190 OF 2015 


     1]         Smt. N.Sujata wd/o N.Ramchandra




                                                      
                Naik, aged about 38 years, Occ.
                Household work.

     2]         N.Gayatri d/o. N.Ramchandra




                                         
                Naik, aged about 20 years, Occ. Education.

     3]
                             
                N. Murli s/o  N. Ramchandra
                Naik, aged about 18 years, Occ. Education.
                            
     4]         N.Shiwani d/o.  N.Ramchandra
                Naik, aged about 16 years, Occ. Education.

                Appellant No.4 being minor, represented
      

                by her mother Smt. N.Sujata, appellant No.1
   



                All presently residing at C/o. S.M.Salve,
                Ward No. 1, Rajura, Tahsil Rajura,
                Distt. Chandrapur.                                       APPELLANTS





                                    ...VERSUS...

     1]         Sarat Srikanta Mahanta,
                aged about 28 years, Occ. Driver,
                R/o. Bandhgaon, Post Damodarpur,





                P.S.Sukinda, Distt. Jaipur.
                (deleted vide order dt. 28.4.2011)

     2]         Raghunath S/o G.V.Rama Naidu,
                aged adult, Occ. Transport Business,
                C/o. Aryan Coal Benification Pvt. Ltd.,
                Pandharpauni, Tah. Rajura,
                Distt. Chandrapur.

     3]         Iffco Toko General Insurance Co. Ltd.,
                2nd Floor, Sai Heritage, Old Woman Naka,


    ::: Uploaded on - 10/03/2016                       ::: Downloaded on - 11/03/2016 00:01:05 :::
                                                          2              fa190.15.odt

              Civil Lines, Chandrapur, Tah and 
              Distt. Chandrapur.




                                                                                     
     4]       Sheshrao Nagnath Kochewar,




                                                             
              aged about 43 years, Occ. Driver,
              R/o. Gadchandur, Ward No. 3,
              Near New Patwari Office, Tah. Korpana,
              Distt. Chandrapur.




                                                            
     5]       N.Lokya Naik,
              [deleted]

     6]       N.Gaminibai N. Lokya Naik,




                                              
              aged about 75 years,
              Occ. Household Work, 
                             
              R/o. Beluguppa, Tah. Kalyandurgam,
              Post Mandal (Tanda), Distt. Anantapur.                        RESPONDENTS
                            
     -------------------------------------------------------------------------------------------
     Shri Abhay Sambre, Advocate for appellants.
     Shri A.J.Pophaly, Advocate, for Respondent No.3
     Shri J.A.Anthony, Advocate, for Respondent No.6.
      


     None for other respondents.
   



     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 7 MARCH, 2016 .

ORAL JUDGMENT

1] On 30.03.2015, this Court issued notice for final

disposal of the matter. The Respondents are served. Shri

A.J.Pophaly, the learned counsel appears for respondent

No.3 and Shri J.A.Anthony, the learned counsel appears for

respondent No.6. None appeared for other respondents.

In view of the fact that the notice for final

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disposal of the matter was issued, it is not necessary to issue

fresh notice to the Respondents who are not present before

this Court.

Hence, Admit.

The learned counsel appearing for Respondent

Nos. 3 and 6 waives service of notice.

Heard the learned counsels appearing for the

parties.

2] In M.A.C.P. No. 122 of 2008, decided on

22.09.2014, the Motor Accident Claims Tribunal, Chandrapur,

passed an award under Section 166 of the Motor Vehicles

Act, holding the owner of the jeep bearing registration No.

MH-34-D-2034 liable to pay the amount of Rs.27,21,800/-

inclusive of 'no fault liability' together with interest at the rate

of 9% per annum from the date of application till its

realization. The claimants are before this Court to hold the

insurer of another vehicle which is a Tipper Truck bearing

registration No. MH-34-M-1660 along with the owner as

jointly and severally liable to pay the amount of

compensation, as the jeep which the deceased occupied was

not insured and that it is difficult to recover the said amount

4 fa190.15.odt

from the owner and driver of the jeep.

3] The accident in question occurred on 24.07.2007

on National Highway No. 265, going from North to South on

which the truck loaded with coal was standing on the left side

facing in a southern direction. The another vehicle i.e.

commander jeep bearing registration No. MH-34-D-2043

coming from Rajura and going to Gadchandur i.e. to the

southern side dashed this stationery truck from the backside

at about 7.20 p.m. The deceased N. Ramchandra Naik who

was the occupant in a jeep died on the spot as a result of

injury which he suffered in such collision.

4] The Tribunal framed and answered issues Nos.

2 and 3 as under;

2] Whether the applicants have

proved that the accident took place due to negligent act of driver of Truck bearing registration No. MH-34-M-1660, owned by opponent No.2 and insured with opponent no.3? ...... No.

3] Whether the applicants have

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proved that the accident took place due

to rash and negligent driving of Jeep bearing registration No. MH-34-D-2034

driven and owned by opponent No.4 ....Yes

5] While dealing with the aforesaid two issues, the

Tribunal considered the evidence of CW-1, Smt. N.Sujata,

the widow of the deceased and CW-2, Deorao Kodape, one

of the passengers in the Jeep involved in the accident in

question. The Tribunal relied upon the Spot Panchnama at

Exh. 50 to hold that the stationery truck was surrounded by

stones and the parking lights were blinking. The Tribunal also

relied upon the evidence of CW-1 Smt. N.Sujata, who

categorically admitted that the driver of the truck was not

responsible for the accident. There is no finding recorded by

the Tribunal on the aspect of contributory negligence as the

driver of the jeep is held solely liable for rash and negligent

driving, as a result of which the accident occurred.

6] The points for determination are as under -

1] Whether the Tribunal has committed an error in holding that it was the driver of the

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jeep who was solely liable for rash and negligent driving as a result of which the

accident has occurred? ... Yes

2] Whether the owner and the driver of the Truck bearing Registration No. MH-34- M-1660 should be held jointly and severally liable along with the respondent

No.3 - Iffco Tokio General Insurance Co.

Ltd with which the said truck was undisputedly and validly insured on the date of occurrence of the accident.?..Yes

7]

I have gone through the evidence of CW-1

N.Sujata, the widow of the deceased and the oral evidence of

the eye-witness CW-2 Deorao Kodape. I have also gone

through the spot panchnama at Exh. 52. The spot

panchnama was recorded after lapse of an hour of

occurrence of the accident. The time of the accident was

7.20 p.m. on 24.07.2007. None of the respondents in the

claim petition have entered the witness box to depose. The

evidence of the sole eye witness Deorao Kodape, CW-2

shows that the driver of the truck had not placed any

obstruction or sign to indicate that the truck was stationery.

8] The Tribunal could not have relied upon the

evidence of CW-1 N.Sujata, the widow of the deceased,

because she was not the eye witness to the incident and her

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admission that the driver of the truck was not responsible

could not have been relied upon. The perusal of the spot

verification report at Exh. 52 shows that the truck was in a

stationery condition and its two wheels on the left side were

below the tar road and two wheels were on the road. The

map drawn in the spot panchnama indicate that the impact

was on the backside of the said truck. The possibility of

surrounding the truck by stones and putting the parking lights

on subsequent to the accident cannot be ruled out in view of

the positive evidence of the eye witness. There is negligence

on the part of truck driver in parking the truck without taking

proper care. Point No.1 is answered accordingly. The

Tribunal has, therefore, committed an error in holding that it

was only the driver of the jeep who was entirely responsible

for occurrence of the accident.

9] Once the finding is recorded by this Court that it

is a case wherein two vehicles were involved in an accident

and the drivers of both the vehicles contributed in the

negligence, so far as the deceased who was the occupant in

a jeep, it would be a case of composite negligence and the

drivers and the owners of both the vehicles would be jointly

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and severally liable to pay the amount of compensation. The

truck in question was validly insured on the date of accident

with the respondent No. 3 Insurance Company which cannot

be exonerated from its liability.

10] If the jeep in question was not insured then the

entire amount of compensation payable shall be recoverable

from the Insurance Company with which the truck was validly

insured on the date of occurrence of the accident and the

said Insurance Company shall be at liberty to recover the

amount of compensation from the owner and the driver of the

another vehicle. However, the claimants cannot be deprived

of the said amount of compensation until the percentage of

contributory negligence between the drivers of the two

offending vehicles is determined in a proper forum. The

Tribunal has, therefore, committed an error in discharging the

respondent No. 3 Iffco Tokio General Insurance Co. Ltd.,

from its liability. The point No. 2 is answered accordingly.

11] In the result, the appeal is allowed. The drivers

of both the vehicles along with the owners of it are held liable

along with the respondent no. 3 - Iffco Tokio General

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Insurance Co. Ltd., to pay the entire amount of compensation

as determined by the Tribunal along with the interest as has

been made payable. The respondent No. 3 Insurance

Company shall be at liberty to recover the amount if any paid

to the claimants from the owner and the driver of the vehicle

i.e. the Jeep bearing registration No. MH-34-D-2034. No

orders as to costs.

JUDGE

Rvjalit