The Executive Engineer,Lower Pus ... vs Vahida Parbeen Wd/O Abdul Tahir ...
2017 Latest Caselaw 6410 Bom

 FA 422.06.odt                                1


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

                       FIRST APPEAL NO.422 OF 2006


 The Executive Engineer,
 Lower Pus Project, Pusad
 Now Executive Engineer,
 Minor Irrigation Division,
 Pusad, District-Yavatmal.                           ..        APPELLANT
                                              (Original non-applicant no.2)

                               .. VERSUS ..


 1]     Vahida Parbeen wd/o Abdul Tahir,
        Aged 40 years.

 2]     Abdul Tarique s/o Abdul Tarif,
        Aged 20 years.

 3]     Mohammed Sadique s/o Abdul Tarif,
        Aged 18 years.

 4]     Abdul Samir s/o Abdul Tahir,
        Aged 15 years.

 5]     Mohammed Saheb s/o Abdul Tahir,
        Aged 12 years.

        Respondent No.(4) and (5) being minors
        By Guardian - Respondent No.1,
        All Resident of Karanja, Ward No.38,
        C/o. Mohammed Harif Sk. Hanur,
        R/o. Karanja, District-Amravati.

 6]     Maroti D. Dhole,
        Aged 38 years,
        R/o. Basant Nagar, Pusad,
        District-Yeotmal.                           ..         RESPONDENTS
                                                         (Original Applicants)



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  FA 422.06.odt                             2

 Shri P.B. Patil, Advocate a/w Ms. A.M. Gupta, Advocate for
 Appellant,

 Shri Gaurav Kathed, Advocate h/f Shri F.T. Mirza, Advocate
 for Respondent Nos.1 to 5.

 None for Respondent no.6.
                  ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : AUGUST 21, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and award dated 15.12.2003 passed by the Motor Accident

Claims Tribunal, Yavatmal in Motor Accident Claim

No.106/1994.

2] The facts giving rise to the appeal may be stated

in nutshell as under :

(i) On 5.12.1993, Abdul Taher, husband of

respondent no.1 and father of respondent nos.2 to 5, was

travelling in Jeep No.MH-29/B-15 from Pusad-Limbi road.

Respondent no.6/non-applicant no.1 in the petition was

driving the vehicle. The said jeep belonged to present

appellant/non-applicant no.2 in the application. At about

11.30 am, when jeep came at the distance of 2 km from

Pusad, it dashed against a tree standing by the side of the

road and Abdul Taher died on the spot. The contention of

claimants was that jeep was driven in a rash and negligent

manner by its driver resulting into accident and causing the

death of Abdul Taher.

(ii) According to the claimants, deceased

was 32 years old at the time of accident. He was serving as

fitter and mechanic in Irrigation Department of Government

of Maharashtra. His monthly salary was Rs.2,500/-. Due to

untimely death of the husband and father, claimants

assessed compensation to the tune of Rs.2,00,000/- and

claimed the same under section 166 of the Motor Vehicles

Act.

(iii) The driver of vehicle filed written

statement (Exh.33) and denied that accident occurred due

to rash and negligent driving of jeep by him. It was

submitted that he drove the jeep for trial purpose as the

jeep was to be carried for Legislative Assembly session at

Nagpur. It was contended that jeep was driven in a normal

speed. At the relevant time, it was raining. One ST bus

came from opposite direction and in an attempt to give side

to the ST Bus, accident occurred due to mechanical fault in

the steering of the jeep.

(iv) The owner of vehicle/appellant resisted

the claim vide written statement (Exh.31). The factum of

ownership is not disputed. It was denied that accident

occurred due to rash and negligent driving of jeep by its

driver.

3] On the rival pleadings of the parties, tribunal

framed issues at Exh.35. Applicants examined AW-1 Wahida

Parveen w/o Abdul Taher to substantiate their claim and

placed reliance on the documents. NA-1 Maroti Dhole

examined himself. Appellant chose not to examine any

witness. Considering the evidence oral and documentary,

tribunal came to the conclusion that Abdul Taher succumbed

to injuries on account of rash and negligent driving of

offending jeep by non-applicant no.1 and awarded

compensation of Rs.1,60,700/- with interest at the rate of

9% per annum saddling the liability to pay on the owner of

the vehicle/appellant. It is this award which is the subject

matter of the present appeal.

4] Heard Shri P.B. Patil a/w Ms. A.M. Gupta, learned

counsel for appellant and Shri Gaurav Kathed h/f Shri F.T.

Mirza, learned counsel for respondent Nos.1 to 5. None

appeared for respondent no.6.

5] The learned counsel for appellant submitted that

brother of the deceased filed First Information Report. He

was not an eyewitness to the accident. There were three

occupants, one was driver, another deceased and third an

eyewitness, but the third person, who was occupant in the

jeep and seen the accident, has not been examined. He

submits that in the absence of evidence of eyewitness to the

occurrence of accident, tribunal was not justified in placing

reliance on the copy of FIR and coming to conclusion that

accident occurred due to rash and negligent driving of the

jeep. The learned counsel submits that reasons recorded

by the tribunal are unsustainable and, therefore, award

passed needs to be set aside.

6] Per contra, learned counsel for the claimants

placed vehement reliance on the police papers and

particularly spot panchanama Exh.39. Learned counsel

submits that the factual situation recorded in the spot

panchanama speaks for itself and shows the circumstance

under which accident had occurred. It is submitted that

police papers clearly indicate that driver of jeep was

responsible for causing the accident due to rash and

negligent driving and, therefore, the reasons recorded by

the tribunal which are based on the oral as well as

documentary evidence may not be interfered with.

7] So far as oral evidence is concerned, admittedly

AW-1 Wahida is not an eyewitness to the accident. She is

widow of the deceased. NA-1 Maroti Dhole, driver of the

jeep, examined himself. He stated that the jeep was given

for repairs and to check whether it was properly repaired or

not, he took the jeep for trial toward Washim road. He

admits that Abdul Taher and Karim Khan were

accompanying him in the jeep. He also admits the

occurrence of accident. However, according to the driver of

jeep, one ST Bus came from opposite direction and to give

side to the bus he took the jeep to the side. In that attempt,

steering of the jeep suddenly became free and it gave a

dash against the tree.

8] The third occupant of jeep Karim khan is not

examined either by the claimants or by the respondents.

The evidence of NA-1 Maroti Dhole is in conflict with the

police papers. As per the FIR, crime was registered against

the driver of jeep. Spot panchanama (Exh.39) shows that

accident occurred on Pusad-Limbi Road 2 km away from

Pusad. The factual position shown in spot panchanama

indicates that Jeep No.MH-29/B-15 was involved in the

accident. It is not in dispute that Abdul Taher died on the

spot. The impact was so heavy that serious damage was

caused to jeep, one person died on the spot and the jeep

was found lying on the wrong side of the road. This

panchanama has not been seriously controverted by the

owner of the vehicle.

9] Under these circumstances, submission of the

learned counsel for appellant that non examination of an

eyewitness would lead to an inference that accident had

occurred due to mechanical fault and not due to rash and

negligent driving of the jeep holds no water. The tribunal has

considered pros and cons of the case, appreciated oral and

documentary evidence and properly relied upon police

papers.

10] So far as quantum is concerned, appellant does

not dispute that deceased was serving as fitter cum

mechanic in Irrigation Department and earning Rs.2,500/-

per month. The dependency of the claimants is also not in

dispute. Considering the income of the deceased and loss of

dependency, tribunal has awarded the compensation. This

court on scrutiny of evidence and material placed on record

found that compensation awarded by the tribunal is just fair,

legal and proper. Even otherwise, on quantum, appellant

has no serious dispute.

11] In the light of the above, this court finds that

appellant has no case on merits. The impugned judgment

and award calls for no interference. Hence, the following

order :

ORDER

(i) First Appeal No.422/2006 stands dismissed.

 (ii)           No costs.


                                      (Kum. Indira Jain, J.)
 Gulande, PA