Babasaheb Jaiwanta Rothe vs Sangita Arun Shinde And Ors
2017 Latest Caselaw 4314 Bom

                                     1                        FA 1902/2012

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                       FIRST APPEAL NO.1902 OF 2012

  Babasaheb Jaiwanta Rothe
  Age: Major, occ. Business,
  R/o Bhulegaon, Post Suregaon,
  Tq.Yavla, Dist. Nashik                             =        APPELLANT

           VERSUS

  1)       Sangita Arun Shinde,
           Age: 31 Yrs., occu. Education

  2)       Ku.Mohini Arun Shinde,
           ag: 12 Yrs., occu. Education

  3)       Ku.Saurabh Arun Shinde,
           age: 11 Yrs., occu. Education

  4)       Kum. Puja Arun Shinde,
           age: 9 Yrs., occu. Education.

           (Nos. 2 to 4 Minor through
            their N/G Mother, i.e. R.No.1)

  5)       Parubai Ramdas Shinde
           age: 52 Yrs., occu. Household,

           All R/o Mahatma Phule Krushi
           Vidyapeat, Rahuri, Tq.Rahuri,
           District Ahmednagar.

  6)       Badshah Chendu Kure (Dead)       =    RESPONDENTS 
                                            (No.1 to 5 orig.
                                             applicants and No.
                                             6 orig.R.no.2)
                                  -----
  Mr.SK Shinde, Advocate for Appellant;
  Mr.Sudhir K.Chavan, Adv. for Respondent Nos.1 to 4;
  Respondent No.5 served.


                                  -----




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                                          2                          FA 1902/2012

                               CORAM :  P.R.BORA, J.

DATE :

11 th

July,2017.

ORAL JUDGMENT:

1) Heard. Present appeal is filed against

Judgment and Award passed by Motor Accident

Claims Tribunal at Ahmednagar (for short, the

Tribunal) on 12th January, 2009 in MACP No.

434/2004.

2) Respondent Nos.1 to 4 had filed the

aforesaid claim petition claiming compensation on

account of death of one Arun Shinde, alleging the

same to have been caused in a vehicular accident

happened on 21st April, 2004 at night hours having

involvement of a trolley bearing registration

No.MH-15-U-1854.

3) It was the case of the claimants that

deceased while proceeding on his motorcycle

rammed into the aforesaid trolley since the

driver and owner of the said trolley had not

taken necessary precaution while keeping the said

3 FA 1902/2012

trolley stationed on the tar road at the night

hours. It was their further contention that the

trolley could not be noticed by the deceased and

he rammed into the said trolley. The claimants

had claimed the compensation of Rs.3,00,000/-

from the owner and insurer of the said trolley.

4) The claim petition was resisted by the

owner of the trolley. According to him, the

trolley was parked at the extreme left side of

the road and all precautions were taken so that

it can be noticed even from a longer distance.

It was his , further contention that the deceased

motorcyclist was driving his motorcycle in rash

and negligent manner and without looking to the

condition of the road and the alleged accident

happened because of his own negligence.

5) The learned Tribunal, after having

assessed the oral and documentary evidence

brought on record before it, held that the

alleged accident happened because of the equal

4 FA 1902/2012

negligence of both, the owner of the trolley and

the deceased motorcyclist. The Tribunal,

therefore, held the owner of the Trailer liable

to pay 50% of the compensation determined by it.

Aggrieved by, the trailer owner has filed the

present appeal.

6) Shri Shinde, learned Counsel appearing

for the appellant, submitted that perusal of the

spot panchanama is enough to show that no

negligence could have been attributed on the part

of the trolley since it was kept stationed at the

extreme left of the road and by taking all

necessary precautions. The learned Counsel

submitted that the Tribunal has failed in

appreciating the evidence on record and has

wrongly held the owner of the trolley responsible

for occurrence of the alleged accident and

consequently to pay the amount of compensation to

the claimants.

  7)               Shri   Chavan,   learned   Counsel   appearing 





                                     5                         FA 1902/2012

for Respondent Nos.1 to 5, i.e. original

claimants, opposed the submissions made on behalf

of the appellant. The learned Counsel took me

through the contents of the spot panchanama,

which is at Exh. 28 in record of the trial court.

The learned Counsel submitted that it nowhere

reflects that the necessary precautions were

taken by the trolley owner while parking the same

on the tar road so that it could have been

noticed by the deceased motorcyclist. Learned

Counsel further pointed out that the trolley was

kept stationed on the pacca road instead of in

the side margin of the said road. The learned

Counsel submitted that there were no tail lamps

to the said trolley and as such the deceased

motorcyclist could not notice it and rammed into

the said trolley.

8) The learned Counsel further submitted

that the claimants were fair enough in accepting

that the entire negligence can not be attributed

on the part of owner of the trolley and some

6 FA 1902/2012

negligence was definitely on the part of deceased

also. The learned Counsel further submitted that

the Tribunal has rightly held the deceased

negligent in equal proportion and has accordingly

awarded half of the payable compensation from the

owner of the trolley. The learned Counsel

submitted that the appeal is devoid of any

substance and it be dismissed.

9) I have carefully considered the

submissions advanced by learned Counsel appearing

for the respective parties. Apparently, it does

not appear to me that the Tribunal has committed

any error in fixing the liability of paying 50%

of the payable compensation on the appellant. As

has been submitted by learned Counsel appearing

for the claimants, the claimants themselves have

accepted that in the occurrence of the alleged

accident, entire negligence could not have been

attributed on the part of owner of the trolley.

The spot panchanama is the crucial document to

decide the controversy arose in the present

7 FA 1902/2012

matter. The spot panchanama, more particularly

the sketch appended with the said spot

panchanama, clearly shows that the trolley was

kept stationed on the pacca road, and that too at

the distance of 5-6 ft from the left edge of the

road when there was a good side margin to the

said road. On careful reading of the spot

panchanama, it is revealed that there were no

tail lamps to the said trolley and no temporary

hurdle was created around the said trolley so

that no other vehicle could enter at the said

spot or shall notice that some vehicle is parked

at the said place.

10) After having considered the entire

circumstances, it does not appear to me that the

Tribunal has committed any error in holding the

present appellants, i.e. owner of the tractor,

responsible for payment of half of the payable

compensation to the claimants. The appeal being

devoid of substance deserves to be dismissed and

is accordingly dismissed, however, without any

8 FA 1902/2012

order as to costs. Pending civil application, if

any, stands disposed of.

11) The amount, if any, deposited by the

appellant, in this Court in the present appeal,

is permitted to be withdrawn by the original

claimants, if not already withdrawn along with

accrued interest thereon.

(P.R.BORA) JUDGE

bdv/