New India Assu. Co. Ltd. Akola ... vs Smt Savita Gajanan Pofale & 8 Ors
2017 Latest Caselaw 4322 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR

                         FIRST APPEAL NO. 89 OF 2009


              New India Assurance Co. Ltd., 
              Akola,
              Through its Regional Manager,
              Nagpur Regional Office, Nagpur     ..   APPELLANT


              // VERSUS //


              1        Smt. Savita wd/o. Gajanan Pofale,
                       aged about 28 years, 
                       Occ. Household work

              2        Ku. Nikita d/o. Gajanan Pofale,
                       aged about 8 years, Minor

              3        Ku. Anju d/o. Gajanan Pofale,
                       aged about 7 years, minor,

              4        Ku. Punam d/o. Gajanan Pofale,
                       aged about 4 yars, Minor,

                       Nos.2,3 & 4 minors,
                       through their natural gaurdian,
                       mother - respondent No.1,




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              5        Rajaram Mahadeo Pofale,
                       aged about 57 years, Occ. Nil,

              6        Sau Draupadi Rajaram Pofale,
                       aged about 54 years, 
                       Occ. Household work,

                       All residents of Borgaon Manju,
                       Tah. & Dist. Akola

              7        M/s. Bhagwandas Auto Finance Limited,
                       S.P.Mukherji Road, Kolkata
                                               (Dismissed against 
                                               Resp.No.7)

              8        Narayan Jaikisan Agrawal,
                       adult, Occ. Business,
                       r/o. House No. 407,
                       Ward No.1, Borgaon Manju,
                       Tah. And Dist. Akola     (Original Resp.No.4)

              9        The Branch Manager,
                       United India Insurance Co. (OriginalResp.No.5)
                       Limited, Akola
                                               .....     RESPONDENTS

       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                   Shri. M.B.Joshi, Advocate for Appellant. 
          Shri. V.N.Vyas, Advocate for Respondent Nos. 1 to 6.
            Shri. BV. Laheri, Advocate for Respondent No.9.  
                      None for Respondent Nos.7 & 8.
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                     CORAM     :  S.B.SHUKRE,  J.

                                     DATE         :  07.07.2017. 







      ORAL JUDGMENT                       :


      1                This is an appeal preferred against the

judgment and order dated 4.5.2007, rendered by Motor

Accident Claim Tribunal, Akola in M.A.C.P No. 294 of

2003.

2 I have heard Shri Joshi, learned counsel for the

appellant, Shri. Vyas, learned counsel for respondent

nos. 1 to 6 and Shri Laheri, learned counsel for

respondent no. 9. None appeared for respondent Nos. 7

& 8.

3 I have gone through the record alongwith the

impugned judgment and order. The following points

arise for determination:

i) Whether it is proved that there was complete absence of rashness and negligence on the part of the driver of the tanker in question?; and

ii) Whether the imposition of 50% liability on the owner and insurer of the tanker in question by the Tribunal, is illegal?

4 Learned counsel for appellant has taken me through

the impugned judgment and order as well as the evidence

on record in order to support his argument that, in this

case, there has been no negligence attributed to the

driver of the tanker in question and even if it is acribed to

him, it could not be more than 25% of the total fault

liability. On the other hand, learned counsel for

respondent nos. 1 to 6 and respondent no. 9 submit that,

there is no evidence available on record to the effect that,

there was absence of any rashness or negligence on the

part of the tanker driver and therefore, it can not be said

that, impugned judgment and order are perverse.

5 On going through the evidence and the findings

recorded by the learned Member, M.A.C.T., I find that,

there is no substance in the argument of the learned

counsel for the appellant and I find merit in the

submission of learned counsel for respondent nos. 1 to 6

and 9.

6 The spot panchanama in this case has assumed

great significance in the sense that it is the only piece of

evidence which is available for making an assessment

about the fault of the respective drivers in driving the

vehicles, a matador and a tanker, involved in the accident

and when one carefully considers what is contained in the

spot panchanama, one finds it difficult to completely differ

with the inferences drawn by the learned member. We

have to bear in mind that in such cases, the standard of

proof is liberal and the Court is required, in many cases, to

make some guess work and visualize in a reasonable

manner as to what may have happened when the accident

took place, the reason being in such cases, most of the

times, eye witnesses are not available and invariably the

claimants themselves would also not be present at the

spot of accident at the relevant time. Therefore, claimants

as well as all other stake holders would have to depend

entirely upon the record created by the police after the

accident. In this way, the spot panchanama in such cases

assumes great importance. The contents of the spot

panchanama do show that the tanker was standing on its

correct side and further show that the matador had

approached from the opposite direction and crossing the

middle of the road it come on to its wrong side on the

road. But, as rightly noted by the learned Member that

before the police came to the spot of accident, there was

sufficient time available even for the tanker driver to avert

the collision as the matador was visible from a distance of

about 20 to 25 fts. Had the driver of the tanker been

vigilant and alert, perhaps, the accident would have been

avoided and the precious lives saved or at least rigor of

the accident could have been reduced considerably. This

was the reason why the learned Member found that the

driver of the tanker too was at fault to the extent of 50%

of the total negligence. This view taken by the learned

Member is probable and is based upon the evidence

available on record. Therefore, it would not be open to

this Court to make any interference with the findings

recorded in this behalf by the learned Member.

7 Learned counsel for the appellant referred to me the

case of Anthony Vs. Karvarnan & Others 2008(3) T.A.C.

193 (S.C.), wherein, it is held that the negligence of

drivers of two vehicles was to the extent of 75 and 25%

respectively, but I must say that such division of the

negligence was on the basis of the facts established on

record in that case, whereas facts available on record in

the instant case show that both the drivers of the two

vehicles were equally at fault for the accident. Therefore,

this case would render no assistance to the learned

counsel for the appellant. In the result, I find that there is

no merit in the appeal. It deserves to be dismissed.

The appeal stands dismissed with no costs.

JUDGE

belkhede