Bombay High Court
Nilkanth Tukaramji Sarokar vs Rama Pralhad Atokare & 2 Ors on 7 June, 2017
Bench: Dr. Shalini Phansalkar-Joshi
207-J-FA-202-04 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO.202 OF 2004
Nilkanth s/o Tukaramji Sarokar,
aged about 48 years. Occ. Agril.
R/o Kotamba, Tahsil, Selu,
Dist. Wardha. ... Appellant.
-vs-
1. Rama w/o Pralhad Atokare
aged about 47 years,
Occ. Business (Tailoring),
R/o Pipri (Meghe),
Tah. and Dist. Wardha
2. Prashant s/o Kawduji Kakade,
aged about 48 years, Occ. Business,
R/o Pratao Nagar, Wardha.
3. National Insurance Company Ltd.
Through its Branch Manager, Main Road,
Wardha. ... Respondents.
Shri Surendra Chinchbankar, Advocate h/f Shri N. S. Bhattad, Advocate for
appellant.
Respondents served.
CORAM : DR S. S. PHANSALKAR-JOSHI, J.
DATE : JUNE 07, 2017
Oral Judgment :
This appeal takes on exception to the judgment and order dated
24/09/2003 passed by the Motor Accident Claims Tribunal, Wardha in
M.A.C.P. No.161 of 2000 thereby fastening liability to the extent of paying
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25% of the amount of compensation on the appellant, for the injuries
sufferred by the respondent No.1-claimant in the accident which had
occurred on 07/03/1999 at 9.30 pm near the bridge on Belgaon Nala on
Nagpur-Wardha road.
2. The appellant is owner of the tractor bearing No.MH-32/A-1944
which was parked on the road. A luxury bus bearing No.MTG-4049, owned
by respondent No.2 and insured with respondent No.3 was going from
Nagpur to Wardha gave dash to the stationery tractor belonging to the
appellant. As a result, the passengers in the luxury bus sufferred injuries.
They filed claim petitions before the Tribunal. Respondent No.1 is one of
such injured passenger who was travelling in the said bus. Her claim came
to be allowed by the Tribunal thereby directing the owner and the insurer of
the luxury bus to pay an amount of Rs.60,000/- with 9% interest per annum
from the date of application till its realization. While deciding the said claim
petition, the owner and the insurer of the luxury bus viz. Respondent Nos.1
and 2 respectively therein were directed to pay jointly and severally 75% of
the said compensation amount and respondent No.3 that is the present
appellant-owner of the tractor was directed to pay 25% of the total
compensation amount.
Being aggrieved by the said order, this appeal is preferred by the
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appellant contending inter alia that tractor was parked on the left side of the
road. It was not at all a moving vehicle. The FIR Exhibit-37 clarifies the
position of tractor as parked on left side of the road with parking lights put
on and therefore it is submitted that the driver of the tractor cannot be held
in any way negligent or responsible for the accident that has occurred. It is
submitted that the sole cause of the accident was the rash and negligent
driving of the luxury bus. The accident occurred in the morning hours
therefore it cannot be accepted that the driver of the bus could not have seen
the tractor. Thus it is submitted that the Tribunal has committed grave error
in imposing 25% liability for payment of compensation on the appellant.
3. Having heard the learned counsel for the appellant, it would be
necessary to go through the evidence on record. No doubt the evidence on
record namely the FIR-37 goes to show that parking lights of the tractor
were put on. However the claimant who has sufferred injuries as a result of
the accident has deposed in evidence that the tractor was stationed in the
dark and the parking lights of the tractor were switched off. This is the
statement appearing in cross examination of the claimant. Neither the
appellant who is owner of the tractor nor its driver had entered into witness
box, nor cross-examined the claimant on this material aspect. In view
thereof, except bare statement in the FIR, there is no evidence in support of
the contention of the appellant that sufficient care was taken by the driver of
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the tractor to avert the accident. In such situation, no fault can be found in
the finding recorded by the Tribunal fastening liability to the extent of 25%
on the owner of the tractor viz. the appellant herein.
4. The appeal therefore is without merit and hence stands dismissed.
If amount of compensation is deposited by the appellant in this Court,
claimant is permitted to withdraw the same along with accrued interest
thereon.
No order as to costs.
JUDGE
Asmita
