Rajendra Prabhakar Pataskar vs State Of Maha Thr Collector And 5 ...
2017 Latest Caselaw 8764 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                        NAGPUR BENCH : NAGPUR



First Appeal No. 646 of 2006



Appellants              :         Rajendra Prabhakar Pataskar.... since 

                                  deceased, through his legal heirs -

                                  1) Smt Lata wd/o Rajendra Pataskar, aged

                                  about 61 years, Occ: Household

                                  2) Neelesh s/o Rajendra Pataskar, aged about

                                  40 years, Occ: service

                                  3) Rupesh s/o Rajendra Pataskar, aged about

                                  38 years, Occ:  Business

                                  4) Akshay s/o Rajendra Pataskar, aged about

                                  34 years, Occ: service

                                  All residents of 301, Sai Samartha Residency

                                  Shikshak Colony, Pimple Nilak, Dist. Pune

                                  versus

Respondents             :         1)  The State of Maharashtra, through its

Collector, Amravati

2) The Conservator of Forest, Motivation

Circle, M. S. Camp, Amravati

3) Smt Sumitra wd/o Manoharrao Bhute,

aged about 50 years, Occ: Household

4) Ku Rajani d/o Manoharrao Bhute, aged

about 28 years, Occ: Education,

5) Ravindra Manoharrao Bhute, aged about

27 years

6) Rajesh Manoharrao Bhute, aged about 26

years,

All Nos. 3 to 6 are residents of Bhagwan

Nagar, Amravati

Shri S. G. Jagtap, Advocate and Shri S. S. Godbole, Advocate with him for

the appellants

Shri B. M. Lonare, Asst. Govt. Pleader for respondents no. 1 and 2

None appears for respondents no. 3 to 6

Coram : S. B. Shukre, J

Dated : 16th November 2017

Oral Judgment

1. This appeal questions legality and correctness of the

judgment and order dated 9th August 2005 delivered in MACP No. 52 of

2001 by the Member, Motor Accident Claims Tribunal, Amravati.

2. The original appellant has expired last year during the

pendency of this appeal and the appeal is being prosecuted by his legal

heirs (respondents no. 3 to 6).

3. Deceased appellant was Range Forest Officer attached to the

office of Conservator of Forest, Amravati and was kept in the flying squad

that was formed by the Conservator of Forest to control illicit trade in

teak wood, forest produce and wild life. He had also the authority to

drive the vehicles belonging to the Forest Department given the nature of

his job which required taking urgent calls, paying surprise visits to various

destinations and take immediate action, as may be necessary, in the fact

situation of the time.

4. In the night of 14.1.2001, the deceased appellant received a

message that illicit teak wood was being unloaded at Sawmill in Amravati

and he was required to take immediate action without losing any time.

He had a talk with his superior Shri Bhosle (PW 2) in this regard. He told

his superior officer that he would call the driver of the jeep bearing

registration number MGS 579 which was at his disposal and then conduct

the raid. But, his superior officer asked him to not waste any time in

waiting for the driver lest the truck loaded with illicit teak wood would

vanish. Deceased appellant, therefore, decided to himself drive the jeep

in order to conduct the raid and so he started at about 11.35 pm. As a

precautionary measure, he also took with him his son since it was night

time. He proceeded to Mahavir Sawmill driving the jeep and when the

jeep came in front of Dr Jamthe's Hospital, near Congress Nagar,

Amravati, one Luna approached from the opposite direction and in no

time, it came towards the Jeep and dashed against it. The rider of the

Luna fell down on the road having sustained severe injuries. Deceased

appellant took the rider of Luna to the hospital where he was declared

dead. Deceased appellant went to Frezarpura Police Station of Amravati

and lodged the report of accident. On this report, offence punishable

under Section 304-A of the Indian Penal Code came to be registered

against him for causing death due to rash and negligent driving. Spot

panchanama, inquest panchanama and postmortem examination were

carried out. Necessary investigation was made. Meanwhile, dependents

of deceased Manohar Bhute filed claim petition under Section 166 of the

Motor Vehicles Act seeking compensation from the deceased appellant

and respondent no. 2, the employer of deceased appellant, for the

untimely death of Manohar Bhute.

5. Deceased appellant as well as respondent no. 2-employer

contested the claim petition by filing separate Written statements. It was

submitted by deceased appellant that he drove the vehicle in the course of

discharge of his official duty and that the accident occurred solely due to

rash and negligent driving of two-wheeler (Luna) by its rider, deceased

Manohar Bhute and there was no fault whatsoever on the part of

deceased appellant in causing the accident. Respondent no. 2 admitted

that at the time of accident, deceased appellant drove the vehicle during

the course of his official duty. Respondent no. 2 stated that the accident

did not occur due to rash and negligent driving by the deceased and

further stated that the criminal court acquitted the deceased appellant of

the offence punishable under Section 304A of the Penal Code. At the

same time, it also stated that if at all any compensation was to be

granted, respondent no. 2 being the Government Department could not

be burdened with any liability to pay the compensation.

6. On merits of the case, the Tribunal found that the deceased

appellant as well as respondent no. 2 both were jointly and severally

liable to pay the compensation to the dependents of the deceased and by

the impugned judgment and order, granted compensation of Rs.

6,46,936/- together with interest @ 9% per annum from the date of

petition till realization to the claimants who are respondents no. 3 to 6 in

the present appeal. Not being satisfied with the same, the deceased

appellant filed this appeal which is now being prosecuted by his legal

heirs.

7. I have heard Shri S. S. Godbole, learned counsel for the legal

heirs of deceased appellant and Shri B. M. Lonare, learned Assistant

Government Pleader for respondents no. 1 and 2. Nobody appears on

behalf of respondents no. 3 to 6, the original claimants though duly

served on merit. I have gone through the record and proceedings of the

case including the impugned judgment and order.

8. Now, the following points arise for my determination:

(1) Whether the claimants have proved that the accident

which took place on 14.1.2001 was a result of rash and

negligent driving on the part of driver (deceased appellant)

of the offending jeep ?

(2) Whether the deceased appellant through his legal

representatives has proved that the accident in question

had occurred only due to rashness and negligence in

riding the Luna bearing registration number MH-27/B-

2208 rode by deceased Manohar Bhute ?

        (3)      Whether any compensation is due and payable 

        to the claimants ?

9. The first two points are interlinked with each other and,

therefore, they have to be dealt with together. The claimants have relied

upon the sole testimony of their witness, PW 1 Sumitra and the police

papers in the nature of first information report; spot panchanama; inquest

panchanama' and post-mortem report (exhibits 41, 42, 43 and 44

respectively). PW 1 Sumitra does not say anywhere that she was an eye

witness to the accident. Police papers also do not disclose that she was an

eye witness to the accident. Rather, the picture that emerges is that P.W. 1

Sumitra had no occasion to witness the accident in any manner. Inspite

of this, the Tribunal has recorded a finding that PW 1 Sumitra had

witnessed the accident, which is erroneous. The Tribunal, it is seen from

the impugned judgment and order, has only considered evidence of P.W. 1

Sumitra and the circumstances disclosed by police papers, particularly,

the first information report; spot panchanama and inquest panchanama

(exhibits 41, 42 and 43 respectively). The Tribunal has not given any

importance to the evidence of deceased appellant who examined himself

as a defence witness no. 1. The Tribunal has not appreciated in any

manner the evidence of DW 1 Rajendra although, admittedly, he was an

eye witness to the accident. This is a perversity noticed in the impugned

judgment and order. Now, this Court will be required to consider not only

the evidence of P. W. 1 Sumitra, but also the defence evidence as well as

the circumstantial evidence.

10. If P.W. 1 Sumitra was not an eye witness and D. W. 1

Rajendra was an eye witness to the accident, we would have to say that

this is a case wherein the best possible evidence is available. If that is so,

it is the duty of the Court to evaluate the worth of such best evidence

available on record first.

11. DW 1 Rajendra has narrated all the facts and circumstances

prior to and after the occurrence of the incident. He stated that at about

11.35 pm on 14.1.2001, he was driving the Jeep by keeping it to the left

side of the road and when it approached the road near Jamthe Hospital,

he saw one Luna approaching from the opposite direction. He stated that

when the Luna was at a distance of 15 feet from his jeep, there was a

sudden change in the direction in which Luna was being rode. According

to him, the Luna drifted towards the Jeep and after noticing wayward

movement of the Luna, DW 1 Rajendra suddenly applied the brakes of the

Jeep and managed to stop it on the road, but the Luna dashed against the

Jeep. Now, if we look at his cross-examination, we find that not a single

assertion out of all these facts so affirmatively stated by DW 1 Rajendra

has been controverted or denied in any manner by the claimants. There

is not a single suggestion of denial of any of these facts put to D.W. 1

Rajendra by the Advocate who conducted cross-examination on behalf of

the claimants. The only circumstance that has been brought on record is

that DW-1 Rajendra was not a regular driver, but that makes no difference

in this cases as admittedly he had a licence to drive the vehicle and once

it is accepted that he possessed a driving licence, no one can say that he

had no or had imperfect skills to drive the Jeep as has been held by the

Tribunal, albeit wrongly. So, it has to be taken that this evidence of D.W.

1 Rajendra has been accepted by the claimants. Same is true about

respondent no. 2 which did not cross-examine D.W. 1 Rajendra. As

against this, the evidence of PW 1 Sumitra to the effect that the accident

took place only due to rash and negligent driving by deceased appellant,

in my considered opinion, would not stand to the scrutiny of law, even for

a moment, the reason being that P.W. 1 Sumitra was not an eye witness

to the accident and her knowledge about the facts relating to the

accident was derived from what was stated in the police papers i.e. first

information report, spot panchanama and inquest panchanama.

Therefore, the testimony of P.W. 1 Sumitra on the point of rash and

negligent driving of the jeep deserves to be rejected and it is rejected

accordingly.

12. This would mean that the evidence of D.W. 1 Rajendra

sufficiently discloses that there was a high degree of probability that the

accident occurred not because of rashness or negligence exhibited by

deceased appellant in driving the Jeep, but only because of rash and

negligent driving of Luna by deceased Manohar Bhute.

13. The inference so drawn by me receives further support from

the other evidence on record. This evidence relates to circumstantial

evidence in the nature of spot panchanama (exhibit 42); conduct of the

deceased appellant post accident and the acquittal of the deceased

appellant of the criminal charge relating to the offence punishable under

Section 304A of the Indian Penal Code for this very incident.

14. I have already stated that D.W. 1 Rajendra asserted before

the Court that after seeing Luna being rode in a wayward manner, he had

applied brakes of the Jeep and this evidence has not been controverted in

any manner by the claimants. This evidence receives support from the

spot panchanama (exhibit 42) which discloses that tyre or brake marks

caused by rubbing of tyres against surface of the road were there and

these brake marks extended upto 25 feet distance at the spot of incident.

This evidence obviously supports fully the version of D.W. 1 Rajendra that

he was required to apply the brakes when he saw that Luna rider had lost

control over the vehicle and had started approaching the Jeep.

15. There is also one more fact which is worth considering. At

the time of accident, admittedly, there was no traffic on the road. It was

completely empty except for these two vehicles. If that was the case,

there was no reason for these two vehicles to appear in front of each

other and collide with each other especially when the driver of the Jeep,

PW-1, was driving the Jeep by keeping it to the left or correct side of the

road. In order that such an incident takes place, there must be a situation

where two vehicles appear in front of each other in such a manner as to

leave no scope for drivers of either of them or both of them to apply

brakes and avoid the collision. But, even such a situation on an empty

road would not ordinarily emerge unless one of the drivers of the vehicles

loses control over his vehicle. This seems to have happened in the

present case. Here, the vehicle which went out of control was the Luna

as the Jeep was on its left or correct side of the road and the brake marks

were not of Luna but the Jeep. The reasons for losing of its control by the

Luna rider are not known, however, the fact remains that it was this

vehicle which lost control and this is the reason why it suddenly came in

front of Jeep which was in a standstill position at the time when the

collision took place. It is also worthy to note at this stage that the

deceased appellant has been admittedly acquitted of the criminal charge

of causing death by negligence punishable under Section 304A of the

Indian Penal Code. This fact when considered together with other

evidence discussed so far, would support the defence of the deceased

appellant. All these circumstances only bolster up the inference already

drawn.

16. D.W. 1 Rajendra has also stated in his evidence that having

seen the Luna rider sustain severe injuries, he took him to Jamathe

Hospital for giving him medical treatment, but he was told that the

doctor was out of station and, therefore, he took him to Irwin Hospital by

his Jeep where he was declared dead by the medical authority. He has

further stated that thereafter he went to Frezerpura Police Station and

lodged a report of the accident. All these facts are not denied by the

claimants. They establish that deceased appellant conducted himself in

this case in a manner expected of a responsible Government officer, who

also exhibited his samaritarian tendency. If the deceased appellant was

really at fault, he would not have lent his help the way he has done in the

present case and also would not have lodged report with the Police

Station which usually happens in cases where the drivers of such vehicles

are at fault. The conduct of DW 1 Rajendra certainly speaks in his

support and shows that he acted all throughout in a bonafide manner,

thereby giving an assurance that the inference of no fault on his part

drawn by me is correct.

17. All these material aspects of the evidence available on record

have not been considered by the Tribunal and the result is of a perverse

conclusion that the accident occurred in the present case due to rashness

and negligence on the part of the Jeep driver and there was no fault on

the part of the Luna driver. The evidence indicates, which I have already

said, that it were only the deceased Manohar riding the Luna in question,

who was at fault in causing of the accident. Points no. 1 and 2 are

answered accordingly.

18. Having found that deceased Manohar, the Luna rider, was

only at fault in causing of the accident in the present case, he would have

to be termed as a tort feasor and a person entitled to receive no

compensation under Section 166 of the Motor Vehicles Act, which is a

provision based upon fault liability. Point no. 3 is answered accordingly.

19. This appeal deserves to be allowed and it is allowed

accordingly. Impugned judgment and order are quashed and set aside.

Claim petition filed by respondents no. 3 to 6 stands dismissed. Parties to

bear their own costs.

If any amount has been recovered from the deceased

appellant by respondent no. 2, the same shall be refunded to his legal

heirs by respondent no. 2 in three months and respondent no. 2 shall

have the liberty, which it may exercise, to recover the amount which is

paid to the original claimants, in accordance with law.

S. B. SHUKRE, J

joshi