Bombay High Court
Smt Alishanbi Haider Husain & 2 ... vs M.S.R.T.C & Another on 12 September, 2017
Bench: I.K. Jain
FA 609.06.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO.609 OF 2006
1] Smt. Alishanbi wd/o Haider Husain,
Aged about 55 years,
Occupation-Nil.
2] Ku. Rehana Parveen d/o Haider Husain,
Aged about 23 years,
Occupation-Nil.
3] Ku. Shabana Parveen d/o Haider Husain,
Aged about 21 years,
Occupation-Nil.
All residents of Ner Pingalai,
Tahsil-Morshi, District-Amravati. .. APPELLANTS
.. VERSUS ..
M.S.R.T.C.,
Through its Divisional Controller,
Shivaji Nagar, Amravati,
Tahsil and District-Amravati. .. RESPONDENT
..........
Shri Mangesh Bute, Advocate for Appellants,
Shri Ashutosh V. Wankhede h/f Shri V.G. Wankhede,
Advocate for Respondent.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : SEPTEMBER 12, 2017.
ORAL JUDGMENT
This appeal takes an exception to the judgment
and award dated 16.8.2004 passed by the Motor Accident
Claims Tribunal, Amravati in Motor Accident Claim Petition
No.327/2001. By the said judgment and award, tribunal
dismissed an application under Section 166 of the Motor
Vehicles Act filed by the dependents of Haidar Husain, who
died in a vehicular accident.
2] The facts giving rise to the appeal may be stated
in brief as under :
(i) On 25.4.1999 Haidar Husain was at S.T.
Bus stand. While boarding the bus, the door of S.T. Bus hit
him due to which he fell down on platform and sustained
injuries. He was taken to Irwin Hospital. On the next day,
he succumbed to injuries.
(ii) According to claimants, Haidar Husain
was 70 years old. He was selling confectionery and toffees
and earning Rs.3,000/- per month. Claimant no.1-wife and
claimant nos.2 and 3-daughters were dependents on the
deceased. The submission is that due to sudden death of
sole bread winner in the family, owner of S.T. Bus is liable to
pay compensation as accident occurred due to rash and
negligent act of driver of S.T. Bus. They claimed
compensation of Rs.2,00,000/- on all counts.
3] Respondent contested the claim vide written
statement (Exh.14). According to respondent, no accident
had taken place at all. It is submitted that respondent
cannot be held liable for payment of compensation in the
absence of any material to indicate occurrence of accident
and prayed to dismiss the petition.
4] On the basis of rival contentions of the parties,
tribunal framed issues at Exh.18. Claimants examined three
witnesses. PW-1 Jakir s/o Haider Husain, PW-2 Shabana
Parveen d/o Haider Husain and PW-3 Mohd. Tansil s/o Mohd.
Kasam. Respondent adduced evidence of its employee
DW-1 Subhash s/o Pandurang Tupase in support of its
defence denying the occurrence of accident.
5] Considering the oral and documentary evidence
adduced by the parties, tribunal came to the conclusion that
occurrence of accident has not been established by
claimants. In the result, petition was dismissed. This
order of dismissal is the subject matter of present appeal.
6] Heard Shri Mangesh Bute, learned counsel for
appellants and Shri Ashutosh V. Wankhede h/f Shri V.G.
Wankhede, learned counsel for respondent-MSRTC.
7] The learned counsel for appellants submitted that
death occurred on the very next day and there is a
possibility that entry was not made in the record of S.T.
Department. It is submitted that delay in FIR cannot be
considered as a ground to discard the police papers as
claimants through the police papers could establish that
accident had occurred and death was the result of injuries
received in accident. According to claimants, tribunal
adopted hyper-technical view and despite sufficient
evidence wrongly denied them compensation.
8] Per contra, learned counsel for respondent-MSRTC
submits that FIR was lodged on 5.6.1999. Accident took
place on 25.4.1999. Haidar Husain died on 26.4.1999. As
inordinate delay has not been explained, tribunal was right
in suspecting FIR and the claim was rightly negatived by the
tribunal. Another submission on behalf of respondent is that
even from police papers, it is not known that who was
driving the bus, which bus was involved in alleged accident
and no liability can be fastened to M.S.R.T.C.
9] With the assistance of the learned counsel for the
parties, this court has gone through the evidence adduced
by the claimants and respondent. So far as evidence of PW-
1 and PW-2 is concerned, it can be seen that they are not
the eyewitnesses to the accident. PW-3 Mohd. Kasam has
been examined to show that accident occurred due to rash
and negligent act of S.T. Conductor who rang bell and S.T.
Driver started bus while deceased was boarding the vehicle.
It is stated by PW-3 that on 25.4.1999 he was going to
Talegaon Dashasar. He stated that one old man was
boarding the bus and when his one leg was inside, S.T.
Conductor gave bell and door of the bus hit against the head
of old man due to which he fell down and sustained injuries.
He shifted the old man to Irwin Hospital. According to him,
incident took place between 2.30 and 3.00 pm. He states
that driver went away with the bus.
10] Against the evidence of PW-3 Mohd. Kasam,
respondent - M.S.R.T.C examined its employee DW-1
Subhash Tupase as a solitary witness. DW-1 Subhash was
looking after the work of Traffic Inspector (Accident) in S.T.
Department since August-2003. He joined S.T. Department
in 1995. He stated that S.T. Department maintains record of
each and every accident. He was duly authorized to
represent S.T. Department in the court litigation concerning
accident. He stated that as per the record entry dated
24.5.1999 regarding alleged accident does not find place in
the register maintained by the department. He stated that
record shows that no such accident had taken place.
11] So far as evidence of PW-1 and PW-2 are
concerned, as they are not the eyewitnesses to accident,
their evidence is not of much help in arriving at the
conclusion, whether accident, as alleged by claimants, had
ever occurred.
12] So far as evidence of PW-3 is concerned, in cross-
examination, he admits that there is police chowki near
platform no.10. He did not inform at the police chowki. He
stated that police recorded his statement. He did not lodge
report at Irwin Police Chowki. He stated that deceased did
not have visible injuries. Copy of statement recorded by
police is not placed on record. The conduct of the witness
in not informing at the Police Chowki and at Police Chowki of
Irwin Hospital, speaks for itself. On the other hand,
evidence of DW-1 Subhash Tupase clearly indicates absence
of an entry of occurrence of accident in the record of S.T.
Department.
13] Another significant factor in the present case is,
whether delay in lodging FIR can be a ground to discard
FIR. The learned counsel for respondent fairly concedes that
when it comes to a case like present one, it may not be so in
strict sense. However, it is submitted by the learned
counsel that from FIR, spot panchanama and other
documents relied upon by claimants, name of driver of S.T.
Bus and involvement of a particular S.T. Bus in accident is
not known. The learned counsel submits that as per FIR
offence was registered against the driver of unknown S.T.
Bus. He submits that S.T. Bus was not found on the spot and
there is no whisper even in spot panchanama that a
particular S.T. Bus was involved in accident. The learned
counsel submits that in the absence of evidence to indicate
bus number and name of the driver liability cannot be
fastened on M.S.R.T.C.
14] With the assistance of the learned counsel for the
parties, this court has perused FIR (Exh.20), spot
panchanama (Exh.21) and inquest panchanama (Exh.22). It
appears from FIR that it was lodged by Head Constable
Shrikrushnan of Police Station, Shirkhed on 5.6.1999. FIR
does not indicate source of information received by Head
Constable. Admittedly, he was not at the spot when
accident had occurred. Crime was registered against an
unknown S.T. Bus driver. From the spot panchanama, it is
evident that S.T. Bus was not on the spot and there is no
whisper regarding number of bus even in spot panchanama.
In such circumstances and particularly in the absence of
evidence to show that accident occurred due to rash and
negligent act of S.T. Driver, tribunal was right in holding that
occurrence of accident has not been proved. No perversity
or error is noticed in the findings recorded by the tribunal.
Hence, the following order :
ORDER
(i) First Appeal No.609/2006 stands dismissed.
(ii) No order to costs.
(Kum. Indira Jain, J.)
Gulande, PA
