Mah.State Raod Trasnport ... vs Smt Vanita Gulab Gaikwad And 7 ...
2017 Latest Caselaw 7523 Bom

                     fa.383.06.jud                      1


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH, NAGPUR

                                            FIRST APPEAL NO.383 OF 2006


                     Maharashtra State Road Transport Corporation,
                     Through the Depot Manager, Pune Division,
                     Pune.                                                          .... Appellant

                            -- Versus -

                     01]    Smt. Vanita wd/o Gulab Gaikwad,
                            Aged about 30 Yrs., Occ. Household.

                     02]    Master Uday w/o Gulab Gaikwad,
                            Aged about 14 Yrs., Occ. Student.

                     03]    Akshay s/o Gulab Gaikwad,
                            Aged about 9 Yrs., Occ. Student.

                     04]    Nilkanth s/o Sitaram Gaikwad,
                            Aged about 70 Yrs., Occ. Nil.

                     05]    Sau. Bayanabai w/o Nilkanth Gaikwad,
                            Aged about 63 Yrs., Occ. Household.

                     06]    Chandrakant Tukaram Mundhe,
                            Aged abut 35 Yrs., Occ. Driver.
Appeal dismissed            R/o Padmapur Station Road,
against Res..Nos.6          Aurangabad.
& 7 vide Registrar
(J)'s Orders dated
24/01/2012      &    07]    Muntazas Hussain w/o Mohammed Hussain,
07/09/2007                  Aged about 45 Yrs., Occ. Business,
                            R/o Petrol Pump, Bhadrawati,
                            Tq. Bhadrawati, Distt. Chandrapur.

                     08]    National Insurance Co. Ltd.,
                            Through its Regional Manager,
                            Deccan Gymkhana Road, Pune.                       .... Respondents




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 fa.383.06.jud                            2


Shri S.C. Mehadia, Advocate for the Appellant.
None for the Respondents.

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : SEPTEMBER 25, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

award dated 07/02/2006 passed by the Motor Accident Claims

Tribunal, Chandrapur (hereinafter referred to as 'the Tribunal' for

short) in M.A.C.P. No.142/2000. By the said judgment and award,

Tribunal awarded compensation of Rs.11,36,000/- with interest at

the rate of 9% per annum from the date of petition till its

realization jointly and severally against appellant - M.S.R.T.C. and

driver of S.T. Bus.

02] For the sake of convenience, the parties are referred

in their original status as they were referred before the Tribunal.

03] The facts giving rise to the appeal may be stated in

nutshell as under :

i. Claimant no.1 - widow, claimant nos.2 & 3 - sons and

claimant nos.4 & 5 - father and mother of deceased

Gulab Gaikwad claimed compensation under Section

166 of the Motor Vehicles Act on account of death of

Gulab Gaikwad in a vehicular accident. It was the

case of claimants that on 06/03/2000, Gulab was

travelling in a Jeep bearing No.MH-35/9569 from

Chandrapur to Pune. At around 09:00 p.m., Jeep came

near village Kondhapuri on Pune-Nagpur Road. That

time, S.T. Bus No.MH-12/UA/8140 ('offending bus' for

short) came from opposite direction in a high speed

and gave a dash to the Jeep in which Gulab was

travelling. Due to dash, Gulab sustained multiple

injuries to his vital organs and died. According to

claimants, opponent no.1, owner of offending bus and

opponent no.2 it's driver were liable to pay

compensation, as accident occurred due to rash and

negligent driving of the offending bus by opponent

no.2.

ii. Regarding income of deceased, it is submitted that

Gulab was serving as Centre Head in a primary school

and getting Rs.10,400/- per month. He was the only

breadwinner in the family. Due to untimely death of

the sole earning member, claimants suffered mental

pain and agony. They were deprived of love and

affection. They assessed compensation to the tune of

Rs.10,00,000/- against opponent nos.1 & 2.

iii. Opponent no.1 resisted the petition vide written

statement [Exh.21]. The factum of ownership is not in

dispute. It was admitted that opponent no.2 was

serving as driver with opponent no.1. Occurrence of

accident was also not in serious dispute. It was

submitted that accident occurred due to rash and

negligent driving of Jeep by it's driver. It was

submitted that driver of Jeep was not holding a valid

and effective driving licence. Alternatively, plea of

contributory negligence was raised by opponent no.1.

iv. Opponent no.3 is owner of Jeep. He was duly served

with summons, but remained absent. Petition,

therefore, proceeded ex parte against opponent no.3.

v. Opponent no.4 is insurer of the Jeep. Petition was

resisted by opponent no.4 by filing written statement

[Exh.26]. It denied involvement of Jeep in the

accident. According to insurance company, accident

occurred due to rash and negligent driving of

offending bus by it's driver. It was submitted that

police registered an offence against the driver of

offending bus. It was submitted that the driver of

Jeep was not holding a valid and effective driving

licence. As such, there was breach of terms and

conditions of policy and liability cannot be fastened to

insurance company.

vi. Based on the rival pleadings and submissions raised

by the parties, Tribunal framed issues at Exh.27.

Claimants examined two witnesses viz. PW-1 Vanita

Gaikwad, widow of the deceased and PW-2 Kewalram

Motiram Pise, Junior Assistant in Panchayat Samiti,

Bhadrawati to substantiate their claim. Opponent

no.1 examined a solitary witness Chandrakant

Mendhe, driver of the bus in support of it's defence.

vii. In addition to evidence, parties relied upon series of

documents. Considering the oral and documentary

evidence, Tribunal came to the conclusion that

accident occurred due to rash and negligent driving of

offending bus by opponent no.2 and opponent no.1,

being the owner, is vicariously liable, whereas driver

of bus is personally liable to pay compensation. In

this way, joint and several liability came to be saddled

upon opponent nos.1 and 2. Being aggrieved thereof,

opponent no.1 challenged the impugned judgment

and award in this appeal.

04] Heard Shri S.C. Mehadia, learned Counsel for

appellant. Two fold submissions have been made on behalf of

appellant - (i) Plea of contributory negligence came to be

negatived by the Tribunal on the basis of oral evidence of

claimant no.1 though she admitted in cross examination that she

was not an eyewitness to the accident and (ii) Claimant no.1 got

compassionate appointment in place of deceased and this fact

was not taken into consideration by the Tribunal.

05] Opponent no.1 raised plea of contributory negligence

in the written statement. In support of it's defence, opponent

no.1 examined DW-1 Chandrakant Mendhe, driver of S.T. Bus at

the relevant time, who was opponent no.2 in the petition. It is

stated by Chandrakant Mendhe that place of accident is a

turning of the road. That time, a truck was coming from opposite

direction. He stated that Jeep driver attempted to overtake the

truck and in that attempt did not get a sufficient space, which

resulted into a collision between Jeep and S.T. Bus. According to

driver of bus, accident occurred due to negligence on the part of

Jeep driver.

06] It is admitted by Chandrakant Mendhe in the cross-

examination that police registered offence against him in respect

of accident. On perusal of police papers particularly F.I.R. and

spot-panchnama, it can be seen that accident occurred due to

sole negligence of driver of bus. True, claimants have not

examined an eyewitness to the accident. In view of police

papers, non-examination of an eyewitness would not come in the

way of claimants. Needless to state that plea of contributory

negligence raised by opponent no.1 was required to be

established by opponent no.1. There is no whisper in the police

papers i.e. F.I.R. and spot-panchnama that driver of Jeep was

responsible in any manner for occurrence of accident. On the

basis of police papers, plea of contributory negligence raised by

opponent no.1 has been rightly negatived by the Tribunal.

07] So far as appointment of claimant no.1 on

compassionate ground is concerned, evidence of claimant no.1

indicates that on 07/04/2005, she joined as Clerk in Zilla

Parishad on compassionate ground. She gets monthly salary of

Rs.6,200/-. The question is, whether in such a situation,

claimants would be disentitled to get compensation. It is not in

dispute that at the time of accident, claimants were dependents

on the deceased. Claimant nos.2 and 3 are minors and claimant

nos.4 and 5 are aged parents. Tribunal referring to the judgments

in (i) Andhra Pradesh Road Transport Corporation vs. G.

Janabhai and others - [2002 ACJ 502], (ii) Rajasthan State

Road Transport Corporation vs. Smt. Motya and others

[1998 (1) T.A.C. (Raj) 176] and (iii) Amarjit Kaur vs. State

of Punjab - [2001 A.C.J. 211 held that merely because one of

the claimants is provided with an employment, claimants would

not be dis-entitled to claim just and reasonable compensation on

account of death in a vehicular accident. The reasons recorded

by the Tribunal are supported by the judicial precedents and this

Court does not find any fault with the same.

08] Considering the monthly income of the deceased, loss

of love and affection and mental agony, it is evident from the

evidence that Tribunal assessed just, fair and reasonable

compensation. No error is noticed in the impugned judgment and

award. Thus appeal, being devoid of substance and merit, needs

to be dismissed. Hence, the following order :

ORDER

I. First Appeal No.383/2006 stands dismissed.

            II.     No order as to costs.


*sdw                                        (Kum. Indira Jain, J)