Ajay S/O Viswanath Nirgulkar vs Smt. Chaya W/O Prakash Ashwale & ...
2018 Latest Caselaw 689 Bom

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

                         FIRST APPEAL (FA) NO. 811 OF 2006

Shri Ajay Vishwanath Nirgulkar,
aged major, R/o Mandhal, Tah.
Kuhi, District Nagpur.                                      ... APPELLANT

                                       VERSUS

1. Smt. Chhaya w/o Prakash Ashwale,
     occupation Household, R/o Ishwar
     Nagar, Near Maroti Temple, Nagpur.

2. Smt. Seems w/o Govindrao Hinge,
     aged 35 years, R/o Shivshakti,
     Opp. Wadi Police Station, Nagpur.

3. Smt. Sharmila w/o Rajendra Bante,
     aged 30 years, Occupation Household,
     R/o Killa Road, Mahal, Road.

4. Ku. Suwarna d/o Anandraoji Panchbhude,
     aged 21 years, R/o Post Wadi, District
     Nagpur.

5. Smt. Krishnabai wd/o Shrawan Panchabude,    
     aged about 75 years, R/o Wagh, Tah. Kuhi,
     District Nagpur.

6. MSRTC, Sakoli depot, District Bhandara.

7. Shri Shlikram Kachru Nandagawli,
     aged 38 years, R/o Vidarbha Housing 
     Colony, Bhandara.

8. National Insurance Co. Ltd., C.O. III,
     Durga Sadan, Balraj Marg, Nagpur.                      ... RESPONDENTS

                                    ....
Shri Asghar Hussain, Advocate for the appellant.
Shri Sanket Charpe, Advocate for respondent No.6.
                                    ....




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                                        CORAM : MANISH PITALE, J.

DATED : 19TH JANUARY, 2018.

ORAL JUDGMENT :

This is an appeal filed against the judgment and order dated

19.03.2003 passed by the Motor Accident Claims Tribunal, Nagpur in

Claim Petition No. 232 of 1999.

2. The relevant facts of the case are that the father of respondent

Nos.1 to 4, who was son of respondent No.5, was travelling in a Temp Trax

vehicle on 11.10.1998 when the said vehicle met with an accident. There

was a head on collision with a State Transport bus resulting in the death of

father of respondent Nos.1 to 4. The claim petition was filed before the

Tribunal wherein the Tribunal came to the conclusion that the accident

had occurred due to the negligence on the part of both, the driver of

Tempo Trax vehicle as also the driver of bus of State Road Transport. It

was found that the spot panchnama on record clearly demonstrated that

both the vehicles were driven in a rash and negligent manner resulting, in

the said accident.

3. It was also found by the Tribunal that this was a case of

composite negligence of drivers of both the vehicles. The Tribunal further

found that there was a breach of insurance policy as the said vehicle was

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being used for hire, while it was meant for private use. On this basis, as a

finding of breach of terms and conditions of the policy was rendered, the

Tribunal held that the respondent No.6 herein i.e. the Maharashtra State

Road Transport Corporation and the appellant who was the owner of the

Tempo Trax vehicle were, jointly liable to pay the quantum of

compensation ascertained in the impugned order.

4. The appellant, who was the owner of Tempo Trax, has filed this

appeal challenging the impugned judgment and order of the Tribunal,

which was passed on 19.03.2003.

5. Shri Asghar Hussain, learned Counsel appearing on behalf of

the appellant submits that the appellant is not raising any grievance in

respect of quantum of compensation and that the limited grievance is that

either only respondent No.6 i.e. Maharashtra State Transport Corporation

should have been liable to pay the compensation as the driver of the bus

was negligent and there was no negligence on the part of driver of Tempo

Trax, or even if it was held that respondent No.6 along with the appellant

were liable, it was for the insurance company to pay the proportionate

amount of compensation, because the finding regarding breach of

conditions of policy was unsustainable.

6. On the other hand, Shri Charpe, learned Counsel appearing on

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behalf of respondent No.6 submitted that there was no material on record

to attribute negligence entirely to the driver of the bus belonging to

respondent No.6 and that the findings rendered by the Tribunal were not

justified. None has appeared on behalf of respondent No.8/ Insurance

Company.

7. The only point that arises for determination in this appeal is

whether the appellant is justified in claiming that he cannot be held

responsible for payment of compensation because firstly, the finding

regarding negligence of the driver driving the Tempo Trax vehicle was not

sustainable and secondly even if the said finding of the Tribunal was

upheld, there was no material on record to support the finding of the

Tribunal that there was a breach of the terms and conditions of the

insurance policy.

8. I have considered the contentions raised by the learned

Counsel appearing on behalf of the respective parties, as also the evidence

and documents on record. I find that the Tribunal has discussed the issue

regarding negligence on the part of the drivers driving the two vehicles, in

detail, in the impugned judgment and order. The Tribunal has taken into

consideration the oral and documentary evidence on record, including the

spot panchnama wherein it has been recorded as to the tyre marks found

at the spot of the accident. The Tribunal has found that the spot

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panchnama read with other material on record demonstrated that the

drivers of both, the Tempo Trax and the bus, were equally liable for the

head on collision, resulting in the death of the father of respondent Nos.1

to 4. On this basis, the Tribunal concluded that it was a case of composite

negligence. Learned Counsel for the appellant submitted that the driver of

the bus belonging to respondent No.6 had not filed written statement

before the Tribunal and in the written statement filed on behalf of

respondent No.6, only vague statement was made regarding negligence on

the part of the driver of Tempo Trax.

9. It was submitted that a proper analysis of the spot panchnama

would show that the bus had swerved and travelled for longer distance as

compare to the Tempo Trax and that, therefore, the negligence could be

entirely attributable to the driver of the bus. On this basis, it was

submitted that the liability for payment of compensation ought to have

been saddled on respondent No.6.

10. I have considered the aforesaid submissions and I find that

merely because the spot panchnama recorded that tyre marks of the bus

showed that it had swerved and travelled for a little longer distance as

compared to the Tempo Trax, cannot be a ground to hold that there was

no negligence on the part of the driver of the Tempo Trax. There is no

material on record to show that the bus driver was entirely responsible for

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the head on collision. Therefore, I find that the finding of composite

negligence rendered by the Tribunal cannot be disturbed.

11. As regards the question of breach of policy, the Tribunal has

found that there was nothing on record to show that the persons travelling

in the Tempo Trax vehicle were relatives of the appellant i.e. owner of the

Tempo Trax. It was also found that there was no document on record to

show that the said Tempo Trax vehicle was authorised to carry the number

of passengers who were actually travelling at the time of incident and

further that the said vehicle was evidently being used for hire of passengers

and not for private purpose of the appellant/owner of the Tempo Trax

vehicle. The learned Counsel for the appellant has not been able to show

any documentary or oral evidence in these proceedings to demonstrate

that the aforesaid findings rendered by the Tribunal can be said to be

unjustified.

12. Therefore, having found that the Tribunal reached correct

findings on both the aspects i.e. composite negligence on the part of the

drivers of both the vehicles and the fact that there was breach of insurance

policy, I find that there is no merit in the present appeal.

Accordingly, the appeal is dismissed with no order as to costs.

JUDGE

*rrg.