Bombay High Court
M.S.R.T.C.Thro.Divisional ... vs Shakuntala Santosh Bendase And ... on 21 July, 2022
Bench: S. G. Dige
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1311.04FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1311 OF 2004
Maharashtra State Road Transport
Corporation,
Through its Divisional Controller,
Dhule. .. APPELLANT
VERSUS
1. Shakuntala Santosh Bedse,
Age 42 years, Occ. Household.
2. Sandhya d/o. Santosh Bedse,
Age 22 years, Occ. Education.
3. Anil Santosh Bedse,
Age 20 yeasr, Occ. Education.
4. Chandrakant Santosh Bedse,
Age 19 years, Occ. Education.
All Residents of Sakri,
Taluka Sakri, District Dhule. .. RESPONDENTS
...
Mr.D.S.Bagul, Advocate for the appellant.
Mr. Sanket N. Suryawanshi, Advocate for respondent nos.1
to 4.
...
CORAM : S.G.DIGE, J.
Reserved on : 29.06.2022
Pronounced on: 21.07.2022
::: Uploaded on - 22/07/2022 ::: Downloaded on - 23/07/2022 17:39:30 :::
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1311.04FA
JUDGMENT :
1. Being aggrieved by the judgment and award
passed by the learned Member, Motor Accident Claims
Tribunal, Dhule, directing the appellant to pay to the
respondents a sum of Rs.1,29,776/- with costs along with
interest, the appellant has approached this Court.
2. Brief facts of the case are under :-
It is the case of the claimants (respondents) that on
05.12.1988 at about 1.30 p.m. when deceased Santosh
Bedse, was traveling on his Rajdoot motor cycle along with
his friend Jagdish Bhika Bhadane, Bus bearing No. MWQ
6251 came from opposite direction, which was driven by
Bus driver (original respondent no.2) in a high speed rashly
and negligently, gave dash to Rajdoot Motor Cycle from
front side. In the said accident, Santosh Bedse and his friend
died on the spot. The damage was caused to motor cycle to
the tune of Rs.15000/-.
3. The appellant contested the claim petition by
1311.04FA
filing written statement before the learned Tribunal
contending that driver of the bus was not negligent in
driving the bus. The deceased himself was at fault and
without observing rules, tried to over take another bus in
rash and negligent manner, as a result of which the accident
took place. Actually, it was negligence of deceased and not
bus driver, therefore, prayed for dismissal of the petition.
4. The learned Member, Motor Accident Claim
Tribunal has been pleased to partly allow the claim petition
and awarded the compensation as referred above. Against
the said order, this appeal.
5. The learned counsel for the appellant has raised
the following points :-
(A) That the learned Member of the Tribunal failed
to consider that the motor cyclist was on the
wrong side, therefore, the accident took place.
(B) That the act of trying to overtake a vehicle
without verifying about on-coming traffic is an
act of negligence.
1311.04FA
(C) That merely because the vehicle in front had
allegedly given signal to overtake, does not
mean that the motor-cyclist should have
proceeded to over-take without verifying about
the vehicles coming from the opposite side.
(D) That the learned Member of the Tribunal failed
to appreciate that the motor cyclist had not
verified about the on-coming traffic and on
account of his error of judgment the accident
had taken place.
(E) That the ST Bus was on the correct side and the
driver had not committed any breach of duty or
rule and hence he was not negligent.
(F) That the learned Member of the Tribunal failed
to discuss the duties of the motor-cyclist while
trying to overtake another vehicle and he has
merely considered the duties of the Appellant's
driver.
(G) That the driver's version should have been
accepted and it was wrongly disbelieved.
(H) That the bus is bound to be in great speed, as it
was a clear road and at any rate speed is not a
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criteria for fastening liability.
(I) That the question of negligence was wrongly
decided.
(J) That at any rate it is a case of contributory
negligence. Further, the amount of income and
dependency calculated are excessive.
(K) That Multiplier adopted and amount awarded is
on the higher side.
(L) That no deduction is granted for lump sum
payment.
(M) That the judgment and award under challenge
are against equity, justice and good conscience.
6. The learned counsel for the respondents
submits that spot panchnama shows that bus was in high
speed. The S.T. driver could not control his bus as it was in
a high speed. The deceased were dragged to the distance of
110 feet, it shows that the bus was in high speed. The driver
of the bus was negligent while driving the bus. The order
passed by the Tribunal is legal and valid.
1311.04FA
7. I have heard both the learned counsel. Perused
the judgment and award passed by the learned Member,
Motor Accident Claims Tribunal.
8. Appellant has raised mainly two grounds in
present appeal-(i) negligence of deceased and (ii) quantum
of amount granted as compensation.
9. Firstly, I would deal with the issue of
contributory negligence. It is contention of the learned
counsel for the appellant that the deceased overtaken the
bus wrongly due to which accident is occurred.
10. Admittedly there is no eye witness to the
incident, hence who was negligent for accident can be seen
from the evidence on record. The bus driver (respondent
no.2 in claim petition) Dharma Pundlik Nandode examined
himself at Exhibit-35. He stated that he had seen Taloja-
Shirdi bus was coming from opposite direction, the said bus
given him side. The motor cyclist, who were following that
bus thought that signal was given to them by that bus, they
1311.04FA
tried to overtake that bus and dashed against bus of this
witness. He further stated that his bus speed was 35 to 40
per hour per kilometer and motorcyclist were in speed. In
cross examination, this witness stated that he cannot assign
any reason why he has not mentioned in the report given by
him, about accident occurred due to overtaking.
11. In cross examination, this witness stated that his
bus was stopped at the distance of 5 feet after giving dash.
The evidence of this witness is negated by the documents
produced on record. Complaint was filed against
respondent no.2 for accident, it is at Exhibit-28. It was
recorded as per the information given by the respondent
no.2. After accident respondent no.2 himself went to Police
Station and informed police about the incident. In said
information respondent no.2 has not stated that accident
occurred due to overtake of bus by the deceased. The spot
panchanama is at Exhibit-30. It is significant to note that
this panchanama shows that bus dragged the deceased and
his friend to 110 feet. It shows bus was in very high speed
and falsifies the evidence of respondent no.2 that his bus
1311.04FA
was in moderate speed and stopped at 5 feet distance after
accident. When driver of bus (respondent no.2) himself
informed about accident to Police, he had not stated that
accident was caused due to wrong overtake by the
deceased. The method and manner in which the accident
has taken place leaves no room for doubt that it was caused
due to negligence of bus driver. Man may lie but
circumstances do not is the cordial principle of evaluation of
evidence. No efforts made by the appellant to examine the
driver of Taloja-Shirdi bus to corroborate evidence of driver
(respondent no.2). Considering the documentary evidence
produced on record and evidence of respondent no.2, it
proves that accident was occurred due to negligence of
respondent no.2 and not the deceased.
12. In respect of issue of quantum of compensation,
it is contention of the learned counsel for appellant that
compensation is awarded on higher side. The learned
Tribunal has awarded Rs.1,14,776/- exclusive of N.F.L.
amount, while awarding this compensation the learned
Tribunal has considered all aspects. Hence no interference is
1311.04FA
required.
13. In view of the above, I pass the following
order :-
ORDER
The First Appeal is dismissed.
[S.G.DIGE]
JUDGE
sga/-
