Bombay High Court
Sahebrao Gulabrao Zaware Died Thr Lrs ... vs Yamuna @ Sushila Navnath Auti And Ors on 14 August, 2024
2024:BHC-AUG:17888
FA-3948-2022 +.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 3948 OF 2022
WITH CA/17116/2022 WITH FA/3949/2022
Sahebrao Gulabrao Zaware (deceased)
through LR's and Anr ...Appellants
Versus
Smt. Yamuna @ Sushila Navnath
Auti and Ors ...Respondents
***
• Mr. Shivaji T. Shelke, Advocate for Appellants
• Mr. Rajendra D. Kasar, Advocate for Respondents
***
CORAM : KISHORE C. SANT, J
RESERVED ON : JULY 17, 2024
PRONOUNCED ON : AUGUST 14, 2024
ORDER :
1. Both these Appeals are by the same person
arising out the same incident. Respondents are also the
same. Therefore, both these Appeals are heard together.
First Appeal No. 3948/2022 arises out of the common
judgment in MACP No. 128/2016 dated 30.08.2022 passed
by learned Member, MACT, Ahmednagar wherein the
Appellant is directed to pay compensation to
Respondents in a death claim. So far as the First
Appeal No. 3949/2022 is concerned, this is against MACP
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No. 329/2016 wherein the Claim Petition of the present
Appellant came to be dismissed against Respondents.
2. The peculiar facts giving rise to present
Appeals are that on the date of accident Sahebrao,
Original Claimant in MACP No. 329/2016, now deceased,
was riding his Moped and going from Takli-Dhokeshwasr-
Vasunde Road. Whereas motorcycle of deceased Navnath
was coming in opposite direction. Both these vehicles
collided to each other. In the accident, Navnath died.
Respondents, dependents of Navnath, filed MACP No.
128/2016 against Appellant/Sahebrao. On receipt of
notice, Sahebrao also filed claim Petition no. 329/2016
against Respondents seeking compensation towards
injury. The Court held that the vehicle of Sahebrao is
responsible for the accident. Navnath was also held to
be negligent and deducted 50% towards contributory
negligence on the part of Navnath. Both the vehicles
were admittedly not insured and, therefore, there is no
insurance company on record.
3. Shri. Shivaji Shelke, learned Advocate for the
Appellant, vehemently argued that Sahebrao was riding
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on Moped and naturally could not have been in a high
speed. His age was around 70 years when the accident
took place. Whereas deceased Navnath was of 43 years.
He was riding on motorcycle and was in high speed. The
accident took place in the middle of the road and thus,
it cannot be said that the Sahebrao was responsible for
the accident. Both the riders admittedly got injured.
Unfortunately, Navnath died as he fell down on the tar
road. Sahebrao fallen on the side of the road and did
not receive fatal injuries. It was the handle of the
motorcycle that dashed the handle of Moped. It is the
motorcycle which dragged Sahebrao up to 6-7 ft towards
north. The observation of the Court that the collision
occurred on the middle portion of the road and,
therefore, both the riders are responsible to acccident
is not correct. There is evidence to show that Navnath
was overtaking one Tempo vehicle standing on the road
from his side and thus, he came in the middle of the
road and that is how accident happened. In fact it is
deceased Navnath who was 100% negligent in driving the
motorcycle. He thus submits that claim Petition No.
128/2016 ought to have been rejected and claim Petition
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of Sahebrao ought to have been allowed.
4. He further submits that Navnath was driving in
northern direction from south on the west side of the
road. Sahebrao was driving Moped in a northern
direction and was on the east side of the road. The
accident spot is on the east side of the road which
clearly shows that deceased Navnath was in wrong
direction. There was a slope in south north direction
and, therefore, he was in high speed. While trying to
overtake a tempo, he dashed to the Moped. From the spot
panchnama, this fact is clear that both the vehicles
were on the east side of the road. Respondents could
not prove that Sahebrao was negligent so as to allow
their claim Petition. In the criminal case, Sahebrao is
acquitted which shows that he was not responsible for
the accident. He also submits that Sahebrao was
unconscious for six days and he was, therefore, not in
a position to know or to remember the number of Tempo
vehicle. His Moped vehicle was dragged by motorcycle.
The variance in the evidence is minor, does not affects
the merits of the case. He thus prays that both Appeal
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deserves to be allowed. In support of his submissions,
he relied upon in case of Narayan Kalangutkar and Anr
vs. New India Insurance Co. Ltd and Others, 2012 (2)
Mh.L.J. 803 and Jayashri Vijayasingrao Khalate and Ors
vs. Bhagivatala Attarchand and Ors, First Appeal No.
379 of 1985 decided by the Division Bench of this Court
at Principal Seat.
5. Mr. Kasar, learned Counsel for Respondents,
vehemently argued that impugned judgment is passed
after rightly appreciating the evidence on record. He
submits that evidence of Sahebrao is inconsistent with
case. The fact of overtaking of the vehicle is not at
all proved. He supports the impugned judgment.
6. In the case of Narayan Kalangutkar (supra) it
is held that to claim compensation claimants have to
prove rashness and negligence on the part of the driver
of the vehicle. It is only when the negligence of the
driver is proved, the owner and insurer of the vehicle
are liable to pay compensation to victim and legal
heirs. This judgment is based on judgment of Hon'ble
Supreme Court in case of Minu B. Mehta and Another vs.
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Balkrishna Ramchandra Nayan, (1977) 2 SCC 441. In the
judgment of Jayashri Khalate (supra) the Division Bench
has held that Tribunal has drawn conclusion that the
deceased in that case was negligent in driving his
motorcycle which resulted in an accident and its claim
was dismissed. High Court did not interfere with the
said judgment. It was proved in that case that there
was truck standing on the other side of the road
opposite the car and the motorcycle came into contact
with car must have overtaken the truck. A conclusion
was drawn that the deceased on the motorcycle must have
gone beyond the centre of the road almost on right
side. The car was standing in incline and thus held
that it could not have gone as fast as alleged in the
claim.
7. In the present case, therefore, the argument
of Mr. Shelke, learned Advocate, requires consideration
that Sahebrao was driving Moped in a slow speed whereas
deceased Navnath was riding motorcycle in a high speed.
In that view of the matter one more thing that needs to
be considered is the impact of the accident. It has
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come on record that it was Sahebrao who was dragged for
6-7 ft. Necessarily showing that impact of dash of
motorcycle of Navnath was more. He dragged the Moped.
Thus, this Court is persuaded to believe version of the
Appellant/Sahebrao. This is on the backdrop of the
evidence of Sahebrao that there was a temp standing on
the road and while overtaking said stationary vehicle
Navnath come in centre of road.
8. Considering the judgments cited by the parties
and the arguments and documents on record, this Court
finds that neither of the parties could prove
negligence on the part of the other party. Panchnama
shows that the accident took place in the middle of the
road, slightly on the east side. It is difficult to
come to any conclusion on the basis of the spot
panchnama that exactly which vehicle was responsible
for the accident. Even trial Court has considered the
case of contributory negligence and awarded only 50%
compensation to the claimants in MACP No. 128/2016.
This finding is not challenged by the claimants in that
claim Petition. So it is clear that they have accepted
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the fact of contributory negligence. It was further
required to be proved by them that there was negligence
on the part of the Sahebrao Original Claimant in MACP
No.329/2016. No clear evidence has come on record to
show that he was responsible to an accident.
9. Considering all above, this Court finds that
there is no sufficient material to come to conclusion
that deceased Sahebrao was responsible for the accident
so as to make him liable to pay compensation. Hence,
following order.
O R D E R
(a) First Appeal No. 3948/2022 stands allowed
Judgment and order passed in MACP No.
128/2016 is quashed and set aside.
(b) Consequences to follow.
(c) First Appeal No. 3949/2022 stands
dismissed. No order as to costs.
(d) Pending civil application, if any, stand
disposed of.
(KISHORE C. SANT, J.)
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