In this second appeal, the High Court allowed the appeal against a Motor Accident Claims Tribunal award that held the appellant's driver 30% negligent. The court set aside the impugned order, concluding the appellant was not responsible, and dismissed the claim petition.
Impugned order of the Tribunal set aside; Claim Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 758 OF 1995
WITH
CIVIL APPLICATION NO. 1040 OF 2005
Maharashtra State Road
Transport Corporation ..Appellants
versus
Zarina Hajaratkhan Pathan
& Ors. ..Respondents
Mr. G. S. Hegde for the Appellants.
None for the Respondents.
CORAM : D. G. DESHPANDE,J.
DATE : 1ST APRIL,2005
ORAL ORDER :
1. This Civil Application is taken out for
restoration of the appeal which was dismissed for
default by me on 24.1.2005. Sufficient cause for
remaining absent on 24.1.2005 is shown, hence Civil
Application is allowed. Appeal is restored to file.
2. Heard Mr. Hegde for the appellants. Nobody
is present for the respondents. This appeal is
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filed by Maharashtra State Road Transport
Corporation against the Award of MACT, Solapur,
dated 29.8.1994. That award was made in group of
Claim Petitions. This Appeal arise out of Claim
Petition No. 231 of 1988 in which the appellants
were held liable for payment of Rs.50,510/- with
interest at the rate of 12% from the date of
presentation of the petition till realisation of the
amount within three months from the date of award
and in default interest at the rate of 15% on the
amount.
3. Accident in this case occurred in the
following manner:
. Accident took place on 14.8.1988 on Solapur
Barshi Road. The deceased Hajaratkhan Dautkhan
Pathan with Sayyed Altar Chandsaheb and Abdul Majid
Alisab had gone to village Nannaj in auto rickshaw
No.MWC-124. They were returning back to Solapur
after their work by the said auto rickshaw which was
passing by the left side of the road. Original
Respondent No.1 was driving the ST bus No.MTD-9907
rashly and negligently and therefore the accident
occurred. The Tribunal held that the S.T. driver -
original respondent was negligent to the extent of
30% and rickshaw driver was negligent to the extent
of 70% and therefore fixed the liability, which is
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under challenge in this appeal.
4. Counsel for the appellants contended that
this was a case where driver of the ST bus could not
at all be held responsible to any extent. He drew
my attention to the evidence on record and the
panchnama in support of his contention. It is
therefore necessary to see as to what is the
evidence about the accident. It is pertinent to
note that the claimants did not examine anybody to
prove the negligence of the driver or prove the
manner in which the accident took place.
5. One Zarina wife of the deceased was
examined. She had no personal knowledge about the
accident and one Vithalsingh was examined to prove
the earning of the deceased. He had also no
personal knowledge. Therefore, what remains on
record is the panchanam and the evidence of driver
of the ST bus. What he has stated is that he
started from S.T. stand Solapur at 11.30 a.m. for
Barshi. His bus reached near Bale Village and he
was about to cross one small bridge. It was a
cannel bridge. One bus in route from Kawathale to
Solapur was coming from the opposite direction. It
was approaching the channel bridge. This driver
Jafarsab gave signal by hand and also put on light
signal to allow him to enter and cross the bridge
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first. When he crossed the bridge, one rickshaw
came from the backside of the incoming bus and gave
dash to his bus. It was a mistake of the rickshaw
driver. Counsel for the appellants therefore
contended on the basis of this evidence that in view
of this evidence, to which there is no effective
cross examination, and no evidence to contradict,
the driver of the ST bus could not be held negligent
even to the extent of 30%. He drew my attention to
the panchnama, where width of the road is shown as
18 feet and there is kacha road either side of the
tar road of 1 ft. width. Driver side wheel of the
ST bus was on the kacha road at the distance of 2
feet from the edge of the tar road and the driver
side headlight of the bus was damaged. Blood stains
were seen on the bumper side of the driver of the
bus, break marks of the bus were seen on the
southern side and also on the northern side and
break marks of the rickshaw were also seen but they
were to the left side of the road and therefore the
Tribunal held that the driver was negligent.
6. As against this, one more witness Hajangir
Hanif Shaikh was examined on behalf of the claimants
as witness No.3. He was carrying gunny bags of
vegetables on his bicycle, he saw that the auto
rickshaw was going ahead, he was following auto
rickshaw, one ST bus was coming from his back side,
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the said ST bus over took auto rickshaw and one ST
bus Solapur - Barshi was coming from Solapur side
was in a high speed. One Barshi Solapur bus had
passed by the side of Solapur - Barshi bus and gave
dash to the auto rickshaw. The witness in the cross
examination admitted that there is a small bridge
near the spot of the accident. Two heavy vehicles
cannot pass at one and the same time by the said
bridge. He has stated that when auto rickshaw
reached near the bridge, Solapur-Barshi bus i.e.
the present bus was on the other side of the bridge.
7. Counsel for the appellants contended that
this witness is a got up witness because he never
came forward as a witness to the accident before the
police. His statement was not recorded and he did
not give any information to the police about the
accident. Therefore, according to him, no reliance
can be placed upon this evidence. Tribunal as
stated by me earlier held that the auto rickshaw was
completely on the wrong side and Tribunal also found
from the statement of the witnesses that all persons
in the auto rickshaw including the driver had
consumed liquor. Of course those persons whose
statements were so recorded were not examined and
therefore their statements could not be made the
basis for coming to any conclusion. But the fact
remains that the incident took place, S.T. bus had
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passed the bridge and when suddenly auto rickshaw
came from behind the other stationary bus, then it
could not be said therefore that driver of ST bus
was responsible. In view of the above the appeal is
required to be allowed. Hence, order:
ORDER
. Appeal is allowed.
. Impugned order of the Tribunal is set aside.
Claim Petition is dismissed.
. No order as to costs.
1.04.2005 (D.G. DESHPANDE, J.)
1 issue framed by the court
Whether the Motor Accident Claims Tribunal erred in holding the appellant negligent to the extent of 30% based on evidence that was challenged as unreliable.
Maharashtra State Road Transport Corporation
Zarina Hajaratkhan Pathan
D. G. DESHPANDE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court