1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.336 OF 1995 1. Radhakishan s/o Shaikhlal, Aged: 17 years,Minor, under guardianship of his real mother Yamunabai w/o Shaikhlal @ Genu Lokhande, aged 34 years, Occ: Household, R/o. Palwan, Taluka and District Beed. 2. Yamunabai w/o Shaikhlal @ Genu Lokhande, aged 34 years, Occ: Household, R/o. Palwan, Taluka and District Beed. .. Appellants Versus 1. Maharashtra State Road Transport Corporation, through its General Manager, Vahatuk Bhavan, Dr.Anandrao Nair Marg, Bombay 400 008. 2. The Divisional Controller, Maharashtra State Road Transport Corporation, Jalna road, Beed. 3. Syed Issaq s/o Maula Pathan, aged 49 years, Occ: Service, R/o. Paithan, Taluka Paithan, District Aurangabad. 4. Ashabai w/o Genu @ Shaikhlal Lokhande, aged 33 years, Occ: Labour, R/o. Palwan, At present residing at Pargaon Shiras, Taluka and District Beed. (R-4 deleted as per Court's order dated 24-04-2002 in C.A. No.4859/2000) .. Respondents 2 ... Mr. R.C. Patil, Advocate for the appellants. Mr. A.B. Dhongade, Advocate for respondent Nos.1 and 2. Respondent No. 3 served (Absent). Respondent No. 4 (deleted). ... CORAM : K.K. TATED, J. DATE : 9th JULY, 2009. ORAL JUDGMENT : 1. Heard learned Counsel for the appellants and learned Counsel for respondent Nos. 1 and 2. No one appeared on behalf of respondent No. 3 when the matter was called out for final hearing. Name of the respondent No. 4 is deleted. 2. Present first appeal arising out of the judgment and award dated 26-09-1994 passed by the Motor Accident Claims Tribunal / District Judge, Beed in Motor Accident Claims Petition No. 23 of 1985 by which the appellants' claim petition came to be dismissed. 3 3. The appellants are the original claimants in M.A.C.P. No. 23 of 1985. It is the case of the appellants that on 24-07-1984 Shaikh Lal @ Genu Lokhande had gone to weekly Bazar at village Hirapur. When Bazar was over, he was returning to his village Palwan by Beed - Aurangbad road. At about 6-15 p.m. a bus No. MTB-8940 was coming from his opposite direction and was going to Aurangabad side. Bus driver was driving the said bus in a rash and negligent manner. When the bus passed Namalgaon phata, Shaikhlal @ Genu was going on bicycle by the correct side of the road. The bus dashed against the bicycle. In that, he sustained injuries and thereafter died. Therefore, the appellants filed claim petition under Section 110-A of the Motor Vehicles Act, 1939 claiming the compensation of Rs. 1,00,000/-. 4. These facts were denied by respondent Nos. 1 and 2. It is the case of respondent Nos. 1 and 4 2 that at the relevant date and time, their driver i. e. respondent No. 3 was plying the said bus from Tuljapur to Paithan via Beed. When the bus was passing through Namalgaon phata, two persons were standing to the right side of the road. Out of them, the deceased suddenly came on the road and dashed against the bus and its tyre. Consequently, he was thrown away on the road and subsequently died. It is the case of respondent Nos. 1 and 2 that driver of bus tried to save him and to avoid the accident, but the efforts were in vain. The deceased was the author of the accident. The driver was not rash and negligent while driving the bus. Therefore, the appellants are not entitled to any compensation. 5. Learned Counsel appearing on behalf of the appellants, while arguing the matter, read over the judgment and submitted to the Court to pass appropriate order. He has not pointed out whether the accident took place because of the 5 negligence on the part of the driver and how the appellants are entitled to compensation. With the assistance of the learned Counsel appearing on behalf of the respondent Nos. 1 and 2 I have gone through the Record and Proceedings of the present case. The appellants, in support of their case, examined two witnesses i. e. Nirgunabai Shaikh Lal @ Genu at Exhibit - 92 and Narayan Haribhau Deokate at Exhibit - 95 as Witness No. 2. P.W. 1 deposed on the basis of hearsay and therefore, same was not considered by the trial Court. The trial Court rightly observed in Para 7 of the judgment that whatever deposed by her is hearsay. It is clear that this witness in Para 6 admitted that " I did not witness the accident." In respect of another witness Narayan Haribhau Deokate, the trial Court held that this witness was operating implement in his land. Though he was present at the time of preparing panchnama, he did not disclose to the police officer that he had witnessed the accident. Along with deceased, he 6 went to the hospital but there also he has not disclosed to the police that he had witnessed the accident. He has specifically stated in his evidence in Para 4 that " I am telling about the accident for the first time today in the Court." On the basis of these facts, the trial Court rightly discarded his evidence. 6. With the assistance of learned Counsel appearing on behalf of respondent Nos.1 and 2, I have gone through the copy of panchnama which is at Exhibit-102. The panchnama shows that road on the spot of accident runs south north. S.T. Bus was standing in the western portion of the road and was facing north. Brake marks of 27 feet in length had appeared on the tar road. The bicycle was found lying at the distance of 62 feet from the front of S.T. Bus on the tar road. On perusing of panchnama Exhibit - 102, it shows that the driver of the bus tried to avoid the accident by taking bus to the side of the road but he could not avoid the same. 7 Moreover, brake marks on the tar road shows that the driver was not negligent. 7. Considering the copy of panchnama and explanation given by the trial Court, I do not find any substance in the present First Appeal to interfere with the judgment and award dated 26-09-1994. Therefore, first appeal is dismissed. No order as to costs. [ K.K. TATED, J.] sut/JUL09/fa336.95