1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 721 OF 1997 Jagadeoppa Muttayappa Birajdar .. Appellant V/s Satish Naganath Gaikwad & Anr. .. Respondents Mr. R.S. Kate for the appellant. Mr. J. Deo i/b Mr. P.K. Dhakephalkar for respondent no.1. CORAM : D.G. KARNIK, J. DATE : 6TH JULY 2010 ORAL JUDGMENT : 1. This appeal is directed against the judgment and order dated 20 March 1997 passed by the Member, Motor Accident Claims Tribunal, Solapur (for short “the Tribunal”) awarding compensation of Rs.75,000/- to the respondent no.1. 2. The appellant is the owner of a tractor bearing registration no. MXO-6026 involved in the accident. The respondent no.1 is the person injured in the accident. The respondent no.2 is the driver of the tractor. 2 3. On 3 January 1991 at about 6.30 p.m. the respondent no.1 was walking on Mulegaon Doddi Road near Agatrao Bansode grocery shop in village Mulegaon. At that time, the tractor bearing registration no. MXO-6026 driven by the respondent no.2 came from behind and gave a dash to the respondent no.1 who sustained crush injuries to his both legs. This caused permanent disability to the extent of 60%. The respondent no.1, who was then a minor, through his mother filed an application for compensation. The application was resisted by the appellant. The appellant while admitting the accident denied that it was caused on account of rash and negligent driving of the respondent no.2. He contended that the tractor was drawing two trolleys loaded with sugarcane. Some boys including the respondent no.1 were trying to jump on the trolleys for snatching sugarcane and in that attempt the respondent no.1 fell down and suffered injuries. The driver of the tractor was not negligent in driving the tractor. The appellant was, therefore, not responsible for paying any compensation. 4. Before the Tribunal, the respondent no.1 examined 3 witnesses including an eye witness and a doctor. The doctor proved the injuries and also stated on oath that the respondent no. 3 1 had sustained 60% permanent disability. The doctor was not cross examined by the appellant and the medical evidence has gone unchallenged. The Tribunal has rightly believed the doctor and has held that the respondent no.1 suffered permanent disability to the extent of 60%. This finding is not challenged before me. 5. Learned counsel for the appellant, however, submitted that it was not proved by the respondent no.1 that the accident was caused on account of negligence of the driver of the tractor and, therefore, the appellant was not responsible for payment of compensation. In the light of the arguments, the following points arise for determination in this appeal. (i) Whether the Tribunal erred in holding that the accident was caused on account of rash and negligent driving of the tractor by the respondent no.2? (ii) Whether the order of the Tribunal requires any modification? 4 Both the points are answered in the negative for the reasons indicated below. 6. The respondent no.1 examined one Narayan Chandu Jethithor (P.W.2) who is an eye witness to the accident. He has stated that he was standing near a MSEB Pole in front of the shop of Bansode. Satish (respondent no.1) was walking on the left side of the road. The tractor (driven by respondent no.2) came from behind and gave a dash to Satish. The tractor was driven at a high speed and the front wheel of the tractor gave dash to Satish who sustained injuries. In the cross examination, the P.W.1 admitted that two trolleys which were filled with sugarcane were attached to the tractor. He, however, denied the suggestion that the respondent no.1 fell down while attempting to snatch sugarcane from the trolleys. The Tribunal has believed the evidence of Jethithor and the learned counsel for the appellant was unable to point out anything to discredit his testimony. The evidence of Jethithor clearly shows that it was the tractor which gave dash to the respondent no.1 from behind while he was walking on the left side of the road. 5 7. The respondent no.2 (driver of the tractor) had examined himself as a witness in which he has stated that he was driving the tractor with two trolleys loaded with sugarcane attached to it. He stated that one more driver and cleaner were also with him. He further stated that at that time some boys climbed on the trolleys to snatch sugarcane and in that course the respondent no.1 fell down and sustained injuries as he came below the rear wheel of the last trolley. His evidence that the respondent no.1 fell down in an attempt to climb the trolley is hearsay because in the examination in chief itself he has stated that the cleaner told him about the accident. On the other hand, the eye witness Narayan has clearly stated that the front wheel of the tractor gave a dash to the respondent no.1. I see no reason to disbelieve the evidence of the eye witness Narayan.. 8. Rules 115, 226, 245 and 246 of the Bombay Motor Vehicle Rules, 1989 (for short “the Rules”) contain provisions relating to attaching of trolleys and/or drawing of a trailer by a tractor or a motor vehicle. Rule 115 of the Rules lays down the conditions for use of trailers. Sub-Rule (3) of Rule 115 of the Rules says that in case of goods drawing trailers, a cautionary Board indicating the 6 sign “Caution-Extra long vehicle” shall be exhibited on the drawing vehicle in the reflecting colours. The panchanama of the tractor and the trolleys does not show that any such board was attached to the tractor or the trolleys. Sub-Rule (3) of Rule 226 of the Rules provides that when a motor vehicle (under section 2(28) of the Motor Vehicles Act, 1988 a trailer is also a motor vehicle) is being drawn or towed by another motor vehicle, there shall be clearly displayed on the rear of the vehicle being towed in block letters and on a white background the word “ON TOW”. The panchanama of the seized tractor and the trolleys does not show that any such board was displayed on any of the trolleys much less on the back of the last trolley. The object of Rules 115 and 226 of the Rules is to indicate to the persons seeing or following the motor vehicle that it is a long vehicle carrying trolleys. This is necessary so that people would take extra precaution when they are overtaking such vehicle or a motor vehicle is passing by their side. Non-exhibiting of the board apart from violation of the Rules would show negligence on the part of the driver inasmuch as the persons following the tractor with the attached trolleys were not warned that the tractor was a long vehicle with trolleys attached. 7 9. Rules 245 and 246 of the Rules are more to the point at hand. Rule 245 of the Rules provides that no tractor shall draw more than 3 trailers and no other goods vehicle shall draw more than one trailer. Rule 246 of the Rules provides for attendants on trailer and the brakes to be provided to the trailer which is to be towed or drawn by another motor vehicle. It further provides that if the brakes of the trailers cannot be operated by the driver of the drawing motor vehicle or by some other person carried on that vehicle, it shall carry at least one person on every trailer competent to apply brakes and one person be placed at or near the rear of the last trailer in such a position as to be able to have clear view of the road in the rear of the trailer to signal to the driver of the overtaking trailer and to communicate with the driver drawing the motor vehicle. 10. Deposition of the respondent no.2 clearly shows that this Rule was also not followed. The respondent no.2 has stated that there was one driver and cleaner with him on the tractor. The cleaner was walking by the side of the road indicating that there was no person on the trailer while the Rules require presence of at least one person aged above 21 years on each of the trailers and 8 one person at the rear end of the last trailer. These facts not only show infarction of the Rules but also the state of mind of the owner and the driver who were not at all bothered about the following of the Rules. It is the case of the appellant that the accident occurred while boys were trying to climb the trolley for snatching sugarcane. Presence of one person each on the trolleys, as provided by the Rules, would have prevented such attempt and the accident. 11. In my view, the Tribunal has rightly disbelieved the respondent no.2 (driver of the tractor) when he stated that the respondent no.1 fell down while he was trying to snatch sugarcane from the trolley. According to the respondent no.1, the cleaner was walking by the side of the trolleys. If so, the cleaner would not have allowed the boys to snatch sugarcane and the boys would not have dared to attempt the snatching of sugarcane when there was one person guarding the sugarcane. The cleaner, who is said to be an eye witness, was not examined. The driver, according to his own deposition, had not seen the respondent no.1 from falling but it was the cleaner who saw him falling. Since the driver had not seen the incident and the cleaner has not been examined, the version of the driver and the owner cannot be believed and has 9 rightly been discarded by the Tribunal. 12. For these reasons, in my view, there is no merit in the appeal which is hereby dismissed with costs quantified at Rs.5,000/-. 13. Before I part, it may be stated that by an order of the Tribunal, the tractor was attached. The tractor was released on the appellant executing a bond of Rs.1,75,000/- with two sureties. The Tribunal shall now enforce the bond executed by the appellant and the two sureties. The appellant had also given an undertaking to the Tribunal not to dispose of the tractor bearing No. MXO-6026. The Tribunal shall also be entitled to recover the amount by attachment of the said tractor and if the tractor has been disposed of in the meanwhile in breach of the undertaking given by the appellant to take action in contempt and any other appropriate action for breach of the undertaking given by the appellant to the Tribunal. The Tribunal shall report compliance of the order to this Court within 3 months. The Registry shall forthwith send a copy of this order to the Tribunal for compliance. (D.G. KARNIK, J.)