-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.363 OF 1995 APPEAL NO.363 OF 1995 APPEAL NO.363 OF 1995 Sudesh Gopalrao Murkumbi ...Appellant vs. 1.Pralhad R.Shinde 2.Kamalakar Malhar Deshpande 2A.Smt.Chhaya Kamalakar Deshpande 3. United India Insurance Co.Karad 4.Basvant S.Bandi (dismissed as per order dated 15.3.1999 5.New India Assurance Co.Ltd. ...Respondents Mr.P.D.Dalvi for the Appellant Mr.D.S.Sawant for Respondent No.1 Mr.S.S.Vidyarthi for Respondent No.5 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 4, 2008 : FEBRUARY 4, 2008 : FEBRUARY 4, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the Advocates appearing for the parties were heard on the last date. The challenge in this Appeal is to the Judgment and Award dated 17th April 1993 passed by the learned Member of the Motor Accident Claims Tribunal at Sangli. By the said Judgment and Award, the claim petition filed by the Appellant has been dismissed. 2. With a view to appreciate the submissions made by the learned counsel for the parties, it will be necessary to refer to the facts of the case in brief. . The appellant was working as a driver of the truck No.MEL 5401. The accident occurred on 23rd December 1985 at about -2- 11.30 p.m. at Pune-Banglore highway. According to the case of the Appellant he was proceeding towards Bombay. When he approached the village Vithalwadi, the truck bearing registration no.MTL-5009 was ahead of his truck. As the Appellant was desirous of overtaking the truck, he gave a signal to the Respondent No.1 who was driving the truck bearing No.MTL 5009. According to the Appellant, the 1st Respondent gave a signal indicating that the Appellant can proceed to overtake the truck. When the Appellant started overtaking the said truck, the Respondent No.1 suddenly took his truck to extreme right side. As a result, the truck driven by the Appellant dashed against the truck driven by the first Respondent. The Appellant suffered injuries. According to the case of the Appellant, the second Respondent was the owner of the said truck bearing MTL 5009 and the third Respondent was the insurer of the said truck. The fourth Respondent is the owner of the truck driven by the appellant and the fifth respondent is the insurer of the said truck. 3. The second and third Respondents filed a joint written statement. A case made out by the second and third Respondents is that the truck owned by the second Respondent was being driven by the first Respondent by observing rules of traffic. It is their case that the Appellant was himself driving the truck in a high speed in a rash and negligent manner. It was contended that the Appellant was unable to -3- control his truck and that is why he gave a dash to the truck driven by the first Respondent. It was alleged that the first respondent was driving the vehicle in a safe speed and there was no negligence on his part. 4. The Appellant examined a Medical Practitioner as a witness. The Appellant also examined himself. The first Respondent also stepped into witness box. 5. After considering the evidence on record, the tribunal recorded a finding that the Appellant failed to establish that the accident occurred due to negligence on the part of the first Respondent. The Tribunal dismissed the Claim Petition. 6. The learned Advocate for the Appellant invited my attention to the evidence on record. He submitted that the Appellant tried to overtake the truck driven by the first Respondent only after a signal was given by the first Respondent to go ahead. He submitted that the first Respondent has made improvements in his evidence. He submitted that the first Respondent has come out with a new story that there were two trucks ahead of the truck driven by the first Respondent. He submitted that considering the spot of the accident, it is obvious that there was no negligence on the part of the Appellant. The learned Advocate for the first and fifth Respondent supported the impugned Judgment and -4- Award. 7. I have given careful consideration to the submissions. The first question which arises is whether the Appellant has established that the accident occurred due to negligence on the part of the first Respondent. If the answer to the said question is in the affirmative, then the second question for determination will be as regards the quantum of compensation payable to the Appellant. 8. In the claim petition filed by the Appellant, he has come out with a case as under : . ...At the material time of the accident, the truck bearing MTL-5009 was proceeding ahead of the vehicle of the Petitioner. The Petitioner gave signal to the Respondent No.1 to go ahead of his truck and accordingly the respondent No.1 gave the signal to the Petitioner/s truck to proceed ahead and accordingly the petitioner was taking his truck ahead of the Respondent No.1’s truck, but all of a sudden the Respondent No.1 took his truck to the extreme right side and came across to the way of the Petitioner’s truck, with the result, petitioner’s truck dashed the truck of the respondent No.1 and in consequences accident took place and the petitioner cleaner of the said truck and one more person sustained -5- injuries." 9. The Appellant stepped into witness box. The Appellant reiterated what was stated in the Claim Petition. He further stated that when the first Respondent gave a signal to the Appellant to overtake the truck driven by him, the distance between the two trucks was 7 to 8 feet. It must be stated here that in the claim petition, a specific case made out by the Appellant is that after giving signal to him the first Respondent took his truck to the extreme right side and came across away of the Appellant’s truck. However, in examination in chief all that the Appellant has stated is that after the first Respondent gave a signal, while he was overtaking the truck of the first Respondent, the first Respondent stopped the vehicle in the meanwhile. He further stated that he had no alternative but to take his truck on other side to avoid the accident. The Appellant was cross examined by the Advocate for the Respondent No.1. The Appellant denied the suggestion that the first Respondent had not given any signal to him. The Appellant admitted that the truck driven by the first Respondent was on the left side of the road and it was in a slow speed. He admitted that he did not see whether there were other two trucks ahead of the truck driven by the first Respondent. He pleaded ignorance about the suggestion given to the effect that as the truck ahead of the truck driven by the first Respondent applied brakes, the first -6- Respondent had to stop his truck. However, he did not specifically deny that there were two trucks in front of the truck driven by the first Respondent. He stated that he did not see whether there were two other trucks in front of truck driven by the first respondent. 10. Now it will be necessary to refer to the evidence of the first Respondent. It is true that the Respondent Nos.2 and 3 have not specifically stated about the presence of the two more trucks in front of the truck driven by the first Respondent. The first Respondent has stated that he stopped his vehicle as there was an accident ahead. According to him the Appellant while attempting to apply brakes, gave a dash to his truck. In the cross examination made by the Appellant, a suggestion was given to him that the road between Kolhapur and Karad is a straight road. Surprisingly no suggestion was given by the Advocate for the Appellant to the first Respondent to the effect that the Appellant gave a signal to the first Respondent before overtaking the said truck driven by the first Respondent and that the first Respondent also gave a signal to the Appellant to proceed. On the contrary, in the cross examination the first Respondent stated that the truck which was behind came from the centre part of the road for overtaking. He stated that he did not give any signal to overtake his truck. -7- 11. Surprisingly, not even a suggestion was given to the first Respondent that only after he gave a signal to proceed, the Appellant proceeded to overtake the truck. In the cross examination made by the Advocate for the Appellant it was brought on record that the road was a straight road. This will have to be considered in the context of the statement made by the Appellant in his evidence that he did not see whether there were two more trucks in front of the truck driven by the first Respondent. The only case made out by Appellant in the examination in chief was that the first Respondent suddenly applied brakes of his truck. As stated earlier, the Appellant himself brought on record in the evidence of the first Respondent that the road at the spot of the accident is a straight road. It is very difficult to rely upon the case made out by the Appellant that the first Respondent gave him a signal to proceed further and to overtake the truck as no such suggestion has been given to the first Respondent by the Advocate for the Appellant in the cross examination of the first Respondent. 12. Even according to the case of the Appellant, the distance between the two trucks was only 7 to 8 feet when the Appellant started overtaking the truck. I have perused the certified copy of the spot panchnama which shows the location and width of the road. As pointed out earlier, the Appellant has not stated in examination-in-chief that the first Respondent -8- brought his truck suddenly on its right hand side. The Appellant has not given a suggestion that the first Respondent had given a signal to him to proceed with the overtaking. the appellant could have easily seen two more trucks ahead of the truck of the first Respondent. It will be necessary to refer to the certified copy of the spot panchnama which shows the damage to the trucks. Panchnama records that the main damage to the truck driven by the Appellant appears to be on its cleaner side. In fact, the panchnama records that the cleaner side head lamp of the truck was completely broken. The door of the clear side was detached as a result of impact of the accident. 13. The same panchnama records that the rear wheel of the truck on cleaner’s side was at the distance of 8 feet from the centre of the road. 14. Considering the location of the spot of the accident, the nature of the damage to the truck of the Appellant on its cleaner side and the oral testimony of the witnesses, it is very difficult to accept the case made out by the Appellant that there was negligence on the part of the first Respondent. On the contrary, the aforesaid material indicates that the accident occurred due to error on the part of the Appellant. I find no case to interfere with the impugned Award. Appeal is dismissed with no order as to costs. -9- JUDGE JUDGE JUDGE