1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.505 OF 1993 1. Chairman, Maharashtra State Road Transport Corporation, through its General Manager, Bombay Wahatuk Bhavan, Bombay Central, Bombay. 2. Divisional Controller, Maharashtra State Road Transport Corporation, Beed. ... APPELLANTS (Original Respondent Nos.1 & 2) VERSUS 1. Smt. Maherunnisabegum w/o Sk. Akbar, Age 28 years, Occ. Household, R/o Dharur, Taluka Kaij, District Beed. 2. Kum. Parveenbegum d/o Sk. Akbar, Age 13 years, minor, u/g mother Maherunnisabegum w/o Sk. Akbar, R/o and Occ. As above. 3. Kum. Nafisabegum d/o Sk. Akbar, Age 11 years, minor, u/g mother Maherunnisabegum w/o Sk. Akbar, R/o as above. 4. Shaikh Kamar, Age 9 years, minor u/g real mother Maherunnisabegum w/o Sk. Akbar, R/o as above. 5. Shaikh Ajeem s/o Sk. Akbar, Age 7 years, minor, u/g mother Maherunnisabegum w/o Sk. Akbar, R/o as above. 6. Shaikh Ajeej s/o Sk. Akbar, Age 5 years, minor, u/g mother 2 Maherunnisabegum w/o Sk. Akbar, R/o as above. 7. Suryakant Namdeo Dhavale, Driver, Dharur Depot, through Depot Manager, Dharur, Taluka Kaij, District Beed. 8. Baliram Kashinath Komatwar (Telang), R/o Dharur, Taluka Kaij, District Beed. 9. United India Insurance Company, through its Divisional Manager, Vinayakrao Patil Chowk, Aurangabad. ... RESPONDENTS (Nos.1 to 6 Original Claimants, Nos.7 to 9 Original R.Nos.3 to 5) ..... Shri A.B. Dhongade, Advocate for the appellants Shri S.G. Dargad, Advocate holding for Shri S.P. Katneshwarkar, Advocate for respondent Nos.1 to 6 Shri D.V. Soman, Advocate for respondent No.9 ..... CORAM: N.D. DESHPANDE, J. DATED: 30th July, 2010 Date of reserving judgment : 6th July, 2010 Date of pronouncing judgment : 30th July, 2010 JUDGMENT : 1. This First Appeal is preferred against the judgment and award passed by learned Motor Accident Claims Tribunal, Beed in Motor Accident Claim Petition No.53/1988 under Section 173 of the Motor Vehicles Act. 3 2. Heard Both the sides. 3. The material facts can be stated briefly as under : The original claimants, who are respondent Nos.1 to 6, are the legal heirs of deceased Shaikh Akbar Shaikh Rustum, who died in road accident which took place on 11.10.1987. The deceased was a Mechanic and met with an accident which proved fatal. He was 30 years old and was earning Rs.2000/- to Rs.3000/- per month as Mechanic at the material time. The alleged accident took place on 11.10.1987 at about 12.30 Hrs. near Kesari Fata on Dharur-Kaij Road. He was a pillion rider on motorcycle bearing No.MAB-9702 of respondent No.8, who was riding his motorcycle. Both were going to the field of respondent No.8 for repairing his thrasher. 4. According to the respondent Nos.1 to 6, who are original claimants, the said accident took place due to rash and negligent driving of the S.T. bus driver who is respondent No.7, and, therefore, they filed claim petition which was decreed for Rs. 1,50,000/-, including Rs. 15,000/- under “No Fault Liability” with interest and costs, by an award dated 06.07.1993 against present appellants. The same is impugned in this appeal by the appellants/M.S.R.T.C. 4 5. The main contention of the appellants is that, the alleged accident took place only because of the rash and negligent driving of motorcyclist – respondent No.7 Suryakant Namdeo Dhavale and as such, the present respondent No.7 and its Insurance Company respondent No.9 are liable to pay the amount of compensation. Alternatively, it was also submitted that, both the S.T. bus driver and the motorcyclist should have been held responsible for the said accident and, therefore, according to the appellant, it is a case of “contributory negligence”. 6. During the course of arguments, the appellants did not dispute the age of the deceased as 30 years and his earning and use of multiplier of 15, for payment of compensation of Rs.1,50,000/- considered by the learned Motor Accident Claims Tribunal. 7. Upon consideration of the record and after hearing both the sides, following points arose for consideration: (1) Whether the appellants could prove that motorcyclist respondent No.7 was alone responsible for the alleged accident, or in the alternative, made out a case of “contributory negligence” ? - (Negative) (2) Whether the finding recorded by the learned 5 Motor Accident Claims Tribunal suffers from any illegality and requires any interference ? - (Negative) 8. In the light of the above referred controversy, I have perused the impugned judgment and award and also the pleadings and evidence of the parties carefully with the assistance of the learned counsel. 9. On the point of the accident, two witnesses were examined before the Tribunal. Spot panchanama is also proved on record. The investigating officer P.S.O. Nagorao Sakharam Dongre was also examined. He himself prepared panchanama and after investigation, filed charge sheet against S.T. bus driver Suryakant Dhavale. According to him, as per his investigation, the bus driver was found rash and negligent and, alone was responsible for an accident in question. Therefore, he filed charge sheet against the S.T. bus driver. He deposed that, deceased died after three days of the accident due to the injuries in the said accident. 10. The motorcyclist by name, Baliram Kashinath Komatwar had also sustained serious injuries in the said accident and he filed separate claim petition. He deposed about the accident and according to him, the S.T. bus came from the opposite direction and gave dash 6 to his motorcycle from its front side, near Kasarwadi Fata. It was following one truck. He also deposed that accident took place due to speeding S.T. bus and its driver was rash and negligent. 11. The driver of the S.T. bus also gave his oral evidence about his innocence. However, it is not disputed that, the bus is involved in the accident. The learned Motor Accident Claims Tribunal in its elaborate judgment discussed all evidence recorded in this case including the evidence of the claimants on the point of the earnings of the deceased. The learned Motor Accident Claims Tribunal held the S.T. driver alone responsible for the said accident and accordingly, recorded its finding after evaluating the relevant evidence and all the issues raised and recorded its finding against the S.T. bus driver. 12. The Motor Accident Claims Tribunal did not accept the case of contributory negligence and the same was also not specifically pleaded by the appellants in their written statement. No case is accepted unless there is specific pleading to that effect. There is no written statement filed by the S.T. bus driver. In the light of the findings recorded, no perversity is found. The findings are based on the material on record and the relevant evidence and as such, it calls for no interference. Accordingly, finding above are recorded. In the 7 result, the impugned judgment and award needs to be upheld. 13. Thus, the appellants failed to make out a case for interference and the appeal deserves to be dismissed. 14. The appeal, therefore, stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs. (N.D. DESHPANDE, J.)