1 fa857 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.857 OF 1996 Maharashtra State Road Transport Corporation ...Appellant vs. 1 Smt.Anarkali Dastgir Banedar 2 japulla Dastgir Banedar 3 Reshma Dastgir Banedar 4 Aprin Dastgir Banedar 5 Smt.Gulshanbai Hamjekhan Banedar 6 Bhimsen Gurupad Vasatti 7 Arvind Keshavrao Shirgutkar 8 Ganpatrao Laxman Todekar 9 Oriental Fire & General Insurance Co., Belgaum ...Respondents Mr.G.S.Hegde a/w Mr.C.M.Lokesh for the appellant Mr.Sudata Patil for the respondent nos.1 to 4 CORAM : A.S.OKA,J. DATE : JULY 13, 2011 ORAL JUDGMENT : 1 Heard the learned counsel for the appellant and the learned counsel for respondent nos.1 to 5. The challenge in this appeal is to the Judgment and Award made by the learned Member of the Motor Accident Claims Tribunal in a claim petition under section 110-A of the Motor Vehicles Act,1939. 2 Compensation has been claimed by the 1st to 5th respondents on account of death of one Dastgir Hamjekhan Banedar. According to the case of the original claimants. The accident occurred on 17th April 1984 at 5.30 p.m at the distance of 1 and ½ kilometer away from Mhaishal, on Miraj-Mhaishal Road. The first claimant is the widow of the deceased and the 2nd to 4th claimants are the minor children of the deceased and the 5th claimant is the 2 fa857 mother of the deceased. On the relevant date, the deceased was travelling by a motor cycle which was driven by the 6th respondent. It is alleged in the claim petition that a bus owned by the Appellant-Corporation came in opposite direction in a very high speed. It is alleged that the driver of the bus was driving the bus negligently and as a result, he gave a dash to the motor cycle. Deceased died on the spot. Compensation of Rs. 1,50,000/- has been claimed by the claimants. 3 The appellant filed a written statement. It was contended in the written statement that the driver of the bus was driving the bus by left side of the road in a moderate speed. It is alleged that there was a truck coming from the opposite direction and behind the truck there was a motor cycle driven by the 6th respondent. It is alleged that the 6th respondent moved his motor cycle towards the right side with a view to overtake the truck. It is alleged that after noticing the bus, the driver of the truck applied brakes. The 6th respondent could not control his motor cycle which was behind the truck. As a result, he gave a dash on the left side of the truck. It is alleged that after noticing that the motor cycle had fallen down, the driver of the bus stopped the bus. It is stated that the driver of the truck had halted the truck for some time and thereafter took away the truck. It is alleged that when the bus came to halt, the dead body was lying on the rear side of the truck at the distance of 3 feet and the motor cycle was lying at the distance of 10 feet. Thus, the case made out by the appellant is that the bus was not at all involved in the accident. It was contended that the 6th respondent was not holding a valid licence to drive the motor cycle and therefore, he himself was negligent. 3 fa857 4 The Tribunal passed an award holding that the first claimant was entitled to compensation of Rs.58,000/-, 2nd to 4th claimants were entitled to compensation of Rs. 12,000/- each and the 5th respondent was entitled to compensation of Rs.22,000/-. Interest at the rate of 12% per annum was granted. 5 The learned counsel for the appellant has taken the Court through the notes of evidence and other documents on record. He submitted that the evidence of the 6th respondent shows that the bus was not involved in the accident. He pointed out that the 6th respondent admitted that his motor cycle gave a dash to the truck. He submitted that even going by the case made out by the claimants and the 6th respondent, it is obvious that it was the motor cyclist who gave a dash to the truck and there is no possibility of the bus of the appellant getting involved in the accident. He submitted that even assuming that there was some damage to the bus, the Tribunal could not have jumped to the conclusion that the bus was involved. He pointed out that the 6th respondent was holding a learner s licence. He allowed the deceased to sit as a pillion rider and admittedly the 6th respondent was carrying the cans of petrol. He submitted that driving the motor cycle in such a fashion itself is a negligence as the 6th respondent was not holding any permanent licence. He submitted that even assuming that involvement of bus is proved, there is gross negligence on the part of the 6th respondent. 6 The learned counsel for the original claimant supported the impugned Judgment and Award. He pointed out that Panchnama which is admitted in evidence proves the involvement of the bus. He submitted that the Panchanama itself proves that the case made out by the driver of the 4 fa857 bus of the Appellant is completely false and therefore, the Tribunal was right in accepting the allegations of negligence against the driver of the bus. He submitted that negligence on the part of the 6th respondent has not been proved and therefore, there cannot be any claim against the the 6th respondent. He, therefore, submitted that no interference is called for. 7 I have perused the record. I have considered the submissions. The 6th respondent was admittedly plying the motor cycle at that time. The 7th respondent was registered owner of the motor cycle and the 8th respondent was the owner of the garage to which motor cycle was entrusted. 9th respondent is the insurer of the motor cycle on the date of accident. It will be necessary to note here that the 6th respondent stepped into witness box. He stated that the 8th respondent (the owner of the garage) was acquainted with him. He stated that when he was standing at Ugar bus stand, 8th respondent met him. According to him, 8th respondent told him that he would sent one person with him. The 8th respondent told him to drop the said person at Miraj and to bring petrol in cans on return. According to the 6th respondent, the 8th respondent was the owner of the garage to whom the motor cycle was entrusted. In the written statement of the 8th respondent, he has come out with a case that after repairs were carried out, the owner of the motor cycle took away the said motor cycle from his garage. 7th respondent filed written statement contending that the 6th respondent was allowed to use the motor cycle without his prior permission and therefore, he was not liable to pay compensation. The 9th respondent filed written statement contending that the 6th respondent was not holding a valid driving licence. 5 fa857 8 Perusal of the record shows that panchanama was produced by the present appellant along with application at Exh.89. Certified copy of the panchanama was exhibited as Exh.114 with the consent of the parties. 9 I have perused the panchanama which shows that the dead body of the deceased was lying at a distance fo 3 feet on the eastern side of the rear wheel of the bus. There were brake marks of the tyre of the bus having length of 3 feet. There were seven small pink coloured pieces lying between the driver s side wheel of the bus and the brake marks. Near the front wheel on the driver s side of the bus, one helmet was lying in a damaged condition. The panchanama also records that there was damage to the bus at a distance of 3 - 8 from the ground. The tin of the bus was damaged. There were scratch marks on the bus. Perusal of the cross examination of the driver of the bus shows that he admitted that the panchanama was drawn as per the situation which was shown by him to the police. Though the panchanama is produced by the appellant, the driver has not disputed the contents thereof and made no effort to explain as to why there were brake marks and why there was a damage to the body of the bus. The panchanama also notes the fact that the tail lamp on the motor cycle was also damaged. 10 The driver of the bus stepped into witness box. His version of the accident reads thus : 1...A truck was seen coming from opposite direction. There was a motor cycle with two riders coming from behind the truck with two cans hung on both sides. The number of truck was MEI-7882. I do not remember the 6 fa857 registration number of the motor cycle following the truck. The motor cycle was of Rajdoot make. The motor cyclist was trying to overtake the truck. The motor cycle driver saw my S.T.Bus. He again took the motor cycle behind the truck. The motor cycle was some 20-25 feet behind the truck. The truck driver suddenly slowed down the speed of the truck. Thereafter, the motor cycle dashed against the back side of the truck. There was diesel in both the cans hung to the motor cycle. The diesel in the cans was spread on the road. Both the riders of the motor cycle were thrown on the road. They were injured. After cross some distance the truck came to a half. I also stopped the bus at some distance and checked the number of the truck. The truck driver alighted from the truck and saw the injured persons and the motor cycle and went away with the truck. Some passengers also alighted from my bus In the cross examination, the driver of the bus stated thus : 4... I could see the truck coming from opposite direction when it was at a distance of200 meters or so from the bus. But from that distance I could not see the motor cycle following the truck and trying to overtake it. There was no other vehicle in between the truck and my bus. It was at a distance of about 50 meters that I first saw the motor cyclist trying to overtake the truck. Motor cyclist had just turned right words in order to overtake the truck. I did blow horn or show 7 fa857 any danger lights of the bus to the motor cycle. I volunteer that I signalled to the motor cyclist with my right hand wave on seeing the signal. The motor cycle was taken behind the truck again. It did not happen that the accident occurred when the motor cyclist tried to overtake the truck and dashed against the bus. The truck was of A.C.Mers S.E. Make. According to me the S.T.Bus was in no way concerned with the accident... 11 The contents of Certified copy of the panchanama produced by the appellant are completely contrary to the version of the driver. Looking to Panchanama, it is not possible to hold that the bus was not at all involved. Considering what is set out in the panchanama which is already reproduced earlier, and considering the fact that the motor cycle was lying at a distance of 8 feet away from the driver s side of the bus, it is apparent that the motor cycle must have been on its correct side. Once the version of the driver that the bus was not involved in the accident was shown to be untrue, the allegation of negligence on his part have been rightly accepted. 12 Thus, relying upon the copy of panchanama which were admitted in the evidence by consent of the parties, a finding of negligence has been recorded against the driver of the truck which cannot be interfered with. The 6th respondent admitted that he was possessing only a learning licence and he was not having permanent licence at the relevant time. The 6th respondent and the deceased were sitting on the motor cycle with cans. The 6th respondent was not entitled to ply the motor cycle with a pillion rider as he was holding only a learning licence. 8 fa857 13 Even according to the 7th respondent, the 6th respondent was plying the motor cycle without his permission. Therefore, the 7th respondent cannot be vicariously liable as the 6th respondent had taken the vehicle from owner of a garage to whom the vehicle was entrusted for repairs. The 8th respondent is not the owner. This is a case where the 6th respondent who had plied the motor cycle without consent of the registered owner and therefore, the insurer of the motor cycle is not liable. Though the 3rd respondent was holding only a learning licence, he allowed the deceased to occupy pillion seat. The deceased was allowed to carry cans. Therefore, even the 6th respondent is guilty of negligence to some extent. Thus, the 6th respondent will have to be held liable to the extent of 20%. 14 Hence, I pass the following order : i) Impugned Award is modified and it is held that out of the compensation amount awarded by the Tribunal, the liability of the appellant shall be confined only to 80% of the compensation amount with interest thereon at the rate awarded by the Tribunal. ii)The 6th respondent (3rd opponent in the claim petition) shall pay 20% of the total compensation together with interest thereon as directed by the impugned Award. iii)Amount payable by the appellant shall be inclusive of no fault liability provided the same has been already paid to the original claimants. iv)Appeal is partly allowed on above terms with no order as to costs. JUDGE