1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR FIRST APPEAL NO.741 of 2007 The New India Assurance Co.Ltd. Through the Regional Manager,Nagpur ..vs.. Sainath Sitaram Kshirsagar Nagpur and ors. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.A.J.Pophaly Adv. for the appellant. Ms M.H.Pathade Adv. for resp.1 to 4. C ORAM : C.L.Pangarkar, J. DATED : 17th March, 2010. 1. This appeal is preferred against the award passed by the Motor Accident Claims Tribunal against the appellant/Insurance Company. 2. The facts giving rise to this appeal are as follows - Deceased Shalu, who was 27 years age, was travelling in a Tempo Tracks bearing No.MH-29/C- 728. The said Trax was proceeding from Wadaki by National Highway No.7. It is alleged that the truck owned by respondent no.5 gave a dash to the said Trax. As a result of this, deceased Shalu 2 suffered injuries and died. 3. The said application was opposed by the Insurance company/present appellant by filing written statement. The application was opposed on two grounds namely; 1) that the court at Nagpur did not have jurisdiction to entertain the application and (2) it was a case of total negligence on the part of the tempo trax and there was no fault on the part of the driver of truck -respondent no.5. 4. The learned judge of the trial court found that it was the truck driver who was negligent and it was not the case of composite negligence. Holding so, he awarded compensation as against the appellant and respondent no.5. Feeling aggrieved thereby, the Insurance Company/ present appellant has preferred this appeal. 5. I have heard the learned counsel for the appellant and the respondent. 6. The learned counsel for the appellant contends before me that the court at Nagpur did not have jurisdiction to entertain the application at all. He submits that there was no evidence available to hold that the claimants were ordinarily resident of Nagpur. The submission has no force. The learned judge of the trial court has 3 considered the documentary evidence produced on record and has come to conclusion that enough evidence was available to hold that the claimants/respondents were ordinarily resident of Nagpur. The claimant can file a claim petition at the place of his residence. In the circumstances, I do not find that the learned Judge of the trial court committed any error in holding that the Tribunal at Nagpur had jurisdiction to entertain the application. 7. The learned counsel for the appellant then contended before me that the present case was one of a composite negligence. He submits that there was a head-on collision between the two vehicles and this evidence is enough to hold that it was the case of composite negligence. The submission has no force. No eye witness has been examined in the matter. In the circumstances, the Tribunal was left with no alternative but to rely upon the contents of the panchanama of the spot. The learned judge of the Tribunal had relied upon the contents of the panchanama of spot and has arrived at a conclusion that the total negligence was on the part of the truck driver alone. I am also taken through the said panchanama by the learned counsel for the appellant and the respondents. The contents of the panchanama go to show that 4 the tempo Trax vehicle in which the deceased was travelling was to the extreme left side of the road and two of its left side wheels were on the Kaccha road. The contents of the panchanama also go to show that the truck had come to the wrong side of the road, in as much as, the entire truck was on the tar road and at the centre of the road. Further, panchanama goes to show that even though the truck driver applied the brakes and marks of application of brakes were found up to the distance of 15 ft. This clearly goes to show that the driver was unable to control the vehicle i.e. the truck. It is, therefore, also apparent that the driver had not taken due care and caution while driving the vehicle. He had come to wrong side of the road and gave a dash to the tempo Trax. Findings of the trial court do not suffer from any infirmity. There is, therefore, no substance in the appeal. The same is dismissed. No order as to costs. The amount may be paid to the respondents as directed by the Tribunal. JUDGE. chute 5