1 fa193 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.193 OF 1998 Arun Shivram Bansode ...Appellant vs. Chandrabhaga Shivlal Patil and others ...Respondents Mr.Sachin Punde i/b Mr.Rajiv Patil for the appellant Ms S.V.Sonawane, A.G.P for the respondent-State CORAM :A.S.OKA,J. DATE : OCTOBER 29, 2010 ORAL JUDGMENT : 1 The appellant has taken an exception to the Judgment and Award dated 13 th November 1997 passed by the learned Member of the Motor Accident Claims Tribunal at Satara. The first respondent is the claimant in the claim petition filed under section 166 of the Motor Vehicles Act,1988. The appellant is the first opponent to the said claim petition who was the driver of the jeep involved in the accident. The said jeep was owned by the State Government. The second respondent is the Sub Divisional Officer at Wai and the third respondent is the Commissioner of Pune Division. 2 The first respondent had visited the house of one Kuldip Dhamdhere on 22nd March 1990 at Satara for house warming ceremony. After attending the function, the first respondent was returning home on foot by left side of the road. When the first respondent was walking in front of Gokul Apartment near Smt.Chatrapati Sumitraraje Bhosale Garden, from her right side a jeep driven by the 2 fa193 opponent came in high speed and gave a dash to the first respondent who sustained severe injuries including the fractures. On the allegation of the rash and negligent driving by the appellant, the first respondent filed a claim petition claiming compensation of Rs.1,40,000/- against the appellant and the second and third respondents. By the impugned Award, the Tribunal held that the accident occurred due to rash and negligent driving of the appellant and proceeded to award compensation of Rs.1,00,000/- with interest at the rate of 12% from the date of filing of the claim petition. Joint and several award was passed against the appellant and the second and third respondents. 3 The learned counsel for the appellant invited the attention of the Court to the evidence on record. He pointed out that there was no evidence adduced by the first respondent to prove the negligence on the part of the appellant. Inviting attention of the Court to the oral evidence of the appellant, he pointed out that in fact the first respondent was walking at the center of the road and the appellant tried his level best to avoid the accident. He stated that the jeep driven by him did not give dash to the first respondent but one M-80 Moped which came from behind the first respondent gave a dash to her. He stated that in fact in the process of appellant taking the jeep on the extreme right side to avoid the accident, his vehicle dashed against the board of a provision store by the side of the road. The learned counsel pointed out that in fact, the appellant himself informed the Satara City Police Station about the accident. The learned counsel pointed out that the appellant was acquitted in a prosecution by the Criminal Court and therefore, finding on the issue of negligence is perverse. He submitted that on the basis of such 3 fa193 finding, disciplinary proceedings are sought to be initiated against the appellant. 4 I have given careful consideration to the submissions. The first respondent-claimant stepped into witness box. Her version of the accident is in paragraph 2 of her deposition : 2 On 22-3-1990, I have met with an motor vehicle accident. My residential bungalow is to the sought of Satara-Koregaon road. There was house warming ceremony of the house of one Dhamdhere situated on the road going from Z.P towards Sadar Bazar. This road runs through south-north, after completing the house warming ceremony I was returning back home at about 3.30 p.m. I was going on foot. I was facing towards south, I was proceeding towards house by the left side of the road. I came near the bungalow of Adv. V.N.Patil. The road at the accident spot is wide. There was very little traffic on the road. One jeep came from the back side. I heard sound of jeep coming in a fast speed. So I look at the back. The said jeep was being driven by opponent no.1 Arun Bansode. The jeep gave a dash to me from hind side. Due to dash I fell down. After giving dash to me, the jeep went ahead 30-40 ft. towards west and gave dash to compound of Sumitraraje Garden. Due to the said accident, my right hand and left let was fractured.... The first respondent was cross examined by the appellant. It is pertinent to note that initially there was no specific suggestion given to the first respondent that it was the M-80 Moped which gave a dash to the first 4 fa193 respondent. A vague suggestion was given that one vehicle came from behind and gave a dash to her. In the further part of the cross examination, another vague suggestion is given that one two wheeler came from hind side and gave a dash and thereafter a suggestion was given that her son and his friends went ahead for catching the driver of the M-80 vehicle. 5 In the examination-in-chief, the appellant stated thus : 1...At that time one lady was found coming from the southern side walking on the central line of the tar road. One M-80 came from the hind side of the said lady and gave dash to her. For avoiding any dash of my jeep to the said lady, I had taken my jeep to the extreme right side of the road. After giving dash to the lady, the lady fell down on the road and M-80 fled away. When I had taken my jeep to the extreme right side of the road, in that process, my jeep slightly dashed against the door of Dhareshwar Kirana store, situated to the west side of the road... 6 The appellant stated that the police had recorded his statement on 22nd March 1990 and he had signed below the said statement. He was shown the statement at Exh. 56/1. He admitted that his signature on the statement and stated that he was not admitting the contents thereof as the said statement was not the statement given by him before the police. He stated that he became aware of the fact that the said statement recorded by the police was not read over to him in the same month in which the accident occurred and till the date of his deposition, he has not filed any complaint in writing about the said 5 fa193 statement. Thus, the appellant admitted his signature below the said statement. The said statement records that the first respondent came from the left side of the jeep and dashed against the jeep. In fact, a F.I.R was registered on the basis of the statement of the appellant. The said statement made before the police was completely contrary to the case made out by the appellant in the written statement. It was not disputed by the appellant that he was driving his jeep from north to sought. His case was that he was driving the jeep by the left side of the road. The first respondent was walking from the western side of the road from south to north and hence, there was no question of the first respondent coming in the way of the jeep or giving a dash to the jeep. The spot panchnama shows that the first respondent was found lying on the kacha road on the western side. It was found that the jeep had gone to its extreme right side i.e towards west. The learned Member of the Tribunal rightly observed that if accident had occurred due to dash given by the M-80 Moped, at the outset the appellant would have informed the police about the same. In the F.I.R lodged by the appellant and in his statement recorded by the police, there is no reference to involvement or presence of M-80 vehicle. Thus, the Tribunal found on the basis of the spot panchnama as well as case made out by the appellant himself in the FIR and statement recorded by the police that the case made out before the Tribunal regarding involvement of M-80 Moped cannot be accepted. In fact, the jeep went on its extreme right side and admittedly gave a dash to the grocery shop by the side of the road. 7 In the circumstances, the finding of the Tribunal that the accident occurred due to negligence on the part of the appellant will have to be upheld. The Tribunal 6 fa193 constituted under the said Act of 1988 is not bound by the strict rules of evidence. The Tribunal has considered the entire oral and documentary evidence on record and has recorded a finding of negligence against the appellant which cannot be faulted with. 8 The learned counsel for the appellant expressed an apprehension as regards the use of the said finding in the disciplinary proceedings. As stated earlier, the Tribunal is not bound by the strict rules of evidence. Guilt of the appellant in the disciplinary proceedings will have to be established independently. 9 Subject to what is observed above, no case is made out for interference and the appeal is accordingly dismissed with no order as to costs. 10 If the appellant has deposited a sum of Rs.25,000/- in this Court in accordance with section 173 of the said Act,1988, the same shall be paid over to the appellant with interest, if any, accrued thereon. JUDGE