1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.724 OF 2003 1. Ramdas Narayan Patil (Died through L.Rs. appellant nos.2 to 5) 2. Vijwala W/o Pralhad Patil Age : 37 years, Occ : Nil, 3. Jagdeesh Parlhad Patil Age : 17 years, Occ : Education, 4. Ranjana Pralhad Patil Age : 19 years, Occ : Education, 5. Leena Pralhad Patil Age : 23 years, Occ : Education, Above all are R/o Khadke, Tq.Bhusawal, Dist. Jalgaon. (Appellant No.2 has signed for her own and guardian of nos.3 to 5. APPELLANTS VERSUS 1. New India Insurance Co. Ltd., Through Branch Manager, Jalgaon Branch, Mandore Market, IInd Floor, behind Dadhiwala Banglow, Jalgaon City, Jalgaon, Maharashtra State. 2. Sunil D. Bhole, Age : Major, Occ : Business, R/o Satara Near Jalgaon Naka Bhusawal City, Tq. Bhusawal, Dist.Jalgaon, Maharashtra State. RESPONDENTS 2 .... Mr. Prasanna N. Kutti, Advocate for appellants. Mr.P. C. Mayure, holding for Mr.S. G. Chapalgaonkar, Advocate for respondent no.1. .... (CORAM : K. U. CHANDIWAL, J) DATE :28th January, 2010. ------------------------------ ORAL JUDGMENT : 1. The dismissal of the Petition under Section 166 of the Motor Vehicles Act being Motor Accident Claim Petition No.529/1998 dated 16.11.2002 is questioned in the present appeal by the claimants/ parents and widow of the deceased. 2. Deceased Pralhad with his employee Balu was plying Scooter No.MTW 5091 on 04.12.1997 at around 8.30 to 8.45 p.m. and on their way the truck coming from opposite directions dashed Pralhad and Balu. Balu succumbed to the injury on the spot. Pralhad was injured and he dared to lodge F.I.R. vide Cr.No. 158/1997 at Police Station, Bhusawal against unknown truck alleging, it was truck driver of the unknown truck who has caused the accident and his negligent act has added to the misery. In the F.I.R. it was 3 stated that, there was a truck proceeding from Warangaon to Bhusawal, stationary at the place, however, in the F.I.R. nothing was attributed to the said stationary truck. 3. Before the learned Judge the evidence of Ramdas-father of deceased Pralhad was adduced, he was not eye witness. He was thoroughly cross examined. There is nothing to disbelieve the factum of age of the deceased, nature and manner of the accident. It is most unfortunate Pralhad and Balu lost their precious life. The parents/claimants prosecuted the same as against the owner of the truck, which was stationary being truck No.MWD/6491 and Insurance Company. 4. To what extent the liability arose for stationary truck to meet the accident occasioned to Pralhad was a question to be considered before the learned Member. The learned Member analyzing the facts, accepted that the accident in the light of the F.I.R., spot panchanama was due to the rash and negligent driving of the offending truck, however, it could not be due to the stationary truck. 4 5. Mr.Kutti for the appellants contended that, day and out there are such accidents and people are looser of precious, lives, as its toll is taken. In order to stress the point of liability, Mr.Kutti has taken recourse to the Judgments noted below :- (i) AIR 1991 S.C. 1769 (Shivaji Dayanu Patil and another V/s Smt.Vatschala Uttam More. (ii) 2007 (6) Mh. L.J. 142 (Kadamba Transport Corproation Ltd., V/s Rosy Braganza and another. (iii) 2006(3) Mh.L.J. 237 (Oriental Insurance Co. Ltd., V/s Pritam Rajiv Shetty and another) (iv) 2006(3)Mh.L.J. 519 (New India Assurance Company, Dhule V/s Roopabai W/o Shankar Indasrao and others) (v) the latest judgment of the Hon'ble Apex Court reported in 2009SAR (Civil) 778 (Raj Raji and others V/s Oriental Insurance Co. Ltd., and others). The theme of the above referred judgments is, during the course of accident if the stationary 5 vehicle is involved, it will be covered in the term and bracket of "vehicle in use" and therefore liability to the extent of negligence can be fastened upon the owner of the stationary truck or the Insurance Company. 6. The Judgment in the matter of Raj Rani (cited supra) was in relation to promotion avenues of deceased, aged 42 years, Apex Court directed that such future promotion should have been considered while granting enhancement. There can not be a quarrel on the provisions of law. 7. Mr.Kutti could not point out about the involvement of the truck MWD-6491 as deceased himself, while conscious, lodged F.I.R. and no negligence on the part of the so called stationary truck was attributed. Otherwise there was no reason for the deceased to have booked the said stationary truck. 8. There is nothing to demonstrate that, there 6 were no tail lamps and side signals of the stationary truck, making it difficult to identify stationary truck. A diagram is placed showing angular position of the stationary truck, however, it hardly mitigates the situation. 9. It was contended that, two wheels of truck were on road while two tyres at planks and consequently there was a negligence on the part of the stationary truck. This submission is again difficult to act upon because it does not indicate any probabilities of the truck which was stationary to make a difficult situation either to Scooter driver and Truck driver. The evidence does not comment that there was any negligence on the part of stationary truck. The findings recorded by the learned Judge in para Nos.5 and 6, should not be criticized being brief, it was in condensed form as it is individual skill how to convey maximum message in minimum words. 10. As a result I do not find any merit in appeal, hence it is dismissed. 7 11. Heard Mr.Kutti. The avenue open to the claimants to seek redressal under Motor Vehicle Act in terms of hit-and-run vehicle, may be exhausted if law permits. 12. The New India Insurance Company is at liberty to withdraw the amount deposited with the learned Member, Motor Accident Claims Tribunal, Bhusawal. 13. The civil application also dismissed. (K. U. CHANDIWAL) JUDGE gas/fa724.03