1 fa1333-98.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1333 OF 1998 The Executive Engineer, Irrigation Dept., Pune ..Appellant Vs Manda Bapu Jore and ors. ..Respondents -- Mr.Vijay Patil, for appellant. Mr.M.V.Utgikar, for respondent nos.1 to 4. Mr.D.R.Mandlik i/b.Mr.S.R.Singh, for respondent no.7. -- CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 ORAL JUDGMENT: Heard the learned counsel for the appellant and the learned counsel for the first to fourth respondents. 2] The appellant is the sixth opponent in a claim petition filed by the first to fourth respondents under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act). The first respondent is widow of deceased Bapu. The second to fourth respondent are children of the deceased. The deceased was employed as a Junior Clerk in the 2 fa1333-98.sxw Irrigation Department of the Government of Maharashtra of which the appellant is the Executive Engineer. According to the case of claimants, on the date of accident, the deceased had come to Narayangaon for his official work from Jambut, Taluka Junnar, District Pune, where he and his family members were residing. After completing his work, he was waiting for a vehicle for going back to his place of residence. At the time, a dumper owned by the State Government came there. It was proceeding from Narayangaon to Jambut. It is alleged that the deceased was working in the same department for which the dumper was deployed. Therefore, the deceased was accommodated in the said dumper. It is alleged that when the dumper reached at the spot of accident, there was a vehicle parked on the left side of the road and the driver of the dumper tried to overtake the said vehicle. At that time, the offending truck came from the opposite direction. There was a head on collision as a result of which the deceased sustained multiple injuries which resulted in his death. It is alleged that driver of both vehicles were rash and negligent which caused the accident. The Tribunal held that the driver of the dumper was negligent due to which the accident was caused. It must be noted that one of the contention of the appellant in the written statement was that the deceased had no business to travel by the dumper. The Tribunal held that as the driver of dumper was negligent, the appellant was liable to pay the compensation which was quantified at Rs.1,47,350/- with interest. 3] Learned counsel for the appellant submitted that there is no evidence on record to show that the deceased was entitled to travel by dumper. He submitted that as there was no evidence adduced to show 3 fa1333-98.sxw that the deceased was permitted to travel by dumper, the liability to pay compensation cannot be fastened on the appellant. 4] I have give careful consideration to the submissions. There is a finding recorded that the driver of the dumper was negligent and, therefore, the accident occurred. The claim was made by the legal representatives of the deceased under the law of torts on account of negligence on the part of the driver of dumper. The moment negligence on the part of the driver is established, the liability under the law of torts is attracted and the tort feasor is liable to pay the compensation. Apart from this, the Tribunal has considered the defence raised by the appellant. To prove the contention that the deceased was not entitled to travel by the dumper, the appellant examined one Shivling M. Rajmane who was a Sub-Divisional Engineer in the office of the appellant. In the examination-in-chief, he stated that the dumper was taken to Narayangaon for carrying out repairs and after carrying out repairs it was being taken back. He stated that though the deceased was travelling by the dumper towards village Jambut, the deceased had not came to Narayangaon for official work. In the cross- examination, he admitted that the deceased was working in his office as a Clerk and he had no personal knowledge of the request allegedly made by the deceased to travel by the dumper. He stated that only on the basis of report received by him, he was stating that the deceased was not assigned any work of Narayangaon. He could not explain the nature of work assigned to deceased. He admitted that the driver of the dumper was still in the employment of his department. 4 fa1333-98.sxw 5] After considering the evidence of the said witness, the Tribunal has discarded the defence of the appellant that the deceased was not entitled to travel by the dumber. In any event, though the driver of dumper continued to be employed in the said office, he was not examined as witness. Hence, adverse inference ought to have been drawn against the appellant for not examining the driver. Hence, it is not possible to find fault with the judgment and award of the Tribunal. Learned counsel for the appellant submitted that interest at the rate of 12% could not have been granted. However, it must be noted that the claim petition was filed in the year 1986 and was decided in the year 1988 and, considering the then prevailing rates of interest of the nationalised banks, the grant of interest at the rate of 12% per annum was justified. Another ground urged that the employment on compassionate ground was given to the first respondent is not relevant for computation of compensation. 6] Hence, Appeal is dismissed with no order as to the costs. 7] If any amount is deposited in this Court, the same shall be transferred to the Tribunal and the Tribunal shall pass appropriate order for disbursement/investment of the said amount. [A.S.OKA, J]