1 fa-52.96 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 52 OF 1996 The State of Maharashtra & Anr. .. Appellants. ( Org. Opponent Nos.1 and 2 ) VS Smt. Vimal Murlidhar Wagh & Ors. .. Respondents -- Smt. S.V. Sonawane, AGP for the Appellants. Shri A.B. Tajane i/by Shri R.B. Jagtap for Respondent No.1. Shri S.P. Thorat also for Respondent No.1. Shri M.G. Barve for Respondent No.5. -- CORAM : A.S.OKA, J. DATE : 5TH OCTOBER, 2010 ORAL JUDGMENT : . Heard learned AGP appearing for the Appellants and the learned counsel appearing for the Respondents. The challenge in the appeal is to the judgment and award dated 25th August, 1994 passed by the learned Member of the Motor Accident Claims Tribunal. 2. The claim petition was filed under the provisions of the Motor Vehicles Act, 1939 by the 1st Respondent who is the widow of the deceased. The 6th and 7th Respondents are the parents of the deceased. 2 fa-52.96 3. According to the case made out in the claim petition, on 11th April, 1983 the deceased was traveling in a Trolly No.1 attached to a tractor bearing No. MZA-6072 towards Bhagwat Vasti from Bhima Sahakari Sakhar Karkhana Limited. The said tractor was owned by the 2nd Respondent and the same was driven by 3rd Respondent. The case made out in the claim petition is that at that time, a Truck bearing No. MTD 7570 owned by the Irrigation Department of the 1st Appellant which was being driven by the 2nd Appellant came in a very high speed. The allegation is that the truck gave a dash to the right side of the trolly and subsequently also to the rear side of the said trolly. It is alleged that as a result of the impact, mouth of the deceased got entangled in the rearside hook of the truck and he was carried along with the truck to a some distance. Thereafter, he fell down on the road and died on the spot. The allegation is that the truck fled away. The allegation is that the accident occurred due to rash and negligent driving on the part of the 2nd Appellant. 4. The claim was contested by the appellants by filing a Written Statement. In the written statement, it was denied that the truck was involved in the accident. It was contended that the 2nd Appellant became aware of the accident while returning from Indapur when his truck was stopped by some people at village Varwand. Thus, the case made out by the Appellants was that the truck was not at all involved in the accident. The insurer of the Tractor filed a written statement contending that the 3 fa-52.96 tractor was being driven at a very slow speed and by the left side of the road and that accident occurred due to rash and negligent driving of the truck by the 2nd Appellant. It was contended that the owner of the tractor has committed a breach of terms and conditions of the policy. The Tribunal held that the truck was involved in the accident and the accident occurred due to rash and negligent driving on the part of the driver of the truck. The Tribunal proceeded to award compensation of Rs.1 lakh with interest. 5. The learned AGP appearing for the Appellants submitted that there is no evidence of involvement of a truck in the accident. She submitted that there is no eye witness examined by the claimants. She pointed out that the case of the claimants was that the mouth of the deceased was entangled with the hook on the rear side of the truck. She submitted that the death certificate on record is inconsistent with the case as it is stated in the death certificate that the deceased died due to shock on account of trauma and hemorrhage on account of blunt injury on the abdomen. She stated that the said certificate completely defeats the case of the claimants. She invited attention of the Court to the evidence of the 2nd Appellant and another witness examined by the Appellant. She submitted that merely because some part of the truck was allegedly found on the spot of accident is no ground to hold that the truck was involved in the accident. In any event, she submitted that the liability will be joint and several of the owner of the truck as well as the tractor. She submitted that there is absolutely no evidence to show that the age of the deceased was 35 4 fa-52.96 years and that he was earning Rs.1,200/- per month. She submitted that the age of the deceased was 42 years. She submitted that in any case compensation amount is very exorbitant. 6. I have given careful consideration to the submissions. The first issue is about involvement of the truck in the accident. One of the contentions raised is that the cause of death shown in the death certificate is inconsistent with the case pleaded in the claim petition. It is pertinent to note that the widow stepped into the witness box and stated that her deceased husband died due to the injuries sustained in the accident. In the cross examination, no suggestion has been given to the widow that the death was not caused due to the accident but due to some other cause. Apart from all this, the death certificate on which reliance is placed by the learned AGP is not exhibited and it is only a xerox copy allegedly issued by a medical officer. The case that the death was not caused due to accident is not put to the widow. Had that case been made out, the 1st Respondent could have adduced evidence to prove the cause of death. Therefore, at this stage, the said contention is not open to the Appellants. 7. The 2nd Appellant stepped into the witness box. He did not dispute that on the relevant date, he was working as a Driver of the truck. According to the claimants, the accident occurred on 11th April, 1983. The 2nd Appellant admitted that on that date, he was driving the truck in question and he proceeded from Panshet to Indapur via Pune-Solapur Road 5 fa-52.96 and was carrying the steel. He stated that there were three labourers in the truck. He could disclose the name of only one labour i.e. Prakash Shankar Pasalkar in the examination-in-chief. He stated that on 11th April, 1983, he reached Indapur in the evening and he halted there. On the next morning, he started back by the said road. He stated that at about 4 to 4.30 p.m., the people of Warvand halted his truck and stated that the accident had occurred on the previous date. He stated that there was no accident on 11th April, 1983 and the truck had not dashed against the tractor. In the cross-examination, he admitted that he had been prosecuted in a criminal case. He stated that there were two labourers Gopal Raju Chorge and Sudhakar Vishnu Deshpande whose statements were not recorded by the Police in his presence. In the cross-examination, he admitted that he had proceeded by the same road on the date of the accident on which the accident had taken place. He stated that on the next date, a panchanama of the accident was drawn up. He stated that two Panchas were there. He stated that there was no talk between him and the Panchas. When a suggestion in the cross-examination was put to the witness that the mudguard of the truck was lying at the spot, he was unable to say whether mudguard of the truck was lying there. He admitted that there were hooks to his truck. He denied the correctness of the suggestion that the colour of the body of the truck near the driver’s side had gone. He admitted that a criminal case was pending against him. In the evidence, he did not dispute the panchanama. 6 fa-52.96 8. The 2nd witness examined by the Appellant is one Prakash Shankar Pasalkar. He claimed that on 11th April, 1983, he was travelling by the said truck which was loaded with the steel. He stated that there was no such accident. He admitted in the cross-examination that he had come to the Court on the instruction of the 2nd Appellant -Tukaram. He admitted that the police had not recorded his statement. He also admitted that the 2nd Appellant was prosecuted. 9. Thus, admittedly, the truck was plied on the same road on the day on which the accident took place and on the next day, on the return journey, the local people intercepted the truck and stopped it. The 2nd witness examined by the Appellants has stated that he visited the Court to depose because he was told to do so by the 2nd Appellant. Moreover, his statement has not been recorded by the police. A specific suggestion was given to the 2nd Appellant that the mudguard of the truck was lying on the spot of the accident. Instead of denying the suggestion, he stated that he was unable to state whether the mudguard was lying on the spot. The Tribunal has made a reference to the panchanama which was admitted by the 2nd Appellant in the cross-examination. The learned Judge noted that the mudguard was lying on the spot. The Learned Judge noted that the truck in question was of yellow colour and mudguard was also of yellow colour. The panchanama also records that there there were hooks to the truck and the same were bent. The colour of a hook was also obliterated. 7 fa-52.96 Though the log book was maintained, the same was not produced on record. All these facts were considered by the learned Member of the Tribunal and an inference was drawn that the truck was involved in the accident. After having perused the record and the evidence of the witnesses, it is not possible to find fault with the said finding. 10. The case of the Appellant was of complete denial. After having found that the truck was involved in the accident, now it is not open for the Appellants to contend that the negligence was not on the part of the driver of the truck. Such a case was not made out by the Appellants before the Tribunal. Once the plea of the Appellants of non-involvement of the truck is discarded, the case made out by the claimants about negligence on the part of the 2nd Appellant is required to be accepted. 11. As far as quantum is concerned, a suggestion was given by the Appellant to the widow that the age of the deceased at the time of accident was 42 years. The said suggestion was accepted. Even if the age is taken as 42, the multiplier 14 will be justified. Even if the dependency of the widow and the parents is taken at Rs.600/- per month, by applying the multiplier 12, compensation will be Rs.86,400/- and after adding usual amount to that, the compensation amount will be Rs.1,00,000/-. The compensation amount awarded is reasonable and no interference is called for. 8 fa-52.96 12. There is no merit in the Appeal and the same is dismissed with no orders as to costs. (A.S.OKA, J)