1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 975/2004 The Divisional Controller, Maharashtra State Board Road Transport Corporation, Jalna Division, Jalna, District Jalna. ...Appellant. Versus 1 Sumitra w/o Prakash Nivade, Age : 29 years, Occu. Household, 2 Sarla d/o Prakash Nivade, Age : 9 years, minor 3 Laxmi d/o Prakash Nivade, Age : 7 years, minor 4 Rajendra Prakash Nivade, Age : 5 years, minor 5 Chandar Prakash Nivade, Age : 3 years, minor. Respondents no. 2 to 5 being minor under guardianship of their real mother respondent No.1. 6 Vanchalabai w/o Sampatrao Nivade, Age : 55 years, Occu. Household. 7 Sampatrao Vithoba Nivade, Age : 60 years, Occu. Household. All residents of Machindar Chincholi, Tq. Ghansavangi, Dist. Jalna. 8 Kisan Jayawantrao Gade, Age : Major, Resident of S.T. Depot, Ambad Dist. Jalna. ...Respondents. Shri D.S. Bagul, Advocate for appellants. Shri A.S. Osmanpurkar, Advocate for respondents no.1 to 7. CORAM : A.V. NIRGUDE, J. Date : 15th June, 2010. ORAL JUDGMENT:- 1 Heard. 2 2 This appeal is challenging the judgment and order passed by the learned Member of Motor Accident Claims Tribunal, Jalna in M.A.C.P.. No. 50/2002 where the appellant was respondent No.1. Respondents no. 1 to 7 filed a motor accident claim petition against the appellant and the respondent no. 8. It was their case that on 18/03/2002 at about 11.00 a.m., the respondent no.8, the driver of a passenger bus owned by the appellant, drove his vehicle in rash and negligent manner and caused death of one Prakash who happened to be the respondent no.1’s husband and father of the respondents no. 2 to 5. Appellant no. 8 appeared to oppose the petition and took up a specific defence that deceased Prakash jumped under the bus in order to kill himself. It is their case further that Prakash came under the rear side wheels of the vehicle and died immediately. 3 In view of the specific defence, the learned Member of the Tribunal while framing the issue inter alia, put the burden to prove the incident as described by respondents no. 1 to 7 on them. Respondent no.1 recorded statement on oath who admitted in the cross examination that she was not present when the accident took place and therefore, her testimony was not useful for the Court to decide as to how the accident took place. Unfortunately, respondents no. 1 to 7 did not lead further evidence but placed reliance only on the police papers namely the F.I.R., the scene offence panchanama etc.. On the other hand, the respondent no. 8 the driver of the 3 vehicle entered the witness box and stated on oath that deceased Prakash jumped under his vehicle and got crushed under the rear wheels of the vehicle. The respondents no.1 to 7 did not cross examine him and thus his testimony has gone unchallenged. The respondent no. 8 as well as the appellant placed reliance on the police report which the police sent after investigation to the criminal Court. The Police closed the case as ‘C’ summary and the learned Magistrate accepted the proposal to close the investigation. The Police thus did not file charge sheet against the respondent no. 8. The learned Member of the Tribunal while appreciating the case, rightly rejected the subsequent part of the appellant’s case that the circumstances of sending of ‘C’ summary etc., is not material to the outcome of this litigation. Indeed what was required to be appreciated, was as to how the accident took place, whether the respondent no. 8 drove the vehicle in rash or negligent manner to cause accidental death of Prakash. 4 On one hand, the respondent no. 8 who was party to the accident claim, came and recorded his deposition. There is no reason for discarding his testimony because there was no cross examination to challenge his veracity and truthfulness. Besides his presence on the scene of incident was natural and since he was party to the incident, it was necessary for him to come before the Court and record his testimony. So, the testimony of the respondent no. 8 the driver of the vehicle is believable and trustworthy. The 4 other evidence on record is a copy of F.I.R. and a copy of scene of offence panchanama. Both these documents came on record from the respondents no. 1 to 7’s side. The F.I.R. does not contain ocular description of the accident. The first informant the father the deceased – respondent no. 7, stated to the police that he learnt from two of his acquaintances, about the accident and death of his son Prakash and so, he had gone to the Police Station to report the incident. On this information, the police registered the offence against the respondent no. 8. The F.I.R. does not support the testimony of the respondent no. 8 when he said that he went first to the Police Station to report the incident. In any case, the F.I.R. as said above, does not prove the case of the respondents no. 1 to 7. 5 The copy of scene of incident panchanama is on record and it neither supports the case of the respondents no. 1 to 7. The narration in the scene of offence panchanama does not support the case of the respondents no. 1 to 7 that the front portion of the vehicle came in contact with deceased Prakash. It neither supports the case of the respondent no. 8 and the appellant that the deceased was crushed beneath the rear wheels of the vehicle because no blood stains were found even on the rear side wheels of the vehicle. Even the front side wheels did not have blood stains. In such a situation, it was necessary for the respondents no. 1 to 7 to lead cogent evidence in the form of a testimony of an eye witness, who would have 5 challenged the truthfulness of the version of the respondent no. 8 the driver of the vehicle. In absence of such testimony, the respondents no. 1 to 7 have practically failed to prove their case and in view of the deposition of the respondent no. 8, the appellant and the respondent no. 8 have proved their case that the deceased died of suicidal death. 6 The learned Member committed grave error in appreciating this aspect of the case. He unnecessarily and erroneously went on discussing the aspect of ‘C’ summary, which the Police sent against the respondent no. 8. He went on observing that the Police should have charge sheeted respondent no. 8. Whether the Police had charge sheeted the respondent no. 8, is not important to this case. What was required to be done in this case, is that respondents no. 1 to 7 should have recorded evidence in support of their case that Prakash did not die suicidal death but he lost his life due to rash and negligent driving of respondent no. 8. In view of the failure to do so, the appeal should succeed. ORDER a) The appeal is allowed. b) Impugned judgment and award passed stands set aside. c) The Motor accident claim petition stands dismissed. [A.V. NIRGUDE, J.] tsk/fa/975/04/ok 6