1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 6. FA/993/2009 (Kachru Pandurang Sanap vs. Maharashtra State Road Transport Corporation through Controller, MSRTC, Ahmednagar) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. Sachin Deshmukh, Adv. For the appellant. Mr. M.K.Goyanka, Adv., for respondent (sole). ... CORAM: K.U.CHANDIWAL, J. DATE: 15/7/2009 P.C.:- 1. The matter is heard and decided finally at admission stage, as indicated on 8th June, 2009 and 8th July, 2009. 2. The apellant/claimant was a passenger in BUS MH-20-D-5737 proceeding towards Ahmednagar – Aurangabad from Latur. At around 4 a.m. On 24.3.2005, the said ASIAD Bus dashed against a stationary truck having registration No.MH-18- C-7186, giving rise to FIR vide Crime No.35/2004, recorded immediately. In the FIR names of the passengers in the Bus are disclosed. There is now no controversy that the present appellant was also 2 a passenger in the Bus. 3. The appellant canvassed, he, though is an agriculturist, was engaged in milk vending business for which he has produced a certificate issued by the Milk Collection Center and also the revenue record. 4. It was canvassed by the appellant that owing to the rash and negligent driving by the Bus driver, the accident has taken place and, consequently, entire liability to meet the claim rests on the respondent MSRTC. 5. In order to establish his contention of permanent disablement, apart from evidence of the appellant/claimant, he has examined Dr.Bakul Palve of Navjeevan Accident and Surgical Center at Ahmednagar where the appellant was under treatment. The medical certificate/ disablement certificate is at Exh.34 assessing 50 per cent of permanent disability to the appellant. The medical bills of Rs.43,850/- collectively at Exh.43 are proved through said Dr.Palve. 6. On behalf of M.S.R.T.C., it is canvassed, that the accident could not be treated to be totally at the fault of the Bus Driver as it was the stationary vehicle without any cordoning and indication of tail lamps, to avert any 3 casualty, the accident has taken place. It is pointed out, the truck was not quite aside the road but it was obstructing the normal traffic, and nearing the center. To this effect the Panchnama supports contention of the MSRTC. 7. In the petition, the appellant has not uttered a whisper about the offending truck as to its position, including its registration number. The entire responsibility of negligence is cast on the Bus Driver/respondent. 8. The learned Judge has assessed the evidence of the Bus driver and also of the appellant herein. The contention of the Bus Driver that he could not visualize the truck standing on the way, as there was glare of the truck coming from the opposite side, has been negatived on the wild surmise that the opposite side vehicle across the road should have been referred with reference to its details. 9. The Counsel for the appellant canvassed, it was the choice of the claimant not to implead the truck driver or the owner thereof as parties. 10. The details of evidence of Dr.Palve, supported with medical bills and discharge card and the disablement certificate, shows there 4 was an operation effected for the disks, which was the result of the accident. The movements of the appellant are restricted. There is tingling and numbness, which also makes him crippled for undertaking his regular pursuits in the Milk Vending business. On this count, and computation of the prospects and loss of income arrived at by the learned Judge, is not disturbed. 11. The fact now remains as to contention of the appellant that, it was the sole responsibility of the Bus Driver. and for that purpose, the M.S.R.T.C., to meet the claim. The contention that it is the choice of the claimant to implead the truck driver, may be a cozy contention, but difficult to digest on factual matrix of the matter. One cannot be oblivious that at the material time on 4.a.m. On 23rd April, when the accident has taken place, the nature of the stationary truck was such grave that even by ordinary prudence the Bus Driver could not have controlled the vehicle. It is more so when the Bus has dashed to the stationary vehicle from its Cleaner’s side. This is indicative that no sooner there could be a symptom of offending vehicle in a stationery manner, there is logically rational approach from the Bus Driver to control the vehicle and, in the melee, the dash was not a complete head on collision but it was a passing impact from the 5 Cleaner’s side. The glare of the lights of vehicle coming across the road was the root cause. It was equally incumbent on the truck driver to have cordoned the vehicle and should have indicated the blinkers or tail lamp to make aware the vehicles coming or moving on the road about the truck. No such precautions, which are mandatory and obligatory in terms of Section 122 of Motor Vehicles Act, are adhered to. Mere prosecution of the M.S.R.T.C. Driver, by itself, will not dilute the liability or the responsibility of the truck driver. The learned Judge has assessed the negligence to the extent of 60 per cent to the Bus driver and 40 per cent to the driver of the truck. On evaluation of the evidence, I find no error apparent on the part of the learned Judge in doing so. The calculations, as stated above, are in tune with the evidence. They do not require any modification or enhancement. Consequently, the appeal lacks merit. It is dismissed. No costs. (K.U.CHANDIWAL) JUDGE agp/fa993-09a