1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.352 OF 2009 Rajendra Amrutrao Chavan - APPELLANT VERSUS 1) Meerabai w/o Subhash Surase and others. - RESPONDENTS ***** Mr.MK Deshpande, Advocate for Appellant; Mr.KF Shingare, Adv. for Resp.Nos.1 to 3. Mr.PC Mayure, Adv.h/for Mr.SS Chapalgaonkar, Adv. For Respondent No.5. ----- CORAM : K.U.CHANDIWAL, J. DATE : 10th July, 2009. PER COURT : 1) Heard learned Counsel for the parties. 2) In view of the earlier noting and availability of record and proceeding, the matter is finally heard at the admission stage. 3) The death of 35 years old Subhash, in an accident dated 10th March, 2004, expired on 22nd Mach, 2003, is the point of controversy. The learned Chairman of the Tribunal, by order dated 4.5.2007 fixed the liability to make the payment of Rs.2,65,500/- to the jeep owner, the original respondent no.2. He has now challenged the same 2 in the present appeal. 4) The Counsel for the appellant urged, there is no clear evidence as to the deceased Subhash travelling in the vehicle owned by the appellant. The death of deceased was fall from the roof at hight of 6 ft. and since he was under influence, a false claim is initiated against the owner of the vehicle. The second defense raised was the d river graciously carried the deceased having suffered injuries to hospital and his human touch has not taken into consideration. Learned Counsel also took recourse to the statement of claimants and of the eye-witnesses recorded by police subsequently on 12.4.2003, which according to him, are belated. 5) With the assistance of both the counsel during the course of submissions, record and proceeding was perused, and more particularly the evidence of eye-witnesses, PW.2 Parmeshwar and PW 3 Nivrutti. These two witnesses were substantially cross-examined on behalf of the insurance company and also on behalf of the appellant and his driver. A suggestion to both the witnesses was given that the deceased Subhash tried to climb the jeep, he was in hanging position and suffered in the accident. This suggestion, is apparently contrary to what the learned Counsel has canvassed or what the driver has deposed before the learned Judge of the 3 Tribunal. 6) The evidence of Dr.Ghute, who had occasion to interact with the deceased when he was in unconscious condition, is of no avail to the appellant as Dr.Ghute simply carried the urgent medical assistance. He found the deceased to be in unconscious state. The deceased was under influence, his pupils were dilated. The history recorded by Dr.Ghute, and the evidence of PW 2 Parmeshwar and PW3 Nivrutti leads to an unimpeachable conclusion that the fall of deceased Subhash from the height of six feet could only be attributable to the driver in the jeep and getting fell owing to the jerk suffered during the travel. 7) The unauthorized carrying of the passengers, on fare was also considered by the learned Judge and consequently, the insurance company was exonerated. I need not to further advert to this aspect as there is no canvassing about the fixing of the liability to the insurance company. 8) The fact remains the belated statements recorded of the witnesses and more particularly of the victim's wife, will not be turning table in the matter. In a matter under Motor Vehicle Act, the evidence of the witnesses, who travelled with the unfortunate deceased, and that of the driver plays pivotal role. The learned Judge has 4 analyzed the same and correctly. It does not warrant any interference to criticize the same. The doubt raised that the deceased felled from height of six feet, may be from some other object and not from the vehicular accident, in the fact situation, is an illusory doubt and difficult to act upon. Consequently, the appeal is dismissed. No costs. In view of dismissal of the appeal, CA No.13149/2008 does not survive, it is dismissed. ( K.U.CHANDIWAL ) JUDGE bdv/fa352.09