1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.647 OF 1992 Maharashtra State Road Transport Corporation ...Appellant vs. 1 Smt.Taibai Govardhan Pawar 2 Chi.Mohan Goverdhan Pawar 3 Kumari Anjana Goverdhan Pawar 4 Chi.Ramdas Govardhan Pawar 5 Chi.Motiram Govardhan Pawar 6 Nirmal N. Merchant 7 The New India Insurance Co. Ltd.,Satara 415001 ...Respondents Shri G.S.Hegde a/w Shri C.M.Lokesh for the appellant Smt.Varsha Sawant for respondent nos.1 to 5 CORAM :A.S.OKA,J. DATE : NOVEMBER 24, 2009 JUDGMENT : 1 Heard the learned counsel for the appellant and the learned counsel for the 1 st to 5 th respondents. Office noting shows that the court service notice has been duly served to the 7 th respondent. 2 The challenge in this appeal by the original 4 th opponent in a claim petition under section 110-A of the Motor Vehicles Act,1939 is to the Award made on 9 th January 1992 by the learned Member of the Tribunal in favour of the 1 st to 5 th respondent who are the original claimants. The deceased Govardhan on 28 th October 1987 was travelling along with his goods by a truck. The 2 truck at the relevant time was owned by the 6 th respondent and was insured with the 7 th respondent. The case of the 1 st to 5 th respondents is that there was a head on collision between the truck and the bus owned by the appellant. The case made out by the 7 th respondent was that the entire negligence was of the driver of the bus owned by the appellant. The case of the appellant was that the accident occurred due to rash and negligent driving on the part of the driver of the truck. By the impugned Judgment and Award, the Tribunal awarded compensation of Rs.1,88,000/- together with interest at the rate of 12% per annum. The appellant and the 7 th respondent were held jointly and severally responsible to pay the compensation. However, it was held that the liability of the driver of the bus is to the extent of 30% and the liability of the driver of the truck was to the extent of 70%. 3 The learned counsel for the appellant submitted that the appellant had filed a suit in the Civil Court against the owner of the truck for recovery of compensation on account of damage to the bus. The Civil Court decreed the suit by holding that the driver, owner and insurer of the truck were liable to pay damages to the appellant. He submitted that the owner and insurer of the truck were estopped from contending that there was any negligence on the part of the driver of the bus in as much as there was 3 a conclusive finding of the Civil Court against the driver and owner of the truck that the accident occurred due to negligence on the part of the driver of the truck. There was no evidence on record to show that there was any negligence on the part of the driver of the bus. He, therefore, submitted that the entire liability was that of the owner and driver of the truck. 4 The learned counsel for the 1 st to 5 th respondents invited my attention to the spot panchnama on record and submitted that the panchnama shows that even the driver of the bus was negligent. She submitted that the 1 st to 5 th respondents were not parties to the suit filed by the appellant. Therefore, the finding recorded therein was not binding on them. She submitted that the Tribunal was required to decide the issue of negligence independently and therefore, no interference is called for. 5 I have given careful consideration to the submissions. It must be stated here that the 7 th respondent-insurer has filed a cross objection for challenging the finding of the tribunal holding the liability of the truck driver to the extent of 70%. The court service notice was issued to the 7 th respondent and the same has been duly served to the said respondent. However, none appeared for the 7 th respondent and therefore, cross objection will have to be dismissed. 4 6 It is not in dispute that apart from placing a copy of Panchanama on record, there was no evidence adduced by claimants for establishing the manner in which the accident occurred. The driver of the truck was not examined. Between the owner of the truck and the owner of the bus, there is a finding of the Civil Court which holds that the accident occurred due to negligence on the part of the driver of the truck. The said finding has attained finality. The owner and driver of the truck did not file written statement. A written statement was filed by the insurer of the truck raising a contention that the driver of the truck was not negligent and in fact the driver of the bus was negligent. The owner and driver of the truck were bound by the finding of the Civil Court holding that the driver of the truck was negligent. The only finding recorded by the Tribunal on issue of negligence in paragraph 9 reads thus : 9 ...Generally speaking, when there is a head on collision between the two vehicles, the responsibility between the drivers of two vehicles is apportioned 50.50 per cent. In this case, however, it appears that the truck after the impact went ahead up to a distance of about 45 to 40 feet and then have lost its control and fell into a ditch. On the Western side of the road i.e. On the wrong side. Of course, much would depend upon the position of the impact. But then the responsibility of the accident in these circumstances can be fixed as 70 per cent on the driver of the truck and 30 per cent on the driver of the S.T.Bus. I therefore, hold that, the Govardhan Pawar died in the accident due to the rash and negligent driving of the truck driver as well as the 5 S.T.Bus driver, whose responsibility in the accident is 70% per cent and 30 per cent respectively. 7 In absence of any evidence adduced, aforesaid finding is obviously based on surmises. Even if the panchnama is taken as it is, the same does not prove that the driver of the bus was responsible. The spot panchnama depicts the situation after the impact. Considering the aforesaid facts and considering the finding of the Civil Court which has attained finality, the Tribunal ought to have held that the driver of the truck was negligent in driving and the appellant ought to have been exonerated. Therefore, the entire liability to pay compensation to the 1 st to 5 th respondents will be of the sixth and seventh respondents. 8 Perusal of the record of the First Appeal shows that the amount of the compensation payable to the claimant has been deposited by the appellant with the Tribunal and the said amount was ordered to be invested in fixed deposit. The 1 st respondent was permitted to draw interest on the fixed deposit. 9 The result of modification of the Award is that the entire compensation amount will be payable by the 6 th and 7 th respondent. Therefore, the appellant will be entitled to withdraw the amount deposited with the 6 Tribunal with interest, if any, accrued thereon. It is made clear that the appellant will not be entitled to recover interest, if any, withdrawn by the 1 st respondent on the basis of interim order passed by this Court. By executing the modified Award, the appellant will be entitled to recover the said amount from the 7 th respondent. 10 Hence, I pass the following order : i) The cross-objection by the 7 th respondent is dismissed for non prosecution. ii)Impugned Judgment and Order is modified by holding that the 6 th and 7 th respondents are jointly and severally liable to pay entire compensation in terms of the Award to the 1 st to 5 th respondents and the appellant stands exonerated. iii)It will be open for the appellant to withdraw the amount deposited by it with the Tribunal together with interest accrued thereon. However, it will not be open for the appellant to recover any amount including interest, if any, withdrawn by the 1 st respondent. It will be open for the 1 st respondent to recover the said amount by executing the modified Award against the 7 th respondent-insurer. iv)The 7 th respondent is hereby directed to deposit the compensation amount in terms of this Judgment and 7 Order with the Tribunal within a period of three months from the date on which the writ of this Judgment is received by the tribunal. v) The appeal is partly allowed in above terms. JUDGE