... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.246 OF 1987 Shivaji Waman Godase ...Appellant Vs. Chandrapati Ishwarsingh Dahiya & Ors. ...Respondents WITH FIRST APPEAL NO.511 OF 1987 The Oriental Insurance Co. Ltd. ...Appellant Vs. Chandrapati Ishwarsingh Dahiya & Ors. ...Respondents WITH FIRST APPEAL NO.247 OF 1987 AND CROSS-OBJECTION (ST) NO.14198 OF 1987 Shivaji Waman Godase ...Appellant Vs. Uma Shankar Patil & Ors. ...Respondents WITH FIRST APPEAL NO.248 OF 1987 WITH CROSS-OBJECTION Shivaji Waman Godase ...Appellant Vs. Vimladevi Wazirsingh Joon & Ors. ...Respondents WITH FIRST APPEAL NO.249 OF 1987 Shivaji Waman Godase ...Appellant Vs. Kashibai Rajabhau Raut & Ors. ...Respondents WITH FRIST APPEAL NO.250 OF 1987 Shivaji Waman Godase ...Appellant Vs. Santosh Ramchandra Dahiya & Ors. ...Respondents WITH FIRST APPEAL NO.251 OF 1987 ... 2 ... Shivaji Waman Godase ...Appellant Vs. Maharashtra State Road Transport Corporation & Ors. ...Respondents WITH FIRST APPEAL NO.432 OF 1997 Shalubai Rajaram Margale (since deceased) through legal representatives ...Appellants Vs. Shivaji Waman Godase & Ors. ...Respondents WITH FIRST APPEAL NO.510 OF 1987 The Oriental Insurance Co. Ltd. ...Appellant Vs. Santosh Ramchandra Dahiya & Ors. ...Respondents WITH FIRST APPEAL NO.512 OF 1987 The Oriental Insurance Co. Ltd. ...Appellant Vs. Vimaladevi Wazirsingh Joon(Choudhari) & Ors. ...Respondents WITH FIRST APPEAL NO.513 OF 1987 The Oriental Insurance Co. Ltd. ...Appellant Vs. Maharashtra State Road Transport Corporation & Ors. ...Respondents WITH FIRST APPEAL NO.514 OF 1987 The Oriental Insurance Co. Ltd. ...Appellant Vs. Kashibai Rajabhau Raut & Ors. ...Respondents AND FIRST APPEAL NO.515 OF 1987 The Oriental Insurance Co. Ltd. ...Appellant Vs. Uma Shankar Patil & Ors. ...Respondents ... 3 ... Shri M.B. Kotak and Mrs Sangeeta Shinde for the Appellants in First Appeal Nos.246 to 251 of 1987. Shri D.S. Sawant for the Appellant in First Appeal No.432 of 1997. Mrs A.A. Agarwal for the Appellant in First Appeal No.510 to 515 of 1987. Shri G.S. Hegde for the Respondent-Maharashtra State Road Transport Corporation. Shri M.B. Kotak with Mrs Sangeeta Shinde for the Respondent-owner of the Dumper in First Appeal No.432 of 1997 and First Appeal Nos.510 to 515 of 1987. Mrs A.A. Agarwal for the Insurer of the Dumper in First Appeal No.246 to 251 of 1987 and First Appeal No.432 of 1997. Shri R.L. Patil and Shri Sachin Punde for the Respondent Nos.1 to 6 in First Appeal No.247 of 1987. Ms Subhangi Deshmukh for the Respondent Nos.1 to 6 in First Appeal No.249 of 1987. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : APRIL 20, 2006. DATE : APRIL 20, 2006. DATE : APRIL 20, 2006. JUDGMENT: JUDGMENT: JUDGMENT: 1. The submissions of the learned Counsel appearing for the parties were heard yesterday. All the First Appeals in this group arise out of the same accident. The impugned judgment in all these Appeals except in First Appeal No.432 of 1997 is a common judgment delivered in separate Claim Petitions. Therefore, the Appeals can be conveniently disposed of by a common judgment. ... 4 ... 2. All the Appeals except one arise out of Claim Petitions filed under section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as the said Act of 1939). One Appeal arises out of a Claim Petition under section 166 of the Motor Vehicles Act, 1988. All the Claim Petitions arise out of an unfortunate accident which took place on 20th July, 1984. The accident took place at Kesurdi Phata, Pargaon, Taluka Khandala, District Satara. A bus owned by the Maharashtra State Road Transport Corporation was proceeding from Panaji to Pune. The other vehicle involved in the accident was a dumper-truck (hereinafter referred to as "the dumper") owned by the Appellant in First Appeal Nos.246 to 251 of 1987. The dumper was coming from the opposite side. There was a collision between two vehicles. The impact of the accident was so devastating that the entire right side of the bus from the driver’s cabin till the end was completely torn exposing the seats on the right hand side. There were 35 passengers in the ill-fated bus. 8 passengers died on the spot and one passenger succumbed to injuries later on. 11 passengers suffered injuries. The driver of the State Transport bus also suffered injuries. 3. Number of Claim Petitions were filed before ... 5 ... the Tribunal. One of the Claim Petitions was dismissed in so far as some of the claimants were concerned on the ground of bar of limitation. The issue before the Tribunal was whether the accident occurred due to composite negligence on the part of both the drivers. The Tribunal recorded a finding that the accident occurred due to rash and negligent driving on the part of the driver of the dumper. The Tribunal also accepted the defence of the insurer (i.e. the Oriental Fire and General Insurance Co. Ltd.) of the dumper that its liability to third party risk was limited. The Tribunal however did not accept the contention of the insurer that the liability was limited to Rs.50,000/- and the Tribunal came to the conclusion that the liability was restricted to Rs.01,50,000/- in each case. 4. First Appeal No.246 of 1987 has been preferred by the owner of the dumper for challenging the award made in M.A.C. Application No.190 of 1984. By the said award the driver, the owner and the insurer of the dumper were held liable to pay compensation of Rs.3,26,200/- to the original claimants with future interest at the rate of 12% per annum from the date of Application till the recovery of the amount together with proportionate costs. The liability of the ... 6 ... insurance company was held to be restricted to Rs.1,50,000/- with interest thereon and proportionate costs. First Appeal Nos.247 of 1987, 248 of 1987, 249 of 1987, 250 of 1987 and 251 of 1987 have been preferred by the owner of the dumper for challenging the judgments and awards made in M.A.C. Application No.10 of 1986, 191 of 1984, 189 of 1985, 189 of 1984 and 10 of 1985. In First Appeal Nos.247 of 1987 and 248 of 1987 cross-objections have been filed by the original claimants. First Appeal No.432 of 1997 filed by the original Claimants takes exception to the judgment and award made by the Tribunal in M.A.C. Application No.408 of 1990. First Appeal No.510 of 1987, 511 of 1987, 512 of 1987, 513 of 1987, 514 of 1987 and 515 of 1987 are preferred by the insurer of the dumper for challenging the same awards against which the owner of the Dumper has preferred aforesaid Appeals. The Appeals preferred by the owner of the Dumper are for challenging the finding of negligence recorded against the driver of the Dumper. The contention raised in the Appeal is that the accident occurred due to the negligence on the part of the driver of the bus of the State Transport Corporation. Only in First Appeal No.246 of 1987 (arising out of Claim Application No.190 of 1984) the challenge is also to the quantum of compensation. The challenge in ... 7 ... the Appeal preferred by the insurer of the Dumper is on the issues of negligence. The challenge in the First Appeal No.432 of 1997 is to the rejection of the claim of the Claimant Nos.1 to 5 on the ground of bar of limitation. 5. The submission of Shri Kotak appearing for the owner of the dumper is that the accident occurred due to the negligence on the part of the driver of the State Transport Corporation Bus. His other two submissions which are made without prejudice to the first submission are that in any event, there was a composite negligence on the part of both the drivers and that there is no evidence led by the insurance company to prove that its liability was restricted to Rs.1,50,000/-. He has taken me through the pleadings and notes of evidence. He has invited my attention to various decisions of this Court, other High Courts and Apex Court which are dealt with in the later part of this judgment. The submission of Mrs Agarwal in support of the Appeals preferred by the insurer of the dumper is that the accident occurred due to negligence on the part of the driver of the State Transport bus. Her submission is that the limit of liability of the insurance company was Rs.1,50,000/-. Shri Hegde ... 8 ... appearing for the State Transport Corporation in all the Appeals has supported the impugned judgments and awards and especially the finding recorded as regard negligence. He has also taken me through the relevant part of the evidence. I have also heard Shri Punde and Ms Deshmukh for the original claimants in some of the Appeals. 6. Broadly, following points arise for my consideration: (i) Whether the accident occurred due to negligence on the part of the driver of the S.T.Bus or the driver of the dumper or whether there is was a composite negligence? (ii) Whether the liability of the Insurer of the dumper was limited to Rs.1,50,000? (iii) Whether the impugned awards are legal? So far as Appeal No.432 of 1977 is concerned, the aforesaid issues arise alongwith the issue of limitation which is dealt with separately. ... 9 ... 7. In so far as involvement of both vehicles in the accident is concerned, there is hardly any dispute. The owners and drivers of both the vehicles have tried to shift blame on each other for negligence. It will be necessary to refer to the relevant evidence on record for deciding the issue of negligence. At this stage, it may not be necessary to refer to the evidence of most of the claimants as none of them are eye-witnesses. Therefore, I am considering only the evidence of the relevant witnesses. Witness No.5 examined by the Applicant is one Shri Sahebrao Rau Landage who is a panch witness to the panchnama of the spot of accident. Witness No.6 Shri Ramchandra Abaji Gadhave is a panch witness to the panchnama of the dumper. Witness No.7 Shri Sureshbabu Dhullappa Talbhandare is a P.S.I. attached to Khandala Police Station at the relevant time. He prepared panchnama of the spot of the accident and he recorded the inquest panchnama. Witness No.8 Shri Barma Rama Dhende is an Officer authorised by the Maharashtra State Road Transport Corporation to depose in the claim made by the said Corporation. He has deposed about the claim of the Maharashtra State Road Transport Corporation. Witness No.9 is one Shri Vilas Laxman Bandal who was working as a senior foreman at S.T. Workshop, Pune. Witness No.10 Mahadeo Ganpat ... 10 ... Pawar is the driver of the said State Road Transport Corporation Bus involved in the accident. The Witness No.1 for the Opponent Shri Hanumant Namdeo Bhokare was a passenger travelling in the ill-fated S.T.Bus. Another witness examined by the original Opponents is Shri Uttam Abaji Pisal who was the driver of the dumper at the relevant time. One Shri Shivaji Ganpatrao Deokar is a passenger travelling in the S.T. Bus at the time of the accident. 8. Firstly, it will be necessary to refer to evidence of the driver of the dumper. The driver of the dumper Uttam has deposed that at about 7.30 p.m. on the day of the accident after completing work he was returning with the dumper. By taking a katcha road he joined the highway and started proceeding towards Satara. According to him the Dumper was proceeding along the left side of the road with the speed of about 20 kilometre per hour. He stated that at the relevant time dumper was empty. He stated in examination-in-chief that if the empty dumper is driven in fast speed, it vibrates and it cannot be controlled. According to him up to speed of 40 to 45 Km. per hour dumper can be driven normally without any vibration. The capacity of the dumper according to him was seven and half tons. He stated that when ... 11 ... he travelled distance of about 4 kilometer towards Satara, one vehicle came from opposite side in fast speed and it came on the side of the dumper and gave a dash. He stated that as he was driving the vehicle in a slow speed there was no question of application of brakes. According to him there was sufficient place towards the western portion of the road for the other vehicle to pass. He stated that the bus brushed against mudguard on the right side of the Dumper and the ‘houda’ (open bed of the dumper truck which tilts up to unload) portion of the dumper. He stated that he stopped the dumper at a distance of about 10 to 14 ft. after the brushing. According to him the bus stopped at a distance of 600 ft. As he apprehended that the members of the public gathered there would assault him, he left with the dumper and he went to Phaltan to report about the accident to the owner of the dumper. On the next day morning he appeared before the Phaltan Police Station with the dumper and gave information to the Police. 9. In the cross-examination he has stated that at the place of accident on both the sides the road was plane and straight and he could see vehicles coming from front side when it was at distance of about 200 to 300 ft. He stated that body of the dumper is about ... 12 ... three inches wider its driver’s cabin. He stated that the corners of the side of the ‘houda’ of the dumper are sharp and there are some hooks on the outer side, both on the left and right. He denied the correctness of the suggestion that the dumper had gone three to four feet on the western part of the road and it was the dumper which gave dash to the bus. In the cross-examination, he admitted that after he left the place of accident, one ambassador car with red light waived signal to him to stop but he did not stop. He was confronted with his statement recorded by the police and especially the portions marked ‘A’ and ‘B’ of the said statement. When he was confronted with the portions of the statement marked ‘A’ and ‘B’, he denied that he told the police that he was going with the speed of 70 to 80 kilometers per hour and that he told the police that he dashed against the driver side of the S.T. bus and he did not apply any brakes. He denied to have told the police that due to dazzling lights of the bus, he lost control over the dumper. He admitted that due to dash given by the bus, the dumper was pushed towards left side to some extent. 10. Before going to the evidence of the driver of the bus, it will be necessary to refer to evidence of witness No.1 Shri Hanumant Bhokare examined by the ... 13 ... Opponent. He was a passenger travelling in the ill-fated bus. He stated that the bus left Satara at 6.45 p.m. and reached Khandala at 8.20 p.m. According to him, the bus was going along left side of the road after Khandala. He stated that he was not aware about the speed of the bus but, the bus appeared to be travelling in normal speed. He was sitting on the seat No.2 on the left side. He stated that the dumper gave a dash to the bus on its right side. In the cross-examination he stated that he was unable to tell whether speed of the bus was 80 kilometers per hour. A suggestion was given to him in cross-examination that he was sleeping in the bus and he got up only after the bus received the dash. However, in reply to the said suggestion, he stated that he was not able to say whether he got up only after the bus received a dash. According to him from Satara the bus reached the place of accident within one hour and ten minutes. 11. Another witness Shri Shivaji Deokar examined by the Opponents stated that he was travelling on the fateful day in the said bus from Satara to Pune. According to him the bus left Satara at 7.15 p.m. He stated that it was a super-fast bus and therefore, it was going in a fast speed. What is important is that ... 14 ... he stated before the Tribunal that the bus was going along the middle dividing line of the road on its own side. According to him he was sitting in the middle of the bench behind the driver facing the driver side. He stated that he could see light of the vehicle coming from opposite side. He stated that both the vehicles brushed each other. According to him, bus went up to a distance of 100 to 150 feet from the place of the accident and thereafter it stopped. He stated that he did not think that brakes were applied by the bus driver before the vehicles brushed. In the cross-examination the witness admitted that right from the driver’s cabin up to the end, the tin had been completely torn. In the cross-examination no specific suggestion is given to him that his statement in the examination-in-chief to the effect that the bus was going along the middle dividing line was wrong or incorrect. 12. In the light of this evidence on record, it will be necessary to refer to the evidence of Mahadeo Pawar who was the driver of the bus of the State Transport Corporation. According to him, his duty started at Kolhapur at 04.00 p.m. He left Satara at about 07.00 p.m. He stated that after he crossed Khandala, a yellow coloured vehicle which he presumed ... 15 ... to be a truck came from the opposite direction with full head-lights on. According to him he was going by the left side of the road and driver of the other vehicle crossed the middle dividing line and came at the distance of three feet on its wrong side. He stated that as the vehicle came on the wrong side, he applied brakes. In the cross-examination, he denied the suggestion that he was driving the bus in the middle of the road. He stated that he could see the vehicle coming from the opposite direction when it was at the distance of about 100 feet from the bus. He stated that from the shape of the vehicle he could make out that the vehicle was a dumper. He stated that vehicle was coming in a fast speed. Importantly, he stated that he had put his foot on the brake but did not apply the brake. He stated that before he could think of applying the brake, there was a dash. He denied the suggestion that it was his bus which gave dash to the dumper. In further cross-examination, he stated that road is quite straight and the width of the tar road is 23 feet. He denied the suggestion that the speed of the bus was about 80 kilometers per hour. 13. It will be necessary at this stage to refer to the finding recorded by the Tribunal on this aspect. ... 16 ... The Tribunal observed in paragraph No.31 of the judgment that non-application of brakes cannot be an indication of rashness or negligence. The Tribunal observed that the driver of the bus could not have expected that the driver of the dumper will cross middle dividing line. After noting that there was some discrepancy as to whether the brakes of the bus were applied by the driver of the bus or not, the learned Member of the Tribunal came to the conclusion that merely on the basis of failure to apply brakes negligence cannot be inferred. The learned Member of the tribunal referred to the panchnama which is at Exhibit 31 which shows that the width of the highway at the spot is 33 feet with cushion of katcha road on both the sides. The panchnama discloses that a neem tree is at the distance of 14 feet to the West of the dividing line of the road. The panchnama also describes the scene of the accident. The Tribunal has observed that at the time of hearing, the insurance company and driver of the dumper were interested in pointing out that the accident was due to composite negligence on the part of both the drivers. He noted that in the applications for compensation, allegation was that it was only the driver of the dumper who was responsible for the accident. In my view, the learned Member of the Tribunal could not have given much ... 17 ... importance to the averments made in the Claim Petitions. Most of the Claim Petitions were filed by the claimants who were not at all aware as to how the accident occurred as they were not eye-witnesses. However, the learned Member has noted that an allegation was made that even bus was driven at high speed. The learned Member has noted that before the police, the driver of the dumper stated that he was proceeding with speed of 40 to 45 kilometers per hour and due to the dazzling lights of the bus he lost control and brushed against the bus. The learned Member of Tribunal has noted that before the Tribunal the said stand was not taken and the marked portion ‘A’ and ‘B’ in the statement of the driver recorded by police were disputed by the driver in the cross-examination. The Tribunal has noted the statement on oath by the driver of the dumper that if the dumper is driven at the speed of 45 kilometers per hour, there are no vibrations but if the speed exceeds 45 kilometers, there are vibrations. The Tribunal has observed that it is improper to accept the statement of the driver of the dumper. The Tribunal further observed that this statement itself may indicate that he must have lost control over the vehicle. The Tribunal also considered the fact that glass pieces from the S.T. bus had fallen on both sides of the ... 18 ... road and the broken glass pieces covered large area near the spot of accident. The Tribunal was impressed by the fact that a false defence was taken by the driver of the dumper in his written statement by contending that he was not involved in the accident. The Tribunal has relied upon the statement made by the driver of the dumper before the police and noted the contradictions brought on record in his cross-examination. Considering all these aspects, the Tribunal came to the conclusion that there was no negligence on the part of the driver of the bus and the accident occurred entirely due to negligence on the part of the driver of the dumper. 14. It appears that some of the important aspects of the evidence have been over-looked by the learned Member of the Tribunal. Evidence of Shivaji, the witness No.2 examined by the Opponents discloses that the bus was going along the middle dividing line of the road on its own side. He stated that he could see lights of the vehicle coming from the front side. He stated that both the vehicles brushed each other. Turning back to the evidence of the driver of the S.T. bus, he has stated that he was going by the left side of the road and dumper of crossed the middle dividing line and came up to the distance of about three feet ... 19 ... on its wrong side. He has also stated in the examination-in-chief that truck came from the opposite side with full head-lights. He stated that when the dumper came