1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2612 OF 2009 1) Baliram s/o Madhavrao Gadade and another. - APPELLANTS VERSUS 1) Maharashtra State Road Transport Corporation, Depot Dharur and another. - RESPONDENTS ***** Mr.VM Mane,Advocate for Appellants; Mr.AD Wange, Advocate for Respondent no.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 4th January, 2010. PER COURT : 1) Heard the learned Counsel for the original claimants/appellants and the Counsel for the Respondent/MSRTC. 2) In an unfortunate accident, the deceased lost his precious life, the claimants filed a Claim Petition under Section 166 of the Motor Vehicles Act. The rejection of the claim by the learned Member of the Motor Accident Claims 2 Tribunal, Gangakhed in M.A.C.P.No.25/2005, dated 6th May, 2009, is the subject of challenge by the claimants/appellants. 3) The Counsel for the appellants/claimants contends that the findings of the learned Member are erroneous. The evidence is not correctly appreciated. D.W.1 could not be an eye-witness; the panchanama of events reflected at page 11 of the Judgment should have taken into proper consideration by the learned Member while fixing the liability of MSRTC or driver of the bus to the extent of negligence in driving the vehicle giving rise to the fateful incident. 4) The factual details, which are not in dispute, needs to be considered. The deceased was traveling from Palam to Gangakhed in the jeep. The jeep had five passengers while the bus was coming from the other side. There was indeed collision between the jeep and the tempo, which dashed each other. The jeep turned turtle and unfortunately the deceased sustained grievous injuries taking toll of his precious life at the spot. 5) The claimants, for the reasons best known to them, did not array the jeep driver or the tempo driver or the insurer/owner of the 3 respective vehicles. It was only as against the MSRTC bus/driver, the claim petition was filed. It is more than clear, as was seen through evidence by the learned Member of the Tribunal that the impact of the accident was between the jeep and the tempo; the bodies were thrown away with speed and acceleration. Finding one of the dead body near the ST bus by itself will not amount that the bus driver was negligent. The evidence of the conductor of the bus will have to be treated as an eye-witness though the counsel contended, that he could not be an eye-witness. The findings of the learned Member of the Tribunal that there was no fault on the part of the bus driver, in the fact situation, cannot be said to be flowing out of context and out of record. No merit in the first Appeal, it is dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/fa2612.09