55-fa-803-01.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 803 OF 2001 1. Smt. Sadhana Sambhajirao Gaikwad ] 2. Ms. Sima Sambhajirao Gaikwad ] minor through her natural guardian ] appellant no.1 ]..Appellants [Ori. Petitioners] Vs. 1. Shri. Baban Marutirao Jadhav ] 2. Shri. Mohan Dagadu Kawade ] 3. The New India Assurance Co. Ltd. ] 4. Shri.Bhanudas Bapusaheb Jadhav ]..Respondents [Ori.Opponents] Mr. T.S.Ingale for appellants Mr. D.S.Sawant for respondent nos. 1, 2 and 4 Ms. Sulakshana Shukla i/b and M/s. Pradip Shukla Co. for respondent no.3 CORAM : A.S. OKA, J. DATE : 12th JULY, 2011. ORAL JUDGMENT: 1. The appellants who are claimants in a Claim Petition filed under the Motor Vehicles Act, 1939 (hereinafter referred to as the “said Act”) have taken an exception to the Judgment and Award dated 19.4.1999 passed by the learned Member of the Motor Accident Claims Tribunal at Kolhapur. 2. According to the appellants-claimants, the deceased 1 55-fa-803-01.doc Sambhajirao and the 2nd respondent had proceeded to Sangli on 18.12.1987 by a Scooter. While coming back, the 2nd respondent was driving the Scooter and the deceased Sambhajirao was a pillion rider. The case made out by the appellants is that the 2nd respondent saw a truck coming from opposite direction in a fast speed and therefore, he lost control over the scooter. As a result, the scooter turned turtle and deceased sustained serious injuries. Ultimately, he succumbed to the injuries sustained in the accident. 3. In the Claim Petition filed by the appellants, initially the 1st respondent was shown as the owner of the scooter. By amendment, the 4th respondent was impleaded as a party on the ground that he was the owner of the scooter. The 3rd respondent is an insurer. The case made out by the claimants in the Claim Petition is that though the scooter which met with an accident was insured with the 2nd respondent, another scooter owned and held by the 2nd respondent was insured with the 3rd respondent and under the policy of insurance, the 3rd respondent was liable to pay compensation. 4. The Claim Petition was contested by the 2nd respondent by filing a Written Statement. It is the contention raised by the 2 55-fa-803-01.doc 2nd respondent that at the relevant time, he was driving the scooter in a slow speed in a cautious manner along the left side of the road. It is contended that a truck came from opposite direction in a very high speed and the deceased out of fear pressed his two hands on the shoulders of the 2nd respondent and while doing so, the deceased jumped off from the running scooter and fell down on the left side. As a result, the 2nd respondent lost control over the scooter and he fell down along with the scooter and sustained injuries. The 3rd respondent also filed Written Statement denying the liability. 5. After the trial, the learned Member of the Accident Claims Tribunal held that negligence on the part of the 2nd respondent has not been proved. However, the Tribunal granted compensation of Rs.15,000/- which was payable under no fault liability under Section 92-A of the said Act. The Tribunal also granted interest on the said amount. 6. The learned Counsel appearing for the appellants has invited the attention of the Court to the notes of evidence. His submission is that the accident occurred due to negligence on the part of the 2nd respondent in as much as after seeing the truck coming from the opposite side in a high speed, he lost control over the scooter. He submitted 3 55-fa-803-01.doc that the case made out by the 2nd respondent in the Written Statement that it was the deceased who jumped from the scooter, has not been established. He submitted that the finding recorded by the Tribunal on the issue of negligence is completely erroneous. He placed reliance on the policy issued by the 3rd respondent to the 2nd respondent. He submitted that the policy may be in respect of the some other vehicle but the same covers the liability towards the 3rd parties due to the loss caused by the use of another motor vehicle by the 2nd respondent. He, therefore, submitted that 3rd respondent was liable. The learned Counsel appearing for the 2nd and 4th respondents supported the impugned Judgment and Award. 7. I have carefully considered the submission. I have perused the record of the case. The first question to be determined is as regards the allegations of negligence on the part of the 2nd respondent. The 2nd respondent stepped into witness box and deposed as to how the accident occurred. The appellants examined witness Balgonda Ramanna Patil for proving the negligence on the part of the 2nd respondent. Though the first appellant was examined, the said appellant admittedly had no knowledge about the accident. 4 55-fa-803-01.doc 8. It will be necessary to make a reference to the evidence of said Balgonda Patil. In paragraph 1 of his deposition, he has stated thus: “At the time of accident I was proceeding on bicycle from Jayasingpur to Kolhapur via Aryanta Stone Crusher. When I came along 3 and half kms. from Jayasingpur, one scooter came speedily from my behind and over took me. It proceeded 200 feet ahead one empty truck speedily came from Kolhapur side. Scooter driver got frightened, lost scooter away from the road. It got slipped and dragged towards left side of himself touching to the road. The scooterist also dragged along with the scooter.” 9. In the cross-examination, he stated that his statement was recorded by the police three days after the incident. He stated that witness summons was not served upon him. It must be noted here that the 1st respondent and 4th respondent examined one Balasaheb Dhondiram Shinde who was attached to the concerned police station on the date of the accident. In the examination in chief, he stated that the said Balgonda Patil was not an eye witness as per the investigation and therefore, his statement was not 5 55-fa-803-01.doc recorded. In the cross-examination he reiterated that in the investigation papers, the statement of witness Balgonda Patil is not appearing. Thus, the statement made by witness Balgonda Patil that his statement was recorded by the police is completely untrue which affects the veracity of the evidence of the said witness. It appears that the said witness was a got up witness and hence, his evidence will have to be kept out of consideration. 10. The 2nd respondent who is a Medical Practitioner, stepped into witness box. He stated that by 18.12.1987 in the afternoon the deceased met him and he expressed a desire to meet his friends at Sangli and Miraj. He stated that on his request, both of them proceeded to Gadi Karkhana and took the scooter of the 4th respondent. He stated that deceased Sambhaji asked him to drive him the scooter. About the incident, 2nd respondent stated thus: “At about 3.30 p.m. on our way to Kolhapur, we crossed Jaysingpur by 3-4 kms. When our scooter was ascending we saw one truck coming from Kolhapur side. Scooter was slow in speed and proceeding on left side of the road. After seeing the truck in high speed, I further took the scooter on extreme left. Sambhaji Gaikwad was frightened and caught with 6 55-fa-803-01.doc grip and jumped on left side. Scooter fell on right side and I fell on front side of scooter. We had no external injuries, therefore, we thought to go to Jaysingpur. One Mr. Gandhi took us to Jaysingpur in his fiat car. We consulted Dr. Patil at Jaysingpur. Dr. Patil gave us Anti Tetanus injection. I suspected from grave injury therefore thought of consulting an expert. We hired a taxi and went to Mission Hospital Miraj. We got admitted at Miraj hospital. I was there for 2/3 days and then returned to Kolhapur. After coming to Kolhapur, I came to know that Sambhaji expired”. He further stated that at the time of the accident and subsequent thereto, no one was present on the road. He stated that though he was prosecuted, the prosecution resulted into acquittal. 2nd respondent was cross-examined by giving him various suggestions. The correctness of the suggestions was denied by the 2nd respondent. His evidence has not been shaken in the cross-examination. Perusal of the impugned judgment shows that learned Member of the Tribunal has made a reference to the evidence of the witnesses. In paragraph 18 of the judgment, the learned Member of the Tribunal has recorded the following finding: 7 55-fa-803-01.doc “Thus, over all assessment of evidence of both the sides and as seen from the specific pleadings of respondent no.2, it is seen that the accident occurred at the spot (Ring road) when one truck was coming from opposite direction in high speed and the scooterist, respondent no.2, took the scooter to the side to save from the truck, and in doing so if the scooter skidded resulting in fatal accident of the pillion rider (referring to deceased Sambhaji), it cannot be said that it was only due to the negligence of the scooterist (respondent no. 2). It is not a case of any collision or error of judgment. Even a fall on the ground from certain height may result in fatal injury if it is caused to the vital party of the body such as head.” 11. As the evidence of the witness Balgonda examined by the appellant was disbelieved, the evidence of the 2nd respondent as regards the accident was rightly accepted by the Tribunal. I find no reason to interfere with the said finding. 12. The appellants are relying upon the policy of insurance issued by the 3rd respondent to the 2nd respondent in respect of another vehicle. Under Section 96(1) of the said 8 55-fa-803-01.doc Act, the insurer is liable to satisfy the award against the insured on the basis of policy of insurance of offending vehicle. Perusal of Section 96 shows that the statutory liability of the insurer arises on the basis of a certificate of insurance in respect of the offending vehicle issued in favour of the person against whom the compensation is sought. In the circumstances, on the basis of policy of insurance in respect of another vehicle taken by the 2nd respondent who was not even owner of the offending vehicle, the Tribunal under the said Act, cannot pass an award against the insurer of another vehicle which is not at all involved in the accident. It is for the appellants to take recourse to proper remedy in that behalf. 13.As stated earlier, the Tribunal has granted compensation payable under no fault liability along with interest thereon. Hence, there is no error in the impugned Judgment and Award. 14.Subject to what is observed above, the appeal is dismissed with no order as to costs. [ A.S. OKA, J ] 9