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2009 DIGILAW 1147 (BOM)

SHIVAJIRAO NILKANTHRAO PATIL v. MARUTI APPA TADE

2009-09-08

J.H.BHATIA

body2009
( 1 ) THE appellant has preferred this appeal against the dismissal of his Motor Accident claims Petition No. 129 of 2000 by the Motor accident Claim Tribunal, Gadhinglaj. With consent of the counsel for the parties, the appeal is immediately taken up for final hearing. ( 2 ) IT is a case of the appellant that on 7th august 1995 at 8. 30 p. m. he was travelling by his motor cycle bearing no. DEW-9197. He was proceeding towards Kadgaon. At that time, another motor cycle bearing No. MEH-386 came in high speed from the opposite direction. Respondent no. 3 drove the motor cycle rash and negligently and dashed the motor cycle of the appellant due to which he fell down and sustained several injuries including fractures. After the occurrence, he was taken to the hospital of Dr. Kolhapure and from there he was shifted to the hospital at Miraj, where he was required to take treatment for long time. He claimed that due the injuries, he had suffered partial permanent disability and he is unable to discharge his work as an agriculturist. Therefore, he claimed an amount of Rs. 4,28,500/- as compensation. The offending vehicle was owned by deceased respondent no. 1-Maruti Appa Tade and was insured with respondent no. 2-United India insurance Company Ltd. ( 3 ) THE respondent nos. 1 and 3 filed their Written statements at Exh. 24 and respondent no. 2 filed its Written Statement at Exh. 28. They denied that the accident had taken place due to the rash and negligent driving of the motor cycle bearing no. MEH-386. They also denied that the said motorcycle was involved in the said accident. They also denied the injuries and partial permanent disability and the expenses incurred by petitioner/appellant. ( 4 ) THE Trial Court framed several issues on the basis of the contentions of the petitioner and after hearing the evidence led by the petitioner, the Trial Court came to the conclusion that the petitioner had failed to prove that in the accident, the motor cycle baring No. MEH-386 belonging to respondent no. 1 was involved. In the result, the claim petition came to be dismissed. 1 was involved. In the result, the claim petition came to be dismissed. ( 5 ) THE learned counsel for the appellant vehemently contends that the Trial Court had unnecessarily given importance to the delay in lodging the F. I. R. According to him, taking into consideration the evidence of the petitioner and the eye witnesses Dattatray patil and Nishikant Patil, it should have been held that the accident had taken place involving the said motor cycle and that respondent no. 3 was rash and negligent in driving the vehicle and responsible for the accident. ( 6 ) ON the other hand, the learned counsel for respondents vehemently contended that the f. I. R. was lodged about 2 years after the alleged accident and almost immediately after lodging the F. I. R. , the claim petition was filed. In view of delay of 2 1/2 years in lodging the F. I. R. , there was no spot panchanama or seizure of the vehicle, which was involved in the accident. It is contended that the appellant himself is a police Patil and therefore, the delay in lodging the report becomes important and therefore his oral testimony could not be given much importance. ( 7 ) THE only point for my consideration is whether the accident had taken place due to the rash and negligent driving of the motor cycle No. MEH-386 by respondent no. 3. ( 8 ) ON perusal of the record and the evidence, it appears that the alleged accident had taken place on 7th August 1995 at about 8. 30 p. m. on gadhinglaj-Kadgaon Road. The petitioner himself, was driving the motor cycle No. DEM-9197. other two witnesses namely : dattatraya Patil and Nishikant Patil were also proceeding on another motor cycle and they claim to have seen the accident. As per the evidence of the appellant and these two witnesses, the motor cycle No. MEH-386 came from the opposite side, respondent no. 3 was driving the same rashly and due to the rash and negligent driving, he gave the dash to the motorcycle of the petitioner, due to which the petitioner fell down and suffered several injuries. He was immediately taken to hospital of Dr. Kolhapure by Dattatraya and nishikant Patil. The appellant also examined dr. Milind Kulkarni, Orthopedic Surgeon from miraj, who had examined and treated the appellant from time to time. He was immediately taken to hospital of Dr. Kolhapure by Dattatraya and nishikant Patil. The appellant also examined dr. Milind Kulkarni, Orthopedic Surgeon from miraj, who had examined and treated the appellant from time to time. He deposed that he had suffered compound fractures and therefore, he was required to be operated on three occasions and his treatment continued intermittently from 8th August 1995 to 25th april 1996. He also deposed that the appellant has suffered partial permanent disability to the extent of 70%. ( 9 ) IN view of the medical evidence and the evidence of the appellant as well as Nishikant patil, it can be held that in the accident of motor cycle, the appellant had suffered several injuries resulting into partial permanent disability. However, before the liability to pay the compensation can be fastened on the respondents, it is necessary to prove that motor cycle No. MEH-386 belonging to the respondent no. 1 was being driven by respondent no. 3, at the relevant time and due to the rash and negligent driving of that motor cycle, the accident had taken place. ( 10 ) RECORD reveals that even though the said accident had taken place on 7th August 1995, no report was lodged about the accident with the police till 26th January 1998, when for the first time, the statement of the appellant was recorded by the Head Constable Krishna Saturam bhiguda. On that basis, F. I. R. was registered on 26th January 1998 and Crime No. 13/1998 came to be registered. The record reveals that the appellant himself is a police Patil and for a period of eight months after the accident, he was taking treatment. From his own admission it appears that he used to go to the police station as well and Tahasildar office to discharge his official functions as a police patil. As a police Patil, he was well aware that whenever any such accident or any crime is committed, immediately a report should be lodged with the police. But he did not take care to lodge such report for a period of about 2 years. According to him, he had asked the Medical Officer to inform the police. He did not examine Dr. Kolhapure of gadhinglaj, in whose hospital he was first taken. From there he was taken to the hospital at Miraj of Dr. But he did not take care to lodge such report for a period of about 2 years. According to him, he had asked the Medical Officer to inform the police. He did not examine Dr. Kolhapure of gadhinglaj, in whose hospital he was first taken. From there he was taken to the hospital at Miraj of Dr. Milind Kulkarni, where he was taking treatment for a long time. The evidence of Dr. Kulkarni also does not reveal that the appellant had told him that he had suffered injuries in an accident involving motor cycle bearing No. MEH-386. Normally, whenever, such injured person is brought to the hospital, Casual Medical Officer records the circumstances in which the injuries are caused. Here, the appellant or the other witnesses, who claim to have seen the accident, did not tell the Doctor that the accident had taken place because of or with the motor cycle No. MEH-386 Hence, the Medical officer had not taken note of the same. If such note would be available on the record of the hospital and particularly admission papers of theappellant, it could be said that immediately after the accident, the appellant or some other witness had stated that such and such vehicle was involved in the accident. However, it appears that no such statement was made even before the Medical Officer. ( 11 ) IMPORTANCE of lodging the F. I. R. , immediately after the incident, cannot be overemphasised. Firstly, the F. I. R. discloses the facts immediately after the incident. On the basis of which, investigation could be properly held. Statement of witnesses could be recorded. Spot Panchanama could be made and the concerned vehicle could be seized. Wheel marks and other marks on the spot of accident and the damage, if any, to the vehicle, could be useful in finding out whether the accident had taken place due to rash and negligent driving of the alleged offending vehicle. In the present case, as the F. I. R. was not lodged, no such investigation could be made, no panchanama could be made, no vehicle could be seized from the spot. In the circumstances, all possible evidence, which could be available, was completely lost. In the present case, as the F. I. R. was not lodged, no such investigation could be made, no panchanama could be made, no vehicle could be seized from the spot. In the circumstances, all possible evidence, which could be available, was completely lost. In the circumstances, it would be difficult to place implicit reliance on the oral testimony of the claimant that the accident had taken place due to rash and negligent driving of the motor cycle bearing No. MEH-386. ( 12 ) THE trial court minutely considered the evidence before coming to the conclusion that the appellant had failed to establish the motor cycle bearing No. MEH-386 was involved in the said accident and that accident had occurred due to rash and negligently driving of that vehicle by respondent no. 3. As the appellant failed to prove these basic issues, the question of granting any compensation to him as against respondent nos. 1 to 3 would not arise. I do not find any fault with the approach of the trial court. ( 13 ) THEREFORE, there is no substance in the present appeal and it is liable to be dismissed. ( 14 ) IN the result, the appeal stands dimissed.