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2016 DIGILAW 499 (BOM)

N. Sujata v. Sarat Srikanta Mahanta

2016-03-07

R.K.DESHPANDE

body2016
JUDGMENT : 1. On 30.03.2015, this Court issued notice for final disposal of the matter. The Respondents are served. Shri A.J. Pophaly, the learned counsel appears for respondent No.3 and Shri J.A. Anthony, the learned counsel appears for respondent No.6. None appeared for other respondents. In view of the fact that the notice for final disposal of the matter was issued, it is not necessary to issue fresh notice to the Respondents who are not present before this Court. Hence, Admit. The learned counsel appearing for Respondent Nos. 3 and 6 waives service of notice. Heard the learned counsels appearing for the parties. 2. In M.A.C.P. No. 122 of 2008, decided on 22.09.2014, the Motor Accident Claims Tribunal, Chandrapur, passed an award under Section 166 of the Motor Vehicles Act, holding the owner of the jeep bearing registration No. MH-34-D-2034 liable to pay the amount of Rs.27,21,800/- inclusive of 'no fault liability' together with interest at the rate of 9% per annum from the date of application till its realization. The claimants are before this Court to hold the insurer of another vehicle which is a Tipper Truck bearing registration No. MH-34-M-1660 along with the owner as jointly and severally liable to pay the amount of compensation, as the jeep which the deceased occupied was not insured and that it is difficult to recover the said amount from the owner and driver of the jeep. 3. The accident in question occurred on 24.07.2007 on National Highway No. 265, going from North to South on which the truck loaded with coal was standing on the left side facing in a southern direction. The another vehicle i.e. commander jeep bearing registration No. MH-34-D-2043 coming from Rajura and going to Gadchandur i.e. to the southern side dashed this stationery truck from the backside at about 7.20 p.m. The deceased N. Ramchandra Naik who was the occupant in a jeep died on the spot as a result of injury which he suffered in such collision. 4. The Tribunal framed and answered issues Nos. 2 and 3 as under; 2. Whether the applicants have proved that the accident took place due to negligent act of driver of Truck bearing registration No. MH-34-M-1660, owned by opponent No.2 and insured with opponent no.3? …... No. 3. 4. The Tribunal framed and answered issues Nos. 2 and 3 as under; 2. Whether the applicants have proved that the accident took place due to negligent act of driver of Truck bearing registration No. MH-34-M-1660, owned by opponent No.2 and insured with opponent no.3? …... No. 3. Whether the applicants have proved that the accident took place due to rash and negligent driving of Jeep bearing registration No. MH-34-D-2034 driven and owned by opponent No.4 ….Yes 5. While dealing with the aforesaid two issues, the Tribunal considered the evidence of CW1, Smt. N. Sujata, the widow of the deceased and CW2, Deorao Kodape, one of the passengers in the Jeep involved in the accident in question. The Tribunal relied upon the Spot Panchnama at Exh. 50 to hold that the stationery truck was surrounded by stones and the parking lights were blinking. The Tribunal also relied upon the evidence of CW1 Smt. N. Sujata, who categorically admitted that the driver of the truck was not responsible for the accident. There is no finding recorded by the Tribunal on the aspect of contributory negligence as the driver of the jeep is held solely liable for rash and negligent driving, as a result of which the accident occurred. 6. The points for determination are as under - 1. Whether the Tribunal has committed an error in holding that it was the driver of the jeep who was solely liable for rash and negligent driving as a result of which the accident has occurred? … Yes 2. Whether the owner and the driver of the Truck bearing Registration No. MH-34-M-1660 should be held jointly and severally liable along with the respondent No.3 Iffco Tokio General Insurance Co. Ltd with which the said truck was undisputedly and validly insured on the date of occurrence of the accident.?.. Yes 7. I have gone through the evidence of CW1 N. Sujata, the widow of the deceased and the oral evidence of the eyewitness CW2 Deorao Kodape. I have also gone through the spot panchnama at Exh. 52. The spot panchnama was recorded after lapse of an hour of occurrence of the accident. The time of the accident was 7.20 p.m. on 24.07.2007. None of the respondents in the claim petition have entered the witness box to depose. I have also gone through the spot panchnama at Exh. 52. The spot panchnama was recorded after lapse of an hour of occurrence of the accident. The time of the accident was 7.20 p.m. on 24.07.2007. None of the respondents in the claim petition have entered the witness box to depose. The evidence of the sole eye witness Deorao Kodape, CW2 shows that the driver of the truck had not placed any obstruction or sign to indicate that the truck was stationery. 8. The Tribunal could not have relied upon the evidence of CW1 N. Sujata, the widow of the deceased, because she was not the eye witness to the incident and her admission that the driver of the truck was not responsible could not have been relied upon. The perusal of the spot verification report at Exh.52 shows that the truck was in a stationery condition and its two wheels on the left side were below the tar road and two wheels were on the road. The map drawn in the spot panchnama indicate that the impact was on the backside of the said truck. The possibility of surrounding the truck by stones and putting the parking lights on subsequent to the accident cannot be ruled out in view of the positive evidence of the eye witness. There is negligence on the part of truck driver in parking the truck without taking proper care. Point No.1 is answered accordingly. The Tribunal has, therefore, committed an error in holding that it was only the driver of the jeep who was entirely responsible for occurrence of the accident. 9. Once the finding is recorded by this Court that it is a case wherein two vehicles were involved in an accident and the drivers of both the vehicles contributed in the negligence, so far as the deceased who was the occupant in a jeep, it would be a case of composite negligence and the drivers and the owners of both the vehicles would be jointly and severally liable to pay the amount of compensation. The truck in question was validly insured on the date of accident with the respondent No. 3 Insurance Company which cannot be exonerated from its liability. 10. The truck in question was validly insured on the date of accident with the respondent No. 3 Insurance Company which cannot be exonerated from its liability. 10. If the jeep in question was not insured then the entire amount of compensation payable shall be recoverable from the Insurance Company with which the truck was validly insured on the date of occurrence of the accident and the said Insurance Company shall be at liberty to recover the amount of compensation from the owner and the driver of the another vehicle. However, the claimants cannot be deprived of the said amount of compensation until the percentage of contributory negligence between the drivers of the two offending vehicles is determined in a proper forum. The Tribunal has, therefore, committed an error in discharging the respondent No. 3 Iffco Tokio General Insurance Co. Ltd., from its liability. The point No. 2 is answered accordingly. 11. In the result, the appeal is allowed. The drivers of both the vehicles along with the owners of it are held liable along with the respondent no. 3 Iffco Tokio General Insurance Co. Ltd., to pay the entire amount of compensation as determined by the Tribunal along with the interest as has been made payable. The respondent No. 3 Insurance Company shall be at liberty to recover the amount if any paid to the claimants from the owner and the driver of the vehicle i.e. the Jeep bearing registration No. MH-34-D-2034. No orders as to costs.