Bombay High Court
The Maharashtra State Road Transport ... vs Shivkanya Angad Rahade And Ors on 2 May, 2025
2025:BHC-AUG:12729
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
FIRST APPEAL NO.1227 OF 2017
The Maharashtra State Road Transport
Corporation through Divisional Controller,
The Maharashtra State Road Transport ... Appellant
Corporation, Beed, Tq. & Dist. Beed (Orig. Respt No.1)
Versus
1. Shivkanya wd/o. Angad Rahade,
Age : 28 years, Occu : Household,
2. Radha d/o. Angad Rahade,
Age : 7 years, Occu : Education,
3. Ranjit s/o. Angad Rahade,
Age : 6 years,
Claimant No.2 & 3 Minor U/g.
of Claimant No.1 - Mother
4. Sumanbai w/o. Shahadev Rahade,
Age : 55 yrs, Occu : Household,
All R/o. Kambi, Tq. & Dist. Beed
5. Ganesh s/o. Hanmantrao Kachave
Age : 53 years, Occu : Driver,
R/o. Makhani, Tq. Gangakhed,
Dist. Parbhani .... Respondents
(Respt No.1 to 4 are Orig. Claimants
& Respt No.5 is Orig. Respt No.2)
.....
Shri. Dnyaneshwar S. Bagul, Advocate for the Appellant
Shri. Kishor R. Doke, Advocate for Respondent Nos.1 to 4
Respondent No.5 - Served.
.....
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CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : 16.04.2025
PRONOUNCED ON : 02.05.2025
JUDGMENT :-
. This First Appeal has been preferred under Section 173 of the Motor Vehicles Act (for short, 'M.V. Act') by the Maharashtra State Road Transport Corporation (in short, 'M.S.R.T.C.') against the Judgment and Award dated 19.12.2016 passed by the learned Motor Accident Claims Tribunal, Beed (hereinafter referred to as the 'learned Tribunal') in Motor Accident Claim Petition No.124/2014 (hereinafter referred to as the 'Claim Petition') awarding the compensation of Rs.10,40,000/- (Rs. Ten Lakh Forty Thousand) with interest @ 9% Per Annum against the Appellant and Respondent No.5 -Driver of the Bus, to be paid by them jointly and severally to the Respondent Nos.1 to 4 / Orig. Claimants.
2. The facts, in brief, giving rise to the present Appeal are as under:
2.1. Respondent Nos.1 to 4 in the Appeal, who are the Widow, Daughter, Son and Mother, respectively of Angad Shahadev Rahade (hereinafter referred to as the 'Deceased'), filed the aforesaid Claim Petition under Section 166 of the M.V. Act for compensation of accidental death of Deceased due to rash and negligent driving of the ... 3 ...
Bus No.MH20-BL2157 (hereinafter referred to as the 'Bus') when Deceased was travelling on the Motorcycle No.MH23-AA6253 (hereinafter referred to as the 'Motorcycle') near Shivneri Dhaba, Kaij, Beed road in the vicinity of village Massajog, Tal. Kaij, Dist. Beed on 04.04.2014 between 01:30 p.m. to 02:00 p.m. The claim was denied by the Appellant by filing Written-statement. In support of the Claim Petition, the Widow of Deceased examined herself as witness and brought on record the Police Papers and other relevant documents. The Appellant - M.S.R.T.C. examined Respondent No.5 - Bus Driver as the witness. The learned Tribunal passed the impugned Judgment and Award on the basis of the evidence available on record.
3. It is submitted by the learned Advocate for the Appellant that, Deceased was driving the Motorcycle on which two more persons were sitting and due to the triple seat driving of the said Motorcycle, the accident took place and so, Deceased contributed in the accident. The Claimants did not examine the Panch Witness to the Spot Panchanama. There is no evidence that the Bus Driver was at fault. It was the Head-on-Collision between the Bus and the Motorcycle. The Appellant examined the Driver as the witness and his evidence shows that the Bus Driver was not at fault. Secondly, the Claimants did not implead the Insurance Company of the Motorcycle as a party Respondent to the Claim Petition. As per Rule 260 of the Maharashtra Motor Vehicles ... 4 ...
Rules, 1989, the Driver is to be added as the party to the Claim Petition and duty is cast on the learned Tribunal. The learned Tribunal did not issue notice as required under the said Rule. The evidence available on record show that it was the case of 50% contributory negligence by Deceased and hence, Appeal be allowed by setting aside the impugned Judgment and Award. In support of the contention, he relied on the Judgment in New India Assurance Company Ltd., Aurangabad Vs. Suman Bhaskar Pawar and Others; 2010 [2] Mh.L.J 177.
4. It is submitted by the learned Advocate for Respondent Nos.1 to 4 i.e. Orig. Claimants, that the learned Tribunal has rightly appreciated the evidence available on record and recorded proper finding of negligence. There was no negligence on the part of Deceased. Since the Claimants had impleaded the Driver of the Bus as the Party Respondent, the Judgment relied upon by the learned Advocate for the Appellant is not applicable to the case on hand. The learned Tribunal had framed Issue No.3 in that regard. Necessary parties were impleded in the Claim Petition and hence, the Appeal be dismissed.
5. The record shows that on the basis of pleadings, the learned Tribunal framed the following issues :
"ISSUES 1] Whether applicants prove that deceased Angad s/o. Shahadeo Rahade died of injuries sustained in motor vehicle accident dated 24-4-2014 at about 1:30 to 2:00 p.m. on Kaij ... 5 ...
to Beed road, in the vicinity of village Massajog, Tal. Jaij, Dist. Beed, involving ST Bus bearing registration Mark MH-20/BL-2157 when the deceased was driving motorcycle bearing registration Mark MH-23/AA-6253?
2] Whether respondent no.1 proves that deceased was the author of the accident ?
3] Whether respondent no.1 proves that the petition is bad for non joinder of owner and insurer of the above motorcycle as necessary party?
4] Whether applicants are entitled to compensation ? If yes, what order ?"
6. In support of the Claim Petition, the Claimants examined the Widow of Deceased as the witness. Her evidence is available at Exh.34 which is on the lines of the averments made in the Claim Petition. She admitted in the cross-examination that she had not witnessed the motor vehicular accident. She denied the suggestions that the motor vehicular accident took place in the middle of the road, the accident took place due to the negligence of Deceased and there was no negligence of the Bus Driver. The Claimants relied on the Police Papers to prove the negligence. It is needless to state that, under the settled position in law, the Police Papers can be considered while deciding the Claim Petition and strict Rules of evidence are not applicable while deciding the Claim Petitions. Therefore, non-examination of the Panch Witness to the Spot Panchanama will not be fatal to the Claim Petition. The Police Papers show that, the crime was registered for the offence punishable under Sections 304-A, 279, 338 of the Indian Penal Code against Respondent No.5 - Driver of the S. T. Bus with the Kaij Police ... 6 ...
Station on the very date of the accident. There is copy of Spot Panchanama at Exh.38, prepared during the course of investigation by the Police. It shows the said Motorcycle and the Bus on the spot of accident. It speaks of damage to the front side of the Bus to the net in front of radiator and heavy damage to the Motorcycle. It speaks that there was no divider on the 18 feet East-West road connecting Kaij and Beed. There were white strips to show center of the road. It speaks that the proper side of the Bus was towards the southern side of the road and the accident took place on the northern side of the said road. It speaks that the Eye Witness to the accident was present when the said Spot Panchanama was prepared.
7. On the other hand, there is evidence of Respondent No.5 - Bus Driver. In his evidence available at Exh.52, he stated that when he reached near the spot of accident, the Deceased was driving motorcycle in zigzag manner in a high speed and to avoid the accident he turned the Bus to the other side of the road and the Motorcycle dashed against the Bus. The Bus was not in a speed and was not being driven in a negligent manner. He tried to avoid the accident and the accident took place due to negligence of Tanker Driver. His cross-examination show that the Bus was going from Kaij towards Beed and the Motorcycle was coming from Beed to Kaij. He admitted that the crime was registered against him for the said accident.
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8. Evaluation of the above referred evidence available on record, goes to show that, it was the Head-on-Collision as both the vehicles were coming from the opposite direction. The Spot Panchanama (Exh.38) is the document prepared at the earliest point in time. It shows that Bus came from opposite direction, which finds corroboration from the evidence of DW1 - Ganesh Kachve (Respondent No.5 - Bus Driver). Spot Panchanama shows that there were no break marks at the spot of incident. In paragraph no.2 of the evidence Affidavit of Respondent No.5 - Driver, he has introduced the Tanker and stated that the accident occurred due to negligence of the Tanker Driver. Evaluation from the above referred evidence available on record, do not establish that the accident was due to the negligence of Deceased, whereas it shows that the accident was due to negligence of the Bus Driver. The learned Tribunal considered the evidence available on record. The learned Tribunal appreciated the evidence available on record and answered the Issue No.1 in the affirmative. On reassessing of the evidence available on record, the finding that the accident occurred due to the negligence of the Bus Driver do not call for any interference. There is no dispute that Deceased died of injuries suffered in the said motor vehicular accident. The provisional Post-mortem cum Death Certificate of Deceased shows the cause of death as 'Haemorrhage and shock due to polytrauma in RTA'.
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9. As regards the second contention of non-addition of the Insurance Company of the Motorcycle to the Claim Petition and non-issuing notice by the learned Tribunal as per Rule 260 of the Maharashtra Motor Vehicles Rules, 1989 (hereinafter referred to as the 'Rules') is concerned, this Court in the above referred Judgment cited by the learned Advocate for the Appellant, recorded the following findings.
"(i) Meena Varial's Case decided by the Apex Court does not lay down a law that driver of offending vehicle is necessary party in all cases and in his absence, the Judgment and Award shall vitiate.
(ii) In an unreported Judgment of this Court in First Appeal No.3839/2008 (National Insurance Company Ltd., V/s Vachista) decided on 14.09.2009, it has not been laid down that driver of the offending vehicle was not necessary party, in case of claim petition under Motor Vehicles Act.
(iii) In Machindranath's case the contention that, the driver of the offending vehicle was necessary party in a claim petition and in his absence the entire judgment and award would vitiate, has been rejected.
(iv) In view of the Judgment of the Apex Court in Machindranath's case, the driver of the offending vehicle would be a proper party or he should at least be examined, as witness on the allegations of rash and negligent driving on his part and without his involvement, no adverse finding on negligence can be made against him and if any such finding is recorded, same would vitiate the proceedings.
(v) No decree or award can be made personally against the driver of the offending vehicle unless he is involved in a claim petition either as party or at least as witness.
(vi) If there are specific rules involving the driver in a claim petition in particular manner, then the matter would be governed by the said rules and its compliance will have to be shown.
(vii) The requirement of Rule 260(1) and (2) of the Maharashtra ... 9 ...
Motor Vehicles Rules, 1989 is mandatory and the Tribunal shall send to the owner or driver of the vehicle or both, involved in the Accident and its insurer, a copy of the application and annexures thereto, together with notice of the date on which the parties shall enter their appearance.
(viii) The service of notice shall be effected on owner, driver and insurer of the offending vehicle in question, as the case may be, by way of personal service, through the bailiff or by Registered Post A/D or both, as the Tribunal may deem fit and proper.
(ix) If the driver or owner or insurer of the offending vehicle does not respond to the notice so issued and duly served, the Tribunal may proceed exparte and pass an award against any of them or all of them and the proceedings shall not vitiate for not calling a driver and examining him as witness."
10. Useful reference can be made to the decision of this Court in National Insurance Company Limited vs. Ashok Rajaram Bambulkar and Others ; 2022 ACJ 2188, which was an Appeal under the M.V. Act from the decision of the MACP for compensation in respect of death from the motor vehicular Accident, wherein, one of the point for consideration was, whether non-impleadment of the Driver of the offending vehicle or absence of notice to the Driver under Rule 260 of the Rules, vitiated the proceedings before the Tribunal. This Court elaborately considered the said issue in the light of the above referred Judgment in New India Assurance Company Ltd., Aurangabad vs. Suman Bhaskar Pawar and Others [Supra], and the Judgments in Machindranath Kernath Kasar Vs. D. S. Mylarappa and Others ; AIR 2008 SCC 2545 and New India Insurance Company Limited Vs. ... 10 ...
Sitaram Devidayal Jaiswal and Others ; [2012] ACJ 2647, and rejected the contention of the Appellants therein that, non- impleadment of the Driver of the offending car or absence of notice to the Driver, under Rule 260 of the Rules vitiated the proceedings before the Tribunal. Coming to the case at hand, the Bus Driver was examined by the Appellant as the witness before the learned Tribunal. Thus, the contention of non-impleadment of Bus Driver to the Claim Petition has no merit.
11. In the backdrop of the above discussion, no interference is called for in the impugned Judgment and Award and the Appeal is liable to be dismissed and hence the order.
ORDER
(i) The Appeal is dismissed.
(ii) The Record and Proceedings be sent back.
( NEERAJ P. DHOTE, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 02/05/2025 16:50:24