Bombay High Court
Jayashri Vijayasinghrao Khalate And ... vs Bhagivatlal Attarchand And Ors. on 12 January, 1995
JUDGMENT N.D. Vyas, J.
1. This is an appeal preferred by the original claimants challenging the judgment of Member, Motor Accidents Claims Tribunal, Pune, dated 4.12.1984 whereby the Tribunal had dismissed the claim of the appellants.
2. Briefly stated, the facts giving rise to the present appeal are as follow:
The accident took place on 27.11.1978 on Malegaon-Baramati road in Baramati Tehsil of District Pune at about 7.15 in the evening. One Vijayasinghrao Shripat Khalate, the deceased, was riding his motor cycle bearing No. MHJ 428 from west towards east. The original opponents were travelling in an Ambassador motor car bearing registration No. MRA 8527 on the said road from east to west. The road at the accident spot has a total breadth of 23'6" and the middle portion has breadth of 17'6" and is of asphalt and is flanked by rough road of 3' in width. As a result of the accident, the deceased sustained various injuries and he ultimately succumbed to his injuries on 18.12.1978. It was the applicants' case that the original opponent No. 3 was driving the car at the material time and brought the car to the opposite side by driving it rashly as a result thereof the car dashed against the motor cycle of the deceased causing serious injuries. The car belonged to the opponent No. 1 and opponent No. 3 was driving the same and that the car was insured with the opponent No. 7. The appellants-claimants had thus claimed total compensation of Rs. 1,00,000/- in respect of the accident. The opponent No. 2, however, in his written statement had denied the liability and he mainly denied the ownership of the car. He, inter alia, averred in the written statement that the accident took place only due to negligence of the deceased as the deceased was driving the motor cycle at a very fast speed under influence of liquor and that the deceased had lost control over the motor cycle while trying to overtake from wrong side and, therefore, the deceased was responsible. Opponent No. 3 adopted the written statement of opponent No. 2. Opponent No. 6, who came to be joined on his application during the pendency of this application denied any liability to the claim claiming that he was not the owner of the motor vehicle and that he had sold the motor vehicle to opponent No. 2 in January, 1978.
3. At the trial, on behalf of appellants-claimants, the widow, viz., the first appellant was examined and one Hanmant Bapurao Palande was also examined. One Abaji Satav who had acted as panch was examined by the appellants. As far as the opponents are concerned, the opponent No. 2 gave evidence so also Subhash who was also travelling by the car gave evidence. Further evidence was led of one Gajanan Jagtap who was opponent No. 3. As far as the evidence led by the appellants was concerned, the appellant No. 1 and Hanmant could not depose as to how the accident took place. Though only the evidence which is led in respect of the accident is that of Abaji Satav, a panch. It may be noted that the panchnama took place on 27.11.1978 in the morning at 7.15, whereas the accident had taken place in the evening of 26.11.1978 at 6.15 p.m. According to Abaji Satav, he saw one motor cycle lying on the road and which motor cycle was found badly damaged. Unfortunately, he not being an eyewitness to the accident could not depose anything else as to how the accident took place. Only three eyewitnesses were examined by the opponents whose names are given earlier. As far as Pramod, opponent No. 2 is concerned, he deposed that at about 6.15 in the evening on 26.11.1978, the accident took place on Baramati-Neera road, near Satav Camp, that he was travelling in the car involved in the accident and that there were 4 persons in the car including the driver. He deposed that the opponent No. 3 was driving the car and he was sitting by the left side of the opponent No. 3, i.e., in the front seat and that Subhash and Popat were sitting in the back seat. He further deposed that the car was proceeding from east to west, that it was proceeding by the correct left side and the speed of the car was 30 to 40 km. per hour. He further deposed that while the car was proceeding, there was a stream ahead. They found a truck stationary beyond the stream facing east, i.e., on the other side of the stream and that the truck was standing on its correct left side of the road and that while the car was climbing upwards slope just after crossing the stream, a motor cycle all of a sudden came and the lights of the motor cycle were not on. However, the lights of the motor car were on and accordingly, motor cycle dashed on the front side near the radiator of the car and that the opponent No. 3 who was driving the car immediately halted the car at the spot. He further deposed that after the impact, the motor cyclist fell down along with his motor cycle. The other witnesses examined by the opponents, viz., Subhash Taware who was travelling by the said car and Jagtap, opponent No. 3, more or less, adopted the evidence given by opponent No. 2.
4. On the basis of the evidence, the Tribunal came to the conclusion that it was the deceased who was negligent in driving his motor cycle, as a result whereof the accident took place and, therefore, dismissed the application made by the appellants.
5. Mr. C.J. Sawant, learned Counsel appearing on behalf of the appellants-claimants, challenged the decision of the Tribunal and submitted that the evidence of the so-called eyewitnesses, viz., opponent Nos. 2 and 3 and Taware should not be believed. It was his further submission that the way the impact had taken place and the way the motor cycle fell on the side of the road would show that it was the driver of the car who was responsible for the accident. However, certain facts could not be disputed by the learned Counsel, viz., that the Ambassador car was climbing, that there was a truck which was stationary on the other side of the stream opposite the car climbing and that the motor cyclist as he came into contact with the car involved must have overtaken the stationary truck, thus leading to the conclusion that the deceased on his motor cycle must have gone beyond the center of the road almost to the right side of the road. The car which was climbing an incline, in our view, could not have been going as fast as alleged and the story given by the two opponents, vis., opponent Nos. 2 and 3 supported by the passenger that the car was going at the moderate speed cannot be disbelieved.
6. In these circumstances, we do not see any reason why we should interfere with the judgment under challenge inasmuch as we agree with the reasons and the finding given by the Tribunal.
7. In these circumstances, the appeal requires to be and is dismissed with no order as to costs.