First Appeal No. 205 of 2007

14th February, 2008

Petitioner Counsel: Mr. J. P. MULGAONKAR
Respondent Counsel: Mr. N.R.S. NETRAVALKAR

Cases Cited:
Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum, (1997)9 SCC 552 [Para 8]
Minu B. Mehta Vs. Balkrishna Ramchandra Nayan, 1977 A.C.J. 118 [Para 11]
Jayshree Vijasinghrao Khalate Vs. Bhagivatlal Attarchand, 1996(1) T.A.C. 513 [Para 11]

JUDGMENT

JUDGMENT:- Admit. By consent heard forthwith.

2. This appeal is directed against the Judgment dated 19-8-2006 of the learned M.A.C.T., Mapusa, dismissing the Claim Petition filed by the Appellants herein.

3. The parties hereto shall be referred to as the Claimants and Respondents, respectively. The Claimant No.1 is the widow and Claimant No.2 is the brother of deceased driver of bus No.GA-01-V-5535.

4. The accident took place on 6-6-2003 at about 2 p.m. while deceased was driving the said bus. It was the case of the Claimants that the accident took place on account of rash and negligent driving of the road roller by Respondent No.1 owned by Respondent No.2 and insured with Respondent No.3. As per the said Claimant the said roller was used in the process of levelling and tarring of the road.

5. Respondent Nos.1 and 2 did not contest the petition but Respondent No.3 filed a written statement, inter alia, pleading that the accident was caused due to the rash and negligent driving of the deceased driver of the said Mini Bus having No. GA-01-V-5535, which according to Respondent No.3 first dashed a maruti car, having No.MH-11-H/1213 and then on an oncoming bus having No.GA-01-V-4070, causing serious damages to the said vehicles and thereafter the deceased driver lost control and dashed against the said stationery road roller parked by the side of the highway where the work of hot mixing of the road was in progress.

6. In support of their claim the Claimants examined besides Claimant No.1, Vrinda Polji/AW2 and Suhas Malewadkar/AW5 who according to the Claimants were the passengers in the said bus driven by the deceased. The Claimant also examined the panch witness namely Anant Kandokar/AW4 who confirmed the involvement of four vehicles in the said accident and produced copies of the panchanama and the sketch. The Respondents examined ASI Sawant/RW1 who again confirmed that the accident had taken place between four vehicles, and, according to whom the accident had taken place on account of the rash and negligent driving of the deceased driver of the said mini bus. The Respondents also examined Manohar Kerkar/RW2 and the road roller driver Sebastiao Fernandes/RW3.

7. The learned MACT after assessing the evidence produced on behalf of the Claimants and the Respondents came to the conclusion that the evidence of the Respondents witnesses had proved the involvement of four vehicles which was also the case of the Claimants' witness Anant Kandolkar/AW4 which was again supported by the panchanama and the sketch. The learned MACT also came to the conclusion that the versions given by the Respondents' witnesses were more probable and acceptable in the light of damages caused to the car, the mini bus driven by the deceased driver and the other bus bearing No.GA-01-V-4070. The learned MACT also held that the versions given by Vrinda Polji/AW2 and Suhas Malewadkar/AW5 were difficult to be digested. In other words, the learned MACT came to the conclusion that since the accident had taken place on account of the rash and negligent driving of the deceased driver himself, the Claimants were not entitled for any compensation.

8. Mr. Mulgaonkar, learned Counsel on behalf of the Claimants submits that the accident also took place out of the use of the road roller and therefore the said roller also contributed to the accident. The learned Counsel further submits that the deceased driver could not have driven the bus at a high speed considering that the repairs of the road were going on. The learned Counsel further submits that necessary care was not taken to ensure the regulation of traffic since road work was in progress. The learned Counsel submits that the Claimants have produced sufficient evidence at least to fix some liability on the said road roller. In support of his submissions learned Counsel has placed reliance on Rajkot Municipal Corporation Vs. Manjulben Jayantilal Nakum and others ((1997)9 SCC 552) wherein the Apex Court has held that negligence means careless conduct in commission or omission of an act, whereby another to whom the Plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence.

9. On the other hand, Mr. Netravalkar submits that the presence of Suhas Malewadkar/AW5 is doubtful because his name is not reflected on the final report submitted by ASI Sawant which was produced as Exh.51. Learned Counsel further submits that the names of Manohar Kerkar/RW2 and Sebastiao Fernandes/RW3 is reflected on the said report and therefore it is obvious that they had witnessed the accident. Referring to the claim filed by Vrinda Polji/AW2 and to which reference has been made by the learned MACT, in the impugned Judgment, learned Counsel submits that the Claimants in that case succeeded because Respondents in that case had not led any evidence and that in this case the Respondents have led evidence and this clearly shows that the accident took place on account of the rash and negligent driving of the deceased himself and that being the position according to the learned Counsel, the Claimants would not be entitled to any compensation.

10. The weight of evidence produced is entirely on the side of the Respondents. The Claimants' own witness namely the panch witness Anant Kandolkar/AW4 has clearly confirmed that the accident had taken place involving four vehicles. Similarly, ASI Sawant/RW1 who investigated the case of accident stated that the accident had taken place between the mini bus driven by the deceased driver, maruti car having No.MH-11-H/1213 and another mini bus having No.GA-01-V-4070 and the road roller. He was an independent witness and had no reasons to take sides either of the Claimants or the Respondents. Likewise Manohar Kerkar/RW2 who is another independent witness has confirmed that the road roller was in a stationery position on the left side of the road facing towards Mapusa and that the deceased driver who drove the mini bus in a fast speed gave a dash to three vehicles. He stated that at that time he was driving the truck for bringing the material for hot mixing and was standing by the side of the road. The Respondents have been able to prove by overwhelming evidence that the road roller was stationery and was on the side of the road which was being repaired. The Respondents have also been able to show that the labourers were controlling the vehicles by holding the flag in their hands. If the deceased driver had first dashed a maruti car and then an oncoming bus before dashing the road roller there is no explanation forthcoming from the Claimants' witnesses as to why they have not referred to the involvement of the said two vehicles. In case Vrinda Polji/AW2 had succeeded in her Claim Petition by filing the same against the offending bus as well as the road roller there is no explanation as to why she now implicated only the road roller in her evidence before the Tribunal. It is but obvious that both the witnesses of the Claimants, namely Vrinda Polji/AW2 and Suhas Malewadkar/AW5 have indulged in suppressing the truth and suggesting falsehood and in the light of that the learned MACT was fully justified in concluding that their versions were difficult to be accepted apart from the fact that the learned MACT also gave other reasons not to accept their evidence. Considering the facts of the case, the driver of the road roller owed no duty of care to the deceased driver of bus GA-01-V-5535 by keeping it stationery on the side of the road which was being hot mixed and there were other workers to regulate the traffic.

11. The evidence produced by the Respondents clearly proves that it is the deceased driver of mini bus having No.GA-01-V-5535 which came in a fast speed and in a rash and negligent manner, overtook a maruti car after dashing the same and then dashed against an oncoming bus and then the road roller which was parked on the side of the road which was being repaired and was stationery at the time of the accident. In other words, it is the deceased driver who was rash and negligent in driving the said mini bus as a result of which he himself died. It is quite probable that he injured himself after the second dash on the oncoming bus. In such a case no liability could be apportioned against the driver or owner of the road roller which was left stationery on the side of the road which was being repaired. It appears that the deceased driver on account of the speed lost control and dashed the same ultimately after dashing two other vehicles. It is well settled, as held by the Apex Court in Minu B. Mehta Vs. Balkrishna Ramchandra Nayan (1977 A.C.J. 118) that in case compensation is awarded without proof of negligence it would lead to strange result and that it is incumbent on the Claimants to prove negligence before the owner or the insurer would be held liable for compensation. The same principle was followed by the Division Bench in the case of Jayshree Vijasinghrao Khalate and others Vs. Bhagivatlal Attarchand and others (1996(1) T.A.C. 513) holding that whether the deceased himself was negligent as a result whereof the accident took place, an application for compensation is not maintainable.

12. In the light of what has been stated herein above the impugned Judgment cannot be faulted. The appeal is dismissed with no order as to costs.

Appeal dismissed.