2016(2) ALL MR 399
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

R. K. DESHPANDE, J.

The New India Assurance Company Ltd. Vs. Ravikant Padmakar Tarekar & Ors.

First Appeal No.274 of 2004

22nd January, 2016.

Petitioner Counsel: Shri S.N. DHANAGARE
Respondent Counsel: Smt. M.P. MUNSHI

Motor Vehicles Act (1988), S.166 - Contributory negligence - Case of head on collusion between S.T. Bus and truck - Spot panchanama shows that driver side cabin of S.T. Bus was damaged, door was broken and head light and other accessories were also broken along with screen glass - It shows that driver of truck was driving it rashly and negligently and inspite of having seen bus coming from opposite direction, he has not reduced speed - Driver of truck was not examined - No evidence on record to show that driver of Bus was in any manner rash and negligent in driving vehicle - Hence, contention that driver of bus was equally responsible for accident, not acceptable. (Para 5)

JUDGMENT

JUDGMENT :- Heard finally by consent of the learned counsels appearing for the parties.

2. In Motor Accident Claims Petition No. 84 of 1995, the claimant was held entitled to compensation of Rs.3,10,000/- along with interest at the rate of 9% per annum from the date of application till its deposit in the Court. The owner of the offending vehicle which is a truck bearing registration No. MIA-9711 and the appellant Insurance Company with which the truck was insured are held jointly and severally liable to pay the said amount of compensation. The Insurance Company is before this Court in this appeal.

3. The learned counsel for the appellant has urged that it was a case of head on collusion between the two vehicles i.e. Bus bearing registration No. MH-20/ D-0574 and the truck bearing registration No. MIA-9711. The appellant who is the claimant was driving S.T. Bus and therefore, he was contributory negligent to the extent of 50% in driving the vehicle. According to the learned counsel for the appellant, the owner of the truck and the appellant Insurance Company could be held liable only to the extent of 50%. The tribunal has held that it was the truck driver who was solely negligent in driving the vehicle.

4. In view of above, the point for determination is as under-

Whether the lower appellate Court has committed an error in holding that it was the driver of the truck bearing registration No. MIA-9711 who was solely responsible for rash and negligent driving?

5. The tribunal has considered the spot panchnama at Exh. 58 and has held that the driver side cabin of the S.T.Bus was damaged; the door was broken; the head light and other accessories were also broken along with screen glass. The collusion occurred when the S.T. Bus crossed the bridge. The relevant findings are in paragraph 15 of the judgment of the tribunal, which is reproduced below.

"The petitioner himself was driver of the Bus. As per his evidence, one truck came from opposite direction and dashed against the bus and thereafter fell down from the bridge. The bus had crossed the bridge. The very fact that the panchanama of the spot of offence and the evidence of the petitioner shows that the driver of the truck was driving the vehicle rash and negligently and after having seen the bus coming from opposite direction, he has not reduced the speed and control the truck. The driver of the truck has not taken any precaution to avoid the accident. It is the contention of the Insurance Company that the driver of the S.T. Bus was at fault or equally responsible for the accident. The best person who could explain the exact occurrence of the accident is the driver of the truck, who has not examined by the respondent. Therefore, the basis of the evidence on record, only inference could be drawn is that the accident was due to rash and negligence on the part of the driver of the truck."

The driver of the truck has not entered the witness box to depose and there is no evidence on record to show that the claimant who was the driver of the S.T. Bus was in any manner rash and negligent in driving the vehicle. The tribunal, therefore, did not commit any error.

6. In the result, the first appeal is dismissed with costs. The respondent no.1 - claimant shall be entitled to withdraw the entire amount deposited by the appellant along with interest accrued thereon.

Ordered accordingly.