MADHAV SAKHARAM SHILOTRI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE are two appeals preferred by the original Claimants in respect of their respective claims before the Motor Accidents Claims Tribunal, Jalgaon. The Tribunal rejected both the claims. Hence the present appeals.

(2.) THE facts relating to both the appeals are common inasmuch as that one Manoj and one Prasanna, two youths of 19 years of age, died as a result of an accident which took place at 9.30 p.m. on 8th December 1984 in the City of Jalgaon. THE accident took place on the road going towards M.J.College and Police Headquarters. Manoj was driving Motor Cycle and Prasanna his friend was on the pillion seat. THE collision took place between the Motor Cycle and Police Jeep driven by the Original Opponent No.3. Both these boys had brilliant academic career and after passing their XIIth Standard Examination, they were students in the First Year of the Engineering and Technology College at Jalgaon. Both of them were from Bombay and they were staying in the Hostel. On 8th December 1984, they were proceeding to their Hostel at which time Opponent No.3, who was driving Police Jeep Registration No.MZE 2643 attached to Raver Police Station, was taking it back to the Headquarters. THEy collided with each other, as a result whereof the Motor Cycle was thrown off on the left side of the road and both the riders viz., Manoj and Prasanna died on the spot however, Manoj died on the next day. THE claims were preferred by the Appellants-Claimants by two separate claims being Claim Nos.38 of 1985 and 39 of 1985 whereby the Appellants claimed Rs.2 lakhs each in their claims. THE defence which was taken was of curious nature. THE Jeep driver viz., Opponent No.3 denied everything, even the fact of Jeep colliding with the Motor Cycle. THE defence taken by Opponents Nos.1 and 2 was also to the effect that the driver viz., Opponent No.3 was not authorised to take out the Jeep at that hour and that he had gone on his personal work and, therefore, Opponents Nos.1 and 2, Respondents Nos.1 and 2 herein, were not responsible. On the basis of the pleadings, issues were raised. THE main two issues which required consideration by the Tribunal were, whether it was proved that the deceased boys had died because of the rash and negligent driving of the Police Jeep MZE 2648 by Opponent No.3 and secondly, if so, then what would be the compensation. Both the original Claimants No.1, Appellant No.1 viz., fathers of the deceased boys were examined and they deposed as to the academic careers of the two boys and as to the possibility of their earnings after Graduation, at least Rs.2000/- to Rs.2500/- per month. Further, on behalf of the Appellants, evidence of one Shantaram Ramdas Wani was led. He deposed that he was in his house which was situated at the corner two roads one going to the M.J.College and other going to the Polytechnic meet; that at about 9.30 p.m. he was having his dinner, he heard big noise outside about an accident and that when he came out, he saw that a collision had taken place between the Motor Cycle and Jeep; that the Jeep was belonging to the Police Department and that the Jeep immediately left and the two boys were lying on the road injured. THE Tribunal, however, did not believe his evidence and came to the conclusion that he was a got up witness and he had nothing to depose. At the same time, curiously the Tribunal has observed that he must have come late out of his house and then he must have gathered so many things from the people. In any view of the matter, this witness cannot be termed eye-witness inasmuch as he had not seen how the accident took place. THE other witness who was examined was one Subhanrao Ganpatrao Kale, who was attached to Motor Section of the Police Headquarters at Jalgaon. He deposed that at about 10 p.m. Opponent No.3 Ramakant Medhe brought Police Jeep to the Motor Section and that he came at a high speed; that he was standing in front of the garage and when the Jeep was parked under the lamp post, he noticed that right side mud-guard of the Jeep and the disk of the right front wheel had damaged and although he asked Medhe remained quiet. Interestingly he has deposed that in his presence Medhe had mentioned that the Jeep had collided with a Motor Cycle. One more witness was examined on behalf of the Appellants and he was Sitaram Fakira Ahire. He was Police Head Constable and according to him he was present at the Police Station and that at about 10.10 p.m. P.S.G.Patil informed him that there was a phone message that in front of the house of Wani, there was an accident and two boys were lying injured and he had to go there. He has further deposed that he immediately went to the site of the accident and he found that two boys lying on the south of the road on the kuccha road and they were found injured and the motor cycle was lying at a distance of about 2 feet. Significantly he deposed that the Motor Cycle was on the left side of the road. One Pandit C.Patil who was attached to Zilla Peth, Police Station, was also examined by the Appellants and in his deposition he stated that at about 1.40 a.m. on 9th December 1984 Medhe came to the Police Station and he reported about the incident. One more witness was examined and he was Vijaykumar Shankarrao Kadambande, who went to the accident site and found that one Motor Cycle was lying on the left hand side of the road while facing the college. He was entrusted with the investigation and during the investigation it was found that Medhe was negligent and rash in driving the Police Jeep and thus a chargesheet was filed. He further deposed that the colour of the Jeep was blue and that colour was seen attached to the Motor Cycle and he got tin cut from the Jeep as well as the motor cycle for sending it to the Chemical Analyser and Chemical Analyser's report was also filed. THE evidence of one Vijay Hari Mahajan was also led, however, by the Opponents, and he deposed that Medhe was a constable driver attached to Police vehicle in question and that the vehicle was taken from the Police Station without his permission. THE evidence thus led shows no doubt that a Police vehicle viz., Jeep bearing registration No.MZE 2648 was involved in the accident and that it had collided with the Motor Cycle. THE denial by the Opponent No.3 i.e. driver Medhe in the written Statement is of no avail to the Opponents inasmuch as that the evidence above discussed completely destroyed the plea taken by him although his initial statement was to the effect that the Jeep was in fact involved in the accident. Moreover, Opponent No.3 was not examined as a witness before the Tribunal. In our judgment, he was the only eye-witness who could have deposed as to whether there was any rashness or negligence on his part or whether the Motor Cycle driven by Manoj was driven in such a rash and negligent manner that the accident had taken place. THE Tribunal was in error in not drawing an adverse inference when Medhe was not examined. THE Tribunal should have realised that he was the only eye-witness to the accident and his evidence was vital. Medhe has remained away from the witness box. Thus, we come to the conclusion that had he been examined, his evidence would not have helped the opponents, but would have helped the Appellants. Thus we have no doubt in our mind that it was Opponent No.3 who was driving Police Vehicle in question, was responsible for the accident as he had driven it in a rash and negligent manner.