SHRI. BHALCHANDRA S/O DHONDOPANT RAIKHELKAR Vs. MAHARASHTRA STATE ROAD TRANSPORT CORPORATION
LAWS(BOM)-2017-2-251
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Decided on February 22,2017

SHRI. BHALCHANDRA S/O DHONDOPANT RAIKHELKAR Appellant
VERSUS
MAHARASHTRA STATE ROAD TRANSPORT CORPORATION Respondents

JUDGEMENT

V.K.JADHAV, J. - (1.) Being aggrieved by the judgment and award passed by the learned Member of Motor Accident Claims Tribunal, Osmanabad dated 2nd April, 2004 in MACP No.108 of 1998, the original Claimant has preferred this appeal.
(2.) Brief facts giving rise to the present appeal are as follows: a) On 10th February, 1997, the Appellant / Claimant was travelling in S.T. Bus bearing registration No.MH20D2566 from Latur to Parbhani. On that day at about 23:30 hours, on Latur - Parbhani State Highway within the limits of village Dadahari Wadgaon, one vehicle came from the opposite side and dashed against the S.T. Bus. In consequence of which, the Appellant / Claimant has sustained injuries on his right leg and other part of the body. After the accident, he was immediately shifted to the General Hospital at Parli and therefrom to the General Hospital at Ambajogai. He was also shifted to Suyash Nursing Hospital, Solapur, where he has undergone the operation on his right leg. He remained as an indoor patient for about a month and thereafter, taken the follow up treatment in the said Suyash Hospital. Further, the injuries sustained by him on his right leg also resulted into the permanent disablement to the extent of 32.5%. He also suffered from shortening of his right leg and restriction of the movements of his knee joint. The Appellant / Claimant has therefore, approached the Tribunal by filing MACP No.108 of 1998 for grant of compensation under the various heads. It has contended in the claim petition that the accident had taken place on account of rash and negligent driving of the driver of the S.T. Bus. The Appellant / Claimant incurred huge medical expenses and also incurred expenses on special diet etc. He has also sustained the loss in the agricultural income. b) Respondent / MSRTC has strongly resisted the petition by filing the written statement Exhibit - 11. It has denied that the accident occurred on account of rash and negligent driving of the driver of S.T. Bus. It has contended that near the spot of accident, one unknown tempo came in high speed from the opposite direction and gave dash to the right side of the bus. It has therefore, contended that the accident occurred due to the rash and negligent driving of the driver of the said unknown tempo and there was no fault on the part of the driver of the S.T. Bus. c) The Appellant / Claimant has examined himself on oath and further relied upon the documents such as FIR, spot Panchanama etc. and also placed on record the hospital bills and the cash memos of the medicines purchased by him during the course of treatment. The Respondent / MSRTC has not adduced any evidence. The learned Member of the Motor Accident Claims Tribunal, Osmanabad vide its impugned judgment and award dated 2nd April, 2004 dismissed the application mainly on the ground that the Appellant / Claimant has failed to prove that the accident occurred on account of the rash and negligent driving of the driver of the S.T. Bus. Hence, this appeal.
(3.) the learned counsel for the Appellant / Claimant submits that the Appellant / Claimant was travelling in the bus as a passenger and the accident had taken place in the night time. It was the responsibility of the driver of the S.T. Bus to drive the vehicle like bus carrying passengers with due care and caution. The learned counsel submits that the Appellant / Claimant has approached the Tribunal with a specific pleading and evidence in support that the accident had taken place on account of rash and negligent driving of the driver of the S.T. Bus. The Respondent / MSRTC has also not denied the happening of the accident. The Respondent / MSRTC has resisted the claim on the ground that one unknown tempo coming from the opposite direction gave dash to the S.T. Bus and the driver of the tempo is entirely responsible for the accident. The learned counsel submits that the Appellant / Claimant has proved the happening of the accident and thus, the burden shifts on the Respondent / MSRTC by application of maxim res ipsa loquitur to prove that the driver of the S.T. Bus was not rash and negligent in driving the S.T. Bus at the time of accident. However, the Respondent / MSRTC has not examined the driver of the said S.T. Bus and thus, failed to discharge the burden. The learned counsel submits that on the other hand, on perusal of the contents of spot Panchanama, an irresistible inference could be drawn that the vehicle S.T. Bus was being driven in a fast speed and the driver of the S.T. Bus has not taken due care and caution while driving the S.T. Bus carrying the passengers in the night time. The learned counsel submits that the driver of the S.T. Bus is thus, responsible for the accident and the Tribunal should have recorded the findings about the rash and negligent driving of the driver of the S.T. Bus.;


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