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Judgment
A.S. Chandurkar, J.—Both these appeals can be decided by this common judgment in favour of similarity of issued involved.
On 15.05.1992 there was a collusion between the bus owned by the Maharashtra State Road Transport Corporation and a truck bearing No. MP-20/D-841 resulting in death of some passengers of the bus and injuries to other passengers. Separate claim petitions were filed claiming compensation. Claim Petition No. 446 of 1992 was filed by parents of a deceased passenger. The Claims Tribunal therein allowed the claim for compensation by holding the owner of the truck and the Insurance Company which had insured said truck liable to pay compensation. Being aggrieved by said fact of holding the owner and Insurance Company liable, First Appeal No. 93 of 2000 has been preferred.
Claim Petition No. 505 of 1992 arising out of same accident was filed by parents of another deceased passenger. The Claims Tribunal therein also held the truck owner and the Insurance Company that had insured the same vehicle to be liable to pay compensation. First Appeal No. 87 of 2000 has been preferred challenging the said judgment.
It is to be noted that common evidence was recorded in both the proceedings before the Claims Tribunal. In Claim Petition No. 446 of 1992 the Insurance Company did not file any written statement. However, written statement was filed in Claim Petition No. 550 of 1992 by the Insurance Company.
Shri A.J. Pophaly, learned counsel appearing for the appellants submitted that Claims Tribunal erred in holding the truck driver responsible for the accident. According to him the accident occurred as a result of an head on collision between the two vehicles and hence the bus driver was also responsible for the same. He submitted that the evidence of the witness examined by the truck owner and the Insurance Company vide Ex. 39 reveals that the bus driver was also at fault as the accident occurred when the driver of the bus tried to overtake another truck. He submitted that the Claims Tribunal ignored aforesaid evidence and therefore recorded a finding that was perverse. He also submitted that the deposition of the witness examined by the claimant was not believable. According to him the bus driver should have been cautious while overtaking the other vehicle. He relied upon the decision of the Supreme Court in Bijoy Kumar Dugar Vs. Bidyadhar Dutta and Others, (2006) 2 ACC 36 : (2006) ACJ 1058 : AIR 2006 SC 1255 : (2006) 130 CompCas 325 : (2006) 3 CTC 122 : (2006) 3 JT 94 : (2006) 143 PLR 329 : (2006) 2 SCALE 744 : (2006) 3 SCC 242 : (2006) AIRSCW 1116 : (2006) 2 Supreme 374 in that regard.
Shri S.R. Charpe, learned counsel appearing for respondent No. 1-Maharashtra State Road Transport Corporation opposed aforesaid submissions. As regards First Appeal No. 93 of 2000 he submitted that the Insurance Company had not filed any written statement and hence the appeal itself could not be entertained. He then submitted that there were no specific pleadings that the accident occurred solely on account of negligence of the bus driver. He referred to deposition of the witness examined vide Ex. 22 and submitted that the bus had been dashed on the right side which indicated that on account of rash driving by the truck driver, the accident had occurred. He, therefore submitted that there was no reason to interfere with the judgment of the Claims Tribunal.
Following point arises for consideration:
Whether any case has been made out to interfere with the impugned judgments?
I have considered the respective submissions and I have gone through the records of the case. Though the Insurance Company did not file any written statement in Claim petition No. 446 of 1992, the present appeal has been preferred by the Insurance Company along with the owner of the truck. The owner of the truck had filed his written statement and hence as the Insurance Company had insured said vehicle, the appeal jointly preferred by the truck owner and the Insurance Company can be entertained.
As it is the case of the truck owner that the accident occurred on account of negligence on the part of the truck driver, his pleadings in that regard can be noticed. In the specific pleadings it has been stated that the bus was owner loaded with 70 passengers due to which the driver of the bus lost his control. While he was attempting to save one scooterist and was trying to overtake a scooter and a car, the bus gave a dash to the truck which was coming from the opposite side. On behalf of the owner witness at Ex. 39 was examined. He stated that the bus in which he was travelling tried to overtake a truck and at the same time the offending truck dashed the bus. According to said witness the accident occurred when the bus tried to over- take another truck. Right side of the bus was completely damaged. He stated that he was sitting on a seat near the back wheel of the bus. He however stated that he could not say who was at fault.
On behalf of the claimant, a witness was examined vide Ex. 22. She stated that the truck coming from front came on the wrong side and dashed the bus on the right side. As a result about five seats from the driver side had been cut. In her cross examination she stated that she was sitting on the conductor side of the bus. The Tribunal after considering the entire evidence on record found that in the pleadings of the truck owner it has not been stated that the bus was trying to overtake a truck due to which the accident occurred. It further observed that there was variance in the pleadings of the truck owner and the evidence of its witness vide Ex. 39. It further held that the evidence led on behalf of the claimant vide Ex. 22 was acceptable and therefore recorded a finding that the accident took place due to negligence of the truck driver. It is on this basis that the truck owner and insurer were held liable to pay the compensation.
In Vijay Kumar (supra) the Supreme Court while considering the aspect of contributory negligence observed that if the particular side of the vehicle had been hit, then negligence or rashness could be fastened or attributed to the driver of the offending vehicle. However, if the vehicles had a head on collision then the drivers of both the vehicles could be held to be equally responsible.
In the light of aforesaid observations if the pleadings of the parties and the evidence on record is examined it is clear that in the written statement filed by the truck owner it was specifically pleaded that the bus was carrying passengers beyond its capacity and the driver of the truck lost his control while trying to save the scooterist and while overtaking a scooter and a car. The witness examined on behalf of the owner however deposed that the bus was trying to overtake a truck. He stated that while the bus was at the speed of 50 to 60 kms. per hour the truck came at a high speed and dashed the bus. In his cross examination however he stated that he could not say who was at fault. The other witness to the accident was the claimant and she has not stated about any vehicle being overtaken. She stated that the truck came on the wrong side and dashed the bus on the right hand side portion. The evidence further records that the driver of the bus suffered injuries and major portion on the right side of the bus was damaged. It is therefore clear that it is not the case of head on collision but the right side of the bus being hit.
Considering the nature of the evidence available on record as well as the pleadings of the parties, the view taken by the Tribunal cannot be said to be perverse requiring interference. The conclusion arrived at is on the basis of the evidence which was found believable by the Tribunal and in the light of pleadings of the parties. This conclusion is fortified by the fact that the right side of the bus was hit. The view therefore as taken by the Tribunal is a probable view based on preponderance of probabilities. It, therefore, cannot be said that the Tribunal erred in holding the truck driver guilty of the accident on account of his negligence. The point as framed is accordingly answered by holding that there is no reason to interfere with the impugned judgment.
In the result the following order is passed:
The judgment of the Claims Tribunal in Claim Petition No. 446 of 1992 and Claim Petition No. 505 of 1992 is confirmed. Both the appeals are dismissed with no order as to costs.