High Court
Legal Reasoning
1 FA 2323.24+CA.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD901 FIRST APPEAL NO. 2323 OF 2024Anil Sampatrao More And Another.VERSUSNasrin Mainoddin Shaikh And Others....Advocate for Appellants : Mr. R. P. BhumkarAdvocate for Respondents 1, 3-5 : Mr. R.B. Deshpande ...WITHCIVIL APPLICATION NO. 8902 OF 2023 IN FA/2323/2024 CORAM:S. G. CHAPALGAONKAR, J.Dated:April 02, 2025.FINAL ORDER :-1.The appellants/original respondents impugns thejudgment and award dated 3.1.2023 passed by the MotorAccident Claims Tribunal, Latur in M.A.C.P. No.108 of 2016,thereby directing appellants to pay compensation ofRs.27,21,282/- alongwith interest @ 7.5% p.a. to therespondents/claimants. (Parties hereinafter are referred to asper their original status).2.The respondents/claimants approached theTribunal under section 166 of the Motor Vehicles Act raisingclaim for compensation towards accidental death of lateMainuddin Shaikh in motor-vehicular accident dated 5.2.2013. 2 FA 2323.24+CA.odtAccording to the claimants, late Mainoddin was proceeding onhis motorcycle from Ambajogai towards Latur. His motorcyclecollided with the stationary tractor attached with trolleysloaded with sugarcane. The tractor with trolleys was parked inmid of the road without indicators. Late Mainoddin had noclue of such vehicles. In result, he suffered fatal injuries. Hewas 41 years of age and serving as a Junior Clerk withIrrigation Department, at Latur and earning Rs.14,751/- p.m.Respondent no.1 was driver of offending tractor, whereasrespondent no.2 was its owner.3.The claim was refuted by the respondents. Theydenied allegations as to negligence against tractor driver soalso denied averments regarding age, income of the deceasedand dependency of the claimants. They contend that lateMainoddin was intoxicated and drove his motorcycle in rashand negligent manner, leading to accident. Tribunal, afterframing necessary issues and recording evidence of the partiesconcluded that accident occurred due to negligence on the partof the tractor driver and passed award in favour of theclaimants. 3 FA 2323.24+CA.odt4.Mr. Bhumkar, learned advocate appearing for theappellants vehemently submitted that tractor and trolley wasstationary at the time of accident. Late Mainoddin while ridinghis motorcycle dashed to the Trolleys. This indicates that hewas sole responsible for the accident. Postmortem reportindicates that Mainoddin was intoxicated. In criminalproceeding, tractor driver has been acquitted observingnegligence on the part of late Mainoddin. According to him,the tractor was attached with trolleys. Owner of the trolleywas not made party to the claim petition. As such, it ought tohave been rejected for non-joinder of the necessary party. Theclaimants failed to lead cogent and reliable evidence to provenegligence of tractor driver. Therefore, liability fixed againstthe owner and driver of the tractor is unjust and inconsistentwith legal position.5.Per contra, Mr. Deshpande, learned advocateappearing for the respondents/claimants supports theimpugned judgment and award.6.The claimants, in order to prove negligence of thetractor driver, relied upon copies of the FIR and spotpanchnama. FIR shows that offence has been registered against
Legal Reasoning
4 FA 2323.24+CA.odttractor driver. Tractor was parked, attached with two trolleyswithout indicators in the mid of the road at night time.Accident occurred in the night of 5.12.2013. The spotpanchnama indicates that tractor bearing registration no.MH-24/D-2632 attached with two trolleys loaded with sugarcaneseen parked in the mid of the road and motorcycle dashed onits rear side. Motorcycle was seen laying on the spot.Claimants have further examined ASI Mr. Hemant-CW3, whodeposed that on receipt of information regarding the accident,he went to spot. He described scenario after accident depictingnegligence of the tractor driver. He specifically states thatoffending vehicle was not having indicators and it was parkedputting obstacles and indication in mid of road contrary tomandate of Rule 109 of Central on Motor Vehicles Rules. If anaccident occurred in midnight due to hazardous parking of thetractor without blinking/lighting indicators and putting signs,it is difficult for any passer from the road to notice suchvehicle.7.In the present case, late Mainoddin while ridingmotorcycle could not have noticed presence of such vehicleand hit trolley from rear side. Unmindful and hazardous 5 FA 2323.24+CA.odtparking in mid of the road can be termed as sole negligence ofTractor driver. Same being against mandate of Rule 109 ofCentral Motor Vehicles Rules, 1989, which reads thus :-109.Every construction equipment vehicle, combineharvester and motor vehicle] other than] [* * *]motor cycles and three-wheeled invalid carriagesshall be provided with one white or amber parkinglight on each side in the front. In addition to thefront lights, two red parking lights one on each sidein the rear shall be provided. The front and rearparking lights shall remain lit even when the vehicleis kept stationary on the road:Provided that these rear lamps can be the same asthe rear lamps referred to in rule 105, sub-rule (2):[* * *] Provided also that construction equipment vehiclewhich are installed with flood light lamps or spotlights at the front, rear or side of the vehicle for theiroff-highway or construction operations, shall haveseparate control for such lamps or light sand theseshall be permanently switched off when the vehicleis traveling on the road.” Therefore, finding of negligence against tractordriver recorded by the Tribunal appears to be just and proper.8.Mr. Bhumkar, learned counsel appearing for theappellants contends that postmortem report depicts liquid withalcoholic smell in stomach of the deceased. Hence, he must beprosecuted to be intoxicated. However, there is no report ofChemical Analysis to support that late Mainoddin was underthe influence of alcohol. On the basis of contents ofpostmortem report, conclusion cannot be drawn that late 6 FA 2323.24+CA.odtMainoddin was under the influence of liquor or intoxication.At this stage, Reference can be given to Section 185 of theMotor Vehicles Act which reads thus :-185.Driving by a drunken person or by a personunder the influence of drugs. Whoever, while driving, or attempting to drive, amotor vehicle, [(a) has, in his blood, alcohol exceeding 30 mg.per 100 ml. of blood detected in a test by a breathanalyser, or],(b)is under the influence of a drug to such anextent as to be incapable of exercising propercontrol over the vehicle, shall be punishable forthe first offence with imprisonment for a termwhich may extend to six months, or with finewhich may extend to two thousand rupees, or withboth; and for a second or subsequent offence, ifcommitted within three years of the commission ofthe previous similar offence, with imprisonmentfor a term whcih may extend to two years, or withfine which may extend to three thousand rupees,or with both.”It is not the case here blood sample of deceasedwas extracted or viscera was preserved to find out presence ofalcohol in the body of the deceased. No positive evidence isbrought on record on behalf of the respondents to that effect.Therefore, submissions to that extent cannot be countenanced. 7 FA 2323.24+CA.odt9.Mr. Bhumkar, learned counsel submits thatJudicial Magistrate First Class has acquitted driver observingpresence of alcohol in the stomach of late Mainoddin. It is tritethat acquittal of driver in criminal case would not disentitle theclaimants from raising claim for compensation against theowner and driver of the vehicle. In criminal proceeding, theprosecution has to prove it’s case beyond reasonable doubt;whereas in the proceeding of Motor Accident Claim Petition,rule of appreciation is preponderance of probability. Thefinding recorded in criminal proceeding can not form basis ofdefence to owner or driver of offending vehicle. 10.In the present case, claimants have establishedtheir case by leading oral as well as documentary evidence.Respondent nos.1 and 2 neither cross examined the claimantswitnesses nor stepped into witness box to counter case of theclaimants. In such situation, adverse inference can be drawnagainst them. In this background, no case is made out tointerfere in the judgment and award passed by the Tribunal.11.In the result, First Appeal stands dismissed.Pending civil application, also stands disposed off. Amount of 8 FA 2323.24+CA.odtstatutory deposit made by the appellant be released in favourof respondents/claimants. ( S. G. CHAPALGAONKAR, J. )...aaa-