1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 554 OF 2009
Shivajirao Nilkanthrao Patil
Age : 50, Occup.:Agriculture &
Business, R/o.Kadgaon, Tal.:
Gadhinglaj, Dist.Kolhapur ...Appellant
(Orig.Claimant)
V/s.
(1) Maruti Appa Tade (Deceased)
through Legal heirs :
(a) Smt.Indubai Maruti Tade
Age:65, Occup.Household,
R/o. Kadgaon, Tal.
Gadhinglaj, Dist.Kolhapur.
(b) Shri Prakash Maruti Tade,
Age:46, Occup. Agriculture,
R/o. As above.
(c) Shri Balkrushna Maruti Tade,
Occu. Education, R/Kagoshima,
Dist.Raigad.
(d) Sou.Mangal Mahesh Bhopale,
Age:35, Occup.Household,
R/o. Shimoga (Karnataka)
(e) Malan Babasaheb Prabhalkar,
R/o.Bindu Chowk, Bhui Galli,
Kolhapur, Dist.Kolhapur.
(2) United India Insurance Company Ltd.
A/P Main Road, Gadhinglaj,
Tal.Gadhinglaj, Dist.Kolhapur.
(3) Shri Balkrishna Maruti Tade,
Age : Major, R/o.Kadgaon, near
S.T.Stand, Tal.Gadhinglaj,
Dist.Kolhapur. ...Respondents
(orig. Opponent
Nos. 1 & 3)
::: Downloaded on - 09/06/2013 14:59:20 :::
2
....
Mr.Sudhakar G.Thorat,Advocate, for the appellant.
Mr.Amit Borkar, Advocate, for respondent nos.
1(a), 1(b), 1(d), 1(e) & 3;
Shri Ranjan B. Tripathi i/by S.M.Vidyarthi for
respondent no.2.
....
CORAM : J.H.BHATIA,J.
DATE : 8th September, 2009.
ORAL JUDGMENT :
1.The appellant
ig has preferred this appeal
against the dismissal of his Motor Accident
Claims Petition No. 129 of 2000 by the Motor
Accident Claim Tribunal, Gadhinglaj. With
consent of the counsel for the parties, the
appeal is immediately taken up for final
hearing.
2. It is a case of the appellant that on 7th
August 1995 at 8.30 p.m. he was travelling by
his motor cycle bearing no. DEW-9197. He was
proceeding towards Kadgaon. At that time,
another motor cycle bearing No. MEH-386 came
in high speed from the opposite direction.
Respondent no.3 drove the motor cycle rash and
::: Downloaded on – 09/06/2013 14:59:20 :::
3
negligently and dashed the motor cycle of the
appellant due to which he fell down and
sustained several injuries including
fractures. After the occurrence, he was taken
to the hospital of Dr.Kolhapure and from there
he was shifted to the hospital at Miraj, where
he was required to take treatment for long
time. He claimed that due the injuries, he
had suffered partial permanent disability and
he is unable to discharge his work as an
agriculturist. Therefore, he claimed an
amount of Rs.4,28,500/- as compensation. The
offending vehicle was owned by deceased
respondent no.1-Maruti Appa Tade and was
insured with respondent no.2-United India
Insurance Company Ltd.
3. The respondent nos.1 and 3 filed their Written
Statements at Exh. 24 and respondent no.2
filed its Written Statement at Exh.28. They
denied that the accident had taken place due
to the rash and negligent driving of the motor
::: Downloaded on – 09/06/2013 14:59:20 :::
4
cycle bearing no. MEH-386. They also denied
that the said motorcycle was involved in the
said accident. They also denied the injuries
and partial permanent disability and the
expenses incurred by petitioner/appellant.
4.The Trial Court framed several issues on the
basis of the contentions of the petitioner and
after hearing
ig the evidence led by the
petitioner, the Trial Court came to the
conclusion that the petitioner had failed to
prove that in the accident, the motor cycle
baring No. MEH-386 belonging to respondent no.
1 was involved. In the result, the claim
petition came to be dismissed.
5. The learned counsel for the appellant
vehemently contends that the Trial Court had
unnecessarily given importance to the delay in
lodging the F.I.R. According to him, taking
into consideration the evidence of the
petitioner and the eye witnesses Dattatray
Patil and Nishikant Patil, it should have been
::: Downloaded on – 09/06/2013 14:59:20 :::
5
held that the accident had taken place
involving the said motor cycle and that
respondent no.3 was rash and negligent in
driving the vehicle and responsible for the
accident.
6.On the other hand, the learned counsel for
respondents vehemently contended that the
F.I.R. was lodged about 2½ years after the
alleged accident and almost immediately after
lodging the F.I.R., the claim petition was
filed. In view of delay of 2 1/2 years in
lodging the F.I.R., there was no spot
panchanama or seizure of the vehicle, which
was involved in the accident. It is contended
that the appellant himself is a police Patil
and therefore, the delay in lodging the report
becomes important and therefore his oral
testimony could not be given much importance.
7.The only point for my consideration is whether
the accident had taken place due to the rash
and negligent driving of the motor cycle No.
::: Downloaded on – 09/06/2013 14:59:20 :::
6
MEH-386 by respondent no.3.
8.On perusal of the record and the evidence, it
appears that the alleged accident had taken
place on 7th August 1995 at about 8.30 p.m. on
Gadhinglaj-Kadgaon Road. The petitioner
himself, was driving the motor cycle No.
DEM-9197. other two witnesses namely :
Dattatraya Patil
ig and Nishikant Patil were
also proceeding on another motor cycle and
they claim to have seen the accident. As per
the evidence of the appellant and these two
witnesses, the motor cycle No.MEH-386 came
from the opposite side, respondent no.3 was
driving the same rashly and due to the rash
and negligent driving, he gave the dash to
the motorcycle of the petitioner, due to which
the petitioner fell down and suffered several
injuries. He was immediately taken to
hospital of Dr.Kolhapure by Dattatraya &
Nishikant Patil. The appellant also examined
Dr.Milind Kulkarni, Orthopedic Surgeon from
::: Downloaded on – 09/06/2013 14:59:20 :::
7
Miraj, who had examined and treated the
appellant from time to time. He deposed that
he had suffered compound fractures and
therefore, he was required to be operated on
three occasions and his treatment continued
intermittently from 8th August 1995 to 25th
April 1996. He also deposed that the appellant
has suffered partial permanent disability to
the extent of 70%.
9.In view of the medical evidence and the
evidence of the appellant as well as Nishikant
Patil, it can be held that in the accident of
motor cycle, the appellant had suffered
several injuries resulting into partial
permanent disability. However, before the
liability to pay the compensation can be
fastened on the respondents, it is necessary
to prove that motor cycle No.MEH-386 belonging
to the respondent no.1 was being driven by
respondent no.3, at the relevant time and due
to the rash and negligent driving of that
::: Downloaded on – 09/06/2013 14:59:20 :::
8
motor cycle, the accident had taken place.
10.Record reveals that even though the said
accident had taken place on 7th August 1995, no
report was lodged about the accident with the
police till 26th January 1998, when for the
first time, the statement of the appellant was
recorded by the Head Constable Krishna Saturam
Bhiguda. On that basis, F.I.R. was registered
on 26th January 1998 and Crime No. 13/1998 came
to be registered. The record reveals that the
appellant himself is a police Patil and for a
period of eight months after the accident, he
was taking treatment. From his own admission
it appears that he used to go to the police
station as well and Tahasildar office to
discharge his official functions as a police
Patil. As a police Patil, he was well aware
that whenever any such accident or any crime
is committed, immediately a report should be
lodged with the police. But he did not take
care to lodge such report for a period of
::: Downloaded on – 09/06/2013 14:59:20 :::
9
about 2 ½ years. According to him, he had
asked the Medical Officer to inform the
police. He did not examine Dr.Kolhapure of
Gadhinglaj, in whose hospital he was first
taken. From there he was taken to the
hospital at Miraj of Dr.Milind Kulkarni, where
he was taking treatment for a long time. The
evidence of Dr.Kulkarni also does not reveal
that the appellant had told him that he had
suffered injuries in an accident involving
motor cycle bearing No.MEH-386. Normally,
whenever, such injured person is brought to
the hospital, Casual Medical Officer records
the circumstances in which the injuries are
caused. Here, the appellant or the other
witnesses, who claim to have seen the
accident, did not tell the Doctor that the
accident had taken place because of or with
the motor cycle No.MEH-386 Hence, the Medical
Officer had not taken note of the same. If
such note would be available on the record of
::: Downloaded on – 09/06/2013 14:59:20 :::
10
the hospital and particularly admission papers
of theappellant, it could be said that
immediately after the accident, the appellant
or some other witness had stated that such and
such vehicle was involved in the accident.
However, it appears that no such statement was
made even before the Medical Officer.
11.Importance of lodging the F.I.R., immediately
after the incident, cannot be overemphasised.
Firstly, the F.I.R. discloses the facts
immediately after the incident. On the basis
of which, investigation could be properly
held. Statement of witnesses could be
recorded. Spot Panchanama could be made and
the concerned vehicle could be seized. Wheel
Marks and other marks on the spot of accident
and the damage, if any, to the vehicle, could
be useful in finding out whether the accident
had taken place due to rash and negligent
driving of the alleged offending vehicle. In
the present case, as the F.I.R. was not
::: Downloaded on – 09/06/2013 14:59:20 :::
11
lodged, no such investigation could be made,
no panchanama could be made, no vehicle could
be seized from the spot. In the circumstances,
all possible evidence, which could be
available, was completely lost. In the
circumstances, it would be difficult to place
implicit reliance on the oral testimony of the
claimant that the accident had taken place due
to rash and negligent driving of the motor
cycle bearing No. MEH-386.
12.The trial court minutely considered the
evidence before coming to the conclusion that
the appellant had failed to establish the
motor cycle bearing No. MEH-386 was involved
in the said accident and that accident had
occurred due to rash and negligently driving
of that vehicle by respondent no.3. As the
appellant failed to prove these basic issues,
the question of granting any compensation to
him as against respondent nos. 1 to 3 would
not arise. I do not find any fault with the
::: Downloaded on – 09/06/2013 14:59:20 :::
12
approach of the trial court.
13.Therefore, there is no substance in the
present appeal and it is liable to be
dismissed.
14.In the result, the appeal stands dimissed.
(J.H.BHATIA,J.)
::: Downloaded on – 09/06/2013 14:59:20 :::