R.M.S. Khandeparkar, J.
1. Heard the learned advocates for the parties. Perused the records. This appeal arises out of the judgment and order dated 16.9.1998 passed by the Motor Accidents Claims Tribunal, Kolhapur, in M.A.C. Petition No. 156 of 1996. The claim petition filed by the appellants was dismissed on the sole ground that the appellants have failed to establish that the accident in question had occurred on account of rash and negligent driving of the tractor by the respondent No. 3.
2. The facts in brief are that the appellants are the parents of deceased Niyajahamad Bashir Desai. On 26.5.1986 around 8 a.m., while said Niyaj was riding on the bicycle on Alabad-Kapashi Road he met with accident with the tractor bearing No. MZG 8594 which was driven by the respondent No. 3 herein on the same road in opposite direction. The tractor had two trolleys attached to it bearing registration No. MXL 4649 and MXL 4650. On account of said accident said Niyaj sustained grievous injuries and he succumbed to his injuries within a short span of time after sustaining the injuries. It is the case of the appellants that Niyaj was 7th standard student and he was their eldest son. The compensation of Rs. 70,000 was claimed by the appellants. The Tribunal found that the appellants had established the claim to the extent of Rs. 42,000, however, holding that the evidence on record is not sufficient to establish that the tractor was being driven in rash and negligent manner by the respondent No. 3 in driving the tractor at the relevant time, dismissed the claim petition. Though the respondent No. 2 had sought to contend that the tractor was not insured with the said insurance company, considering the cover note No. 784035 produced by the respondent Nos. 1 and 3 on record the Tribunal held that the vehicle in question was duly insured with the said company at the relevant time.
3. While assailing the impugned judgment and order, the learned advocate for the appellants submitted that the Tribunal has not assessed the evidence properly and has thereby committed error in the matter of assessment of the evidence which warrants interference by this court in this appeal. Referring to the testimonies of the witnesses, it was submitted that, the same clearly establish the negligence and rashness on the part of the respondent No. 3 in driving the tractor at the relevant time. It was also sought to be argued that in any case once the accident having been established and the appellants having also stated to have proved the claim to the extent of Rs. 42,000, considering the decision of the Supreme Court in Kaushnuma Begum v. New India Assurance Co. Ltd. : [2001]1SCR8 , the appellants would be entitled to have compensation of Rs. 42,000 and hence the impugned judgment is liable to be set aside and the compensation be ordered to be paid to the appellants.
4. On the other hand, the learned advocate appearing for the respondent Nos. 1 and 3 placing reliance, on the decision of this court in the matter of Secretary, Communication Ministry, Government of India, Department of P&T; v. Ramrao : 1990(2)BomCR225 , has submitted that the evidence on record does not establish the rashness and negligence on the part of the respondent No. 3 in driving the tractor at the relevant time. On the contrary the witnesses examined on behalf of the respondent Nos. 1 and 3 clearly establish that it was entirely on account of rash and negligent riding of the cycle that the accident occurred and the boy sustained injuries. Taking through the testimonies of the witnesses Shivaji and Ankush it was sought to be contended that both the witnesses have clearly stated that the boy lost balance of his cycle and fell on the tractor. Being so, according to the learned advocate for the respondent Nos. 1 and 3 there is no case made out for interference with the impugned judgment.
5. The learned advocate appearing for the respondent No. 2 placing reliance upon the decision of the Apex Court in Oriental Insurance Co. Ltd. v. Sunita Rathi : AIR1997SC4228 , has submitted that in view of the fact that the owner is held not to be liable to pay any compensation, no liability can be imposed upon the insurance company in relation to the accident in question. It is further submitted by the learned advocate for the respondent No. 2 that in any case the cover note which is produced on record by the respondent Nos. 1 and 3 bearing no. 784035 is not in relation to any insurance policy issued in favour of the respondent No. 1 in relation to the vehicle in question and the testimony of the deponent Shriram Gopal Kale, examined on behalf of the respondent No. 2 clearly discloses that the policy cover No. 784035 was issued in the name of A.D. Zanwaron on 5.11.1984 in respect of a scooter. Being so, in any case the insurance company cannot be saddled with any liability in respect of the accident in relation to the vehicle in question.
6. Upon hearing the learned advocates and on perusal of the records the questions which arise for determination are: (1) Whether the materials on record establish the rashness and negligence on the part of the respondent No. 3 in driving the vehicle in question at the relevant time giving rise to the accident resulting in injuries to the boy Niyaj resulting in his death? (2) Whether even in the absence of evidence regarding rashness and negligence in driving the vehicle by the driver, the claimants are entitled for compensation? (3) Whether in the facts and circumstances of the case the respondent No. 2 insurance company would be liable for payment of compensation?
7. The appellants had examined the appellant No. 2 and one more witness by name Nabisaheb. Undisputedly the appellant No. 2 had not witnessed the accident and, therefore, she had no personal knowledge about the accident. As regards Nabisaheb, he has stated that he was sitting in front of his house at the relevant time and on seeing the accident he approached the site and helped to pull out the boy as he was found lying under the wheel of the tractor. He has also stated that his statement was recorded by the police on the same day in the afternoon. He has further deposed that at the relevant time the tractor was being driven in high speed. He was helped by 2-3 persons to pull the boy from the place he was lying. The boy was seen lying under the front wheel of the trolley attached to the tractor. He has further deposed that the accident took place towards the right side of the tractor. It was sought to be contended on behalf of the respondents that the testimony of this witness cannot be believed from the very fact that the police personnel who has been examined as the deponent No. 4 by the respondents has clearly stated that the deponent Nabisaheb in his statement before the police had not stated that he had seen the accident, whereas in his testimony before the court Nabisaheb has claimed to have seen the accident. Besides this the deponent had stated that only one trolley was attached to the tractor, whereas in fact there were two trolleys attached to the tractor. From this, according to the learned advocate for the respondent No. 2, the witness had not witnessed the accident and he was a tutored witness.
11.1.2002
8. The analysis of the evidence on record disclose that the boy Niyajahamad was riding on bicycle in the opposite direction at the relevant time while the respondent No. 3 was driving the tractor with the trolleys attached to it on Alabad-Kapashi Road. At the relevant time the boy was proceeding on cycle towards west whereas the tractor was proceeding towards east by the said road. The boy was riding the cycle in the southern half of the road leaving sufficient space for the tractor to pass by the said road. The boy after having crossed the said tractor met with the accident and his head came under the wheels of the trolley causing grievous injuries to the boy resulting in his death. These facts have not only been stated by Nabisaheb, the witness on behalf of the claimant, but have been confirmed by none other than the driver, respondent No. 3 himself in his testimony and corroborated by two witnesses of the respondents, namely, Shivaji and Ankush. It was sought to be argued that the testimony of Nabisaheb could not be believed on account of his claim before the court that he had seen the accident, when he had not stated anything like that to the police in spite of his statement being recorded in the course of investigation by the police that followed the accident. Merely because the witness had failed to state to the police that he had seen the accident and he had made such claim before the court that would not by itself be sufficient to disbelieve the entire testimony of Nabisaheb as all other facts stated by him have been duly corroborated by the respondent No. 3 driver as well as the witnesses produced on behalf of the respondents themselves. It was also sought to be contended that witness Nabisaheb could not be believed on account of the fact that he has stated before the court that only one trolley was attached to the tractor when in fact there were two trolleys attached to the tractor. When the witness had been to the spot immediately after the accident it is quite possible that in the process of concentrating on the boy who was trapped under the wheel of the trolley the witness might not have observed whether there were two trolleys or only one trolley. But the fact remains that all other facts narrated by him have been duly corroborated by the witnesses including the driver himself.
9. The testimony of the driver, respondent No. 3 discloses that he himself was not aware as to how the accident occurred. It was only after the persons who were travelling in the trolley attached to the tractor shouted for the tractor to be stopped, he brought the tractor to halt and then learnt about the accident. The specific statement of the driver in that regard read thus:
The boys passed my tractor on the cycle in speed. They safely passed my tractor. Thereafter the persons sitting in the trolley shouted and called me. I immediately stopped the tractor. I then got down from the tractor and/saw that one of the boys was lying in between the two wheels of second trolley.(Emphasis supplied)
The above statement by the driver apparently establishes the fact that the driver himself was unaware while driving the tractor as to when the boy or boys, as claimed by the driver, came in contact with the trolley attached to the tractor. In other words, the tractor was being driven by the driver without taking proper precaution to see to it that the trolleys attached to the tractor do not come in contact with the pedestrians or other people using the road.
10. As regards the witnesses Shivaji and Ankush, while Shivaji claims that the boy lost the balance of the cycle and due to which the cycle fell on the right side of the tractor, according to witness Ankush the accident occurred on account of the fact that 'due to the pit the cycle jumped and both the boys fell down'. As per Shivaji 'The cyclist fell on the left side and the boy who was sitting on the bar of the frame fell towards tractor side. He had fallen on the rear wheel of the first trolley'. At this stage it is also pertinent to note that witness Shivaji has stated that at the site of accident on account of slope he had caught hold of the side plank of the tractor tightly and the fact that the witness Ankush was also sitting in the similar position has also been admitted by the said witness Ankush. It is also to be noted that both these witnesses were sitting in the first trolley attached to the tractor. Being so, it is not understood how these witnesses could see what was happening in the rear portion of the first trolley. At least there is no explanation in that regard by both the witnesses either in the examination-in-chief or in the cross-examination thereof. Considering these testimonies of the witnesses and on proper analysis thereof, reveals that the boy's head was trapped under one of the wheels of the trolley attached to the tractor and as a result the boy sustained head injuries, which resulted in his death. This evidence read with the testimony of the driver apparently discloses that the respondent No. 3 driver had not taken proper care to avoid the accident in question and, therefore, irrespective of the speed with which the tractor was being driven, the evidence on record establishes the rashness and negligence on the part of the driver in driving the vehicle at the relevant time. The Tribunal having not considered this aspect while rejecting the application for claim for compensation apparently has failed to analyse the evidence properly and hence the finding of the Tribunal as regards the failure on the part of the appellants to establish rashness and negligence of the driver is liable to be quashed and set aside and it is to be held that the claimants have proved that the deceased Niyaj died in the motor accident at Alabad-Kapashi Road on 26.5.1986 due to rash and negligent driving of the tractor No. MZG 8594 and trolley Nos. MXL 4649 and 4650 attached to it.
11. Regarding the liability of the insurance company, the Tribunal has held that the petitioners have disclosed the number of cover note under which the vehicle was insured and the insurance company did not produce cover note bearing No. 784035 and, therefore, the vehicle was held to be insured with the respondent No. 2, holding the respondent No. 2 liable for compensation payable to the claimants. In that regard learned advocate for the respondent No. 2 has drawn attention to the testimony of Shriram Gopal Kale, Assistant Manager of the insurance company from Kolhapur Branch and has submitted that the policy cover note No. 784035 was duly produced before the court and it was shown to the Tribunal that the said policy cover note relates to a scooter in the name of A.D. Zanwaron at the relevant time. In this matter the learned advocate for the respondent Nos. 1 and 3 has submitted that the finding of the Tribunal has not been challenged by the respondent No. 2 by filing any appeal or cross-appeal and, therefore, the respondent No. 2 is not entitled to make any grievance about the said finding. In that connection learned advocate for the respondent No. 2 has drawn attention to Order 41, Rule 22 of the Code of Civil Procedure and has submitted that irrespective of the fact that no appeal has been filed nothing prevents respondent No. 2 from pointing out to the court the records which would clearly disclose the finding to be not only incorrect, but perverse. The testimony of Shriram Gopal Kale discloses that the policy cover note bearing No. 784035 was in relation to a scooter in the name of A.D. Zanwaron and was issued on 5.11.1984. His testimony, however, discloses that no cover note under No. 784035 was issued by the office of the company in relation to tractor bearing registration No. MZG 8594. In spite of the said categorical statement in the examination-in-chief by the said witness there was no challenge to the same on behalf of the respondent Nos. 1 and 3. The respondent Nos. 1 and 3 have also not produced any insurance policy documents in respect of the vehicle in question. Considering the evidence on record, therefore, it is to be held that there is nothing on record to suggest that the vehicle in question was insured with the insurance company, respondent No. 2 at the relevant time. Hence, no liability can be imposed upon the respondent No. 2 in relation to the accident in question and the finding in that regard by the Tribunal is liable to be set aside. The first question for determination having been answered in affirmative, it is not necessary to consider the second question formulated above.
12. As regards the point of enhancement of compensation sought to be raised by the appellants, apparently no such specific ground has been raised in the appeal memo. Even otherwise on assessment of evidence the findings arrived at by the Tribunal do not warrant any interference. The Tribunal has held that considering the age factor of the deceased and the claim made by the petitioners and the evidence on record the claimants would be entitled for a sum of Rs. 42,000 towards compensation. In the absence of any evidence being placed on record to justify higher compensation no fault can be found with the said finding.
13. In the result, therefore, appeal partly succeeds. The impugned judgment and order as far as it rejected the claim of the appellants on the ground of failure on the part of appellants to prove rashness and negligence of the driver is, hereby set aside and the respondent Nos. 1 and 3 are held to be liable to pay the compensation of Rs. 42,000 to the appellants on account of the death of Niyajahamad in the accident in question. The respondent No. 2 is not liable to contribute any amount towards the said compensation. Needless to state that the claimants would be also entitled to interest on the said sum of Rs. 42,000 from the date of the application till the date of payment of entire amount as the respondent Nos. 1 and 3 are liable to pay to the appellants at the rate of 6 per cent per annum. The amount of Rs. 15,000 said to have been already paid is to be adjusted in the said total amount of Rs. 42,000. Orders accordingly. No order as to costs.