NEUTRAL CITATION
C/FA/1803/2007 ORDER DATED: 14/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1803 of 2007
==========================================================
SEHNAJ ASHRAF ABDUL KHALIFA & 3 other(s)
Versus
SIDDIQUE MUSHTAK PATEL & 2 other(s)
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1,2,3,4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 14/09/2023
ORAL ORDER
1. This appeal is filed under Section 173 of the Motor Vehicle Act, 1988 by the appellant-original claimant, assailing the judgment and award dated 29.06.2004 in MACP No.562 of 1996 passed by the MACT (Aux.) Navsari by which the tribunal after considering the evidence on record, was pleased to dismiss the petition on the ground that the driver of the Ambassador car was negligent in causing the accident and the appellants being legal heirs of the deceased, are not entitled for the amount of compensation from the driver, owner and insurance company of the involved truck.
2. Facts and circumstances giving rise to file present appeal are that, on 18.05.1996, deceased Ashraf Khalifa, was going towards Surat and was traveling in Ambassador car GJL-
Page 1 of 6 Downloaded on : Sat Sep 16 17:12:52 IST 2023NEUTRAL CITATION C/FA/1803/2007 ORDER DATED: 14/09/2023 undefined 6848. On the fateful day, on account of collision of the Ambassador car and truck GJ-15-U-5409, the deceased being occupant of the car sustained fatal injuries and died on the spot. The appellants being widow, minor sons and father had filed claim petition (MACP No.562 of 1996) before the tribunal at Navsari, claiming amount of compensation of Rs.5 lakh, against the driver, owner and insurance company of the offending truck. The allegation of negligence being alleged against the truck driver and accordingly, FIR was being filed against the driver of the offending truck. The allegations of negligence was being pleaded in the petition against the offending truck. The police drew the panchnama of place of accident and accordingly, filed its report. The learned Tribunal after considering the evidence on record, more particularly, based on the site panchnama, came to conclusion that, accident in question occurred on account of rash and negligent driving of the car driver and accordingly, claim filed against the driver, owner and insurance company of the truck driver came to be dismissed.
3. Being aggrieved with the findings recorded by the tribunal on the aspect of negligence and judgment and award of dismissal of the claim petition, the original claimants are before this Court.
4. This Court has heard learned counsel Mr. Zubin Bharda and Mr. Vibhuti Nanavati for the respective parties.
Page 2 of 6 Downloaded on : Sat Sep 16 17:12:52 IST 2023 NEUTRAL CITATION C/FA/1803/2007 ORDER DATED: 14/09/2023 undefined
5. Mr. Zubin Bharda, learned counsel appearing for the appellants has submitted that, the judgment and award is bad in law and contrary to the facts and circumstances of the case. He submitted that, the site panchnama is not substantial evidence to determine the issue of negligence. The panchnama at the most is a piece of corroborative evidence. In the present case, it is the case of composite negligence. The appellants are not eye witness of the incident, nor, the maker of the FIR having knowledge about the occurrence of the accident. In that view of the matter, tribunal overlooked the facts that, the principal res-ipso-locuter would be applicable. Before the tribunal neither driver of the truck has stepped into witness box, nor any other evidence being adduced by the owner and/or insurance company of the truck to explain the manner of accident.
6. In the aforesaid contentions, Mr. Bharda, learned counsel has submitted that the findings on the assessment of the negligence are arbitrary, perverse and against the settled principle of law and the same deserves to be set aside. Therefore, the reasonable amount of compensation be awarded in favour of the appellants.
7. Mr. Vibhuti Nanavati, learned counsel appearing for the insurance company - respondent no.3, has submitted that, the findings arrived at on the issue of negligence by the Page 3 of 6 Downloaded on : Sat Sep 16 17:12:52 IST 2023 NEUTRAL CITATION C/FA/1803/2007 ORDER DATED: 14/09/2023 undefined tribunal are based on the evidence which does not require any interference by this Court and therefore, the present appeal may not be entertained. Alternatively, he submitted that, the accident occurred in the year of 1996 and considering the date of accident, the reasonable amount may be awarded.
8. Heard the learned counsel of the respective parties and perused the record. The issue arise for consideration of this Court is to whether the findings recorded by the tribunal that the driver of the ambassador car had contributed to the occurrence of the alleged accident by his negligence is sustainable? If the answer is in negative, then, what would be the just and equitable amount required to be awarded.
9. The facts of the accident and involvement of the vehicles are not in dispute. The claim was filed against the driver, owner and insurance company of the offending truck. Before the tribunal, neither the claimants, nor the opponents have adduced the oral evidence on the aspect of negligence. The normal rule is that, it is for the claimants to prove negligence but in some cases, considerable hardship is caused to them, as the true cause of accident is not known to them but solely within the knowledge of the driver who caused it. This hardship is sought to be avoided by applying the principle of res ipso loquitor. The circumstances, as indicated above, leading to the accident would go to show that the principle of res ipso loquitor would apply. When the maxim applied, the Page 4 of 6 Downloaded on : Sat Sep 16 17:12:52 IST 2023 NEUTRAL CITATION C/FA/1803/2007 ORDER DATED: 14/09/2023 undefined burden is on the respondent to show either that, in fact the driver was not negligent. In the facts of the present case, the respondents failed to discharge their burden by examining the driver of the truck, who had knowledge about the occurrence of the accident. It is common experience that after the accident, the location of the vehicles at the place might be changed. Thus, reliance placed on the contents of the site panchnama, to decide the negligence of the driver of the vehicle without examining the persons, under whose presence the site panchnama had been drawn, by the Tribunal is against the provision of law. Thus, therefore, the findings based on the site panchnama are erroneous and contrary to law and not sustainable in law and accordingly, same is set aside.
10. On the issue of negligence, after considering the material placed on record, it transpired that, due to collusion of two vehicles, the deceased being an occupant of the car, sustained fatal injuries. Both the vehicles came from in their opposite direction and suffered damages as per the site panchnama. Thus, therefore, applying the principle of res ipso loquitor, this Court is of considered view that this is a case of composite negligence and both the drivers of the vehicles were negligent in equal manner and in the case of composite negligence, the legal heirs of the deceased can claim compensation from any of the tortfeasor. Thus, on the issue of negligence, the driver of the truck - respondent no. 1 held Page 5 of 6 Downloaded on : Sat Sep 16 17:12:52 IST 2023 NEUTRAL CITATION C/FA/1803/2007 ORDER DATED: 14/09/2023 undefined negligent in causing the accident.
11. On the issue of quantum, after considering the deposition of the widow and the year of accident, the prospective monthly income of Rs.1680/- is determined and after deducting 1/4 th and applying multiplier of 17, the total amount of dependency loss would come Rs.2,57,040/- and under the head of conventional amount Rs.1,50,000/-, is hereby awarded. In all, the claimants are entitled for the total amount of Rs.4,07,040/- with running interest at the rate of 6% from the date of filing of the claim petition till its realization. The respondents are held jointly and severally liable to pay interest and cost. The insurance company for and on behalf of the insured shall deposit the amount within 2 months. The tribunal is at liberty to disburse the amount. Decree be drawn accordingly.
12. In the result, the appeal is allowed to aforesaid extent.
(ILESH J. VORA,J) P.S. JOSHI Page 6 of 6 Downloaded on : Sat Sep 16 17:12:52 IST 2023