Gujarat High Court
Gujarat State Road Transport ... vs Vankar Rupaben Wd/O Dudhabhai ... on 17 April, 2025
NEUTRAL CITATION
C/FA/3293/2011 JUDGMENT DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.3293 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
VANKAR RUPABEN WD/O DUDHABHAI RATNABHAI & ORS.
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Appearance:
MR HARDIK C RAWAL(719) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 8
MR HG MAZMUDAR(1194) for the Defendant(s) No. 8
MR R.K.MANSURI(3205) for the Defendant(s) No. 1,2,3,4
RULE NOT RECD BACK for the Defendant(s) No. 6,7
RULE UNSERVED for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 17/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Hardik Rawal for the appellant while learned advocate Mr. H. G. Mazmudar for respondent No. 8 and learned advocate Mr. R. K. Mansuri for respondent Nos.1 to 4. Rule could not be received back so far as respondent Nos. 6 and 7 are concerned while rule could not be served upon respondent No.5. Perused the record. Page 1 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025
NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined
2. The challenge in the present appeal is by the appellant -
S.T. Corporation challenging the judgment and award dated 29.8.2009 passed by learned Motor Accident Claims Tribunal (Main), Sabarkantha @ Himmatnagar in M.A.C.P. No.255 of 1998.
3. The facts in brief of the case are as under:
* On 13.8.1997, deceased Dudhabhai Ratanbhai Vankar, driver of ST bus was proceeding to Modasa from Navsari by driving his bus. At that time, one truck No.UAS-4827 was standing in a stationary condition without any indicators or reflectors on Halol- Kalol road and, therefore, ST bus dashed with the stationary truck from behind. Resultantly, the deceased Dudhabhai sustained serious injuries and succumbed. Some of the passengers of ST bus also sustained injuries.
* Claimants being the legal heirs of the Page 2 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined deceased filed claim petition for a compensation of Rs.14,00,000/- from the opponents. Opponents were served with summons. Opponent no.1 was deleted while opponent No.2 - owner of the truck did not remain present. Opponent No.3 - insurance company of the truck contested the claim petition by filing Written Statement at Exh.19. Opponent No.4 - ST Corporation appeared and filed Written Statement at Exh.43. After framing of issues, claimant No.1 - widow of deceased submitted her deposition at Exh.71 and produced FIR, Panchnama, PM report and other documents in support of claim petition. * After considering the evidence, learned Tribunal partly allowed the claim petition by holding that the driver of ST Bus - the deceased was negligent to the extent of 80% and driver of truck to the extent of 20%. Opponent Nos.2 and 3 - owner and insurance company of truck were directed to pay compensation of Rs.1,04,284/- to the claimants and opponent No.4 - ST Corporation was directed to pay compensation of Page 3 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined Rs.4,17,136/- to the claimants with interest @ 6% p.a. from the date of application till realisation. * Being aggrieved and dissatisfied with the impugned judgment and award, the appellant - ST Corporation has filed the present appeal.
4. Learned advocate for the appellant has submitted that the appellant is not pressing apportionment of negligence in this appeal and the challenge is only limited to the question of directing the ST Corporation to pay compensation for the negligence of the driver of ST bus. It is submitted that the learned tribunal has erred in fastening upon the liability of compensation for the loss of life of the driver of ST bus. It is further submitted that when the tribunal has found driver of ST bus negligent to the extent of 80%. For his own wrong, the Corporation may not be fastened with the liability to pay compensation. In support of his submission, he has relied upon the following decisions:
(a) Gulamrasul Rehman Malek v. Page 4 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined
G.S.R.T.C. reported in 2013(0) GLHEL- HC-230345 (Paragraph Nos.7 & 8 were pressed into service) &
(b) Tamil Nadu State Transportation Limited v. Natarajan reported in 2003 (0) GLHEL-SC 31612 (Paragraph No.9 was pressed into service).
5. It is also submitted by learned advocate for the appellant that the claimants of the claim petition have not challenged the apportionment of negligence by way of any appeal or cross objections.
6. Per contra, learned advocate for the respondent Nos.1 to 5 submitted that the learned tribunal has erred in holding driver of ST bus negligent to the extent of 80%. Considering FIR and Panchnama, the driver of the truck was solely negligent as he had parked the truck in the middle of the road without any indicator. Resultantly, the accident occurred. There is no negligence on the part of the driver of ST bus in the commission of accident. It is further submitted that under the provisions of Workmen Compensation Act also, the Page 5 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined claimants are entitled to compensation and this Court may consider the claim petition under the provisions of Workmen Compensation Act and award compensation against the ST corporation. It is fairly contended by learned Advocate for the respondent that claimants have not filed any application under the provisions of Workmen Compensation Act.
7. Learned Advocate for respondent No.8 - insurance company has submitted that the amount of 20% of the total compensation has been deposited before the learned tribunal and in absence of any challenge with regard to apportionment of negligence by the claimants, the apportionment of negligence which has been arrived at by learned Tribunal after considering the evidence on record may not be disturbed.
8. I have considered the rival submissions of the respective parties and also perused the Record and Proceedings.
9. The question which is under consideration in the First Page 6 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined Appeal is limited. The appellant has given up the challenge of apportionment of negligence and the only question remains for consideration is that when the driver of ST bus is found negligent to the extent of 80%, whether ST corporation can be fastened upon with the liability to compensate the claimants who are the legal representatives of the driver of ST bus. The learned tribunal has considered the Panchnama of the place of accident. I have carefully perused the Panchnama of the place of accident which is produced at Exhibit 35.
10. It appears from the Panchnama that the entire front portion of the ST bus is smashed and the front portion upto the cabin part has been torned and the front portion of the bus is also broken and found on the road. Even the left side of the bumper of the bus is also damaged. The steering meter part and seat of the driver is also broken. In short, the condition of the bus is such that the driver of the bus was driving the bus at a very excessive speed. Undisputedly, the truck was found stationary on the road damaged and after the impact of Page 7 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined the bus from behind, the truck was pushed to the road side. It was found on road ditch.
11. The complaint which is lodged by the passenger of the bus which is produced on record which indicates that drivers of both the vehicles were negligent in the occurrence of accident. It is interesting to observe that though the claimants at this stage are alleging that driver of the truck was sole negligent in the accident, has reasons best known to them, deleted from the array of parties in the claim petition.
12. It appears that when learned tribunal has found driver of the bus negligent to the extent of 80%, the claimants are taking somersault before this Court and now coming out with a case that it is the sole negligence of the driver of the truck who had parked the truck on the middle of the road. Such contention at this stage is rejected.
13. This court is fully conscious about the fact that the Claim Page 8 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined Petitions under Motor Vehicles Act are benevolent in nature but at the same time Court cannot shut its eyes when the conduct of claimants are to be considered. If the claimants are so concerned about the apportionment of negligence being imposed upon driver of the bus, claimants ought to have challenged the apportionment of negligence. Initially, insurance company and truck driver were not joined as party from 1998 to 2002. By not challenging the apportionment of negligence, claimants are now stopped from raising the contention of wrong apportionment of negligence after a period of 16 years.
14. The issue involved in the present appeal is no more res integra in the decisions of Gulamrasul Rehman Malek (Supra) & Tamil Nadu State Transportation Limited (Supra) of the appellant being himself the driver cannot take advantage of his own wrong nor can he claim any compensation against himself unless such claim is covered by any insurance on payment of premium. In the case of Tamil Nadu State Transport Page 9 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined Corporation Limited (Supra), in paragraph No.9, Hon'ble Apex Court has discussed an issue pertaining to a wrong committed by the driver himself and the law pertaining to the claim application of a driver who was found contributory negligent in the happening of the accident.
15. Considering the law laid down in the aforesaid decisions, I am of the view that the driver of the ST bus who was found negligent cannot have the benefit of his own wrong and can claim compensation from ST Corporation. The compensation to the extent of 20% can be recovered from the insurance company of the truck who has already deposited their part of compensation.
16. In view of above, the judgment and award dated 29.8.2009 passed by learned Motor Accident Claims Tribunal (Main), Sabarkantha @ Himmatnagar in M.A.C.P. No.255 of 1998 holding appellant ST Corporation liable to pay compensation of Rs.4,17,136/- with interest at the rate of 6% per annum is quashed Page 10 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025 NEUTRAL CITATION C/FA/3293/2011 JUDGMENT DATED: 17/04/2025 undefined and set aside.
17. The award of recovery of compensation of Rs.1,04,284/-
with interest at the rate of 6% per annum against the owner and insurance company of the truck to remain unaltered.
18. In view of above, first appeal is allowed accordingly. R & P, if any, to be sent back to the concerned Court immediately. Consequently connected application/s, if any, also stands disposed of.
(D. M. DESAI,J) vk Page 11 of 11 Uploaded by VATSAL S. KOTECHA(HC00352) on Wed Apr 23 2025 Downloaded on : Wed Apr 23 21:24:53 IST 2025