Gujarat High Court
Manager, G.S.R.T.C vs Hiteshbhai Bhagwanbhai Tank on 27 January, 2025
NEUTRAL CITATION
C/FA/4100/2024 ORDER DATED: 27/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4100 of 2024
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MANAGER, G.S.R.T.C.
Versus
HITESHBHAI BHAGWANBHAI TANK & ORS.
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
MASUMI V NANAVATY(9321) for the Defendant(s) No. 4
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
NOTICE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/01/2025
ORAL ORDER
Learned advocate Mr.Hemal Shah submits that he has instructions to appear for the claimants and he will file Vakalatnama. Registry to accept the same.
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - S.T. Corporation being aggrieved and dissatisfied with the judgment and award dated 21.02.2024 passed by the Motor Accident Claims Tribunal, Amreli in Motor Accident Claim Petition No.95 of 2018.
2. Heard learned advocate Mr.Sejal Mandavia for the appellant - S.T.Corporation, learned advocate Mr.Vibhuti Nanavati for insurance company being insurer of Truck No.GJ-
Page 1 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:29 IST 2025NEUTRAL CITATION C/FA/4100/2024 ORDER DATED: 27/01/2025 undefined 11-W-3859 and learned advocate Mr.Hemal Shah for the claimants.
3. Learned advocate Ms.Mandavia for the appellant submits that learned Tribunal has wrongly assessed issue of composite negligence. It is submitted that learned Tribunal has erred in attributing 100% negligent to ST driver in causing road accident. Taking this Court through scene of accident emerging from panchanama at Exh.16, it is submitted that accident took place in might night, whereby, truck was kept stationary on the public road and ST bus dashed from behind. It is submitted that driver of ST bus died in the road accident. It is also submitted that truck driver who is best piece of evidence did not enter into witness box. It is submitted that looking to the facts and circumstances of the case, learned Tribunal ought to have held driver of both the vehicle equally negligent in causing road accident.
3.1. Upon above submissions, it is submitted to allow this appeal.
4. Learned advocate Mr.Vibhuti Nanavati for respondent no.4 would support impugned judgment and submit that ST bus driver ought to have seen truck which was parked on the road side, but the ST bus driver without noticing truck parked on the road side, dashed it from behind and therefore, learned Tribunal has rightly considered full negligent of ST bus driver.
4.1. Upon above submissions, it is submitted to dismiss the Page 2 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:29 IST 2025 NEUTRAL CITATION C/FA/4100/2024 ORDER DATED: 27/01/2025 undefined appeal.
5. Learned advocate Mr.Hemal Shah for the claimants submitted to pass necessary order in given facts and circumstances of the case.
6. I have heard learned advocates for both the sides and applied anxious consideration to rival submissions as also to the Record and Proceedings. Re-looking of the evidence, more particularly, panchnama at Exh.16 would indicate that truck was stationary at the National Highway near village Vasadhi. Panchnama was done at 5.30 morning for the accident which took place in midnight. ST bus is damaged from road accident. Entire cabin is curved. No side lights are found from the back side of the truck which was kept stationary. Driver of the truck also could not control over the truck as tyre was burst and it climbed on divider and because of that fact, truck was kept in stationary in middle of the road. Noticeably, driver of truck did not enter into witness bock to put correct facts before the learned Tribunal. Learned advocate Ms.Mandavia for the appellant submitted that ST bus driver has lost his life in the accident. The claimant is passenger in ST bus and it is alleged composite negligence of both vehicles. Best piece of evidence which could be helpful to decide issue of inter-se negligence is panchanama of place produced at Exh.16. Principle of res ipsa loquiter plays in the present case. Looking to panchnama, according to this Court, learned Tribunal has committed error in fastening full negligent on driver of ST bus. Vehicle i.e. Truck cannot be kept on stationary on public road without any Page 3 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:29 IST 2025 NEUTRAL CITATION C/FA/4100/2024 ORDER DATED: 27/01/2025 undefined reasons. Section 122,126 of MV Act and Rule 15 of the Road Regulations, 1989 clearly highlights this aspects. Driver of the truck was required to come into witness box and depose on the aspect why he kept vehicle on stationary on road.
7. In view of above finding, according to this Court, submission of learned advocate Ms.Mandavia is correct and deserves consideration. Driver of both the vehicles are equally held negligent in causing road accident. Learned Tribunal was required to take adverse inference against driver of truck as he did not enter into witness box but the learned Tribunal in contract to settled principle of law earmarked full negligent to driver of ST bus. Therefore, finding of learned Tribunal exonerating driver of truck from liability to pay compensation requires to be interfered.
8. In view of above, it is held that driver of ST bus and driver of truck are equally negligent in causing road accident. Consequently, ST Corporation and owner and insurer of Truck are liable to pay compensation to the extent of their negligence before the learned Tribunal. Since it is case of composite negligence, the claimant has choice to recover the compensation jointly or severally from any of the wrong doer.
9. Respondent no.4 - Insurance Company shall deposit awarded amount in tune of its share decided herein above including interest and cost within six weeks from today before the learned Tribunal. Upon deposit of amount, excess amount paid by appellant - ST Corporation including interest and cost Page 4 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:29 IST 2025 NEUTRAL CITATION C/FA/4100/2024 ORDER DATED: 27/01/2025 undefined shall be refunded to the appellant.
10. The Tribunal shall disburse the entire awarded amount deposited by the appellant ST Corporation and Insurance Company with accrued interest thereon, if any, to the claimant, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure.
11. While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
12. Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) SATISH Page 5 of 5 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:45:29 IST 2025