Gujarat High Court
Gujarat State Road Transport ... vs Shakuntalaben Vijaybhai Sharma on 29 January, 2025
NEUTRAL CITATION
C/FA/3379/2024 ORDER DATED: 29/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3379 of 2024
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
SHAKUNTALABEN VIJAYBHAI SHARMA & ORS.
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
MR HARNISH V DARJI(3705) for the Defendant(s) No. 1,2,3
MR MAULIK H SAYANI(13659) for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/01/2025
ORAL ORDER
Being aggrieved and dissatisfied with the judgment and award dated 04/07/2024 rendered by the learned Tribunal in MACP No.546 of 2022, the appellant has preferred this appeal.
2. Heard learned advocate Ms.Mandavia for the appellant and learned advocate Mr.Darji for the org. claimants.
3. Learned Advocate Ms.Mandavia assessed the impugned judgment and award mainly on the ground that deceased was also riding motorcycle in negligent manner. She would further submit that firstly the deceased dashed with the motorcar passed nearby and having lost balanced dashed with the rear side of the ST Bus and succumbed to the injuries. She would refer to the evidence of the driver of the ST Bus at Exh.27 and submit that assessment of the tribunal in contributory negligence in causing the road accident is completely erroneous and therefore she would submit to allow this appeal and to equally hold responsible to both Page 1 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:18:05 IST 2025 NEUTRAL CITATION C/FA/3379/2024 ORDER DATED: 29/01/2025 undefined the errant vehicle.
3.1 By making above submissions, she would submit to allow this appeal.
4. On the other hand, learned advocate Mr.Darji for the org. claimant would support the impugned judgment and award by submitting that in chief examination of the driver of the ST Bus he has deposed that he was riding nearby divider of the road which means he was riding on the extreme right side of the road whereas he was expected to ride on the left side of the road. He would further submit that there is nothing on record to indicate that deceased firstly dashed with the car passed nearby the ST Bus and having become imbalance it dashed with the ST Bus. He would submit that admittedly the FIR and charge-sheet mentions the cause of road accident due to ST Bus driver. He would therefore submit that learned tribunal has rightly assessed the contributory negligence to the extent of 90% for ST Bus driver and 10% for the deceased in causing the road accident.
4.1 By making above submissions, he would submit to dismiss this appeal.
5. Having heard the learned advocates appearing for the respective parties and having examined the record and proceedings, at the outset, let refer to the decision of the Hon'ble Apex Court in case of The Municipal Corporation Of Greater vs Shri Laxman Iyer And Anr [AIR 2003 SC 4182] whereby the Hon'ble Apex Court has defined the term negligence as under:
"A plea which was stressed strenuously related to alleged contributory negligence. Though there is no statutory definition, in Page 2 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:18:05 IST 2025 NEUTRAL CITATION C/FA/3379/2024 ORDER DATED: 29/01/2025 undefined common parlance 'negligence' is categorised as either composite or contributory. It is first necessary to find out what is a negligent act. Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a Page 3 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:18:05 IST 2025 NEUTRAL CITATION C/FA/3379/2024 ORDER DATED: 29/01/2025 undefined negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See Charlesworth on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. It is a case of what has been styled by Pollock as injury by composite negligence. (See Pollock on Torts, 15th Edn. P.361)."Page 4 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:18:05 IST 2025
NEUTRAL CITATION C/FA/3379/2024 ORDER DATED: 29/01/2025 undefined
6. Worthy reference can also be made to the decision in case of Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak & Ors., in Appeal (civil) 5436 of 1994 by the Hon'ble Apex Court on the aspect of contributory negligence; relevant observation made in the last second unnumbered paragraph reads thus:
"It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that the driver of the car was trying to overtake a truck which was going ahead of the car. The appellant-car driver had also pleaded that the truck driven by the second respondent was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feet width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost Page 5 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:18:05 IST 2025 NEUTRAL CITATION C/FA/3379/2024 ORDER DATED: 29/01/2025 undefined came to the center of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant's failure to swerve to the extreme left of the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the second respondent, the truck driver had no case that the appellant was negligent."
7. It is apt to note that concept of contributory negligence being subjectively a careless state of mind is required to be proved and if it is treated to be objectively then the careless conduct. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The submission of leaned advocate for the appellant does not inspire any confidence to assess the deceased equally negligent in causing the road accident. Chief examination of the driver who is an eye-witness to the road accident clearly stated that he was riding the vehicle in outskirt of Rajkot City and he was plying the vehicle on right side of the road. It is also admitted by him that deceased was riding his motorcycle on left side of the road. The accident took place on the rear side of the ST Bus. This attending facts and circumstances of the case reveals the situation that ST Bus driver was riding his ST Bus on the right side of the road may have taken the deceased into the rear side of the wheel who was riding his motorcycle on correct side. There is no circumstances to believe that deceased was riding the motorcycle on left side and go to dash with the rear side wheel of ST Bus to lost his life. The case was developed by the ST Bus that deceased firstly dashed with one car passed nearby and having become imbalance dashed with the left side rear wheel of the ST Bus; however failed to justify on facts of the case. Notably the FIR and charge-sheet is also filed against the driver of the ST Bus.
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8. For the aforesaid reasons, this Court does not find any infirmity in the impugned judgment and award. The impugned judgment and award rendered by the tribunal is confirmed. The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure in the apportionment if not done.
Record and proceedings be sent back to the concerned Tribunal, forthwith.
(J. C. DOSHI,J) sompura Page 7 of 7 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 21:18:05 IST 2025