Gujarat State Road Transport ... vs Ashokbhai Premdash Gondaliya
2021 Latest Caselaw 18387 Guj

       C/FA/1217/2019                                   ORDER DATED: 14/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                    R/FIRST APPEAL NO. 1217 of 2019
                                 With
         CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
                   In R/FIRST APPEAL NO. 1217 of 2019
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            GUJARAT STATE ROAD TRANSPORT CORPORATION
                              Versus
                  ASHOKBHAI PREMDASH GONDALIYA
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Defendant(s) No. 8
MR MIT S THAKKAR(11223) for the Defendant(s) No. 7
MR PREMAL S RACHH(3297) for the Defendant(s) No. 1,2,3,4,5
MR.NISARG P RAVAL(7262) for the Defendant(s) No. 7
MS MOXA G THAKKER(3063) for the Defendant(s) No. 9
NOTICE SERVED(4) for the Defendant(s) No. 6
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                               Date : 14/12/2021

                                ORAL ORDER

1. The appellant has filed this appeal under Section 173 of the Motor Vehicles Act (hereinafter referred to as `the Act') against the judgment and award dated 10.10.2018 passed by the Motor Accident Claims Tribunal (Aux), Khambhaliya in Motor Accident Claim Petition No.114 of 2009.

2. The brief facts of the present appeal are as under:

2.1 That the accident occurred on 18.09.2008 at about 3.30 PM near Parishram Hotel at Khambhalia. That the deceased and one Birju Ashokbhai Gondaliya were travelling in Opel car bearing registration No. GJ-12D-9138, which was being driven by deceased Amitbhai. It is the say of the original claimants that the driver of the ST bus bearing registration No. GJ-18Y-147 lost control over the vehicle, which was being driven in excessive speed and the same collided with

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the car. The record indicates that the deceased Ajitbhai sustained severe injuries and was shifted to Government Hospital, Khambhalia and for further treatment to Jamnagar, however, he was declared dead. It is the case of the original claimants that the accident occurred only because of the negligence on the part of the driver of the ST bus. The FIR came to be registered with Khambhalia police station being I-CR No. 147 of 2008 and the original claimants preferred claim petition under section 166 of the Act and claimed compensation of Rs. 7 lakhs. The original claimants adduced oral evidence in the form of deposition of Ashokbhai Premdas Gondaliya-father of the deceased and also relied upon documentary evidence such as copy of the FIR at exhibit 55, copy of spot panchnama at exhibit 56, inquest panchnama at exhibit 57, PM note at exhibit 58, copy of specification letter of RTO of S.T. Bus bearing registration No. GJ-18-U-147 about ownership at exhibit 59, original certificate of deceased at exhibit 60, copy of appointment letter of Aashapura Mine of deceased at exhibit 61, copy of ration card of claimant at exhibit 62, copy of election card of claimants at exhibit 62 and 63, copy of birth certificate of claimant no.3 minor Binaben at exhibit 66, copy of birth certificate of claimant no.4 minor Pujaben at exhibit 67, copy of birth certificate of claimant no.5 minor Riddhiben at exhibit 68 and first page of charge sheet lodged against the opponent no.1 at exhibit

71.

2.2 The appellant ST Corporation also examined driver of the ST bus Dharmendra Harilal Joshi at exhibit 27. The Tribunal upon appreciating the evidence on record and even considering the deposition of the witness, oral as well as documentary, came to the conclusion that the driver of the ST bus as well as Opel car, the deceased,

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both were negligent in the ratio of 80:20. Considering the income of the deceased at Rs.3,000/- per month and applying the ratio laid down by the Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, reported in 2017 (16) SCC 680, determined prospective income to the tune of 40% and after deducting 1/2 towards personal expenses, applying multiplier of 18, awarded a sum of Rs. 4,53,600/- as compensation under the head of future loss of dependecy and awarded additional compensation of Rs. 30,000/- under different conventional heads including funeral expenses and thus, awarded Rs. 4,83,600/- as gross compensation with 9% interest p.a. from the date of the filing of the claim petition till its realisation. Being aggrieved by the said award, the present appeal is filed by the appellant ST Corporation.

3. Heard Mr. Hemant Munhsaw, learned advocate for the appellant, Mr. Premal Rachh, learned advocate for the original claimants, respondents no. 1,4 and 5, learned advocate Mr.Mit Thakkar for learned advocate Mr.Nisarg Raval for respondent no.7 and learned advocate Ms.Moxa Thakkar for respondent no.9. I have also perused the original record and proceedings.

4. Mr. Munshaw, learned advocate appearing for the appellant contended that the Tribunal has wrongly come to the conclusion that the driver of the ST bus was negligent to the tune of 80%. Mr. Munshaw further contended that the Tribunal has committed an error in arriving at the conclusion that the driver of the Opel car, i.e., the deceased, is negligent only to the extent of 20%. According to Mr. Munshaw, the Tribunal ought to have come to the conclusion that the the deceased as driver of the Opel car was negligent

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at least to the extent of 50%. Mr. Munshaw also relied upon the photograph, which is found in the original record and proceedings and contended that the Tribunal has committed an error in not appreciating the evidence in form of photograph which established the fact that the driver of the motorcar tried to overtake the bus and collided with the bus, which has resulted in the accident. On the aforesaid sole ground, Mr. Munshaw contended that the appeal deserves consideration and the same be allowed and the award be modified as prayed for.

5. As against this, learned advocate Mr. Rachh has opposed this appeal. At the outset, learned advocate Mr.Rachh submitted that one appeal being First Appeal No.901 of 2019 was filed by the S.T.Corporation against the judgment and award passed in case of other claimants who filed claim petition for compensation arising out of the same accident, which was dismissed by Division Bench of this Court vide judgment dated 16.10.2019. He, therefore, submitted that when the Division Bench has dismissed the appeal arising out of another claim petition arising out of the very same accident, this appeal may also dismissed. He added that the Tribunal has rightly appreciated the evidence and has rightly not believed the photographs which are not even exhibited. Mr. Rachh submitted that the appeal being meritless, the same deserves to be dismissed.

6. Learned advocate Mr.Rachh sought a clarification in the impugned judgment and award to the effect that though the total compensation to be awarded is calculated at Rs.4,83,600/-, in the operative portion of award, it is wrongly mentioned as Rs.4,53,600/- and therefore the same be corrected and modified.

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7. No other or further submissions have been made by the learned advocates appearing for the respective parties.

8. Upon considering the record and proceedings and upon considering the submissions made, the question which arises for consideration in this appeal is whether the Tribunal has committed any error in coming to the conclusion that the driver of the ST bus was negligent to the extent of 80% and driver of the opel car, i.e., the deceased, was negligent to the tune of 20% or not. Considering the submission made by the learned counsel for the appellant that the photographs show that the car tried to overtake and that the Tribunal has wrongly considered such piece of evidence, is contrary to the evidence on record. It deserves to be noted that the photographs are not admitted in evidence and not exhibited and the photographs indicate the position after the accident. At this juncture, it would be appropriate to refer to the deposition of Dharmendra Harilal Joshi, respondent no.6 herein who happens to be the driver of the ST bus involved in the accident. Though Mr. Munshaw, learned advocate appearing for the appellant tried to contend that the driver of the Opel car tried to overtake the bus, the said contention is thoroughly misconceived and contrary to the evidence of the driver of the appellant's ST bus. Even in the examination-chief, respondent no.6, driver of ST bus categorically stated that the car was coming from the opposite side. Even in his cross-examination, he has categorically stated that both the vehicles dashed with each other. Therefore, the very contention raised by the learned advocate for the appellant is incorrect and contrary to the evidence on record.

         C/FA/1217/2019                                           ORDER DATED: 14/12/2021



Upon appreciating            the    spot     panchnama      at     exhibit 56, it clearly

establishes the fact that the impact of the collusion of ST bus with Opel car was so severe that the door of the driver side of the Opel car was completely broken and the deceased as well as other co-passengers were required to be pulled out of the car. Upon appreciation of such piece of evidence, this Court is of the opinion that the Tribunal has committed no error in coming to the conclusion that the driver of both the vehicles were contributorily negligent after correctly appreciating the evidence and considering the manner in which the accident has taken place and has rightly come to the conclusion that the contributory negligence of the driver of the ST bus was 80% whereas the driver of the Opel car, i.e, the deceased was 20%. No interference is called for in such finding which is arrived at by the Tribunal based upon correct appreciation of the evidence on record, both oral as well as documentary.

9. In the appeal filed by the claimants of the other claim petition arising out of the same accident being First Appeal No.901 of 2019, the Division Bench of this Court has considered the similar submissions canvassed by learned advocates for the appellant-S.T.Corporation and dismissed the appeal.

10. In view of the above, this appeal being meritless, deserves to be rejected and is hereby dismissed. However, as there is a typographical error committed in the operative portion of the impugned judgment and award in mentioning the amount of compensation, the same is modified to the extent that the claimants are entitled to the compensation of Rs.4,83,600/- instead of Rs.4,53,600/- as mentioned in the operative portion of the impugned judgment and award. The judgment and award

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dated 10.10.2018 passed by the Motor Accident Claims Tribunal (Aux), Khambhaliya in Motor Accident Claim Petition No.114 of 2009 stands modified to the aforesaid extent. However, there shall be no order as to costs. Record and Proceedings be transmitted back to the Tribunal forthwith.

11. In view of the order passed in the main appeal, the present application would not survive and the same stands disposed of accordingly.

(VIPUL M. PANCHOLI, J) SRILATHA