Transport Manager vs Ratanben Wife Of Kantilal ...
2021 Latest Caselaw 18752 Guj

      C/FA/3749/2006                                  ORDER DATED: 24/12/2021



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/FIRST APPEAL NO. 3749 of 2006
========================================================
                         TRANSPORT MANAGER
                               Versus
 RATANBEN WIFE OF KANTILAL DHULABHAI PARMAR & 3 other(s)
========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
for the Defendant(s) No. 4
MR PARESH M DARJI(3700) for the Defendant(s) No. 1,2
RULE SERVED(64) for the Defendant(s) No. 3
========================================================
 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 24/12/2021
                              ORAL ORDER

1) Being aggrieved and dissatisfied with the judgment and decree dated

25.03.2006 passed by the Motor Accident Claims Tribunal, Court No. 19,

Ahmedabad (City) in Motor Accident Claims Petition No. 137 of 1990, the

appellant-original defendant No.2 has preferred this first appeal under Section

173 of the Motor Vehicles Act, 1988 ( "the Act, 1988", for short).

2) The respondents No. 1 and 2-original claimants have filed the claim

petition under Section 166 of the Act, 1988, seeking, inter alia, the

compensation to the tune of Rs. 1,50,000/-, as compensation, for the death of

their minor son occurred in the vehicular accident. Against which, the Tribunal

has awarded Rs.1,54,000/-.

3) As per the case of the original claimants that, on a fateful day i.e., on

11.11.1988, minor sons Dinesh and Jagdish were traveling in Auto-rickshaw.

C/FA/3749/2006 ORDER DATED: 24/12/2021

While reaching near Bhulabhai Cross Road, at that time, AMTS Bus, which

was being driven by the driver, came rashly and negligently and dashed to the

Auto-rickshaw and the Auto-rickshaw got toppled and resultantly, one of the

minor sons i.e. Dinesh received injuries and subsequently died. Therefore, the

original claimant have approached the Tribunal for awarding the compensation

as stated hereinabove.

4) Upon service of notice, the appellant appeared before the Tribunal and

filed its written statement below Exh: 13, contesting the claim petition of the

original claim. The driver of the rickshaw had also appeared before the

Tribunal in capacity of party-in-person.

5) The Tribunal, after having considered the evidence produced on record,

passed an award of Rs.1,54,000/- under the various heads with the interest at

the rate of 9 % p.a. from the date of filing of main petition till realization.

     Sr.                         Particulars                              Amount
     No.
      1                For loss of dependency                      Rs.1,50,000/-
      2                    Loss to the estate                         Rs.2,500
                         For funeral expenses                         Rs.2,000
                                 Total                             Rs.1,54,500/-


6)     The appellant, therefore, before this Court, by way of present first

appeal challenging, the judgment and award passed by the Tribunal.

       C/FA/3749/2006                                   ORDER DATED: 24/12/2021



7)     I have heard Mr. H.S.Munshaw, the learned counsel appearing for the

appellant, and Mr. P.M.Darji, the learned counsel appearing for the respondents

No. 1 and 2-original claimants.

8) Mr. Munshaw, the learned counsel appearing for the appellant submitted

that the Tribunal has committed a serious error by not considering the evidence

in its true perspective. Mr. Munshaw, submitted that the Tribunal has

committed an error in holding the appellant as sole negligent for the accident in

question. Mr. Munshaw, submitted that looking to the evidence on record, the

Tribunal ought to have held the rickshaw driver also as contributory negligent

for the accident in question. Finally, Mr. Munshaw, while not disputing the

amount of compensation, urged to this Court that, looking to the evidence on

record, the rickshaw driver also be held as contributory negligent.

9) Per contra, Mr. Darji, the learned counsel appearing for the respondent-

original claimants has vehemently opposed this first appeal and requested this

Court that the same may be dismissed. Mr. Darji, submitted that the Tribunal

has perfectly held the driver of Bus as 100% negligent, and thereby, he has

strongly objected in holding the driver of the Auto-rickshaw as contributory

negligent.

10) No other submissions have been made by the learned advocates

appearing for the respective parties except stated as above.

        C/FA/3749/2006                                  ORDER DATED: 24/12/2021



11)     After having heard the learned advocates for the respective parties and

also gone through the record and proceedings of the case, the undisputed fact

that has come on record that the minor son Dinesh of the claimant was expired

because of the vehicular accident between the AMTS Bus and Auto-rickshaw.

It appears that the driver of the AMTS was not examined by the appellant so as

to prove the contributory negligence on the part of the driver of the Auto-

rickshaw. Therefore, in my considered opinion, the Tribunal is well justified in

drawing adverse inference against the present appellant.

12) In view of the aforesaid, the present first appeal is devoid of any merits

and is hereby rejected. The appeal stands dismissed.

13) It is directed to the Tribunal to issue account payee cheque after due and

proper verification to the original claimants. Record and Proceedings be sent to

the Tribunal concerned.

(NIRAL R. MEHTA,J) VISHAL MISHRA