Gujarat High Court
Gujarat State Road Transport ... vs Nirmaladevi Jitendra Giri on 18 November, 2021
Bench: R.M.Chhaya
C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2563 of 2019
With
MISC. CIVIL APPLICATION (FOR WITHDRAWAL/DISBURSEMENT OF
AMOUNT) NO. 2 of 2021
In R/FIRST APPEAL NO. 2563 of 2019
With
R/CROSS OBJECTION NO. 57 of 2021
In
FIRST APPEAL NO. 2563 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
NIRMALADEVI JITENDRA GIRI
==========================================================
Appearance:
MS VYOMA K JHAVERI(6386) for the Appellant(s) No. 1
MR R G DWIVEDI(6601) for the Defendant(s) No. 1,2,3,4
NOTICE SERVED(4) for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 7
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C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
Date : 18/11/2021
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Ms. Vyoma Jhaveri, learned advocate for
the appellant and Dr. R.G. Dwivedi, learned
advocate for the original claimants. Though
served, no one appears for the respondent
no.5.
2. Referring to contents of Misc. Civil
Application no.2 of 2021, Dr. R.G. Dwivedi,
learned advocate for the original claimants
pointed out that respondent no.1 - Nirmaladevi
Jitendra Giri has expired during pendency of
this appeal. Her estate is represented by
respondents no.2, 3 and 4 and hence, it was
requested that her name may be deleted. In
view of the aforesaid and considering the
death certificate, name of Nirmaladevi is
deleted from array of this appeal.
3. Feeling aggrieved and dissatisfied by the
judgment and award dated 18.12.2018 passed by
the Motor Accident Claims Tribunal (Aux),
Vadodara in MACP no.787/08, the appellant-
Gujarat State Road Transport Corporation has
preferred this appeal under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred
to as "the Act").
C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
4. Following facts emerge from the record of the
appeal:-
4.1 That, the accident occurred on 28.4.2008 at
about 3:15 p.m. near Por Village, abutting on
Bharuch-Vadodara National Highway. The facts
reveal that the deceased - Jitendragiri was
driving his Maruti Wagon R Car bearing
registration no. GJ-6 BC-8355 and when the car
reached the diversion of the opposite lane, an
S.T. bus bearing registration no. GJ-18 Y-1822
came from the opposite direction being driven
in an excessive speed and on wrong side and
dashed with the Car of the deceased. As the
record indicates, the deceased - Jitendragiri
died on the spot. An FIR was lodged with
Varnama Police Station bearing CR no.I-32/2008
and the original claimants filed the present
claim petition under Section 166 of the Act
and claimed compensation of Rs.75,00,000/-.
4.2 It was the case of the original claimants that
the deceased was 39 years old on the date of
the accident and was engaged in the business
of scrap. According to the original claimants
in the year of accident, the net profit of the
deceased was Rs.4,50,000/-. Oral as well as
documentary evidences were led by the original
claimants before the Tribunal. The Tribunal,
after appreciating the manner in which the
C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
accident occurred and more particularly, FIR
at Exh.29 and Panchanama at Exh.30, came to
the conclusion that the driver of the S.T. bus
as well as the deceased both were negligent
and further came to the conclusion that the
driver of the bus was negligent to the extent
of 75%, whereas, the deceased, as driver of
the Wagon R Car, was negligent to the extent
of 25%. While partly allowing the claim
petition, the net compensation including the
conventional amount as awarded by the Tribunal
comes to Rs.32,68,279/- with 9% interest per
annum from the date of filing of the claim
petition till its realization.
5. Ms. Vyoma Jhaveri, learned advocate for the
appellant has invited attention of this Court
to the observations made by the Tribunal, more
particularly, in Paragraphs 8 and 9 and
submitted that as per the evidence on record,
open space was available for the deceased on
the left side and hence, according to Mr.
Jhaveri, the deceased could have avoided the
accident. Ms. Jhaveri further contended that
only because the bus is heavier vehicle, the
Tribunal has committed an error in attributing
the negligence on the driver of the S.T. bus
at 75%. Ms. Jhaveri also contended that on the
contrary, the deceased, as driver of Wagon R
Car, was more negligent than the driver of the
C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
S.T. bus. On the aforesaid grounds, Ms.
Jhaveri submitted that the appeal deserves to
be allowed. Ms. Jhaveri further submitted that
the Cross Objections filed by the original
claimants are misconceived and is filed only
as a counterblast to the appeal. Ms. Jhaveri
therefore urged that the Cross Objections be
dismissed.
6. Per Contra, Dr. R.G. Dwivedi, learned advocate
for the original claimants has submitted that
the Tribunal has not considered the aspect
that the bus as well as the Car were being
driven on the same lane because of diversion.
Dr. Dwivedi, referring to the manner in which
the accident has occurred, contended that only
because there was some space available on the
left side, it cannot be said that the
deceased, as driver of Wagon R Car, was
negligent. Dr. Dwivedi further submitted that
Wagon R Car was being driven at a moderate
speed, whereas, the bus was driven by the
driver of bus in a rash and negligent manner
and according to Dr. Dwivedi, the driver of
the bus was solely negligent for the accident.
Dr. Dwivedi therefore submitted that the
appeal, being misconceived, deserves to be
dismissed and the Cross Objections filed by
the original claimants deserves to be allowed.
C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
7. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
8. We have perused the original record and
proceedings and have considered the Panchnama
at Exh.30. Only because the deponent was not
an eye-witness, it cannot be said that the
same cannot be relied upon. On reading the
Panchnama at Exh.30 as well as the inquest
Panchnama at Exh.31, the same show the extent
of injuries received by the deceased who died
on the spot. The impact of the collusion is
quite evident from bare reading of the
Panchnama at Exh.30. Panchnama further
indicates that it was a temporary diversion
and therefore, the driver of the S.T. Bus
should have been more careful while driving
such a heavy vehicle. Upon reappreciation of
the evidence on record and considering the
manner in which the accident has occurred and
also considering the injuries received which
is quite evident from the postmortem note at
Exh.32, we do not find any error in the
findings arrived at by the Tribunal. Upon
reappreciation of the evidence on record, it
is found that both the drivers were negligent
and the accident has occurred because of such
C/FA/2563/2019 JUDGMENT DATED: 18/11/2021
negligence. The bus is no doubt heavy vehicle
and driver of the bus should have been more
careful specially when driving in a temporary
created diversion because of civil work. On
reappreciating the said evidence, we find that
the Tribunal has correctly assessed the
negligence in the ratio of 75:25 i.e. the
Tribunal has rightly come to the conclusion
that the driver of the bus was negligent to
the extent of 75% and the deceased, as driver
of the Wagon R Car, was negligent to the
extent of 25%. No interference is called for.
The appeal therefore fails and is hereby
dismissed. Cross Objections also stands
dismissed. Misc. Civil Application no.2/2021
also stands disposed of. However, there shall
be no order as to costs. Registry is directed
to remit the record and proceedings back to
the Tribunal forthwith.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
Maulik
