Gujarat High Court
Gujarat State Road Transport ... vs Heenaben Dhirajbhai Soni on 20 September, 2021
Bench: A.G.Uraizee
C/FA/2484/2021 ORDER DATED: 20/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2484 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/FIRST APPEAL NO. 2484 of 2021
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
HEENABEN DHIRAJBHAI SONI
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Appearance:
MS VYOMA K JHAVERI(6386) for the Appellant(s) No. 1
for the Defendant(s) No. 7,8
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 9
MR. HEMAL SHAH(6960) for the Defendant(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 20/09/2021
ORAL ORDER
1. This appeal under Section 173 of the Motor Vehicles
Act, 1988 ('M.V. Act' for short) is directed against the
judgment and award dated 04.12.2019 passed by Motor
Accident Claims Tribunal (Aux.), 3rd Additional Sessions
Court, Bhuj at Bhuj in MACP No.394/2002, whereunder,
the appellant-Corporation is held liable to pay 40% of the
awarded Compensation.
2. Facts are not many. Deceased-Dhirajlal Jeram Soni,
was going from Ratadia to Ravapar on scooter bearing
Registration No.GJ-12-B-7945 as pillion rider on
23.04.2002. Respondent No.7 herein was plying the
offending scooter. Driver of ST Bus bearing Registration
No. GJ-18-V-7008 came from Narayan Sarovar Side and
dashed with the scooter, as a result, the deceased fail on
and suffered fatal injuries. His legal heirs filed MACP
No.394/2002 in the Claim Tribunal at Bhuj against the
appellant-ST Corporation, driver, owner of offending
scooter and Insurance Company of the scooter to recover a
C/FA/2484/2021 ORDER DATED: 20/09/2021
sum of Rs.15 Lac as compensation.
3. After appreciating the oral and documentary evidence,
the tribunal recorded a finding that the driver of the ST
Bus i.e. appellant was responsible for the accident to the
extent of 40% whereas the driver of the scooter on which
the deceased was a pillion rider was responsible to the
extent of 40%. Accordingly, the tribunal partly allowed the
Claim Petition.
4. The appellant-Corporation is aggrieved by the
apportionment of contradictory negligence on the part of
its driver to the extent of 40%. Hence, present appeal.
5. I have heard Ms. Vyoma K. Jhaveri, learned advocate
for the appellant and Mr. Hemal Shah, learned advocate
for the claimants.
6. Ms. Jhaveri, learned advocate vehemently submits
that it is eminently clear from the impugned judgment that
the driver of the scooter was solely negligent in the
happening of the accident. She, therefore, submits that the
tribunal has committed a serious error in contributing 40%
negligence on the part of the driver appellant-Corporation.
She, therefore, submits that the present appeal requires
consideration.
7. On the other hand, Mr. Hemal Shah, learned
advocate for the claimant has supported this judgment. He
submits that the tribunal has given detailed reasons for
attributing 40% negligence on the part of the driver of the
appellant-Corporation. We do not warrant interference in
C/FA/2484/2021 ORDER DATED: 20/09/2021
this appeal. He, therefore, submits that appeal may be
dismissed.
8. I have considered the rival consideration.
9. The tribunal has recorded following findings on the
basis of poral and documentary evidence on the issue of
negligence.
"10) NELIGENCE:
While deciding the point of negligence, it has to be
born in mind that the negligence is required to be proved
in claim petition U/s.166 of the Act only on the touchstone
of the preponderance of probability and not beyond doubt.
Above referred ratio is laid down by Hon'ble Apex Court in
the cases of I) Bimla Devi v/s H.R.T.C., reported in AIR
2009 SC 2819 and ii) Parmeshwari Devi v/s Amir Chand,
reported in 2011 (11) SCC 635.
10.1 The applicant No.5 namely Dilipkumar @
Sanjaykumar Jeram Soni was examined by affidavit at
Exh.21 and supported the averments of negligence made in
the claim petition.
10.2 Ld. Adv. For opponent No.1 had cross-
examined the said witness, wherein stated that he has no
personal knowledge about the incident. He further admitted
that the complainant was lodged against the scooter driver.
He further denied that there is no any negligence of S.T.
Driver.
10.3 Ld. Adv. For opponent No.3 had cross-
examined the said witness, wherein he denied that there
was no any negligence of the scooter driver in the said
accident. He further denied that the said accident was
occurred due to negligence of only Bus driver. He further
stated that the accident was occurred due to negligence of
both vehicles.
10.4 Ld. Adv. for opponent No.4 had cross-
examined the said witness, wherein he admitted that at the
time of incident, he was not present. He further admitted
C/FA/2484/2021 ORDER DATED: 20/09/2021
that he has no personal knowledge about the incident. He
further denied that insurance company has joined as formal
party in this claim petition. He further denied that the
accident was occurred due to negligence of towed scooter
and bus.
10.5 The witness namely Paresh Maheshbhai Joshi
was examined by affidavit at Exh.103 who is eye witness
and at the time of accident he was driving his scooter far
away from 1 k.m. behind from the involved scooter. So,
read the deposition of the said witness, he supported the
averments of negligence made in the claim petition.
10.6 Further, Ld. Adv. for opponent No.1 had cross-
examined the said witness, wherein he stated that the
accident was occurred due to negligence of driver of both
vehicles. He further voluntarily stated that driver of S.T.
Bus was more responsible for the said accident. He further
denied that S.T. Bus No. GJ-18-V-7008 was not in full
speed. He further denied that due to negligence of only
scooter driver the said accident was occurred.
10.7 Ld. Adv. for opponent No.4 had also cross-
examined the said witness, wherein he admitted that he
had mentioned the fact in para-5 of his affidavit that
"driver of S.T. Bus was driving the said S.T. Bus in full
speed and in negligence manner and due to speed, driver
of S.T. Bus lost control over the steering of said S.T. Bus
and driver of scooter had also lost control over the scooter
and therefore, the accident was occurred", which are true
fact.
10.8 Per Contra, opponent side, opponent No.1 had
examined driver of said S.T. Bus namely Ravji Budha
Pandya by filing affidavit at Exh.107 and he supported the
averments of negligence made in the written statement filed
by opponent No.1.
10.9 Ld. Adv. for applicant had cross-examined the
said witness, wherein he denied that this accident was
occurred due to his negligence and full speed driving of the
said S.T. Bus.
10.10 Ld. Adv. for opponent No.4 had cross-examined the
said witness, wherein he denied that driver of scooter was
going in left side and in slow speed.
C/FA/2484/2021 ORDER DATED: 20/09/2021
10.11 Keeping in mind the above oral evidence and read
with documentary evidence, i.e. copy of FIR at Exh.-56,
true copy further statement of complainant at Exh.-57, true
copy of spot panchnama at Exh.-104, true copy of Inquest
Panchnama at Exh.58, true copy of P.M. Note at Exh.-59.
Looking to the FIR it appears that, FIR was lodged by
person Ravjibhai i.e. driver of Bus against unknown driver
of scooter and looking to the FIR in which complainant had
stated that driver of Scooter had towed another scooter and
he was driving his scooter in negligence manner and in full
speed, therefore, driver of towed scooter had lost control
over the towed scooter and it dashed with the middle part
of driver side of said S.T. But and thereby caused accident
in which deceased had sustained serious injuries and
succumbed to those injuries but thereafter complainant had
recorded his further statement before police which is
produced at Exh.57 in which he had stated that only one
scooter No.GJ-12-B-7945 was involved in the said accident
and two riders were seated on the said scooter and driver
of said scooter was driving the vehicle in rash and
negligent manner and came in the wrong side and steering
of scooter dashed with middle portion of the Bus and
scooter fell down on the road and thereby caused accident
in which deceased had sustained serious injuries over his
head and succumbed to those injuries. Furtehr it reveals
from the spot panchnama at Exh.-104 that S.T. Bus No. GJ-
18-V-7008 and Scooter No. GJ-12-B-7945 where lying on its
side. Further, applicants have also produced true copy of
charge-sheet vide Exh.-60 and looking to the same it
appears that after completion of police investigation, police
had filed charge-sheet against opponent No.2 i.e. driver of
scooter. Further, the Insurance Company has not examined
the driver of said scooter i.e. opponent No.2 to prove and
point out that he was not negligent for causing the said
accident. It is cardinal principal of law that unless the
tortfeasor is examined by the Insurance Company adverse
inference is required to be drawn against the tortfeasor. So,
looking to the said documentary evidences, it appears that
due to negligence of driver of scooter i.e. opponent No.2,
the said accident was occurred but it is also to be noted
that looking to the oral as well as documentary evidence, it
appears that there was a head-on collision between the
vehicles which resulted in accident. It is not in dispute
that, both vehicles were moving on the main Highway road
and the vehicle S.T. Bus is comparatively heavier than
scooter and therefore, it is needless to say that, a person
C/FA/2484/2021 ORDER DATED: 20/09/2021
driving a heavy vehicle owes the greater degree of care and
caution and he would have remained careful and
circumspect while driving the heavy vehicle on the main
road. Thus, in my opinion, if the drivers of the S.T. Bus
has exercised extra care and deligence while driving his
vehicles, the accident could be avoided. Therefore,
considering this fact and looking to the facts and
circumstances of the case, it appears that the driver of S.T.
Bus is also negligence. Further applicant side witness
namely Paresh Joshi has stated in his affidavit under Order-
18, Rule 4 that the S.T. Bus was negligent in causing the
accident but looking to the charge-sheet, the name of said
witness is not mentioned in the charge-sheet. Therefore,
some suspect arise from believe the deposition of the said
witness. So, his evidence is not fully reliable evidence.
Thus, I come to the conclusion that the present accident
had taken place due to negligence of the drivers of both
the offending vehicles i.e. driver of S.T. Bus and opponent
No.2 i.e. driver of scooter in which deceased sustained
serious injuries and succumbed to those injuries. In this
case, keeping all the aspects in mind and way and manner
of happening of accident, it would be justified to hold that
the present accident had taken place due to negligence of
both the drivers and therefore, S.T. Bus driver and
opponent No.2- the driver of scooter both are held liable
up to 40:60 for causing this accident.
10.12 Further it appear from the FIR, Inquest Panchnama,
Charge-sheet and P.M. Report that the deceased was died
due to fatal injuries sustained in the said accident.
10.13 So, considering this fact and taking into
consideration, evidence on record, I hold that the said
accident was occurred due to negligence driving by driver
of S.T. Bus and opponent No.2 i.e. the driver of scooter in
which deceased sustained serious injuries and succumbed to
those injuries. Hence, I decide issue No.1, in the
afirmative."
10. It is thus vividly clear from the discussion that after
considering the oral evidence of the witness and the
documentary evidence in the form of FIR and the
Panchnama of place of accident, the tribunal has
apportioned the inter se liability of negligence amongst the
C/FA/2484/2021 ORDER DATED: 20/09/2021
drive of the appellant-Corporation and respondent No.7
herein driver of the motorcycle on which the deceased was
pillion riding at 40% and 60% respectively.
11. I am of the considered view that the reasons assigned
by the tribunal for apportioning the inter se liability of
drivers of the offending vehicles involved in the accident
are cogent, convincing and reasonable which do not
warrant interference in this appeal.
12. For the foregoing reasons, the appeal lacks merit and
is hereby dismissed at threshold.
(A.G.URAIZEE, J)
Manoj
