Gujarat State Road Transport ... vs Kokilaben Wd/O Champakbhai ...
2022 Latest Caselaw 1835 Guj

      C/FA/4215/2019                                ORDER DATED: 16/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4215 of 2019
                                    With
                CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
                     In R/FIRST APPEAL NO. 4215 of 2019
                                    With
                      R/FIRST APPEAL NO. 3572 of 2014
                                    With
                      R/FIRST APPEAL NO. 3573 of 2014
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              GUJARAT STATE ROAD TRANSPORT CORPORATION
                                   Versus
             KOKILABEN WD/O CHAMPAKBHAI JETHALAL & 9 other(s)
==========================================================
Appearance:
MRS VASAVDATTA BHATT, ADVOCATE for the Appellant(s) No. 1
MS. ESHA BHAVSAR, ADVOCATE for
MR RATHIN P RAVAL, ADVOCATE for the Defendant(s) No. 9
MR ZENIL SHAH, ADVOCATE for the Defendant(s) No. 1,10,2,3,4,6,7,8
==========================================================

     CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
           and
           HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                               Date : 16/02/2022

                                ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1. All these appeals arise out of the same accident and same set of evidence was filed before the Tribunal, hence all these appeals are heard together and disposed of by this common judgment and award.

2. The following facts emerge from the record of the appeals.

2.1 The accident took place on 22.12.2003 at about 10:30 hrs. between Jeep bearing registration No. GJ-2-A-9811 and the ST Bus bearing registration No. GJ-18-V-4493. It is the case of the claimants that the Jeep was proceeding from Godhra to Limkheda and when it reached Village Gadhchundadi, the

C/FA/4215/2019 ORDER DATED: 16/02/2022

accident took place because of rash and negligent driving of the driver of the Jeep. FIR was lodged with the Godhra Taluka Police Station being CR-I No. 266 of 2003. The heirs of the deceased - Champakbhai Jethalal preferred a claim petition being MACP No. 1782 of 2004 under Section 166 of the Motor Vehicles Act and claimed the compensation of Rs. 21,78,000/-. Similarly the heirs of Chandrasinh Fatesinh Bariya filed a claim petition being MACP No. 1210 of 2004 under Section 166 of the Motor Vehicles Act and claimed compensation of Rs. 13,50,000/-. Similarly the heirs of Shanabhai Chhatrasinh Bariya filed a claim petition being MACP No. 522 of 2004 under Section 166 of the Motor Vehicles Act and claimed compensation of Rs. 10,10,000/-. The claim petition No. 1782 of 2004 was partly allowed and the Tribunal quantified the compensation at Rs. 15,49,279/- and held that driver of both the vehicles i.e. Jeep and ST Bus are composite negligent and attributed 50% of negligence to both vide its judgment and award dated 18.01.2018. The claim petition No. 1782 of 2004 was partly allowed by judgment and award dated 18.01.20018 and awarded compensation of Rs. 15,49,279/-. The claim petition No. 1210 of 2004 was partly allowed by the Tribunal vide its judgment and award dated 05.06.2014 and awarded compensation of Rs. 10,42,000/-. The claim petition No. 522 of 2004 was partly allowed by the Tribunal vide its judgment and award dated 05.06.2014 and awarded compensation of Rs. 8,42,000/-.

3. The ST Corporation has preferred First Appeal No. 4215 of 2019 under Section 173 of the Motor Vehicles Act challenging the impugned judgment and award dated 18.01.2018 passed in MACP No. 1782 of 2004. The ST Corporation has also

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preferred First Appeal Nos. 3572 & 3573 of 2014 under Section 173 of the Motor Vehicles Act challenging the impugned judgment and award dated 05.06.2014 passed in MACP Nos. 1210 & 522 of 2004. As aforesaid all the three appeals, out of the same accident, are heard together.

4. Heard Mrs. Vasavdatta Bhatt, learned advocate appearing for the ST Corporation in all these appeals, Mr. Zenil Shah, learned advocate for the original claimants in First Appeal No. 3573 of 2014 and Ms. Esha Bhavsar for Mr. Rathin Raval, learned advocate appearing for the Insurance Company in all the three appeals.

5. Mrs. Vasavdatta Bhatt, learned advocate for the appellant has raised sole contention on negligence. It was contended by the learned advocate for the appellant that in the FIR, it is clearly mentioned that the accident occurred because of the negligence of the driver of the Jeep and the driver of the Jeep has also been charge-sheeted. Mrs. Bhatt contended that in such circumstances, even if it is found that the driver of the ST Bus was negligent, such negligence cannot be more than 20%. On the aforesaid sole ground, it was contended by Mrs. Bhatt that the impugned judgment and award deserves to be modified by partly allowing the appeals.

6. Mr. Zenil Shah, learned advocate appearing for the claimants in one of the appeal i.e. First Appeal No. 3573 of 2014 supported the impugned awards and contended that the Tribunal has rightly appreciated the evidence on record.

7. Ms. Esha Bhavsar for Mr. Rathin Raval, learned advocate

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appearing for the Insurance Company and contended that the Insurance Company has not challenged the award and has accepted the same. According to the learned advocate for the Insurance Company, the issue of negligence is already decided which has not been challenged by the appellant - ST Corporation, the same cannot be now challenged in these appeals.

8. Having heard learned advocates for the respective parties and on perusal of the relevant evidence such as FIR at Exh. 32 and the Panchnama at Exh. 33 as well as the only question which arises for consideration of this Court is whether the Tribunal has committed any error in coming to the conclusion that the driver of both the vehicles were equally negligent in the ratio of 50:50. The question of quantum is not necessary to be discussed in this judgment and order. At the outset, it deserves to be noted that in Para-6 of the judgment rendered by the Tribunal in MACP No. 1782 of 2004, it is observed by the Tribunal that MACP No. 81 of 2004 was filed, which relates to the same accident. The said MACP is decided vide judgment and award dated 18.01.2017, even according to the learned advocate for the appellant - ST Corporation has become final and the same is not challenged. Following ratio laid down by this Court in the case of United India Insurance Company Ltd. Vs. Laljibhai Hamirbhai and others reported in 2007 (1) GLR 633 and in the case of Dilipsinh Bhaisaheb Jhal Vs. Juma Ali Sumra reported in JX (Gujarat) 1706, more particularly Para-13 which reads as under :

"13. Though this contention has been raised referring to the judgment of the High Court of Gujarat reported in 2007 (2) GLH 260 - Pandurang Dagdu Gayakwad and anr. v. Prabhakar Devaji Mora and ors. and also the judgment reported in 2010 (4) GLR - 3231 - New India Assurance Co. Ltd. v. Nildeep

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Chamanlal & Ors., the moot question is whether the issue with regard to the negligence is considered based on the same set of evidence. It is required to be mentioned that in MACP No. 763/1992 was filed for same accident qua both the vehicles and the findings have been given by the Tribunal and therefore while deciding the MACP No. 763/1992 from which the present Appeal arises, the Tribulal accepted the statements on the ground of resjudicata. The submissions which have been made regarding the resjudicata referring to Section 11 of the Code of Civil Procedure has to be considered in light of the observations which have been made in the judgment of the coordinate Bench of the High Court reported in 2007 (2) GLH 260 - Pandurang Dagdu Gayakwad and anr. v. Prabhakar Devaji Mora and ors. as well as the judgment referred to by learned Advocate Shri Tushar Sheth reported in 2010 (4) GLH 3231 - New India Assurance Co. Ltd. v. Nildeep Chamanlal & Ors. However, this judgment reported in the case of New India Assurance Co. Ltd. v. Nildeep Chamanlal & Ors. (supra) has a reference to the judgment in case of privy counsel and subsequent judgments including the judgment reported in AIR 1979 SC 551 - Ishwardas v. The State of Madhya Pradesh & Ors. It has been emphasized that all that is necessary is that the issue should be between the same parties or between the parties under whom they or any of them claimed. Further, once the questions at the issue are the same, and the same material has lead to the decision in earlier proceeding, would certainly be covered as a resjudicata or had on an an analogous principles. Therefore, even if strictly speaking, it may not be a resjudicata nevertheless it would be a decision on the same set of facts with regard to the same accident or the incident and therefore the Tribunal was justified in accepting the findings given earlier by the Tribunal."

9. As the issue of negligence is already decided in MACP No. 81 of 2004 vide its judgment and award dated 18.01.2017, which has not been challenged by the ST-Corporation. The same would apply res-judicata and other view is not required to be taken. The sole contention, therefore, deserves to be negatived and is hereby rejected. The present appeals therefore fail and are hereby dismissed. Civil application would not survive. However, there shall be no order as to costs.

(R.M.CHHAYA,J)

(HEMANT M. PRACHCHHAK,J) Salim/