Gujarat State Road Transport ... vs Jamalbhai Rahemanbhai Vohora
2022 Latest Caselaw 3517 Guj

     C/FA/854/2007                              JUDGMENT DATED: 25/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 854 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. 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
            JAMALBHAI RAHEMANBHAI VOHORA & 6 other(s)
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Appearance:
MRS VASAVDATTA BHATT(193) for the Appellant(s) No. 1
MR MM TIRMIZI(1117) for the Defendant(s) No. 1,3
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 7
RULE SERVED for the Defendant(s) No. 6
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 25/03/2022

                           ORAL JUDGMENT

1. Both the First Appeals are filed under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the separate but identical awards dated 16.05.2005 passed by the Motor Accident Claims Tribunal, Nadiad, in Motor Accident Claim Petition No.2335

C/FA/854/2007 JUDGMENT DATED: 25/03/2022

of 1996, by which, the Tribunal has allowed the claim petition, directing opponent No.1 - ST Corporation to pay the amount of compensation of Rs.3,92,000/- with 9% p.a. interest to the claimants. The claim qua other respondents i.e. owner of the tempo and insurance company of the tempo is dismissed.

2. Brief facts of the present case are as under :

2.1 That, on 19.11.1996, deceased - Mahammad Jamalbhai Vahora was travelling in three wheeler tempo bearing registration No.GJ-7- X-2447 along with his household articles from village : Rasnol to Bhadiad and when the said tempo reached near Dargah in the sim of village Khanpur at Tarapur - Vataman road at about 7:30 a.m., the driver of the ST Bus bearing registration No.GQE-9089 came from the opposite direction by driving the bus with excessive speed and in rash and negligent manner, had dashed with the tempo in which Mahammadbhai was travelling and had sustained grievous injuries in this accident and had died in the hospital. Since the deceased was aged about 30 years, his parents, widow and children have filed a claim petition before the Tribunal.

2.2 Notices were served to the respondents. The ST Corporation and the insurance company of the tempo has filed its written statement at Exh.30 and Exh.22, respectively, before the Tribunal and denied the claim. The Tribunal has led oral as well as documentary evidence before it. After hearing the rival submissions of the respective parties, the Tribunal has allowed the claim petitions and awarded compensation to the claimants as noted above.

3. Learned advocate Ms. Vasavdatta Bhatt for the appellant - ST Corporation has submitted that from the FIR and Panchnama, it can

C/FA/854/2007 JUDGMENT DATED: 25/03/2022

be inferred that both the vehicles are found negligent and the Tribunal has erred in holding the sole negligence of the ST driver. She has drawn the attention of this Court to the contents of the FIR lodged by Mohammad Husain - the driver of the three wheeler tempo and the panchnama of the place of accident - Exh.42. She has submitted that the ST Corporation has also examined its driver Mr. Hamirkhan at Exh.41 who has deposed on oath that when he was coming from Michali to Sanand driving the bus bearing registration No.GQE 9098 and when the bus reached near Khanpur Patia, one Tempo bearing registration No.GJ-7-X-2447 came from the opposite side and took left side all of sudden. Due to which, the accident has occurred. She has submitted that the driver of the ST bus is considered to be an eye-witness, therefore, it can be said that he is deposing the correct situation. She has submitted that in such circumstances, the Tribunal has committed an error in holding that the ST bus driver was sole negligent. She has not disputed the amount of quantum of compensation awarded by the Tribunal as she has fairly submitted that in view of the decisions of Hon'ble Apex Court in the cases of :- (i) National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680 (ii) Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121 and (iii) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130, the amount could have been awarded more than which is awarded by the Tribunal. Therefore, though she has raised grounds in the memo of appeal about the aspect of quantum, she has not pressed those grounds during the course of arguments in view of the decisions of Hon'ble Apex Court on this aspect.

4. Per contra, learned advocate Mr. M.A. Husaini for learned advocate Mr. M.M. Tirmizi for respondents No.1 and 3 and learned

C/FA/854/2007 JUDGMENT DATED: 25/03/2022

advocate Mr. Dadhichi Limbola for learned advocate Mr. Ruturaj Meena for the respondent No. 7 - Insurance Company have submitted that the Tribunal has rightly considered the aspect of negligence of ST Corporation. They have submitted that from the FIR and Panchnama, it is clear that FIR is filed against the driver of the ST bus. Moreover, if the Panchnama is considered, the ST bus is found on the wrong side of the road. It is submitted that the charge- sheet is also filed against the driver of the ST Corporation at Exh.43. It is further submitted that when the driver of the ST Corporation is examined and he has deposed that Tempo has come from the other side and has, all of a sudden, taken turn on the left side, is also not properly proved. On the contrary, it is submitted that in the cross- examination, the said witness has admitted that the tempo was going on at a moderate speed. Therefore, no material is borne out from the deposition of that witness about the negligence of the tempo driver. It is also submitted that the Tribunal has to award more amount towards consortium as there are five dependents of the deceased. Therefore, the amount of compensation which is awarded by the Tribunal is required to be enhanced, but since the claimants have not filed any cross-objection, learned advocate for the claimants is not pressing that aspect about the enhancement of the compensation. Learned advocate for the claimants has submitted that in view of various decisions of the Hon'ble Apex Court, when the bigger vehicle is involved in the accident, it should take more care about the driving of the vehicle, moreover, this contention about the negligence of the tempo driver was not specifically raised in the written statement by the ST Corporation before the Tribunal. It was contended for the first time in the deposition of the ST driver. Therefore, the Tribunal has rightly considered the said aspect. This Court finds that the attribution of 100% negligence of the ST Corporation is just and proper.

       C/FA/854/2007                                       JUDGMENT DATED: 25/03/2022




5.1     I have heard learned advocates for the respective parties. I

have also perused the record and proceedings of the claim petition. I have gone through the impugned award passed by the Tribunal. I have considered the pleadings of the parties. It is correct that the FIR at Exh.37/1, Panchnama at Exh.42 and the deposition of the ST bus driver are supporting each other and it is found from the Panchnama that the bus of the ST corporation was lying on the wrong side of the road and it is also admitted in the cross- examination of the driver who is an eye-witness that the tempo is coming in very slow speed and when the charge-sheet is filed against the driver of the ST Corporation, the aspect of negligence which is dealt with by the Tribunal, is found just and proper in the facts and circumstances of the case after properly appreciating the documentary evidence and also oral evidence like deposition of the ST bus driver.

5.2 Moreover, when the ST Corporation has not taken this contention in the written statement, the finding of the Tribunal while deciding the issue of negligence, is found just and proper and the Tribunal has not committed any error in holding ST bus 100% negligence in causing the accident. The Tribunal has rightly awarded the amount of compensation to the claimants. Therefore, the contention of the ST Corporation on the aspect of negligence is found meritless and not acceptable. The appeal, therefore, deserves to be dismissed.

6. In view of above, the following order is passed.

6.1 This appeal is dismissed, with no order as to costs.

       C/FA/854/2007                           JUDGMENT DATED: 25/03/2022



6.2     The Tribunal concerned is directed to disburse the entire

amount lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimant(s), by account payee cheque, after proper verification and after following due procedure.

6.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE