Gujarat High Court
Gujarat State Road Transport ... vs Hemaben Birbhanbhai Patel (Bhujnar) on 27 June, 2024
NEUTRAL CITATION
C/FA/464/2024 ORDER DATED: 27/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 464 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 464 of 2024
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
HEMABEN BIRBHANBHAI PATEL (BHUJNAR) & ORS.
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Appearance:
MS SEJAL K MANDAVIA(436) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 27/06/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - original
opponent, being aggrieved and dissatisfied with the impugned
judgment and award dated 05.05.2023 passed by the Motor
Accident Claim Tribunal (Aux.), at Deesa, Dist: Banaskantha
in Motor Accident Claim Petition No.123 of 2013.
2. Brief facts of the case are as under:
2.1 On 1/1/2013 at about 5.30 hours, the deceased
Dineshbhai Virbhanbhai was going on a motorcycle by driving
the same from Khimana to Deodar and on Vikrambhai Mochi
was sitting on the said motorcycle as pillion rider. The
deceased driving the motorcycle in a moderate speed on the
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C/FA/464/2024 ORDER DATED: 27/06/2024
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left side of the road and at the relevant time near Khoda
village Patiya from Deodar side one S T bus being driven by
its driver in rash and negligent manner, came in wrong side
and dashed with the motorcycle from front side and caused
accident in which he suffered grievous injuries and died
during the treatment. Therefore, legal heirs of deceased have
filed claim petition for getting compensation.
2.2 The appellant has filed reply below Exhibit 52 and
inter alia denied the contentions of the claim petition also
denied that accident was happened due to the negligency of
the motorcycle driver. Actually accident had happened due to
the Eicher truck was coming from the opposite side of bus
and behind that truck motorcycle driver coming from wrong
side in double riding in full speed and dashed with the front
side of bus. Therefore, accident had happened. Complainant
and claimant are not eye witness and complainant were not
examined. Here, owner and insurance company of the
motorcycle was not joined as a party respondent. Hence, filed
an appeal.
3. Heard learned advocate Ms. Sejal K. Mandavia for the
appellant.
4. Learned advocate Ms. Sejal Mandavia submitted that
the present appeal is preferred only on the ground of issue
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of negligence. Learned advocate has fairly submitted that the
judgment and award passed in M.A.C.P. No.20 of 2013 is
accepted by the appellant - S.T. Corporation and the amount
is also deposited and accordingly, the same has been
disbursed to the claimant/s.
5. I have considered the submissions made at the bar. I
have gone through the impugned judgment and award passed
by the Tribunal and the material available on record.
5.1 While going through the impugned judgment and award,
it transpires that that pursuant to the accident which has
occurred, another claim petition came to be filed arising from
the same accident by way of M.A.C.P. No.20 of 2013 and the
appellant - S.T. Corporation has accepted the judgment and
award passed therein and the findings of the tribunal on
similar line i.e. on the issue of negligence.
5.2 The tribunal has discussed the issues in detail in para
7.1 and 7.2 of the impugned judgment and award, which are
reproduced as under:
"(7.1). It is deposed by A.W. No. 1 Hemaben Virbhanbhai Patel
(Bhunjar) at Exh.-23 that on dtd.01/01/2013 at about 05:30 hours,
the deceased Dineshbhai Virbhanbhai was going on a Motor Cycle
No. GJ.08.AF.0288 by driving the same from Khimana to Deodar
and on Vikrambhai Mochi was sitting on the said Motor Cycle as
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C/FA/464/2024 ORDER DATED: 27/06/2024
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pillion rider. The deceased driving the Motor Cycle in a moderate
speed on the left side of the road and at the relevant time near
Khoda Village Patiya from Deodar side one S.T.Bus No.
GJ.18.Y.5790 being driven by its driver in a rash and negligent
manner, came in wrong side and dashed with the M. Cycle from
front side and caused accident in which he suffered grievous
injuries and died during the treatment. It is true that A.W.No.1
Hemaben Virbhanbhai Patel (Bhunjar) at Exh.-23 is not eye
witness, but if we go through the complaint at Exh.-24, Place
Panchnama at Exh.-25 and Inquest Panchnama at Exh.-26
minutely, then it clearly reveals that the driver of the S.T.Bus
No.GJ.18.Y.5790 dashed with M.Cycle No. GJ.08.AF.0288 from front
side. Further, the Learned Advocate for the applicants has
produced Copy of M.A.C.P.No. 20/2013 which was arisen out of the
same accident and the present petition is also emerged out of the
same accident and in M.A.C.P.No.20/2013 already the issue of
negligence is decided on the part of Driver of S.T.Bus and
therefore, to avoid repetition and lengthy discussion, relying upon
the principles of "res judicata", this Tribunal also consider 100%
negligence on the part of S.T.Bus. Therefore, this Tribunal consider
100% negligence on the part of S.T.Bus driver only.
(7.2). Thus, it cannot be said that there would be negligence on
the side of rider of motor cycle, but the 100% negligence is of the
S.T.Bus driver. The Opponent No.1 is the owner of the S.T.Bus
No.GJ.18.Y.5790 is liable to pay the compensation.
Hence, I answer the ISSUE No.1 in AFFIRMATIVE."
5.3 This Court is of the opinion that the tribunal has not
committed any error in considering the issue of negligence, as
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this issue has already been decided by way of M.A.C.P.
No.20 of 2013 and that was not challenged by the appellant
- S.T.Corporation and the judgment and award passed
therein is accepted, whereby, 100% negligence on the part of
the S.T. Bus was decided by the tribunal and from the same
accident, the present claim petition has arisen and therefore,
there is justification in the findings as well as the view
taken by the concerned tribunal.
5.4 In the facts and circumstances of the present case, this
Court finds that no material error under the law is
committed by the concerned tribunal nor any factual error is
committed by the tribunal. Learned advocate has not raised
any contention, on any other issue, and therefore, the present
appeal lacks merit and the same is required to be dismissed.
6. Accordingly, the present appeal is dismissed at the
stage of admission.
7. In view of dismissal of the appeal, connected civil
application does not survive and the same stands disposed of
accordingly.
(SANDEEP N. BHATT,J)
SLOCK BAROT
