Gujarat High Court
Sulochanaben Wd/O. Mahendrakumar ... vs Jayeshkumar Masangbhai Chaudhary on 1 October, 2024
NEUTRAL CITATION
C/FA/2168/2024 ORDER DATED: 01/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2168 of 2024
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SULOCHANABEN WD/O. MAHENDRAKUMAR NARANDAS PATEL & ORS.
Versus
JAYESHKUMAR MASANGBHAI CHAUDHARY & ORS.
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Appearance:
MR JAYDEEP P PATEL(9201) for the Appellant(s) No. 1,2,3
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/10/2024
ORAL ORDER
1. The instant appeal under Section 173 of the Motor Vehicles
Act, 1988, is preferred at the behest of the claimants against the
judgment and award dated 29.10.2017 passed in Motor Accident
Claim Petition No.17 of 2018, whereby the Motor Accident
Claims Tribunal (Aux.), Banaskantha at Palanpur partly-allowed
the claim petition and ordered to grant compensation of
Rs.25,69,000/- to the claimants with 8% p.a. interest from the
date of petition till realization fastening the liability of opponents,
jointly and severally.
2. Brief facts of the case are as under.
2.1 On 16.11.2017 deceased Mahendrakumar was driving his
Alto car No.GJ-12-J-5355 at a very moderate speed and on the
correct side of the road following the traffic rules and at around
7.00 p.m. the evening when deceased was plying his vehicle on
the national highway road leading from Siddhpur to Palanpur,
and when he reached near Hotel Ekta falling in between the
border of village Rajosana, one tractor which was being driven by
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C/FA/2168/2024 ORDER DATED: 01/10/2024
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its driver/ Opp. No.1 at an excessive amount of speed, all of a
sudden the driver applied the brakes due to which the tractor
stopped and the Alto car which was being driven by the deceased
got crashed on the back portion of tractor resultantly leading to
the occurrence of the impugned accident. Further as a result of
the impugned accident, deceased sustained very serious fatal
injuries and he succumbed to the fatal injuries while undergoing
treatment. Thus in order to compensate all their losses, present
claimants filed claim petition before lt which came to be partly-
allowed. Hence, this appeal.
3. In substance the claimants are aggrieved by the decision of
the learned Tribunal to deduct 50% of the claim amount towards
self negligence of the deceased Mahendrakumar Narandas Patel
in causing the road accident.
4. Heard learned advocate Mr.Maulik Soni appearing for the
appellants - claimants. Also perused the impugned judgment
and award and the paper-book. Learned advocate Mr.Soni
submits that learned Tribunal has committed serious error in
counting 50% negligence of the deceased who was riding Alto car
at the time of road accident. He would further submit that
looking to the facts and circumstances of the case, at the time of
accident, the Tractor driver suddenly applied brake to the tractor
on the public road and the Alto car which was lying just behind
could not apply the brake and as such, the Alto car driven by the
deceased rammed into the tractor going ahead, resulting into
instantaneous death of the driver. He would further submit that
the learned Tribunal ought to believe that the accident took
place due to carelessness on the part of the tractor driver as he
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was not expected to apply sudden brake when he was plying the
tractor on the public road. He would further submit that the
deceased who was riding Alto car was not in a position to apply
brake as the tractor driver has applied brake suddenly resulted
into ramming of Alto car into the tractor from behind and it had
resulted into accident causing death of the deceased
Mahendrakumar. Therefore, he submits that assessing of 50%
negligence of the deceased in this peculiar facts and scenario of
accident is excessive by the learned Tribunal deserves to be
interfered.
4.1 Upon above submissions, he submits to admit this appeal.
5. At the outset, having heard learned advocate for the
claimants, let me refer to the finding of the learned Tribunal
assigning contributory negligence of the deceased
Mahendrakumar Patel - driver of the Alto car. Para 13 of the
impugned judgment and award reads as under :
"All the three issues are discussed together for the
sake of convenience and brevity. Upon perusing
the complaint produced at Exh.22 and the
Panchnama of place of offence produced at Exh.22, it is
an undisputed fact that the impugned accident had
taken place. Furthermore after briefly perusing the
panchnama it appears that M.V. Alto car has been
recovered from the spot of direction whereas the
tractor was not present on the spot and looking to the
damages sustained by the alto car, it appears that the
alto car had dashed the tractor from behind because the
front portion of the car, i.e., door on driver's side has
completely broken and front glass, bonnet,
steering had also sustained heavy damages which
clarifies the fact that the driver of the alto car, i.e., the
deceased was not driving the vehicle at a moderate
speed and he was not alert while plying his vehicle as a
result of which he was unable to notice the tractor
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on the road. Furthermore looking to the oral
deposition of driver of tractor, i.e. Opp. No.1, it is stated
by him that the alto car was came at an excessive
amount of speed from behind and got dashed
from behind on the tractor, but herein it cannot be
denied that the driver of the tractor was not
negligent, even though it is believed that he was plying
his vehicle before the arrival of the alto car driven by the
deceased but being the driver of the tractor he
should have also driven the vehicle carefully on
the sideways and he should have also remained
alert that if any other vehicle is coming from behind,
therefore both the drivers of their respective
vehicles are equally negligent for causing the
impugned accident. Therefore looking to the material
facts and documentary evidences produced on the face
of record, this Tribunal is of the opinion that both the
drivers are 50-50% negligent for causing the impugned
accident, i.e., the deceased being the driver of the alto
car is 50% negligent and Opp. No.1 being the
driver of tractor is 50% negligent for the occurrence of the
impugned accident and accordingly, this Tribunal
deems fit to answer Issue No.1 'In Partly Affirmative.'"
6. Visualizing the scene of offence more particularly reading
the FIR, Panchnama and the deposition of the tractor driver on
record, it is noticeable that the tractor was going ahead. The Alto
car driver i.e. the deceased Mahendrakumar was riding Alto car
behind back tractor at Siddhapur - Palanpur National Highway.
Noticeably, the tractor driver entered into witness bock to say
that Alto car driver could not control his car and rammed into
the tractor going ahead. Spot Panchnama, if verified, it
demonstrates brake marks of Alto car but there is no brake
marks of the tractor on record which demonstrates that the
driver of Alto car might be turned blind for some point of time
and he could have seen the tractor going ahead at the last
moment and suddenly applied the brake but could not
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successfully do so and rammed Alto car into the tractor going
ahead resulting into accident as well as his death. The claimants
did not produce any other evidence on record to rebut this fact
situation emerging from the documentary evidence. The learned
Tribunal analyzed the entire evidence on record and accordingly
answered the issue to hold that deceased is negligent upto 50%.
It is admitted position that law mandates maintaining sufficient
distance between two vehicles running in the same direction. It
is also not in dispute that the road on which two vehicles were
moving was national highway. Regulation 23 of the Rules of the
Road Regulations, 1989 reads thus :
"23. Distance from vehicles in front - The driver of a
motor vehicle moving behind another vehicle shall keep
at a sufficient distance from that other vehicle to avoid
collision if the vehicle in front should suddenly slow
down or stop."
7. The Hon'ble Supreme Court in case of Nishan Singh and
others vs. Oriental Insurance Company Limited Through
Regional Manager and others - AIR 2018 SC 2118, explained
the expression 'sufficient distance' as under :
"The expression 'sufficient distance' has not been
defined in the Regulations or elsewhere. The thumb rule
of sufficient distance is at least a safe distance of two to
three seconds gap in ideal conditions to avert collision
and to allow the following driver time to respond. The
distance of 10-15 feet between the truck and maruti car
was certainly not a safe distance for which the driver of
the maruti car must take the blame. It must necessarily
follow that the finding on the issue under consideration
ought to be against the claimants."
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8. There is no evidence on record to indicate that only the
tractor driver was plying tractor rash and negligently on the
national highway. The brake marks of the Alto car visible from
the Panchnama also indicates that the driver of the Alto car i.e.
deceased Mahendrakumar was plying Alto car at full speed, rash
and negligently and could not control his vehicle and rammed
into the tractor going ahead. No contrary evidence as observed
hereinabove is produced by the claimants to prove that the
deceased Mahendrakumar being a driver of the Alto car following
the tractor going on the same direction was not negligent.
Learned Tribunal has analyzed entire evidence on record to its
best and decided that drivers of both vehicles are negligent in
causing road accident in equal proportion. I find no reason to
interfere with the impugner order.
9. Learned advocate appearing for the appellants - claimants
could not point out any other perversity in the impugned
judgment and award which deserves interference in the first
appeal. For the reasons stated hereinabove, the first appeal
stands dismissed at admission stage in limine. The impugned
judgment and award is confirmed. Learned Tribunal is directed
to disburse the entire amount of the award to the claimants in
the proportion it has decided in the impugned judgment and
award.
10. Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
