Gujarat High Court
Gujarat State Road Transport ... vs Vankar Rupaben Wd/O Dudhabhai ... on 17 April, 2025
NEUTRAL CITATION
C/FA/3293/2011 JUDGMENT DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO.3293 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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GUJARAT STATE ROAD TRANSPORT CORPORATION
Versus
VANKAR RUPABEN WD/O DUDHABHAI RATNABHAI & ORS.
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Appearance:
MR HARDIK C RAWAL(719) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 8
MR HG MAZMUDAR(1194) for the Defendant(s) No. 8
MR R.K.MANSURI(3205) for the Defendant(s) No. 1,2,3,4
RULE NOT RECD BACK for the Defendant(s) No. 6,7
RULE UNSERVED for the Defendant(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 17/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Hardik Rawal for the
appellant while learned advocate Mr. H. G. Mazmudar
for respondent No. 8 and learned advocate Mr. R. K.
Mansuri for respondent Nos.1 to 4. Rule could not be
received back so far as respondent Nos. 6 and 7 are
concerned while rule could not be served upon
respondent No.5. Perused the record.
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2. The challenge in the present appeal is by the appellant -
S.T. Corporation challenging the judgment and award
dated 29.8.2009 passed by learned Motor Accident
Claims Tribunal (Main), Sabarkantha @ Himmatnagar in
M.A.C.P. No.255 of 1998.
3. The facts in brief of the case are as under:
* On 13.8.1997, deceased Dudhabhai
Ratanbhai Vankar, driver of ST bus was proceeding to
Modasa from Navsari by driving his bus. At that time,
one truck No.UAS-4827 was standing in a stationary
condition without any indicators or reflectors on Halol-
Kalol road and, therefore, ST bus dashed with the
stationary truck from behind. Resultantly, the deceased
Dudhabhai sustained serious injuries and succumbed.
Some of the passengers of ST bus also sustained
injuries.
* Claimants being the legal heirs of the
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deceased filed claim petition for a compensation of
Rs.14,00,000/- from the opponents. Opponents were
served with summons. Opponent no.1 was deleted
while opponent No.2 - owner of the truck did not
remain present. Opponent No.3 - insurance company
of the truck contested the claim petition by filing
Written Statement at Exh.19. Opponent No.4 - ST
Corporation appeared and filed Written Statement at
Exh.43. After framing of issues, claimant No.1 - widow
of deceased submitted her deposition at Exh.71 and
produced FIR, Panchnama, PM report and other
documents in support of claim petition.
* After considering the evidence, learned
Tribunal partly allowed the claim petition by holding
that the driver of ST Bus - the deceased was negligent
to the extent of 80% and driver of truck to the extent of
20%. Opponent Nos.2 and 3 - owner and insurance
company of truck were directed to pay compensation
of Rs.1,04,284/- to the claimants and opponent No.4 -
ST Corporation was directed to pay compensation of
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Rs.4,17,136/- to the claimants with interest @ 6% p.a.
from the date of application till realisation.
* Being aggrieved and dissatisfied with the
impugned judgment and award, the appellant - ST
Corporation has filed the present appeal.
4. Learned advocate for the appellant has submitted that
the appellant is not pressing apportionment of
negligence in this appeal and the challenge is only
limited to the question of directing the ST Corporation to
pay compensation for the negligence of the driver of ST
bus. It is submitted that the learned tribunal has erred in
fastening upon the liability of compensation for the loss
of life of the driver of ST bus. It is further submitted that
when the tribunal has found driver of ST bus negligent
to the extent of 80%. For his own wrong, the Corporation
may not be fastened with the liability to pay
compensation. In support of his submission, he has
relied upon the following decisions:
(a) Gulamrasul Rehman Malek v.
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G.S.R.T.C. reported in 2013(0) GLHEL-
HC-230345 (Paragraph Nos.7 & 8 were
pressed into service)
&
(b) Tamil Nadu State Transportation
Limited v. Natarajan reported in 2003
(0) GLHEL-SC 31612 (Paragraph No.9
was pressed into service).
5. It is also submitted by learned advocate for the
appellant that the claimants of the claim petition have
not challenged the apportionment of negligence by way
of any appeal or cross objections.
6. Per contra, learned advocate for the respondent Nos.1
to 5 submitted that the learned tribunal has erred in
holding driver of ST bus negligent to the extent of 80%.
Considering FIR and Panchnama, the driver of the truck
was solely negligent as he had parked the truck in the
middle of the road without any indicator. Resultantly,
the accident occurred. There is no negligence on the
part of the driver of ST bus in the commission of
accident. It is further submitted that under the
provisions of Workmen Compensation Act also, the
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claimants are entitled to compensation and this Court
may consider the claim petition under the provisions of
Workmen Compensation Act and award compensation
against the ST corporation. It is fairly contended by
learned Advocate for the respondent that claimants
have not filed any application under the provisions of
Workmen Compensation Act.
7. Learned Advocate for respondent No.8 - insurance
company has submitted that the amount of 20% of the
total compensation has been deposited before the
learned tribunal and in absence of any challenge with
regard to apportionment of negligence by the claimants,
the apportionment of negligence which has been arrived
at by learned Tribunal after considering the evidence on
record may not be disturbed.
8. I have considered the rival submissions of the respective
parties and also perused the Record and Proceedings.
9. The question which is under consideration in the First
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Appeal is limited. The appellant has given up the
challenge of apportionment of negligence and the only
question remains for consideration is that when the
driver of ST bus is found negligent to the extent of 80%,
whether ST corporation can be fastened upon with the
liability to compensate the claimants who are the legal
representatives of the driver of ST bus. The learned
tribunal has considered the Panchnama of the place of
accident. I have carefully perused the Panchnama of the
place of accident which is produced at Exhibit 35.
10. It appears from the Panchnama that the entire front
portion of the ST bus is smashed and the front portion
upto the cabin part has been torned and the front
portion of the bus is also broken and found on the road.
Even the left side of the bumper of the bus is also
damaged. The steering meter part and seat of the driver
is also broken. In short, the condition of the bus is such
that the driver of the bus was driving the bus at a very
excessive speed. Undisputedly, the truck was found
stationary on the road damaged and after the impact of
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the bus from behind, the truck was pushed to the road
side. It was found on road ditch.
11. The complaint which is lodged by the passenger of the
bus which is produced on record which indicates that
drivers of both the vehicles were negligent in the
occurrence of accident. It is interesting to observe that
though the claimants at this stage are alleging that
driver of the truck was sole negligent in the accident,
has reasons best known to them, deleted from the array
of parties in the claim petition.
12. It appears that when learned tribunal has found driver of
the bus negligent to the extent of 80%, the claimants
are taking somersault before this Court and now coming
out with a case that it is the sole negligence of the
driver of the truck who had parked the truck on the
middle of the road. Such contention at this stage is
rejected.
13. This court is fully conscious about the fact that the Claim
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Petitions under Motor Vehicles Act are benevolent in
nature but at the same time Court cannot shut its eyes
when the conduct of claimants are to be considered. If
the claimants are so concerned about the
apportionment of negligence being imposed upon driver
of the bus, claimants ought to have challenged the
apportionment of negligence. Initially, insurance
company and truck driver were not joined as party from
1998 to 2002. By not challenging the apportionment of
negligence, claimants are now stopped from raising the
contention of wrong apportionment of negligence after a
period of 16 years.
14. The issue involved in the present appeal is no more res
integra in the decisions of Gulamrasul Rehman Malek
(Supra) & Tamil Nadu State Transportation
Limited (Supra) of the appellant being himself the
driver cannot take advantage of his own wrong nor can
he claim any compensation against himself unless such
claim is covered by any insurance on payment of
premium. In the case of Tamil Nadu State Transport
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Corporation Limited (Supra), in paragraph No.9,
Hon'ble Apex Court has discussed an issue pertaining to
a wrong committed by the driver himself and the law
pertaining to the claim application of a driver who was
found contributory negligent in the happening of the
accident.
15. Considering the law laid down in the aforesaid decisions,
I am of the view that the driver of the ST bus who was
found negligent cannot have the benefit of his own
wrong and can claim compensation from ST Corporation.
The compensation to the extent of 20% can be
recovered from the insurance company of the truck who
has already deposited their part of compensation.
16. In view of above, the judgment and award dated
29.8.2009 passed by learned Motor Accident Claims
Tribunal (Main), Sabarkantha @ Himmatnagar in
M.A.C.P. No.255 of 1998 holding appellant ST
Corporation liable to pay compensation of Rs.4,17,136/-
with interest at the rate of 6% per annum is quashed
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and set aside.
17. The award of recovery of compensation of Rs.1,04,284/-
with interest at the rate of 6% per annum against the
owner and insurance company of the truck to remain
unaltered.
18. In view of above, first appeal is allowed accordingly. R &
P, if any, to be sent back to the concerned Court
immediately. Consequently connected application/s, if
any, also stands disposed of.
(D. M. DESAI,J)
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