[Cites 1, Cited by 0]
Gujarat High Court
Gujarat State Road Transport ... vs Lhr Of Decd Mumtazben Hamidbhai Sipai ... on 27 February, 2026
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C/FA/356/2023 JUDGMENT DATED: 27/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 356 of 2023
With
R/FIRST APPEAL NO. 369 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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GUJARAT STATE ROAD TRANSPORT CORPORATION THROUGH
CHAIRMAN
Versus
LHR OF DECD MUMTAZBEN HAMIDBHAI SIPAI PARMAR & ORS.
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Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Defendant(s) No. 1.1,1.2
MS HINA DESAI(1023) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 2,4
UNSERVED EXPIRED (R) for the Defendant(s) No. 1.3
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 27/02/2026
COMMON ORAL JUDGMENT
1) The present First Appeals, under Section 173 of the Motor
Vehicles Act, 1988, are preferred by the appellant- Gujarat
State Road Transport Company being aggrieved and
dissatisfied with the impugned common judgment and award
dated 29.9.2021 passed by the Motor Accident Claims Tribunal,
Patan, in MACP No.156 of 2013 and 20 of 2014 by which the
Tribunal has awarded compensation to the claimants as stated
in the impugned judgment and award holding the opponent
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C/FA/356/2023 JUDGMENT DATED: 27/02/2026
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nos.1 to 4 liable to pay the compensation and exonerating the
opponent no.5-insurance company.
2) As common question of facts and law are involved in the
present first appeals, with the consent of learned advocates for
the parties, both the appeals are disposed of by this common
judgment.
3) Heard Mr. H.S.Munshaw, learned Advocate for the appellant-
GSRTC, Mr. Ankit Shah, learned advocate for defendant Nos.1.1
and 1.2 and Ms. Hina Desai, learned advocate for defendant
No.5. Though served, none appears for defendant Nos.2 and 4.
Perused the original record and proceedings.
4) It is the case of the appellants that the deceased/injured and
other persons were going on 30.1.2013 from Gilosan in Tata
Ace bearing registration No.GJ.2Z.4699 which is generally
known as ' Chhota Hathi', (for short, Chhota Hathi') from Varahi
to Bamroli and went to Dargah and after finishing the religious
procedure, they were coming back in the above mentioned
Chhota Hathi back to Gilosan, at that time, the said vehicle was
being driven on the correct side of the road; at that time, the
driver of ST Bus No.GJ.18.Y.1825 came from Himmatnagar-
Radhanpur with his bus driving the same in a rash and negligent
manner and dashed with the chhota hathi on the Harij-Sami
road near Jilvana village and caused serious accident, wherein
some persons died and some suffered grievous injuries.
Therefore, the claim petitions were filed by the claimants
claiming compensation.
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5) The appeals are filed on limited ground of only contributory
negligence. Therefore, learned counsel for the appellant has
mainly argued that, the Tribunal has erred in not taking into
aspect of the fact that the bus of the aappellant was driving at
a permissible speed and there was no evidence on record to
prove the rash and negligent driving of bus driver. It is also
submitted that the FIR and chargesheet were filed by the
police against the driver of Chhota Hathi and not against the ST
Bus Driver, which shows that the negligence was on the part of
the deceased and not on the part of the driver of ST bus. It is
also pertinent to note though Chhota Hathi tempo was goods
vehicle and not a passenger travel vehicle, the said Chhota
Hathi was taking about 40 passengers which is very more than
the average capacity. Further, the Tribunal admitted the fact
that ST bus was going on correct side and Chhota Hathi was
coming from wrong side, however, wrongly held the ST bus
negligence to the extent of 70%. Therefore, he has prayed to
modify the judgment and award accordingly.
6) Learned advocate Ms. Desai appearing for the respondent no.5
has submitted that the Tribunal has exonerated the insurance
company from the liability to pay the amount on the ground
that there are more than 40 persons travelling in the chhota
hathi and therefore he cannot be fastened with any liability and
there is no chance to pass any award against him as,
considering the admitted fact that at the time of accident, in
chhota hathi about 40 persons were travelling and therefore
there is clear breach of the terms of policy and therefore the
company is rightly exonerated and this Court may pass
appropriate order as insurance company is not liable to pay any
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amount of compensation.
7) Learned advocate Mr.Shah appearing for the claimants have
submitted on the aspect of negligence that the principle of res
ipsa loquitor is required to be considered in the proper context
in the facts and circumstances of the case. He has submitted
that though the driver of the ST bus has deposed before the
learned Tribunal but the ST driver-Jagatsinh Kalsinh Rathod
who was examined at Exh.188 and the ST bus conductor-
Chavda Nathekhan Muradkhan deposed at Exh.189 have clearly
stated that at the time of accident, they have seen the Chhota
hathi from the long distance but driver could not see how many
passengers were sitting in the same and as there were winter
days and late evening, he was not in a position to see that how
many passengers were sitting in the chhota hathi. Therefore, it
seems that both the vehicles have contributed to the accident
and therefore he has submitted that the learned Tribunal has
rightly considered the negligence from the material available
on the record. Considering the fact that ST bus is a bigger
vehicle, 70% is rightly attributed and 30% is rightly attributed
to the chhota hathi, otherwise, for the claimants, it is a case of
composite negligence and therefore the claimants can recover
any amount from any of the tort feasors and therefore he has
submitted that the appeals are meritless and considering the
totality of the facts and circumstances of the case, negligence
can be attributed to the vehicle chhota hathi but ST bus cannot
claim that there is 100% negligence of the chhota hathi.
Therefore, he prays to dismiss the appeals on the ground of
negligence.
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8) Having heard learned counsel for the parties and perusing the
evidence placed on record, it appears that both the vehicles
were in excessive speed and are found rash and negligent and
it clearly transpires that there is more negligence which has to
be attributed to the chhota hathi vehicle than the driver of the
ST bus, considering the FIR, panchanama, deposition of various
witnesses, photographs, and therefore, there is a point in the
argument of learned advocate Mr.Munshaw that in every case,
the ST bus cannot be saddled with the more liability only
because that is a big vehicle and it has to be more careful and
considering the material available on record, it is found that
Tata Ace is more negligent, then ST bus and considering the
brake marks found of both vehicles, which are driven in
excessive speed, this Court is of considered view that 60%
negligence should be attributed to the Tata Ace chhota hathi
and 40% should be attributed to the ST bus.
9) It is also pertinent to note that coordinate Bench of this Court
also in First Appeal No.327/2023 arising out of same accidednt,
considering the documentary evidence produced on record,
held 60% negligent on the part of the TATA Chhota Hathi
tempo and 40 % negligent on the part of ST Bus.
10) In view of the above and without further elaboration, this Court
is of the considered opinion that the driver of the S.T. bus was
negligent to the extent of 60% and the driver of the Tata Ace
(Chhota Hathi) was negligent to the extent of 40% in causing
the accident. Accordingly, the common impugned judgment
and award dated 29.09.2021 passed by the Motor Accident
Claims Tribunal, Patan, in MACP Nos. 156 of 2013 and 20 of
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2014 stands modified to the aforesaid extent. The appellant -
S.T. Corporation is entitled to recover additional 10% of the
amount so deposited from the driver and owner of the Tata
Ace, in accordance with law. Rest of the directions given in the
impugned judgment and award shall remain unaltered. While
disbursing the amount, the Tribunal shall deduct the court fees,
if not already paid, in accordance with the applicable rules and
law. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(HASMUKH D. SUTHAR,J)
SUCHIT
