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FA/1216/1993 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1216 of 1993
With
FIRST
APPEAL No. 1217 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKSHAY H.MEHTA
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ALIMIYA
MAHMADMIYA BELIM & 1 - Appellant(s)
Versus
GOPALBHAI
JUTHABHAI SATHWARA & 2 - Defendant(s)
=========================================================
Appearance
:
MR
MUKUND M DESAI for
Appellant(s) : 1 - 2.
NOTICE SERVED for Defendant(s) : 1 - 2.
MR
BH BHAGAT for Defendant(s) : 3,
MR PV NANAVATI for Defendant(s) :
3,
MR VIBHUTI NANAVATI for Defendant(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKSHAY H.MEHTA
Date
: 08-09/01/2007
ORAL
JUDGMENT
Both
these appeals arise from common judgment and award made by the Motor
Accident Claims Tribunal [Main], Mehsana dated 31/1/1990 in M.A.C.
Petitions No. 722/1984 and 723/1984. So far as the Claim Petition No.
722/1984 is concerned, it is filed by the parents of the deceased
for claiming compensation on account of death of their son; whereas
Claim Petition No. 723/1984 has been filed for claiming damage caused
to the property i.e., vehicle owned by the deceased Chandmiya.
2. The
accident in question took place on 28/6/1984 around 2.15 p m on
Mehsana- Ahmedabad Highway near village called Ganeshpura. Deceased
Chandmiya Belim, who owned Matador Truck bearing registration No. GTK
4321 was proceeding from Ahmedabad to Mehsana; whereas the other
vehicle namely, Truck bearing registration No. GTW 3556 was
proceeding from Mehsana to Ahmedabad. It is averred by the appellants
that respondent no. 1, who drove the truck, was rash and negligent in
driving and as a result of the same, the accident occurred. The son
of the appellants ? Chandmiya received serious injuries and he was
removed to the hospital, but subsequently died during treatment. His
vehicle was also extensively damaged. In view of the same, the
appellants preferred aforesaid petitions before the Tribunal. The
appellants claimed a sum of Rs.72,000/- for the death of their son;
whereas in petition for damage to the vehicle, they claimed
Rs.51,000/-.
2.1. At
the hearing of the proceedings, witnesses were examined by the
parties so also the documentary evidence was produced. The Tribunal,
however, did not place any reliance on the oral evidence of the
parties, but extensively referred to the panchnama of scene of
occurrence as well as the photographs of the vehicles at the scene of
occurrence. By comparing both the pieces of documentary evidence, the
Tribunal concluded that there was 50% negligence on the part of each
driver. So far as the compensation is concerned, the Tribunal
assessed the just compensation as Rs.72,000/- for the death of the
son of the appellants, but deducted 50% from the same on account of
his driver’s negligence and awarded a sum of Rs.36,000/-. Similarly
in Claim Petition No. 723/1984, the Tribunal concluded that the
damage to the vehicle was caused to the extent of Rs.26,000/-, but
since there was 50% negligence of the deceased, Rs.13,000/- is
required to be deducted. Hence, the Tribunal awarded a sum of
Rs.36,000/- and Rs.13,000/- respectively in both the claim
petitions.The appellants have now approached this Court by filing
these appeals only to challenge the finding regarding negligence
determined by the Tribunal.
3. I
have heard Mr. Jayraj Chauhan, learned advocate appearing with Mr.
Mukund Desai for the appellants in both the appeals and Mr. VP
Nanavati, learned advocate for the respondent ? Insurance Company.
Respondent nos. 1 and 2 are served, but they are absent. According to
Mr. Chauhan, the Tribunal has committed error in not properly
appreciating the contents of panchnama. He has submitted that even by
comparing the two documents, namely the panchnama and the
photographs, it will be clearly seen that it was the truck driven by
respondent no. 1 which had travelled extremely on wrong side and has
caused accident. He has submitted that the finding of the Tribunal
with regard to contributory negligence of the deceased is not
supported by any of the documentary evidence. He has, therefore,
submitted that the Tribunal ought to have awarded full amount
without holding the deceased liable of contributory negligence.
Lastly, he has submitted that the multiplier adopted by the Tribunal
is on lower side even considering the respective aged of appellants
no. 1 and 2. In his submission, the Tribunal ought to have applied
the multiplier of 12.
3.1. As
against that, Mr. Nanavati, learned advocate for the respondent ?
Insurance Company, has supported the judgment and has submitted that
there is no any scope for any interference by this Court and the
Tribunal has awarded just and proper compensation to the appellants.
4. I
have closely perused the record and proceedings of the case including
the judgment of the Tribunal. As stated above, the Tribunal has
completely relied on the documentary evidence and has discarded the
oral evidence. There is panchnama of scene of occurrence at Exh. 44.
It reflects the position as well as the condition of the vehicles
immediately after the occurrence. Minute details have also been
mentioned in the panchnama. At the same time, the parties have
produced photographs at Exh. 77. The Tribunal has compared the
versions of the accident as they are emerging from the panchnama as
well as the photographs. From the panchnama it clearly appears that
the vehicle, namely the truck had left its correct side and had
dashed against the on-coming vehicle, namely the matador driven by
the witness Mahmad Haroon. Unfortunately the photographs which have
been produced at Exh. 77, have been destroyed by the concerned
Tribunal as can be seen from the communication addressed by the
Principal District Judge, Mehsana, to the Registrar of this Court,
dated 10/10/2006. The said communication is sent in view of the order
passed by this Court dated 8/8/2006, whereby registry of this Court
has been directed to call for the complete set of records and
proceedings of the case by observing that Exh. 77 is a crucial
document and that was not available. It is rather unfortunate that
even when the appeals are pending before this Court, vital document
such as Exh. 77 has been destroyed. The things do not rest at that.
The slip affixed on the record despatched by the concerned Tribunal
also shows that documents at Exhs. 2 to 28, Exhs. 30 to 35 and Exhs.
67 to 89 have also been destroyed. The record despatched to this
Court even does not contain the panchnama of the scene of occurrence,
which is at Exh. 44. The learned advocates appearing for the parties
also do not have the copies of the photographs that have been
produced in the proceedings. Mr. Chauhan has, however, furnished copy
of the panchnama to the Court to enable it to decide the matter. In
these circumstances, I have no other option but to decide the appeals
on the basis of the panchnama alone so far as the documentary
evidence is concerned. The oral evidence has been perused by me. It
comprises the evidence of Alimiya Mahmadmiya witness no. 1 for the
applicant Exh. 67, who is father of the deceased, Mahmad Haroon
Jafarhusen ? witness no. 2 for applicant ? Exh. 73, who was
driver of the matador at the relevant time and Gopal Jutha Exh. 84 ?
witness no. 1 for the respondents, who was driving the truck at the
time of accident. Alimiya Mahmadmiya is not an eye witness. Mahmad
Haroon Jafarhusen has stated that on the date of accident he was
driving the matador. Along with him, the deceased i.e., the owner of
matador and the cleaner Salimbhai Pathan were also travelling. The
witness has stated that they were going from Ahmedabad to Mehsana
i.e., from south to north. He was driving his vehicle at a moderate
speed i.e., at the speed of 40 KMs per hour. When they reached near
the sign board of village Ganeshpura, a truck came from the opposite
direction. According to the witness, it was driven at excessive
speed and also on the wrong side of the road. It dashed against the
matador. The deceased, who was sitting on the left of the witness,
sustained serious injuries. He was immediately removed to Mehsana
Civil Hospital, but he was declared dead. This witness has further
stated that the accident occurred due to negligent driving of the
driver of the truck. He has stated that the truck dashed against the
matador on the left front side of the vehicle and caused extensive
damage. In the cross-examination, it has been suggested to him that
the truck was damaged on the left front side, but he has denied it.
According to him, damage was caused to the truck on the right hand
side in front. He has been asked that what he had to say about the
contents of the panchnama wherein it has been stated that the truck
was damaged on the left front side, but the witness has said that he
would not be in a position that why that was so written. He has
specifically stated that it was the driver of the truck who was
prosecuted for causing death by rash and negligent driving. He has
denied the suggestion that the accident occurred due to his
negligence. He himself had received injury on the right hand and he
has produced medical certificate at Exh. 74.
4.1. So
far as witness Gopal Jutha, driver of the truck, is concerned, though
he had stepped into the witness box and his examination-in-chief was
recorded, he never turned up for the cross-examination. In view of
the same, there is no point in discussing his evidence or placing any
reliance on it. Thus, there is sole testimony of Mahmad Haroon
available on record so far as the actual accident is concerned. So
far as the panchnama is concerned, it narrates that the front side of
the matador was damaged. It also describes that most of the damage
was on the right side of the matador. The road at this place appears
to be tar road having width of 22 ft. It states that the matador’s
front right side wheel was about 2 ft. and 9 inch on the tar road
from the eastern border of the road. So far as the truck is
concerned, it is stated that the right side wheel of the truck was at
a distance of about 3 ft. from the western edge of the road; whereas
the left wheel was at a distance of about 13 ft. from the eastern
edge of the road.
4.2. The
oral testimony of driver of the matador as well as the complaint and
the panchnama sufficiently show that it was driver of the truck which
left its correct side and had gone on the wrong side. The position of
the matador shows that its driver had taken the vehicle to his
extreme left to avoid any collision. In view of the same, the
testimony of Mahmad Haroon, the driver of the matador, appears to be
true. When the oral testimony of a person, who was an eye witness to
the incident is available on record, the Tribunal ought to have
placed reliance on it. It has committed error in discarding it. This
stand is adequately supported by the panchnama also. The Tribunal has
unnecessarily discarded this piece of evidence and has tried to draw
the conclusion on the basis of the comparison between two documentary
evidence, namely the panchnama and the photographs. As stated above,
the photographs are not available. Merely because there is some
variance between the photographs and panchnama, the Tribunal could
not have ignored the oral testimony of the driver of the matador and
could not have jumped to the conclusion that there was negligence of
both the sides to the extent of 50% each. Such finding is erroneous.
The evidence of Mahmad Haroon inspires confidence. He has not been
effectively cross-examined. Therefore, his version of the accident is
required to be accepted.
5. Considering
the aforesaid discussion, I am of the opinion that the driver of the
matador was not at all at fault. It was the driver of the offending
vehicle, namely the truck, who was responsible for causing the
accident. The finding regarding 50% negligence on the part of the
driver of the matador is, therefore, quashed and set aside. It is
held that the fault of the truck driver is 100%.
Further
considering the age of the appellants, the multiplier applied by the
Tribunal is proper and Mr. Chauhan’s submission on that count cannot
be accepted.
6. The
appellants have restricted the appeals only to the finding with
regard to the 50% negligence having been attributed to them. The
appeals are, therefore, allowed together with costs and the Insurance
Company is directed to deposit the balance amount of 50% together
with proportionate costs and interest at the rate of 12% p a from the
date of petition till realization.
R & P to be retransmitted to the concerned Tribunal forthwith.
[
Akshay H Mehta, J. ]
*
Pansala.
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