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FA/4868/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4868 of 2010
=========================================================
RAMESHBHAI
POKERDAS KANDHARI - Appellant
Versus
KUSHBHAI
SHARADBHAI KINARIWALA & 2 - Defendants
=========================================================
Appearance
:
MR.HIREN
M MODI for
the Appellant.
None for the
Defendants.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 19/01/2011
ORAL
ORDER
Present
First Appeal has been preferred by the appellant – original
claimant challenging the Judgement and Award dtd.3/8/2010 passed by
the Motor Accident Claims Tribunal, City Civil Court No.21 at
Ahmedabad in Motor Accident Claim Petition No.179 of 2002 in so far
as holding the claimant negligent to the extent of 40% for the
accident in question.
Mr.Hiren
Modi, learned advocate appearing on behalf of the appellant –
driver of the Scooter has submitted that the tribunal has
materially erred in holding the driver of the Scooter negligent to
the extent of 40%. It is submitted that undisputedly the appellant
– driver of the Scooter, crossed the half road of
Sarkhej-Gandhinagar Highway and entered the lane for two wheeler
and, therefore, the Tribunal has materially erred in holding the
appellant – driver of the Scooter negligent to the extent of
40%. No other submissions have been made.
Heard
Mr.Hiren Modi, learned advocate appearing on behalf of the appellant
at length and considered the impugned Judgement and Award passed by
the Motor Accident Claims Tribunal, more particularly, the
discussion of the learned Tribunal on the aspect of negligence, more
particularly para 30 of the impugned Judgement and Award, which
reads as under:-
“30. Considering
the ratio of above noted authority case and as per my above
discussion and reasons, it is undisputed facts that the scooter came
from bye-road and has crossed the half road of Highway of
Gandhinagar-Sarkhej and the scooter has been entered by crossing
divider on highway road of Sarkhej-Gandhinagar and scooter was in
middle of highway road and going toward Gurudhawara approach road.
So, in the instant case the scooterist has to take care and he could
have to stop before entering on highway road that the highway road is
safe for passing. But in the instant case the half of the road has
crossed by the scooterist and at the relevant time the car was coming
on straight highway road from Sarkhej-Gandhinagar and as per the
evidence of the driver of the car, he had seen the scooter at the
distance of 25 ft. to 30 ft. so, in my view, if the motor car driver
could have taken care and caution the accident would have avoided.
So, considering the evidence is on record, in my view, in the instant
case the scooterist and the driver of the motor car opponent No.1
both are responsible for the accident. And I am relying on the
aforesaid particular authority case the decision of Hon’ble Supreme
Court reported in 2008 ACJ 2170 as discussed above and considering
the ratio of this authority case and as per my above discussion and
reasons in my view, the scooterist is responsible for contributory
negligence to the extent of 40% and the driver of the car opponent
no.1 is responsible for contributory negligence to the extent of
60%.”
It
is not in dispute that that the appellant, who was the driver of the
Scooter, came from bye-road and the Maruti Car was on the main road
and the appellant crossed half of the Highway and entered into the
same by crossing divider on Highway road and the Scooter was found
to be in the middle of the Highway road and Maruti Car was coming on
the main road and therefore, when the Scooter was coming from
bye-lane and was passing through the main road, more care and
caution was required to be taken by the appellant, who came from
bye-lane by driving scooter and was entering the main road by
crossing divider on Highway road and when the Maruti Car was on the
main road. In the facts and circumstances of the case and
considering the evidence on record, it cannot be said that the
tribunal has committed any error and/or illegality in holding the
appellant – driver of the Scooter negligent to the extent of
40%.
In
view of the above and for the reasons stated above, there is no
substance in the present appeal and the same deserves to be
dismissed and is accordingly dismissed.
[M.R.
SHAH, J.]
rafik
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