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FA/4867/2008 9/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4867 of 2008
=========================================================
G
S R T C - Appellant(s)
Versus
LILABEN
MATHURBHAI BARIYA & 3 - Defendant(s)
=========================================================
Appearance
:
MRS
VASAVDATTA BHATT for
Appellant(s) : 1,
MR MOHSIN M HAKIM for Defendant(s) : 1 - 3.
None
for Defendant(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/10/2008
ORAL
ORDER
1. Heard
learned advocate Mrs.Vasavdatta Bhatt on behalf of appellant and
learned advocate Mr.M.M.Hakim appearing on behalf of
respondents-claimants. In First Appeal, the Corporation has
challenged the award passed by Claims Tribunal, Vadodara in
M.A.C.Petition No.1762 of 1999 vide Exh.29 dated 21.06.2007. The
Claim Tribunal has awarded Rs.4,09,000/- in favour of
respondent-claimants with 7.5 per cent interest.
2.
Learned advocate Mrs.Vasavdatta Bhatt submitted that Claims Tribunal
has committed gross error in not deciding contributory negligence of
driver of Tempo. She submitted that driver was examined before the
Claim Tribunal and he gave the evidence even though, his evidence was
not relied or believed by Claims Tribunal. She submitted that
accident occurred because of rashness and negligence of Tempo driver
not the negligence of S.T.Bus driver. She submitted that very
S.T.Bus, one motor-cycle was going ahead and Tempo was coming from
opposite side with excessive speed dashed with motor-cycle and then
dashed with S.T.Bus and that is how the Tempo was turned turtled in
the said accident. Even though Claims Tribunal has decided the matter
holding negligence of S.T.Bus driver, which is contrary to record.
She read over the statement of driver recorded by police and she read
the Panchnama before this Court.
3. Learned
Advocate Mr.Hakim appearing on behalf of respondents-claimants
submitted that Claims Tribunal has rightly examined the question of
negligence and there was no contributory negligence of driver of
Tempo because S.T.Bus driver while overtaking motor-cycle, the bus
driver was dashed with Tempo, which resulted into serious accident
and Tempo was turned turtle that is how accident occurred. Looking
to the Panchnama, it is clear that motor-cycle was lying on the road
inside at the gate of S.T.Bus of Conductor side, therefore according
to his submission that S.T.Bus driver was 100% negligent because he
overtake motor-cycle and while overtaking motor-cycle, he dashed with
Tempo and accident was occurred. He submitted that evidence of
driver before Claim Tribunal, is contrary to Panchnama and Complaint,
filed by owner of vehicle. Therefore according to his submission,
Claims Tribunal has rightly examined issue of negligence and for that
no interference is required.
4. I
have considered submissions made by both learned advocates while
perusing award in question. The accident occurred on 23.07.1999,
deceased Mathurbhai Janabhai Bariya was a driver of Tempo bearing
Registration No.GJ-6U-697 going from Kharivav to Bodeli on correct
side of road with moderate speed and at about 2.15 p.m. in the
afternoon, deceased Mathurbhai Janabhai Bariya was passing from
Manjipura village to Raj Marble Factory at that time opponent No.1 ?
S.T. bus driver bearing Registration No.GJ-18-V-4088 was came in
full speed with rash and negligent manner, while overtaking the
motor-cycle, the driver of S.T.Bus lost his control and dashed in
front of Tempo and as a result of this, Tempo turned turtle in it and
deceased Mathurbhai Janabhai Bariya was died while giving treatment
to Mathurbhai.
5. The
complaint regarding accident lodged against opponent No.1 vide I-CR.
No.47 of 1999 at Bodeli Police Station. The age of deceased was 30
years and was earning Rs.3,500/- per month as a driver. The widow and
minor children are left behind deceased. No other source of income of
family, therefore, claim was made of Rs.5,00,000/- before the Claims
Tribunal.
6. The
S.T. Corporation has filed reply at Exh.13 and thereafter issues were
framed by Claims Tribunal and then examined the matter. In para ? 8
the Claims Tribunal has discussed the issue of negligence while
considering the complaint and Panchnama at Para ? 8 and 9, which
are reproduced as under :-
Para
– 8
?SIn
the present case, considering the argument advanced by both the
learned advocate for the respective parties in order to prove the
facts of accident, the appellants have produced F.I.R., Panchnama on
perusal of respective FIR. It is clear mentioned herein that the
driver of the S.T.Corporation dashed with the Tempo resulted the
driver of the Tempo was died on the spot. The other side has not
denied the said accident. In Para ? 4 of the written statement
filed by the opponent No.2 that the true fact is that before the
accident, there was a sound from the tyre of the Bus and immediately
the said Bus stopped on extreme side of the road and at that time,
the deceased came with his Matador and dash the S.T.Bus on the front
of the driver side. The said vehicle was driven rashly and
negligently by the deceased, who caused the said accident, therefore,
there was a contributory negligence on the pat of deceased and is
found liable to cause the said accident. During the argument, learned
advocate for opponent No.2 has relied upon the authority 2000 ACJ
? 557 S.C. in the case of Gurmit Kaur and another v. State of
Haryana and others. Further, the driver of the ST Bus is examined
at Exh.26, he has deposed that at the day of accident, he was driving
a Bus bearing Registration No.GJ-18-V-4088 the said bus was Navsari
to Modasa while he was reaching Bodeli and thereafter going to
Kakroli, one Motorcycle was going ahead and at that time one Matador
came with full speed and dashed with the Bus, at the time his bus was
slowly driven by him. In the cross-examination of applicant’s
advocate, he has stated that Matador came in his side. He has denied
that he was negligently driving the bus, he has also denied that he
was trying to overtake Motorcycle and therefore, ST Bus dashed with
the Tempo. Considering the said aspects of the case, it is an
admitted facts that two vehicles were collided with each other. The
applicants specifically came with the case and the ST Bus driver
while overtaking Motorcycle and at that time the deceased came with
his Tempo and therefore, the ST Bus dashed with the Tempo. The said
fact is supported by the FIR, FIR is given by the conductor of
Matador who was also injured in the said accident. No other evidence
is produced by the opponent to rebutting the said aspect at this
juncture and therefore, I have no other way to decide the said issue
that the opponent No.1 was negligent and therefore the accident was
occurred.??
Para
– 9
?SNow,
it is the say of the applicants that due to alleged accident,
deceased Mathurbhai sustained serious succumbed injuries and hence,
he died at the time of treatment. In support of this, applicants have
produced P.M.Note at Exh.21, it appears that cause of death of
deceased Mathurbhai was due to injuries as shown in P.M.Note.
Therefore, applicants have proved that the accident had happened as
alleged by them and due to said accident, deceased sustained serious
succumbed injuries and died. Hence my finding to issue No.1 is
affirmative accordingly.??
7. Looking
to discussion, the Claims Tribunal has considered the evidence of
driver as well as Panchnama and complaint. The Claims Tribunal has
come to conclusion that S.T.Bus was going from Navsari to Modasa
while he was reaching Bodeli village and thereafter going to
Kankroli, one Motorcycle was going ahead and at that time, one
Matador came from opposite side at that occasion, S.T. Bus dashed
with Tempo, this fact has been supported by FIR given by owner of
Tempo, after receiving information from cleaner of Tempo, who was
injured in the said accident. Except the driver of S.T.Bus, no other
person was examined before Claims Tribunal by appellants. The FIR was
filed by owner of Tempo, but after receiving information from who was
an eye witness ? cleaner injured and then he lodged the FIR before
Bodeli Police Station. Therefore, Claims Tribunal has rightly
considered panchnama and FIR thereafter come to conclusion that it is
not case of contributory negligence of Tempo driver, proved before
Claims Tribunal. On the contrary, looking to FIR and Panchnama, the
accident has been occurred due to rash and negligence driving of
S.T.Bus driver. It is also necessary to consider as mentioned in
Panchnama that after the accident, about 30 ft. brake-marks of
S.T.Bus it itself suggests the rashness and negligent driving of
S.T.Bus driver otherwise there was no question or reasons of sudden
brake-mark up to 30 ft. Therefore, Claims Tribunal has rightly
considered the Panchnama. Therefore, according to my opinion, finding
given by Claims Tribunal on the issue of negligence, is correct and
it can not be considered to be contrary to record and evidence of
driver Exh.26 is not reliable because he was not narrated the correct
facts and it was a contrary to the Panchnama and FIR. According to
S.T.Bus driver Madhavlal came in his side means opposite side and
that was not the fact because Matador was turned turtle on left side
of bus not of right side. Therefore, impact from S.T.Bus to Matador,
which resulted into turned turtle on left side of Matador. The
Motorcycle was lying inside at conductor’s side ? gate of S.T.Bus,
which apparently proved that S.T.Bus wants to overtake motorcycle and
while overtaking motorcycle, S.T.bus was going little bit on right
side and at that moment from opposite side, the Matador was came and
bus was dashed with Matador and due to heavy impact, the Matador was
turned turtle. Therefore, Claims Tribunal has not committed any error
in coming to such a conclusion while deciding issue No.1. Therefore,
contention raised by Mrs.Vasavdatta Bhatt can not be accepted and
rejected.
8. Learned
Advocate Mrs.Vasavdatta Bhatt has not raised any other question about
quantum awarded by Claims Tribunal, therefore, that question is not
considered and examined by this Court.
9. In
view of aforesaid observation made by this Court while considering
reasoning given by Claims Tribunal, according to my opinion, Claims
Tribunal has rightly examined matter and therefore, no interference
is required as there is no substance in present appeal.
Today
First Appeal is dismissed by this Court. Hence, no order is required
to be passed on Civil Application and is accordingly disposed of.
The
amount deposited by Corporation, if any, the registry of this Court
is directed to transmit the same immediately to the concerned Court.
[H.K.RATHOD,J.]
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