Gujarat High Court Case Information System
Print
FA/435/1988 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 435 of 1988
=========================================================
GUJARAT
STATE ROAD TRNASPORT CORPORATION - Appellant(s)
Versus
JASHODABEN
WD/O.ISHWARBHAI SHIVABHAI PADHIYAR & 1 - Defendant(s)
=========================================================
Appearance
:
MR
MD PANDYA for
Appellant(s) : 1,
MR JITENDRA M PATEL for Defendant(s) :
1,
DELETED for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 07/08/2008
ORAL
ORDER
Heard
learned advocate Ms. Maya Desai for learned advocate Mr. MD Pandya
on behalf of appellant, learned advocate Mr. JM Patel appearing for
respondent.
In
the present appeal, GSRTC has challenged award passed by Motor
Accident Claims Tribunal, Baroda in MACP no. 971/1984 dated
12/8/1987. The Tribunal has awarded Rs. 71,000/- with 12% interest
in favour of respondent claimants.
The
contention raised by learned advocate Ms. Desai that ST bus was not
involved in this accident. She also submitted that there is no
straight road, but curve on the way, therefore, bus driver is not
responsible for the said accident.
I
have considered contentions raised by learned advocate Ms. Desai,
Tribunal has examined question of negligence on the basis of
evidence on record. The issue no. 1 is decided in para 10 and
according to Tribunal, while considering evidence of Ramanbhai
Desai, during cross examination, it becomes also clear that he was
in a position to see accident that though road is wild enough to
allow three vehicles to pass simultaneously dash was given to
cyclist by the bus. Though, respondent no. 1 driver Ashokbhai
Solanki was examined vide exh 30, Tribunal after considering his
evidence, come to conclusion in para 20, 21, 23 and 24, where
relevant discussion is made by Tribunal, which are quoted as under:
?S20.
… But when a reference is made to the WSS at Exs. 14 and 16 it
becomes clear that a clear-cut contention has been taken in para No.
12 to the effect that a slight dash was given by the cyclist to the
ST Bus on the left rear portion. In view of this position, the
entire say of the opponent no. 21 at Ex. 30 becomes unbelievable.
The conclusion therefore, would be that the say of the opponent no.
1 at Ex. 30 is clearly an after-thought. It must be accepted
without any hesitation that the accident had occurred by the
abovesaid bus which was being driven by the opponent no. 1 at the
relevant time.
21. …
The FIR dated 5/5/1984 has been lodged by Hiralal Patil. He has
stated very clearly that the deceased was going towards the main
gate of the company and at that time a dash was given to the cyclist
by the ST Bus. It is indeed true that Hiralal has stated in his FIR
that the driver of the ST bus had run away with the vehicle.
22. …
But it requires to be appreciated that the factum of the accident
has already been admitted by the opponent in their WSS at Exs. 14
and 16 respectively. In view of this position, this evidence in the
form of the FIR lodged by Hiralal Patil would go to show that the
accident was caused by the bus which was being driven by the
opponent no. 1.
23. …
The Panchnama of the scene of occurrence is at ex 23. the bus was
not lying there but the cycle of the deceased found to be lying on
the left hand side of the road. It is also clear that the accident
had occurred near Baroda Rolling Mills on Baroda-Chhani Road.
24. …
Therefore, the conclusion from the abovesaid evidence would be that
the accident was the result of rash and negligent action on the part
of the opponent no. 1. It requires to be noted pertinently that the
say of the opponent no. 1 cannot be accepted that his vehicle was
not at all involved in the accident. As noticed above therefore,
this Tribunal should reach to the conclusion that the accident was
the result of rash and negligent action on the part of the opponent
no. 1. This issue therefore requires to be decided in affirmative
and the same is hereby accordingly decided.??
In
view of the aforesaid discussion on the basis of evidence made by
Tribunal, it is clear from record that accident has been occurred
due to rash and negligent driving of opponent no. 1 and evidence of
driver is not reliable. Accordingly, looking to panchnama of scene
of occurrence is at exh 23, the bus was not lying there but cycle of
the deceased was found to be lying on the left hand side of road.
It is also clear that accident had occurred near Baroda Rolling
Mills on Baroda ? Channi road.
In
view of the aforesaid observation made by claims Tribunal, according
to my opinion, contention raised by learned advocate Ms. Desai
cannot be accepted and same are rejected.
The
accident occurred due to rash and negligent driving of the S. T.
Bus, that has been proved on the basis of sufficient evidence, which
was found on record by Tribunal. Therefore, that contention cannot
consider to be erroneous. Accordingly, contention raised by learned
advocate Ms. Desai is rejected.
Except
that no other contention is raised by learned advocate Ms. Desai.
Hence, there is no substance in the present appeal. Accordingly,
present appeal is dismissed.
(H.K.RATHOD,
J)
asma
Top