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FA/1317/1986 1/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1317 of 1986
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
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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 ?
=========================================
HEMANTKUMAR
MANVANRAY DESAI - Appellant(s)
Versus
ABDUL
ILMUDDIN CHAUHAN & 5 - Defendant(s)
=========================================
Appearance :
MR
MTM HAKIM for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 -
6.
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 29/06/2010
ORAL
JUDGMENT
1. The appellant
original applicant is before this Court being aggrieved by judgment
and award dated 27.12.1985 passed by the learned Member, Motor
Accident Claims Tribunal (Main), Bharuch. The operative part of the
judgment and order of the Tribunal reads as under:-
(1) The petitioner to
recover Rs.46,205/- (Rupees forty six thousand two hundred and five
only) from opponents Nos.1, 2 and 3 jointly and severally with an
interest thereon at 6 per cent per annum from the date of the
petition till the date of realization with proportionate costs but
the liability of opponent No.3 United India Insurance Company shall
be to the extent of Rs.15000/- and proportionate costs and interest
thereon.
(2) The rest of the claim of
the petitioner stands dismissed with no order as to costs.
(3) The petition stands
dismissed against opponents Nos.4, 5 and 6 with no order as to costs.
(4) The opponents to bear
their own costs.
(5) The opponents Nos.1, 2
and 3 are given three months time to deposit the amount with this
Tribunal.
(6) The petitioner shall
invest the amount in excess of Rs.8,000/- in any Nationalized Bank
near to the place of his residence but the duration of investment
shall be decided at the time of disbursement. However, the amount to
be invested shall not include costs and interest. The petitioner
shall not be entitled to withdraw the invested amount before
investment period is over but shall be entitled to the interest over
it as and when it falls due. The concerned Bank be informed to make
a note of the same on the Fixed Deposit Receipt or Receipts and the
Bank Books.
(7) The deficit court-fees,
if any, be recovered from the amount deposited with this Tribunal.
2. The facts given rise to
the present appeal as set out in the judgment and award are as
under:-
2.1 This petition has been
filed by the injured who received injuries in a vehicular accident
which took place on 11-3-1983 on the old National High Way No.8 near
village Andada. The vehicles involved in the accident are two
autorickshwas. The petitioner was going in autorickshaw No.GRV 343,
driven by the opponent No.1, owned by the opponent No.2 and insured
by the opponent No.3 and it dashed against another rickshaw. No.GRV
728, driven by the opponent No.4, owned by the opponent No.5 and
insured by the opponent No.6. The said rickshaw No.GRV 343 dashed
with rickshaw No.GRV 728 from behind and that caused the accident.
3. Learned Advocate Mr.Hakim
for the appellant vehemently submitted that the Tribunal has erred in
holding only first rickshaw, in which the appellant-applicant was
traveling and not holding second rickshaw which which it collided,
negligent or responsible for payment of compensation. In this
regard, he invited attention of the Court to the discussion in the
judgment and award.
4. The Tribunal, after
taking into consideration the evidence led before it, had framed the
following issues:-
1. Whether the applicant
proves that the opponents Nos.1 & 4 drove their autorickshaws
bearing Nos.GRV 343 and GRV 728 respectively rashly and/or
negligently and thereby caused injuries to the applicant?
2. What amount of
compensation is available to the applicant and from whom?
3. What order and award?
4.1 The Tribunal recorded
following findings to the aforesaid issues:-
1. Yes regarding
autorickshaw No.GRV 343. No regarding autorickshaw No.GRV 728.
2. Rs.46,205/- from
opponents Nos.1, 2 and 3 jointly and severally but the liability of
the opponent No.3 shall be to the extent of Rs.15,000/-
3. As per final
order………..
5. Learned Advocate for the
appellant invited attention of the Court to paras-8, 9 and the
conclusions drawn by the Tribunal in para-10. Learned Advocate read
the aforesaid paras extenso. He submitted that the Tribunal has
erred in holding that, from all these previous statements, it can
be seen that the theory of the second autorickshaw stopping for
allowing some person to get down in the middle of the road is
a subsequently got up one .
5.1 Learned Advocate for the
appellant submitted that the Tribunal ought to have held that there
was no material to record a finding to the effect that the story was
got up one and it should have been appreciated that when there are
two vehicles involved in an accident, may be that the vehicle which
dashing from behind may be attributed larger share of negligence, but
at the same time vehicle going ahead cannot be absolved from the
liability arising from the negligence on account of sudden stoppage
of the vehicle.
6. Taking into consideration
the material which has come on record and the appreciation thereof by
the Tribunal, wherein the Tribunal has observed that, Moreover,
from the claim petition itself, it is clear that a jeep car was
coming from the otherside and that is why the second autorickshaw
allowed down and at that time, the first autorickshaw was overtaking
the second autorickshaw. It is difficult to understand the anxiety
of the driver of the first autorickshaw to overtake the second
autorickshaw on a road which is a Highway when a jeep car was coming
from the otherside. A driver of a vehicle going ahead may have to
slow it for many reasons and the vehicle going behind has to drive it
cautiously, keeping some distance between the two vehicles and there
should not be any overtaking without any signal from the vehicle
going ahead or without taking proper precautions for the same ,
this Court finds that the findings recorded by the Tribunal does not
warrant to be disturbed. In view of that, the impugned judgment and
award if confirmed. The appeal fails and the same is dismissed.
(Ravi
R.Tripathi, J.)
*Shitole
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