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FA/372/1981 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 372 of 1981
With
FIRST
APPEAL No. 373 of 1981
=========================================================
SURESHBHAI
JAGJIVANDAS DAVE - Appellant(s)
Versus
KARSANBHAI
@ KANTILAL NATHALAL PATEL & 2 - Defendant(s)
=========================================================
Appearance
:
MR
VC DESAI for
Appellant(s) : 1,
(MR
PV NANAVATI) for
Defendant(s) : 1,
3,
DELETED
for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/08/2008
ORAL
ORDER
1. Heard
learned advocate Mr.V.C.Desai for the appellant and learned
advocate Mr.Vibhuti Nanavati for respondent Insurance Co.
2. The
claims Tribunal, Ahmedabad (Rural) at Narol has decided two claim
petitions Nos.268/1979 and 269/1979 by award dated 24.10.1980. The
claims Tribunal has awarded Rs.7510/- with 6% interest and Rs.4233/-
with 6% interest respectively in both the claim petitions.
3. Learned
advocate Mr.V.C.Desai has raised contention that claims Tribunal has
committed gross error in deciding the question of negligence where
20% negligence is attributed to the applicant ? Sureshbhai. He
submitted that claimant ? Sureshbhai was working as Cashier in
State Bank of Saurashtra, Ahmedabad and on the date of accident,
Sureshbhai was driving the scooter No. GRF 5186 and Gitaben was on
the pillion seat. Their child aged about 8 years was on the scooter.
They were going from east to west on Vejalpur road on left hand side
with a moderate speed, but near Rudrabag society, opponent No.2 came
driving auto-rickshaw No.GTH 8300 of the ownership of opponent No.1
from opposite direction and he abruptly came on wrong side, in great
speed and dashed with the right front part of the scooter, so the
scooter was thrown on the side of the road and was badly damaged. Due
to this impact, both the applicants sustained serious injuries and
disablement and due to accident, they received mental shock, suffered
pain and economic loss. Therefore, claim petition was filed by both
the claimants.
4. Before
the claims Tribunal, both the claimants have filed affidavit and eye
witness Indravadan Ghanshyambhai has also filed his affidavit in
support of the case of applicants. Opponent No.2 driver has also
filed affidavit. Thereafter, the claims Tribunal has examined it and
after considering the evidence on record and come to the conclusion
that there was 20% negligence on the part of claimant ? Sureshbhai
and 80% negligence of opponent No.2. Relevant discussion is in
Para.14 and 15 which are quoted as under :
?S14. No
doubt from the panchnama of scene of incident it appears that
Sureshbhai was also responsible to some extent for the accident
because he was also driving the scooter almost on the middle of the
road i.e. at a distance of 8-6 from the southern end of the road and
southern side was his left side. So he was negligent in occupying
that much width of the road in taking risk of collusion. So some
liability should be cast upon him. Had he not driven the scooter in
almost middle of the road, probably, collision might not have taken
place. Seeing the opponent No.2 coming on wrong side, Sureshbhai had
turn scooter on left hand side of the road, or had stopped the
scooter, such collision might have taken place. Moreover, there were
three persons on the scooter. One 8 years son was seating by the side
of Gitaben on pillion seat. So that fact also might have contributed
in collision to some extent. In this connection, Shri Sanghavi,
learned advocate of the opponents has argued that contributory
negligence of Sureshbhai should be considered at 50%. In support of
this argument he has cited judgment of our High Court given in case
of Jamshri Sataji Digvijaysinh and others v. Daud Taiyabali and
others reported in 1978 ACJ 443 in which His Lordship Honourable
Mr.Justice P.D.Desai has, in case of head on collision between truck
No.1959 and truck No.24, resulting in death of five persons,
travelling in truck No.1959, held truck No.24 occupying larger part
of the tar road 80% liable and truck No.1956 20% liable. In the
present case, opponent No.2 had occupied larger part of the road i.e.
about 10′ while applicant Sureshbhai had also exceeded his limit and
had occupied 8′-6′. So the liability of the opponents should be more
and that of applicant Sureshbhai should be less.
15. In
this connection, Shri J.K.Shah learned advocate of the applicant has
argued that merely by carrying a boy in addition to Gitaben on
pillion seat would not amount to an inference of contributory
negligence of the scooter driver. In this connection, he has cited a
judgment of our own High Court given in case of S.M.Vyas and another
v. Smt. Sudhaben Sukhethu Sutariya and another reported in 21 GLR
229, in which the Division Bench consisting of their Lordships
Honourable Justice N.H.Bhatt and M.K.Shah have held that merely
because apart from the driver and one other member on the pillion
seat, two children were carried on a scooter it cannot be said that
the driver of the scooter was guilty of contributory negligence if
the scooter met with an accident on account of negligence on the part
of driver of the other vehicle. In that case, there was a clear
finding of the Tribunal regarding sole and exclusive negligence of
the car driver and in that case, the scooter was not driven on almost
middle of the road, Had it been on clear right hand side of the road,
it would not have contributed to the accident, though there were
three persons on the scooter. Had it been such a case and even then
collision had taken place, I would have without any hesitation held
that opponent No.2 was solely and exclusively responsible for the
collision. So facts of the present case differ from the facts of that
case. In the present case, in the circumstances of the case, there
appear 20% negligence of applicant Sureshbhai for the accident and
80% negligence that of opponent No.2. I therefore hold and answer
issue No.1 of Motor Accident Claims Tribunal No.268/79 accordingly.
5. In
view of the aforesaid discussion made in Para.14 and 15, the claims
Tribunal has rightly appreciated the oral evidence of all the
respective parties and after considering that three persons were
travelling on the scooter including a child and claimant ?
Sureshbhai was driving the scooter on almost middle of the road
which might be the cause of accident and he was having the
opportunity to avoid the accident but, he has not made any efforts.
Therefore, the claims Tribunal has come to the conclusion that to
some extent, there was a negligence on the part of claimant which has
been quantified as 20%. According to my opinion, the claims Tribunal
has given the finding on the basis of the facts which were on record.
For that, the claims Tribunal has not committed any error which
requires interference by this Court.
6. Second
contention raised by learned advocate Mr.Desai that no amount is
awarded by the claims Tribunal in respect to claim of treatment,
special diet and conveyance charges. But the claims Tribunal has
given reason that no bill and receipt has been produced by claimants
or not produced prescription from doctor prescribing special diet and
therefore, no amount is awarded.
7. Therefore,
according to my opinion, the claims Tribunal has rightly examined the
matter on the basis of record and has not committed any error which
requires interference by this Court. Therefore, the appellant has not
made out any case for enhancement of compensation. Accordingly, both
the appeals are dismissed.
(H.K.RATHOD,J.)
(vipul)
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