{"id":201585,"date":"2011-02-04T00:00:00","date_gmt":"2011-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/alimiya-vs-gopalbhai-on-4-february-2011"},"modified":"2018-11-09T06:26:25","modified_gmt":"2018-11-09T00:56:25","slug":"alimiya-vs-gopalbhai-on-4-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/alimiya-vs-gopalbhai-on-4-february-2011","title":{"rendered":"Alimiya vs Gopalbhai on 4 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Alimiya vs Gopalbhai on 4 February, 2011<\/div>\n
Author: Akshay H.Mehta,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/1216\/1993\t 9\/ 9\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 1216 of 1993\n \n\nWith\n\n\n \n\nFIRST\nAPPEAL No. 1217 of 1993\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE AKSHAY H.MEHTA\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nALIMIYA\nMAHMADMIYA BELIM & 1 - Appellant(s)\n \n\nVersus\n \n\nGOPALBHAI\nJUTHABHAI SATHWARA & 2 - Defendant(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMUKUND M DESAI for\nAppellant(s) : 1 - 2. \nNOTICE SERVED for Defendant(s) : 1 - 2. \nMR\nBH BHAGAT for Defendant(s) : 3, \nMR PV NANAVATI for Defendant(s) :\n3, \nMR VIBHUTI NANAVATI for Defendant(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKSHAY H.MEHTA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 08-09\/01\/2007 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
\t\tBoth
\nthese appeals arise from common judgment and award made by the Motor
\nAccident Claims Tribunal [Main], Mehsana dated 31\/1\/1990 in M.A.C.
\nPetitions No. 722\/1984 and 723\/1984. So far as the Claim Petition No.
\n722\/1984 is concerned,  it is filed by the parents of the deceased
\nfor claiming compensation on account of death of their son; whereas
\nClaim Petition No. 723\/1984 has been filed for claiming damage caused
\nto the property i.e., vehicle owned by the deceased Chandmiya.\n<\/p>\n
2.\t\tThe
\naccident in question took place on 28\/6\/1984 around 2.15 p m on
\nMehsana- Ahmedabad Highway near village called Ganeshpura. Deceased
\nChandmiya Belim, who owned Matador Truck bearing registration No. GTK
\n4321 was proceeding from Ahmedabad to Mehsana; whereas the other
\nvehicle namely, Truck bearing registration No. GTW 3556 was
\nproceeding from Mehsana to Ahmedabad. It is averred by the appellants
\nthat respondent no. 1, who drove the truck, was rash and negligent in
\ndriving and as a result of the same, the accident occurred. The son
\nof the appellants ?  Chandmiya received serious injuries and he was
\nremoved to the hospital, but subsequently died during treatment. His
\nvehicle was also extensively damaged. In view of the same, the
\nappellants preferred aforesaid petitions before the Tribunal. The
\nappellants claimed a sum of Rs.72,000\/- for the death of their son;
\nwhereas in petition for damage to the vehicle, they claimed
\nRs.51,000\/-.\n<\/p>\n
2.1.\t\tAt
\nthe hearing of the proceedings, witnesses were examined by the
\nparties so also the documentary evidence was produced. The Tribunal,
\nhowever, did not place any reliance on the oral evidence of the
\nparties, but extensively referred to the panchnama of scene of
\noccurrence as well as the photographs of the vehicles at the scene of
\noccurrence. By comparing both the pieces of documentary evidence, the
\nTribunal concluded that there was 50% negligence on the part of each
\ndriver. So far as the compensation is concerned, the Tribunal
\nassessed the just compensation as Rs.72,000\/- for the death of the
\nson of the appellants,  but deducted 50% from the same on account of
\nhis driver’s negligence and awarded a sum of Rs.36,000\/-. Similarly
\nin Claim Petition No. 723\/1984, the Tribunal concluded that the
\ndamage to the vehicle was caused to the extent of Rs.26,000\/-, but
\nsince there was 50% negligence of the deceased, Rs.13,000\/- is
\nrequired to be deducted. Hence, the Tribunal awarded a sum of
\nRs.36,000\/- and Rs.13,000\/- respectively in both the claim
\npetitions.The appellants have now approached this Court by filing
\nthese appeals only to challenge the finding regarding negligence
\ndetermined by the Tribunal.\n<\/p>\n
3.\t\tI
\nhave heard Mr. Jayraj Chauhan, learned advocate appearing with Mr.
\nMukund Desai for the appellants in both the appeals and Mr. VP
\nNanavati, learned advocate for the respondent ?  Insurance Company.
\nRespondent nos. 1 and 2 are served, but they are absent. According to
\nMr. Chauhan, the Tribunal has committed error in not properly
\nappreciating the contents of panchnama. He has submitted that even by
\ncomparing the two documents, namely the panchnama and the
\nphotographs, it will be clearly seen that it was the truck driven by
\nrespondent no. 1 which had travelled extremely on wrong side and has
\ncaused accident. He has submitted that the finding of the Tribunal
\nwith regard to contributory negligence of the deceased is not
\nsupported by any of the documentary evidence. He has, therefore,
\nsubmitted that the Tribunal ought to have  awarded full amount
\nwithout holding the deceased liable of contributory negligence.
\nLastly, he has submitted that the multiplier adopted by the Tribunal
\nis on lower side even considering the respective aged of appellants
\nno. 1 and 2. In his submission, the Tribunal ought to have applied
\nthe multiplier of 12.\n<\/p>\n
3.1.\t\tAs
\nagainst that, Mr. Nanavati, learned advocate for the respondent ?
\nInsurance Company, has supported the judgment and has submitted that
\nthere is no any scope for any interference by this Court and the
\nTribunal has awarded just and proper compensation to the appellants.\n<\/p>\n
4.\t\tI
\nhave closely perused the record and proceedings of the case including
\nthe judgment of the Tribunal. As stated above, the Tribunal has
\ncompletely relied on the documentary evidence and has discarded the
\noral evidence. There is panchnama of scene of occurrence at Exh. 44.
\nIt reflects the position as well as the condition of the vehicles
\nimmediately after the occurrence. Minute details  have also been
\nmentioned in the panchnama. At the same time, the parties have
\nproduced photographs at Exh. 77.  The Tribunal has compared the
\nversions of the accident as they are emerging from the  panchnama as
\nwell as the photographs. From the panchnama it clearly appears that
\nthe vehicle, namely the truck had left its correct side and had
\ndashed against the on-coming vehicle, namely the matador driven by
\nthe witness Mahmad Haroon.  Unfortunately the photographs  which have
\nbeen produced at Exh. 77, have been destroyed by the concerned
\nTribunal as can be seen from the communication addressed by the
\nPrincipal District Judge, Mehsana, to the Registrar of this Court,
\ndated 10\/10\/2006. The said communication is sent in view of the order
\npassed by this Court dated 8\/8\/2006, whereby registry of this Court
\nhas been directed to call for the complete set of records and
\nproceedings of the case by observing that Exh. 77 is a crucial
\ndocument and that was not available.  It is rather unfortunate that
\neven when the appeals are pending before this Court, vital document
\nsuch as Exh. 77 has been destroyed. The things do not rest at that.
\nThe slip affixed on the record despatched by the concerned Tribunal
\nalso shows that documents at Exhs. 2 to 28, Exhs. 30 to 35 and Exhs.
\n67 to 89 have also been destroyed.  The record despatched to this
\nCourt even does not contain the panchnama of the scene of occurrence,
\nwhich is at Exh. 44.  The learned advocates appearing for the parties
\nalso do not have the copies of the photographs that have been
\nproduced in the proceedings. Mr. Chauhan has, however, furnished copy
\nof the panchnama to the Court to enable it to decide the matter. In
\nthese circumstances, I have no other option but to decide the appeals
\non the basis of the panchnama alone so far as the documentary
\nevidence is concerned. The oral evidence has been perused by me. It
\ncomprises the evidence of Alimiya Mahmadmiya  witness no. 1 for the
\napplicant  Exh. 67, who is father of the deceased,  Mahmad Haroon
\nJafarhusen ?  witness no. 2 for applicant ?  Exh. 73, who was
\ndriver of the matador at the relevant time and Gopal Jutha Exh. 84 ?
\nwitness no. 1 for the respondents, who was driving the truck at the
\ntime of accident.  Alimiya Mahmadmiya is not an eye witness. Mahmad
\nHaroon Jafarhusen has stated that on the date of accident he was
\ndriving the matador. Along with him, the deceased i.e., the owner of
\nmatador and the cleaner Salimbhai Pathan were also travelling. The
\nwitness has stated that they were going from Ahmedabad to Mehsana
\ni.e., from south to north. He was driving his vehicle at a moderate
\nspeed i.e., at the speed of 40 KMs per hour. When they reached near
\nthe sign board of village Ganeshpura, a truck came from the opposite
\ndirection.  According to the witness, it was driven   at excessive
\nspeed and also on the wrong side of the road. It dashed against the
\nmatador. The deceased, who was sitting on the left of the witness,
\nsustained serious injuries. He was immediately removed to Mehsana
\nCivil Hospital, but he was declared dead. This witness has further
\nstated that the accident occurred due to negligent driving of the
\ndriver of the truck. He has stated that the truck dashed against the
\nmatador on the left front side of the vehicle and caused extensive
\ndamage. In the cross-examination, it has been suggested to him that
\nthe truck was damaged on the left front side, but he has denied it.
\nAccording to him, damage was caused to the truck on the right hand
\nside in front. He has been asked that what he had to say about the
\ncontents of the panchnama wherein it has been stated that the truck
\nwas damaged on the left front side, but the witness has said that he
\nwould not be in a position that why that was so written. He has
\nspecifically stated that it was the driver of the truck  who was
\nprosecuted for causing death by rash and negligent driving.  He has
\ndenied the suggestion that the accident occurred due to his
\nnegligence.  He himself had received injury on the right hand and he
\nhas produced medical certificate at Exh. 74.\n<\/p>\n
4.1.\t\tSo
\nfar as witness Gopal Jutha, driver of the truck, is concerned, though
\nhe had stepped into the witness box and his examination-in-chief was
\nrecorded, he never turned up for the cross-examination. In view of
\nthe same, there is no point in discussing his evidence or placing any
\nreliance on it. Thus, there is sole testimony of Mahmad Haroon
\navailable on record so far as the actual accident is concerned.  So
\nfar as the panchnama is concerned, it narrates that the front side of
\nthe matador was damaged. It also describes that most of the damage
\nwas on the right side of the matador. The road at this place  appears
\nto be tar road having width of 22 ft. It states that the matador’s
\nfront right side wheel was about 2 ft. and 9 inch on the tar road
\nfrom the eastern border of the road. So far as the truck is
\nconcerned, it is stated that the right side wheel of the truck was at
\na distance of about 3 ft. from the western edge of the road; whereas
\nthe left wheel was at a distance of about 13 ft. from the eastern
\nedge of the road.\n<\/p>\n
4.2.\t\tThe
\noral testimony of driver of the matador as well as the complaint and
\nthe panchnama sufficiently show that it was driver of the truck which
\nleft its correct side and had gone on the wrong side. The position of
\nthe matador shows that its driver had taken the vehicle to his
\nextreme left to avoid any collision. In view of the same, the
\ntestimony of Mahmad Haroon, the driver of the matador, appears to be
\ntrue. When the oral testimony of a person, who was an eye witness to
\nthe incident is available on record, the Tribunal ought to have
\nplaced reliance on it. It has committed error in discarding it. This
\nstand is adequately supported by the panchnama also. The Tribunal has
\nunnecessarily discarded this piece of evidence and has tried to draw
\nthe conclusion on the basis of the comparison between two documentary
\nevidence, namely the panchnama and the photographs. As stated above,
\nthe photographs are not available.  Merely because there is some
\nvariance between the photographs and panchnama, the Tribunal could
\nnot have ignored the oral testimony of the driver of the matador and
\ncould not have jumped to the conclusion that there was negligence of
\nboth the sides to the extent of 50% each. Such finding is erroneous.
\nThe evidence of Mahmad Haroon inspires confidence. He has not been
\neffectively cross-examined. Therefore, his version of the accident is
\nrequired to be accepted.\n<\/p>\n
5.\t\tConsidering
\nthe aforesaid discussion, I am of the opinion that the driver of the
\nmatador was not at all at fault. It was the driver of the offending
\nvehicle, namely the truck, who was responsible for causing the
\naccident. The finding regarding 50% negligence on the part of the
\ndriver of the matador is, therefore, quashed and set aside. It is
\nheld that the fault of the truck driver is 100%.\n<\/p>\n
\t\tFurther
\nconsidering the  age of the appellants, the multiplier applied by the
\nTribunal is proper and Mr. Chauhan’s submission on that count cannot
\nbe accepted.\n<\/p>\n
6.\t\tThe
\nappellants have restricted the appeals only to the finding with
\nregard to the 50% negligence having been attributed to them. The
\nappeals are, therefore, allowed together with costs and the Insurance
\nCompany is directed to deposit the balance amount of 50% together
\nwith proportionate costs and interest at the rate of 12% p a from the
\ndate of petition till realization.\n<\/p>\n
R & P to be retransmitted to the concerned Tribunal forthwith.\n<\/p>\n
\t\t\t\t\t\t\t\t[
\nAkshay H Mehta, J. ]<\/p>\n
*
\nPansala.\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Alimiya vs Gopalbhai on 4 February, 2011 Author: Akshay H.Mehta,&Nbsp; Gujarat High Court Case Information System Print FA\/1216\/1993 9\/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1216 of 1993 With FIRST APPEAL No. 1217 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE AKSHAY H.MEHTA ========================================================= 1 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-201585","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAlimiya vs Gopalbhai on 4 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/alimiya-vs-gopalbhai-on-4-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Alimiya vs Gopalbhai on 4 February, 2011 - 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