Gujarat High Court
Gujarat State Road Transport ... vs Heirs Of Decd Rajeshbhai Shankarlal ... on 5 February, 2014
Author: M.R. Shah
Bench: M.R. Shah, R.P.Dholaria
C/FA/3068/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 3068 of 2013
With
FIRST APPEAL NO. 3069 of 2013
TO
FIRST APPEAL NO. 3075 of 2013
With
CIVIL APPLICATION NO. 12626 of 2013
In
FIRST APPEAL NO. 3068 of 2013
TO
CIVIL APPLICATION NO. 12633 of 2013
In
FIRST APPEAL NO. 3075 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd-
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA Sd-
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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 ?
Page 1 of 13
C/FA/3068/2013 JUDGMENT
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GUJARAT STATE ROAD TRANSPORT CORPORATION....Appellant(s)
Versus
HEIRS OF DECD RAJESHBHAI SHANKARLAL PATEL....Defendant(s)
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Common Appearance:
MRS VASAVDATTA BHATT, ADVOCATE for the Appellant - GSRTC
MS ANU S VERMA, ADVOCATE for the Original Claimants
MR DAKSHESH MEHTA, ADVOCATE for Oriental General Insurance Co.
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 05/02/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. As common question of law and facts arise in this group of appeals and as such arising out of the impugned common judgement and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Kheda at Nadiad (hereinafter referred to as "the tribunal" for short) and arising out of the same accident, but with respect to different claims, all these appeals are decided and disposed of by this common judgement and order.
2.00. Being aggrieved by and dissatisfied with the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No. 2971 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3068 Page 2 of 13 C/FA/3068/2013 JUDGMENT of 2013.
2.01. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.146 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3069 of 2013.
2.02. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.241 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3070 of 2013.
2.03. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.1624 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3071 of 2013.
2.04. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.2349 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3072 of 2013.
2.05. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.2968 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3073 of 2013.
Page 3 of 13C/FA/3068/2013 JUDGMENT 2.06. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.2969 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3074 of 2013.
2.07. Being aggrieved by the impugned judgement and award dated 29/4/2013 passed by the tribunal in Motor Accident Claim Petition No.2970 of 2001, the appellant herein - original opponent No.1 - Gujarat State Road Transport Corporation has preferred First Appeal No.3075 of 2013.
3.00. Facts leading to the present appeals in nutshell are as under :
3.01. That in a vehicular accident between Marshall Jeep bearing registration No.GJ-2-K-4480 and S.T. Bus bearing registration No.GJ-18-V-6471 which occurred on 17/6/2001, out of eight passengers in the Marshall Jeep, six passengers succumbed to the injuries sustained to them and two occupants sustained serious injuries including fracture. That Marshall Jeep was being driven by Rajeshbhai Shankerlal Patel (whose heirs have preferred Motor Accident Claim Petition No. 2971 of 2001). In the said accident, following persons have died:-
[1] Deceased Rajeshbhai Shankerlal Patel (MCAP No.2971/2001) [2] Deceased Kanubhai Ambalal Raval (MACP No.146/2001) Page 4 of 13 C/FA/3068/2013 JUDGMENT [3] Deceased Kalubhai Joitaram Patel (MACP No.241/2001) [4] Deceased Rajesh @ Ramanbhai Thakkar (MACP No.1624/2001) [5] Deceased Mukeshbhai Kashiram Patel (MACP No.2968/2001) [6] Deceased Ashwin Tulsibhai Patel (MACP No.2969/2001) 3.02. The following persons came to be injured :-
[1] Babulal Ugarchand Patel (MACP No.2349/2001) [2] Bharatkumar Parshottamdas Patel (MACP No.2970/2001) It also appears that one Mr.Nirmal Surendrabhai Premani who was also passenger and travelling in the Marshall Jeep succumbed to the injuries and died in the said accident whose heirs preferred another Motor Accident Claim Petition No. 528 of 2001.
3.03. That the heirs of deceased driver of Marshall Jeep and respective passengers and injured filed aforesaid Motor Accident Claim Petitions before the tribunal. The legal heirs of deceased Rajeshbhai Shankerlal Patel - driver of Marshall Jeep preferred Motor Accident Claim Petition No.2971 of 2001 impleading only Gujarat State Road Transport Corporation as only party respondent and other claimants impleaded Gujarat State Road Transport Corporation as well as Oriental General Insurance Company Limited in their respective claim petitions.
That a plea was raised by the ST Corporation with respect to contributory negligence of the driver of the Marshall Jeep. It was the case on behalf of the ST Corporation that while delivering the judgement and award in Motor Accident Claim Petition No.528 of 2001 filed by the heirs of deceased Nirmalbhai Surendrabhai Premani which was arising out of the Page 5 of 13 C/FA/3068/2013 JUDGMENT very accident, the learned tribunal held the driver of both the vehicles - ST Bus as well as Marshall Jeep contributory negligent to the extent of 50% and therefore, in the present case also the driver of the ST Bus is required to be held contributory negligence to the extent of 50%. Therefore, it was contended on behalf of the ST Corporation that in view of the finding given by the learned tribunal while delivering the judgement and award in Motor Accident Claim Petition No. 528 of 2001 holding the driver of both the vehicles contributory negligent to the extent of 50%, on the ground of res-judicata in the present case also the driver of both the vehicles are required to be held contributory negligent to the extent of 50%.
3.04. That on appreciation of evidence the learned tribunal by the impugned common judgement and award, in Motor Accident Claim Petition No. 2971 of 2001, i.e. the claim petition filed by the heirs of Rajeshbhai Shankerlal Patel - driver of Marshall Jeep, the tribunal has held the driver of the Marshall Jeep contributory negligent to the extent of 30% and consequently while awarding the compensation to the heirs of claimants of Motor Accident Claim Petition No. 2971 of 2001, deducted 30% of the amount and has held that the claimants of Motor Accident Claim Petition No.2971 of 2001 are entitled to 70% of the amount of compensation.
3.05. So far as other claim petitions are concerned, the tribunal has directed both the - Gujarat State Road Transport Corporation as well as Oriental General Insurance Company to pay / deposit entire awarded amount.
Page 6 of 13C/FA/3068/2013 JUDGMENT 3.06. That by the impugned common judgement and award, the learned tribunal has partly allowed all the claim petitions and as passed the following operative order :-
"I. The claim petitions are hereby partly allowed.
II. The claimants of M.A.C.P. No.2971 of 2001 are entitled to recover an amount of Rs.12,27,000/- (Rupees Twelve Lacs Twenty Seven Thousand Only), claimants of M.A.C.P. No.146 of 2001 are entitled to recover an amount of Rs.3,93,500/- (Rs. Three Lac Ninety Three Thousand Five Hundred Only), claimant of M.A.C.P. No.241 of 2001 is entitled to recover an amount of Rs.4,62,500/- (Rs. Four Lac Sixty Two Thousand Five Hundred Only), claimants of M.A.C.P. No.1624 of 2001 are entitled to recover an amount of Rs.7,00,000/- (Rupees Seven Lacs Only), claimant of M.A.C.P. No.2349 of 2001 is entitled to recover an amount of M.A.C.P. No.2349/01 is entitled for Rs.92,200/- (Rupees Ninety Two Thousand Two Hundred Only), claimant of M.A.C.P. No.2968 of 2001 are entitled to recover an amount of Rs.9,43,000/- (Rupees Nine Lacs Forty Three Thousand Only), claimants of M.A.C.P. No.2969 of 2001 are entitled to recover an amount of Rs.12,50,000/- (Rupees Twelve Lacs Fifty One Thousand Only), claimant of M.A.C.P. No.2970 of 2001 is entitled to recover an amount of Rs.2,97,000/- (Rupees Two Lacs Ninety Seven Thousand Only) with the proportionate cost and with interest at the rate of 7.5% per annum, from the date of the claim petitions till realization from the Gujarat State Road Transport Corporation.
III. The Gujarat State Road Transport Corporation and Oriental Insurance Company is hereby directed to deposit awarded amount within 30 days of the order.
IV. On depositing the amount in the Registry of this Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any.
V. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicants/claimants are neither not illiterate.
VI. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in Page 7 of 13 C/FA/3068/2013 JUDGMENT 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount (as directed in para No. II) without producing the certificate from the concerned Income-Tax Authority.
VII. Awards be drawn accordingly in the above petitions."
3.07. Being aggrieved by and dissatisfied with the impugned common judgement and award, the appellant - Gujarat State Road Transport Corporation has preferred the present First Appeals to the extent holding the driver of the Marshall Jeep 30% negligent only and not holding the driver of both the vehicles i.e. ST Bus and Marshall Jeep contributory negligent to the extent of 50%. it is required to be noted that the common appellant has challenged the impugned judgement and award passed by the tribunal solely on the aforesaid ground and not on the quantum of amount of compensation awarded by the learned tribunal.
4.00. Mrs.Vasavdatta Bhatt, learned advocate appearing on behalf of the appellant - Gujarat State Road Transport Corporation has vehemently submitted that in view of the previous decision of the tribunal in Motor Accident Claim Petition No. 528 of 2001 arising out of the very accident but with respect to other claimants, the learned tribunal held both the driver contributory negligence to the extent of 50% each and therefore, on the ground of res-judicata in the present case also the learned tribunal ought to have held the driver of Page 8 of 13 C/FA/3068/2013 JUDGMENT both the vehicles negligent to the extent of 50% each. It is submitted that therefore, in the present case, the learned tribunal has materially erred in holding the driver of the ST Bus 70% negligent and driver of the Jeep only 30% negligent. No other submissions have been made.
5.00. Mr.Dakshesh Mehta, learned advocate appearing on behalf of the Oriental General Insurance Company while opposing the present appeals has stated that as such in the previous decision of the tribunal in Motor Accident Claim Petition No. 528 of 2001 there was no occasion for the learned tribunal to consider contributory negligence. It is submitted that as such in the said decision, there is no finding given by the tribunal holding the driver of both the vehicles contributory negligence to the extent of 50% each. It is submitted that on the contrary in the said decision, the learned tribunal has considered composite negligence and not contributory negligence as contended by the learned advocate appearing on behalf of the appellant Corporation. It is submitted that as such Motor Accident Claim Petition No. 528 of 2001 was filed by the claimants - heirs of deceased Nirmal Surendrabhai Premani who was travelling as a passenger in the Marshall Jeep and therefore, there was no question of any contributory negligence in the said claim petition. It is submitted that, therefore, the question of res-judicata as contended on behalf of the appellant would not arise and the learned tribunal has rightly not accepted the plea of res-judicata. It is submitted that on facts and on appreciation of evidence when the learned tribunal has held the driver of the Marshall Jeep contributory negligent to the extent of 30% in Motor Accident Claim Petition No. 2971 of 2001 which was filed by the heirs of deceased Page 9 of 13 C/FA/3068/2013 JUDGMENT Rajeshbhai Shankerlal Patel - driver of Marshall Jeep, it cannot be said that the learned tribunal has committed any error and/or illegality.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length and perused and considered the impugned judgement and award passed by the learned tribunal. We have also considered and gone through the previous decision of the tribunal in Motor Accident Claim Petition No. 528 of 2001 with respect to other claimants but arising out of the same accident. As stated hereinabove, the only contention raised on behalf of the ST Corporation - appellant herein is that in view of the previous decision of the tribunal in Motor Accident Claim Petition No. 528 of 2001 with respect to other claimants but arising out of the same accident, the learned tribunal held the driver of both the vehicles negligent to the extent of 50% and therefore, on the ground of res-judicata in the present case also the learned tribunal ought to have held the driver of both the vehicles contributory negligent to the extent of 50% and therefore, the learned tribunal has materially erred in holding the driver of the ST Bus 70% negligent and driver of the Jeep 30% negligent, more particularly in Motor Accident Claim Petition No. 2971 of 2001.
The aforesaid has no substance. At the outset, it is required to be noted that so far as the Motor Accident Claim Petition No. 528 of 2001 is concerned, the same was preferred by the heirs of deceased Nirmal Surendrabhai Premani who was travelling as a passenger in Marshall Jeep. In the said claim petition both the ST Corporation as well as Insurance Page 10 of 13 C/FA/3068/2013 JUDGMENT Company were impleaded as parties. Therefore, in the aforesaid claim petition the question was with respect to composite negligence and not contributory negligence. Therefore, while answering Issue Nos.1 and 2 in the aforesaid claim petition being Motor Accident Claim Petition No.528 of 2001, it was specifically observed by the concerned tribunal as under :-
"From the First Information Report and panchnama, it is clear that the deceased was travelling as a passenger along with other persons in the said jeep car, therefore, there cannot be any contributory negligence on the part of the deceased. Thus, from the above evidence, I hold that the accident took place due to rash and negligent driving on the part of the driver of the S.T. Bus, i.e. opponent No.1 and driver of the Jeep Car i.e. opponent No.3 in this case. I, therefore, answer issue No.1 in the affirmative and so far as issue No.2 is concerned, no question arise of contributory negligence on the part of the deceased hence, the issue does not survive."
Therefore, as such it is not correct to say that while deciding the Motor Accident Claim Petition No. 528 of 2001, the tribunal considered the question of contributory negligence and held the driver of both the vehicles contributory negligent to the extent of 50% each as contended on behalf of the appellant - ST Corporation.
6.01. The question of contributory negligence would arise only in Motor Accident Claim Petition No. 2971 of 2001, the claim petition filed by the heirs of driver of the Marshall Jeep and not in other claim petitions filed by the heirs of deceased passengers and/or injured passengers of Marshall Jeep. On appreciation of evidence in Motor Accident Claim Petition No. Page 11 of 13 C/FA/3068/2013 JUDGMENT 2971 of 2001 the learned tribunal held the driver of the ST Bus negligent to the extent of 70% and driver of the Marshall Jeep negligent to the extent of 30%, consequently while awarding compensation to the original claimants in Motor Accident Claim Petition No. 2971 of 2001, the tribunal has deducted 30% of the amount - to the extent Rajeshbhai Shankerlal Patel
- driver of the Jeep has been held negligent.
6.02. Now, so far as other claim petitions are concerned, the question of contributory negligence would not arise at all. Under the circumstances, as such no error has been committed by the learned tribunal in holding the driver of the ST Bus negligent to the extent of 70% and driver of the Jeep to the extent of 30%.
However, it appears that while passing the impugned judgement and award, in para 3 in the operative portion of the judgement and award, the learned tribunal has directed both Gujarat State Road Transport Corporation and Oriental General Insurance Company to deposit awarded amount within 30 days of the order. There the learned tribunal has committed some error and instead the learned tribunal ought to have directed the Gujarat State Road Transport Corporation to deposit entire awarded amount in Motor Accident Claim Petition No. 2971 of 2001 and with respect to the rest of the claim petitions the tribunal ought to have held both the Gujarat State Road Transport Corporation as well as Oriental General Insurance Company liable jointly and severally the compensation awarded and to that extent the impugned judgement and award passed by the learned tribunal is required to be modified.
Page 12 of 13C/FA/3068/2013 JUDGMENT 7.00. In view of the above and for the reasons stated above, all these appeals deserve to be dismissed and are accordingly dismissed. However, while dismissing the present appeals, it is clarified that the liability to pay compensation in Motor Accident Claim Petition No. 2971 of 2001 would be only upon the Gujarat State Road Transport Corporation and so far as the rest of the claim petitions are concerned, the liability to pay compensation would be upon the Gujarat State Road Transport Corporation as well as Oriental General Insurance Company jointly and severally. With the above clarification all these appeals are dismissed.
In view of the disposal of the main appeals, respective Civil Applications stand disposed of.
Sd/-
(M.R.SHAH, J.) Sd/-
(R.P.DHOLARIA,J.) Rafik Page 13 of 13