Gujarat High Court
Gujarat vs Santokben on 26 September, 2008
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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FA/469320/2008 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 4693 of 2008
With
CIVIL
APPLICATION No. 11334 of 2008
=========================================================
GUJARAT
ROAD TRANSPORT CORPORATION - Appellant(s)
Versus
SANTOKBEN
JIVRAJBHAI CHAUHAN - Defendant(s)
=========================================================
Appearance
:
MS
SEJAL K MANDAVIA for
Appellant(s) : 1,
MR PAVAN S GODIAWALA for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/09/2008
ORAL
ORDER
1. Heard learned advocate Ms. Trusha Mehta for learned advocate Ms. Sejal K. Mandavia appearing on behalf of appellant ? GSRTC and learned advocate Ms. Pavan S. Godiawala appearing on behalf of respondent ? claimant on caveat.
2. The appellant Corporation has challenged the award passed by Motor Accident Claims Tribunal, Banas Kantha at Palanpur in Motor Accident Claim Petition No.512 of 1991 dated 11th September 2007. The Claims Tribunal has awarded Rs.1,12,650/- with 7.5% interest in favour of respondent claimant.
3. Learned advocate Ms. Mehta raised contention that Doctor was not examined in proving the disability before Claims Tribunal. She read deposition of driver Exh.28 and submitted that driver was not responsible for accident. She also raised contention that looking to age of claimant 40 years, 16 multiplier has been wrongly applied according to second schedule, at the most, it comes to 13 multiplier. Therefore, according to her submission, Claims Tribunal has committed an error in awarding compensation including loss of future income in favour of respondent claimant. Except that, no other submission is made by learned advocate Ms. Mehta.
4. Learned advocate Mr. Godiawala supported the award passed by Claims Tribunal.
5. In this appeal, accident occurred on 12th June 1991 when respondent claimant was travelling in the bus bearing registration No.GJ-2-203, owned by appellant and she was coming to Deesa from Bhabhar. At about 4-30 p.m., when bus came near fountain at Deesa, conductor of said bus has given signal to driver for stopping the said bus and has allowed the passengers to get down. The claimant had also to get down at that stop. Therefore, she has also tried to get down from the said bus. When she was on foot-board, driver of said bus has started the bus all of a sudden and as a result of this act, the claimant fell down from the bus and one wheel ran over her log and she sustained grievous injury. The driver of bus ran away with bus. Thus, the claimant has stated that the present accident occurred because of sole negligence on the part of driver of ST bus. The claimant was first brought to Government Hospital. Subsequently, she was treated by qualified Orthopedic Surgeon; she was confined to bed for a considerable long time having two to three operations were performed and huge expenditure was incurred for medical treatment and she is not in a position to do any work upto the period of six months. Therefore, Claim Petition had been filed claiming Rs.2 lakh.
6. On behalf of appellant Corporation, reply Exh.19 was filed denying the averments made in Claim Petition. Thereafter, issues were framed by Claims Tribunal Exh.22. The Claims Tribunal has examined Issue No.1 and come to conclusion that bus driver was absolutely rash and negligent in his driving and considering the principles of res ipsa loquitur because the driver of bus has to start the bus only after closing of door and after conductor gives a signal by ringing two bells to start the bus. Negligence denotes non-compliance of taking reasonable care and caution which an ordinary prudent man is required to take under given circumstances. Therefore, Claims Tribunal has decided Issue No.1 of negligence holding that bus driver was solely negligent in said accident.
7. The contention raised by learned advocate Ms. Mehta while reading Exh.28 ? affidavit of driver cannot be ignored, because, Claims Tribunal has examined this affidavit and according to driver, the claimant has tried to get down from bus when bus was in motion. The Claims Tribunal has examined this rival theory in light of evidence adduced before him. The Claims Tribunal has come to conclusion considering the cross-examination of driver that there is a door in bus driven by him. He has also mentioned the procedure regarding stopping of bus and starting of bus. According to bus driver, at the time of stopping bus, conductor used to give signal by ringing one bell and thereafter, he gave signal by ringing two bells to start the bus. He has also admitted that it is the bounden duty of conductor that whenever the passengers are getting down from bus, he has to see that door is closed properly and thereafter, he can give a signal to start the bus. Therefore, Claims Tribunal has considered that if this detail procedure would have been followed in present case, the accident could have definitely been avoided because as per the say of driver of bus, the claimant has tried to get down from the bus while bus was in motion, then, this would not have happed if door was properly closed. The Claims Tribunal has considered that claimant must be on the foot-board and before closing and locking of door by conductor, driver of bus must have started bus. The driver has to wait for signal from conductor and it is not the case that conductor has closed the door applied locking system and when he started bus, the claimant herself has tried to open lock and has tried to get down from the bus while it was in motion. This was not the case of driver in his evidence and therefore, Claims Tribunal has come to conclusion that driver is fully responsible in said accident. Therefore, contention raised by learned advocate Ms. Mehta cannot be accepted.
8. The High Court of Madras has recently examined that what is the responsibility of driver and conductor when passenger is get down or boarded in bus in case of Managing Director, Tamil Nadu State Transport Corporation Limited v. N. Balachandran reported in 2008 ACJ 1799.
The relevant Para 6 where one decision of Madras High Court in case of Venkataswami Motor Service v. C.K. Chinnaswamy reported in 1989 ACJ 371 (Madras) ? Para 21 is considered which is as follows :
?S6. Placing reliance upon a decision reported in Venkataswami Motor Service v. C.K. Chinnaswamy (supra), learned counsel for the claimant submitted that it is the responsibility of the crew to see that the passengers alight and board the bus safely. In Para 21 of the judgment, it is held as follows :
?S(21) ...The life and limb of the passengers are to be borne in mind by the crew, namely, the driver and the conductor of a bus. It is not for merely mechanically driving the bus and for collecting the fares from passengers that both of them are employed in a bus. The driver of the bus has to look into both the entrances, front exit as well as rear exit, before actually starting the vehicle, even though whistle might have been given by the conductor inadvertently without noticing both the exits due to the pressure of collection of fares from the passengers or due to his noting in the memo, as in the instant case before us. But the fundamental duty of both the driver as well as the conductor is to verify specifically whether any passenger is getting into the bus or getting down from the bus before actually the bus is moved from the bus stop where it is stopped, irrespective of the fact whether that place of stopping is a bus stop or not...??
9. The Apex Court has also considered the question that what is the duty of the driver and conductor and whether it would consider to be negligence on their part or not in case of Pallavan Transport Corporation Limited v. M. Jagannathan reported in 2001 ACJ 5 (SC) Para 5, which is quoted as under :
?S5. ...It is always important to have coordination between the conductor and the driver, whenever passengers start getting down or are led to get down, to see that before any signal is given by the conductor, in any form, as normally there is bell in most of the buses which conductor rings signaling the driver to start the bus, the driver should not restart the bus. In the absence of coherence or lack of coordination between the two, it is bound to result into accident, which has happened in the present case. This would constitute to be negligence on the part of both the conductor and the driver. Once this evidence is accepted, which has been in this case, there is no scope to reassess the evidence in the present proceedings, about which attempt has been made, unless it can be said, this finding is based on no evidence or is perverse. Learned counsel for appellant submitted with vehemence and attempted to take us to the evidence to show that there was no negligence on the part of the driver. However, as we have said, it is not proper for this court to reassess the evidence and even if another view is possible, this court would not do so in a proceeding under Article 136 of the Constitution of India. In the present case, we further find, as per evidence of PW 1, that he was getting down from the front gate of bus, which is almost adjacent to he driver. If that be so, there is no difficulty for the driver to take this much of care, even if the version of RW 1 is accepted, to restart the bus suddenly when the passengers were getting down...?? (Emphasis added)
10. The High Court of Delhi in case of Vijay Nath Tiwari v. Surender and another reported in 2008 ACJ 1828, where, same facts have been considered that driver and conductor must have to control or adopt the device which closed the exists gate in the bus as discussed in Para 12 which is quoted as under :
?S12. It is the duty of the driver and the conductor of the bus to ensure that the passenger stand inside the bus and not on the footboard of the bus. It is the duty of the owner of a passenger bus more so, of a bus plying within a city to install a movable devise which closes the exit gate and it is operated by the driver to open the exit gate by causing the devise to move. A lever operated mechanism akin to turnstile gate has to be installed in an intra-city passenger bus. The reason is that state of public transport is not too happy. More often than not, excess passengers board the bus. There is pushing and jostling inside the bus.?S
11. In view of observations made by High Court of Madras as well as High Court of Delhi relying upon the Apex Court decision, it is a clear case of sole negligence of driver who has not allowed to claimant to get down from bus and bus was started without any signal from conductor. Therefore, the finding of Claims Tribunal in respect to negligence of ST bus driver is not erroneous and based upon legal evidence.
12. In respect to quantum part, learned advocate Mr. Mehta raised contention that Doctor was not examined to prove the disability certificate and 16 multiplier has been wrongly applied.
13. I have considered her submissions and Claims Tribunal has considered in Para 9 as claimant was doing agricultural activities and earning Rs.1,000/- per month as accident has occurred in the year of 1991. No evidence on record produced by claimant to show that claimant was having agricultural land. The Claims Tribunal has assess income Rs.800 per month by way of doing monthly labour work in the year 1991 and considering the permanent disability as per Dr. A.A. Patel's certificate for left lower limb. Dr. Patel is not available for deposition because at present he is residing in USA and there is no possibility of his returning to India in near future. Therefore, Claims Tribunal has considered disability certificate even in absence of examination of Dr. A.A. Patel while considering the benevolent piece of legislation being Motor Vehicle Act. The Claims Tribunal has also considered that disability certificate cannot be accepted in absence of examination of Doctor, but, due to peculiar facts as Doctor is not available, Claims Tribunal has considered disability certificate. The view taken by Madras High Court in case of Shanmugham v. Managing Director, Tamil Nadu State Transport Corporation, Villupuram, Division Villupuram reported in 2006 (4) MLJ 257 and Division Bench of this Court in case of United India Insurance Co.Ltd. v. Udaysinh Chandasinh Thakore reported in 2006 (13) GHJ 48 (DB), in such circumstances, disability certificate can be considered if it is found to be genuine by Claims Tribunal in absence of evidence of Doctor. Therefore, Claims Tribunal has relied upon disability certificate of 50%, but, body as a whole, Claims Tribunal has considered 25%. The income assessed by Claims Tribunal Rs.800/-, then, 25% cames to Rs.300/- and it yearly comes to Rs.3600/- and looking to age 40 years of claimant, Claims Tribunal has considered second schedule as a guideline, where, a person falling within age of 35 to 40 and 16 multiplier had applied by Claims Tribunal, therefore, contention which has been raised by learned advocate Ms. Mehta cannot be accepted. Claims Tribunal has rightly relied upon second schedule, where, age 35 to 40 and 16 multiplier is applied. For that, Claims Tribunal has not committed any error which requires interference by this Court. The Claims Tribunal has rightly considered the medical certificate given by Dr. A.A. Patel as there was no possibility to examine the Doctor as Doctor was not available in India and he was not likely to return from USA to India. Therefore, Claims Tribunal has not committed any error in awarding compensation in favour of claimant.
14. Learned advocate Ms. Mehta also raised contention that driver is a necessary party in the proceedings. But, that contention was not raised by Corporation before Claims Tribunal even in written statement, nowhere, such submission was made by Corporation before Claims Tribunal that driver is necessary party to be joined in present proceedings. Therefore, now, to raise such contention which cannot be allowed to raise before this Court first time.
15. Apart from that, a vicariously liability of the Corporation has to be considered by Claims Tribunal. It was not the case of Corporation that accident was not occurred because of driver. The driver was examined before Claims Tribunal by Corporation. Therefore, rash and negligence act of driver, vicariously, Corporation is liable to pay compensation. The Claims Tribunal has examined the evidence of driver and come to conclusion that driver was driving ST bus in rash and negligent manner and due to that, accident occurred.
16. In view of above observations made by this Court, the contentions which are raised by learned advocate Ms. Mehta cannot be accepted and same are rejected.
17. Therefore, according to my opinion, Claims Tribunal has rightly awarded compensation for injury caused to claimant in the accident. For that, Claims Tribunal has not committed any error which requires interference by this Court.
18. Therefore, there is no substance in present appeal. Accordingly, present appeal is dismissed.
19. The amount, if any, deposited by Insurance Company before this Court, be transmitted to Claims Tribunal concerned immediately.
20. In view of above order passed by this Court, no order is required to be passed in Civil Application. Accordingly, Civil Application is disposed of.
[H.K. RATHOD, J.] #Dave Top