Gujarat High Court
G.S.R.T.C. vs Jafarbhai Ibrahimbhai Bag on 10 May, 2019
Author: B.N. Karia
Bench: B.N. Karia
C/FA/5220/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5220 of 2007
With
R/FIRST APPEAL NO. 5221 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
=============================================
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 or any order made thereunder ?
============================================= G.S.R.T.C. Versus JAFARBHAI IBRAHIMBHAI BAG & 4 other(s) ============================================= Appearance:
MR VYOM SHAH for MR GM JOSHI(370) for the Appellant(s) No. 1 MR TIRTHRAJ PANDYA for MR PARTHIV B SHAH(2678) for the Defendant(s) No. 1,2,3 RULE SERVED(64) for the Defendant(s) No. 4,5 ============================================= CORAM: HONOURABLE MR.JUSTICE B.N. KARIA Date : 10/05/2019 COMMON JUDGMENT
1. These two different appeals are preferred by the appellant against the common judgment and order dated Page 1 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT 28.04.2006 passed by the Motor Accident Claims Tribunal (Auxi.), Vadodara in Motor Accident Claim Petition No.1850 of 1997 with Motor Accident Claim Petition No.1851 of 1997 under Section 173 of the Motor Vehicles Act, 1988.
2. The short facts of the present case are as under:
2.1 As per the averments made by the applicants/original claimants in their claim petition, on 05.08.1997, at about 11.45 a.m., daughter Yasmin and Son-Sahid of the applicants were proceeding to their school on the bicycle. That, daughter Yasmin was driving her bicycle on correct side of the road and with moderate speed, at that time, opponent no.1 drove his ST bus, bearing registration No.GJ-18-V-1355, rashly and negligently and dashed with the bicycle from the back side and turned over the bicycle. Both Yasmin and Sahid sustained grievous injuries. During the treatment, daughter Yasmin succumbed to the injuries. That, police complaint was lodged against the opponent no.1 with Sayajiganj Police Station, being I- C.R. No.216 of 1997. As per the averments made in the claim petition, daughter Yasmin was studying in standard 10th and was brilliant in her study and secured first rank in the school. She was participating in other cultural activities and social activities in the school and was securing first prize.
That, in holidays as well as after completing school hours, she Page 2 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT was engaged in tailoring work and her income from the same was Rs.2000/- per month. That, her career was so bright in future. That, on account of sad demise of the deceased, applicants requested to pass an award of Rs.7,00,000/- by way of compensation along with interest @20% per annum. 2.2 The applicant in MACP No.1851 of 1997 averred in his claim petition that he had received injuries in his both legs, hands and other parts of the body. That, he had a fractured to his thigh. He was shifted to SSG Hospital, Vadodara for his treatment as indoor patient. That, on 29.08.1997, he was discharged from the hospital. That, he was unable to move himself independently. He was suffering great difficulty in doing his routine activities and was compelled to take help of one assistant. He was studying in standard 8 and was brilliant in study. That, his carrier was ruined on account of injuries sustained by him atleast for a period of one year. That, there was every possibility of getting permanent disablement, and therefore, on account of this head, he requested to pass an award of Rs.2,00,000/- along with interest @20% per annum. 2.3 That, after receiving notice, respondent no.2 filed its written statement before the tribunal denying the averments and allegations made by the respective claimants in their Page 3 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT claim petitions. As per the averments, this accident was occurred on account of rash and negligent driving of the cyclist whereby two persons were travelling. That, the cyclist has lost control over the cycle and dashed with the ST bus from back side, and therefore, no liability of this opponent can be fastened by the tribunal. The averments made in paragraphs 1 to 10 of petitions were denied by this opponent. Date of accident, place of accident, daughter and son of respective claimants were proceeding towards school on their bicycle, driving bicycle by the deceased Yasmin on moderate speed and on correct side of the road, opponent no.1 came with ST bus, bearing registration No.GJ-18-T-1355 drove it rashly and negligently and dashed with the bicycle, daughter yasmin and son Sahid sustained any injuries, daughter- Yasmin expired on account of alleged injuries, studying in standard 8 or 10, bright career in future, earning any income or entitlement to any amount of compensation were denied by this opponent. As per contention, no liability of this opponent can be fastened by the tribunal and hence, it was requested by this opponent to dismiss the claim petitions. 2.4 Learned tribunal, after considering the pleadings of the parties, framed issues and after recording the evidence of the parties, was pleased to partly allow the claim petitions being Page 4 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT MACP No.1850 of 1997 awarding compensation of Rs.1,69,100/- and MACP No.1851 of 1997 awarding compensation of Rs.54,160/- together with proportionate costs and interest @9% per annum from the date of the claim petitions till the realization.
2.5 Being aggrieved and dissatisfied with the impugned judgment and award passed by the tribunal, present appeals are preferred by the appellant.
3. Heard learned advocate Mr. Vyom Shah for Mr. G.M.Joshi, learned advocate for the appellant and learned advocate Mr. Tirthraj Pandya for Mr. Parthiv B. Shah, learned advocate for the respondent nos.1 to 3.
4. Learned advocate for the appellant has limited his arguments on the issue of negligency only and argued that at the time of accident, in the morning, there always remained heavy traffic, and therefore, there was no question of driving motor vehicle bus rashly and/or negligently by the opponent no.1. That, the alleged accident was occurred due to sole negligency of the deceased and injured person, as they lost balance over the bicycle. That, no liability of compensation can be held by the tribunal however, tribunal has committed grave error in holding liability of the present appellant. That, Page 5 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT the negligency of the ST bus driver to the extent of 95% and only 5% of the deceased was wrongly held by the tribunal. That, in fact the alleged accident was occurred due to sole negligency of the deceased cyclist, and therefore, present appellant would not be liable to pay any compensation as there was sole negligency on the part of the deceased. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and award passed by the tribunal and exonerate the present appellant from paying amount of compensation to the claimants.
5. From the other side, learned advocate for the original applicants/claimants strongly opposed the arguments advanced by the learned advocate for the appellant and submitted that this accident was occurred on account of sole negligency on the part of the opponent no.1- driver of the ST bus, bearing registration No. GJ-18-T-1355. That, conductor side wheel near the turning place dashed with the deceased injured persons as they are passing through the Kalaghoda from rear left side. That, the fatal/bodily injuries sustained by the deceased itself suggestive proof to come to the conclusion that the opponent no.1 was rash and negligent while driving his bus. That, the opponent no.1 in his cross examination has admitted that there was no glass on conductor side and Page 6 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT thereby, not noticing the vehicles coming from left side itself proves the negligency on the part of the opponent no.1. Considering the way and manner about happening of the accident, it was argued that rashness and negligence on the part of the opponent no.1 was apparent and tribunal has committed no error. Ultimately, it was requested by learned advocate for the respondents/claimants to dismiss the present appeals.
6. As no other issues were raised by any other parties, only issue of negligence would require to be considered in the present appeals.
7. From the record, it appears that vide Exh.20 witness from the applicant side namely Jafarbhai was examined. Of course, he has no personal knowledge about happening of the alleged accident as much as is not eye witness to the scene of occurrence. The witness no.2 namely Mohmadsahid has stated that he along with the deceased-Yasmin were going on bicycle to their school and they were passing through Kalaghoda, meanwhile, opponent no.1 came driving his ST bus, bearing registration No.GJ-18-T-1355 in rash and negligent manner and dashed with their bicycle from the back side. He has further stated that after hitting their bicycle by the ST bus, Page 7 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT deceased fallen down and crushed from the left rear wheel of the bus and she died. If we perused cross examination of this witness, he has stated that the deceased Yasmin was riding bicycle and he was pillion rider. That, the signal was off at the relevant time. As and when signal was started, they started to move but meanwhile, ST bus came with an excessive speed from behind and dashed with the bicycle. Opponent no.1 has also deposed vide Exh.37, who was incharge of the ST bus, was serving with the ST corporation at the relevant point of time and driving his bus from Pavagadh to Vasad. On the day of accident, at about 11.45 a.m., as per his statement, the bus was stationary standing on Kaladhoda Station, since received green signal, he started his bus and as the traffic police shouted, he stopped his bus and alighted from the bus. He found deceased near rear wheel of the conductor side. Of course, he has denied of crushed of the deceased in wheel. He has stated that he was acquitted in the criminal cases. That, the width of the road was 80-100 feet. As per the statement, because of heavy traffic, alleged road was closed. There was no mirror on the conductor side in the ST bus. True that there was some contradictory evidence of Mohmadsahid vide Exh.21 and opponent no.1 Exh.37, but tribunal came to the conclusion that the ST bus would dash from behind to the Page 8 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019 C/FA/5220/2007 JUDGMENT deceased cyclist. If the bus would have dashed from behind the cyclist, the bus driver must be in knowledge of occurring the accident but, he has denied to have any knowledge about happening of accident. That, on shouting by the traffic police, he alighted from the bus and found that the deceased crushed under the left rear wheel of his bus. It would not be possible to ascertain from the Panchnama the manner in which the deceased was riding shortly before the collision. The fact remains that the opponent no.1 started the bus on receiving green signal and the accident occurred near curvature while taking the turn. It was therefore possible to consider the question of liability. The opponent no.1 has admitted that there was no mirror fixed on front side of the conductor of the bus. If there had been mirror in the bus as was required, he could have by piping in the mirror seen the small object like a bicycle and could have stopped the bus or reduced the speed of the bus.
8. The findings of the tribunal cannot said to be illegal or perverse on account of negligency holding 95% against the driver of the ST bus and 5% against the deceased cyclist. This Court is of the opinion that any factual aspect as concluded by the tribunal would require no interference by this Court. Hence, the present appeals would require dismissal. Page 9 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019
C/FA/5220/2007 JUDGMENT Accordingly, both the appeals are hereby dismissed. The impugned judgment and award passed by the tribunal is confirmed.
9. Interim relief granted by this Court on 12.05.2008 shall stand vacated. The amount deposited by the present appellant shall be released by the tribunal on request made by the applicants/original claimants in accordance with law.
10. Record and Proceedings be sent back to the concerned tribunal forthwith.
(B.N. KARIA, J) NEHA Page 10 of 10 Downloaded on : Sun Jun 30 16:30:59 IST 2019