Gujarat High Court
Radhaben Jamanlal Kacha vs Dinesh Mansukhbhai Raval on 24 November, 2021
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1881/2019 JUDGMENT DATED: 24/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1881 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RADHABEN JAMANLAL KACHA
Versus
DINESH MANSUKHBHAI RAVAL
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3
for the Defendant(s) No. 1,4
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 24/11/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA) 1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 18.01.2018 passed by the Motor Accident Claims Tribunal (Main), Junagadh in MACP No.432 of 2008, the original claimants have preferred present appeal.
2.0. Heard Mr. Nishit Bhalodi, learned advocate for the appellant and Ms. Neha Kayasth, learned advocate for Ms. Page 1 of 4 Downloaded on : Wed Jan 12 04:06:36 IST 2022 C/FA/1881/2019 JUDGMENT DATED: 24/11/2021 Sejal Mandavia, learned advocate for the respondent no.2. Respondent no.1 is driver of the ST Bus and his presence is not required for deciding the present appeal as only one issue involved in this appeal. With the consent of the learned advocates for the respective parties and as only singular point of law involved in this appeal, the matter is taken up for its final hearing forthwith 3.0. That the accident occurred on 19.07.2008 when deceased Jamanlal was driving the ST Bus bearing No. GJ-18- V-8980 with moderate speed and was proceeding from Veraval towards Vadodara and while passing between Jetpur and Gondal, the opponent no.1 came with ST Bus bearing No. GJ- 18-V-9920 with full speed and in rash and negligent manner and dashed with the ST Bus of the deceased, because of which, the deceased sustained serious injuries and succumbed to the same during the treatment. An FIR was lodged with the jurisdictional police station. The original claimants filed present claim petition under Section 166 of the Act and claimed compensation of Rs.40,00,000/-. The original claimant no.1 was examined at Exh.24 and over and above the same, the original claimants also relied upon the plethora of documentary evidence:
Particulars Exh. No. FIR 38 Panchnama of the site 39 Inquest Panchnama 40 PM Report 41 Pay Slip of the deceased Jamanlal 42 Anandbhai Page 2 of 4 Downloaded on : Wed Jan 12 04:06:36 IST 2022 C/FA/1881/2019 JUDGMENT DATED: 24/11/2021 Registration Certificate of the Vehicle 44 Rickshaw No. GJ-11-X-5803.
The Tribunal after appreciating the evidence on record and considering the submissions made by the respective parties, partly allowed the claim petition and awarded the compensation of Rs.7,53,000/- with 8% interest from the date of application till its realization with proportionate costs. Being aggrieved and dissatisfied with the same, the present appeal is filed by the original claimants.
4.0. Mr. Bhalodi, learned advocate for the appellants contended that while partly allowing the claim petition as the deceased was driver of the ST Bus bearing registration No.GJ- 18-V-8980, 50% contributory negligence came to be counted. Mr. Bhalodi relying upon the judgment of the Full Bench of this Court in the case of Valiben Laxmanbhai Thakore (Koli) widow of late Laxmanbhai Ramsingbhai Thakore (Koli) and ors vs. Kandla Dock Labour Board and Another reported in 2021(4) GLH 77 contended that the deceased was paid driver of the ST Bus bearing Registration No. GJ-18-V-8980 and as per the ratio laid down by the Full Bench of this Court in Valiben Laxmanbhai Thakore (Koli) (supra), the ST Corporation as owner of the Bus bearing registration GJ-18-V- 8980 shall be liable. Mr. Bhalodi, learned advocate contended that the appellants did not challenge the quantum part of the award impugned in this appeal.
5.0. Ms. Kayasth, learned advocate for the ST Corporation has not been able to contended anything to the contrary and Page 3 of 4 Downloaded on : Wed Jan 12 04:06:36 IST 2022 C/FA/1881/2019 JUDGMENT DATED: 24/11/2021 in fact has submitted that the issue is now covered by the judgment of the Full Bench of this Court.
6.0. No other and further submissions/ contentions have been made by the learned advocates for the respective parties.
7.0. We have perused the original Record and Proceedings. The Tribunal after considering the aspect of liability has come to the conclusion that the driver of the ST Bus bearing Registration No. GJ-18-V-8980 would be personally liable and thereby ST Corporation has been exonerated to the extent of 50%. The Full Bench of this Court in the case of Valiben Laxmanbhai Thakore (Koli) (supra) has held that when paid driver is there which in facts of the case on hand driver of the bus bearing Registration No. GJ-18-V-8980 was a paid driver, the owner shall be liable. Following the ratio laid down by the Full Bench of this Court in the case of Valiben Laxmanbhai Thakore (Koli) (supra), the ST Corporation is liable and deduction of 50% towards negligence of driver of ST Bus bearing No. GJ-18-V-8980 deserves to be modified. The impugned judgment and award passed by the Tribunal is modified to the aforesaid extent. Thus, appeal is partly allowed. However, there shall be no order as to costs. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith.
sd/-
(R.M.CHHAYA,J) sd/-
(MAUNA M. BHATT,J) KAUSHIK J. RATHOD Page 4 of 4 Downloaded on : Wed Jan 12 04:06:36 IST 2022