Gujarat High Court
Gujarat State Road Transport ... vs Jayshreeben Rameshchandra Gandhi on 30 January, 2019
Author: S.G. Shah
Bench: S.G. Shah
C/FA/5036/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5036 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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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 or any
order made thereunder ?
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GUJARAT STATE ROAD TRANSPORT CORPORATION LIMITED
Versus
JAYSHREEBEN RAMESHCHANDRA GANDHI
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Appearance:
MS KIRAN D PANDEY(3337) for the PETITIONER(s) No. 1,2
MR PARESH M DARJI(3700) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 30/01/2019
ORAL JUDGMENT
1. Heard learned advocate Ms. Kiran D. Pandey for the appellants and learned advocate Mr. Paresh M. Darji for the respondents No.1,2 and 3. Perused the record.
2. The appellants herein are ST Corporation with Page 1 of 5 C/FA/5036/2018 JUDGMENT its driver; whereas, respondents are original claimants. The appellants have challenged the judgment and award dated 29.1.2018 by M.A.C.T., Surat in M.A.C.P. No.271 of 2006, whereby Tribunal has awarded an amount of Rs.10,69,654/- for the death of one Rameshchandra Gandhi, who died in a vehicular accident. It is undisputed fact that on 2.1.2006, when deceased was travelling on a motorcycle No.GJ-5DB-8115, the ST Bus bearing No.GJ-18V-4604 had dashed with the motorcycle and in such vehicular accident, both the driver and pillion rider of the motorcycle, namely, Manilal Gotefore and Rameshchandra Gandhi had died. Therefore, legal heirs of both the deceased have filed two separate claim petitions being M.A.C.P. No.271 of 2006 by heirs of deceased Rameshchandra Gandhi and M.A.C.P. No.431 of 2006 by deceased Manilal Gotefore. The Tribunal has after allowing both the sides to adduce their evidence, awarded Rs.10,69,654/- in M.A.C.P. No.271 of 2006 to the heirs of deceased Rameshchandra Gandhi and Rs.3,45,000/- in M.A.C.P. No.431 of 2006 for death of deceased Manilal Gotefore. It is undisputed fact that motorcycle was being driven by deceased Rameshchandra Gandhi; whereas Manilal Gotefore was a pillion rider.
3. However, when both the claim petitions are only against driver of the ST Bus and ST Corporation, when ST Corporation has not challenged the order in M.A.C.P. No.431 of 2006, Page 2 of 5 C/FA/5036/2018 JUDGMENT and more particularly, when judgment and award is common in both the petitions, practically, appellant - ST Corporation has admitted the determination regarding negligence when Tribunal has held the ST driver as sole negligent for the accident. Therefore, though the issue of contributory negligence of deceased Rameshchandra Gandhi is pleaded and argued before this court, there is no substance in such submission for two reasons viz. being legal i.e. application of principle of res judicata or admission by the appellants, when they did not challenge the award in M.A.C.P. No.431 of 2006 wherein also the Tribunal has held that ST driver is solely negligent and factually, when ST driver has not stepped into the witness-box, considering the decisions of Hon'ble Supreme Court of India in the case of Jiju Kuruvila & Ors vs. Oriental Insurance Co. Ltd. reported in 2013 LawSuit (SC) 527 and Sarladevi & Ors. vs. Divisional Manager, Royal Sundaram Alliance Ins. Co. Ltd. reported in 2014 LawSuit (SC) 698, in absence of evidence by the tortfeasor to prove that another person is negligent, he cannot escape from his liability and therefore, there is no error in the decision by the Tribunal to hold ST driver as sole negligent.
4. Whereas, so far as evidence in concerned, on one hand, there is specific evidence by both the claimants, which is supported by FIR and Panchnama so as to confirm that ST driver is sole Page 3 of 5 C/FA/5036/2018 JUDGMENT negligent. Therefore, in absence of evidence in rebuttal, only because of pleading, either in the written statement before the Tribunal or in appeal memo before this court, it cannot be held that deceased Rameshchandra Gandhi being driver of the motorcycle has also contributed to the accident so as to consider his contributory negligence. To that extent, there is no substance in the appeal.
5. It seems that Corporation has challenged the award in M.A.C.P. No.271 of 2006 mainly because the total amount is Rs.10,69,654/-. However, perusal of record makes it clear that when income-tax returns for the year 2004 to 2006 were produced on record, which are prior to the date of accident and thereby, when Tribunal has considered the average income of the victim, considering income-tax returns of last three years and applied principles laid down in the case of Sarla Verma Vs. Delhi Transport Corporation reported in 2009 ACJ 1258 so also the case between National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017)16 SCC 680, there is no scope of reduction of amount of compensation and interfere with in the impugned award only because award is above Rs.10 Lakhs.
6. Therefore, I do not see any substance or reason to interfere with in the impugned award, which is otherwise well reasoned considering the overall facts,circumstance and evidence on record Page 4 of 5 C/FA/5036/2018 JUDGMENT and based upon settled legal proposition on the subject. Therefore, only because award is above Rs.10 Lakhs and only because appellant is ST Corporation, and when issue of negligence has not been challenged by the appellant in connected matters and admitted their liability, both for negligence and amount of compensation in connected matters, there is no substance in the First Appeal and therefore, the First Appeal is summarily dismissed.
7. In view of dismissal of main First Appeal, the Civil Application does not survive and stands disposed of accordingly.
(S.G. SHAH, J) BINOY B PILLAI Page 5 of 5