Gujarat High Court
Supdt. Of Post Offices And Ors. vs Pratap Ghelabhai Maru And Ors. on 14 October, 1985
Equivalent citations: 1(1986)ACC221
JUDGMENT R.C. Mankad, J.
1. This appeal by the original opponent Nos. 1, 2 and 3 is directed against the judgment and award dated April 29, 1985, passed by the Motor Accidents Claims Tribunal (Main) at Rajkot (Tribunal for short) by which compensation of Rs. 70,200/- was awarded to respondent No. 1. original claimant.
2. This appeal arises out of the accident which took place at about 7.30 or 8.00 A.M. on March 23, 1952 at the cross roads krown as Jubili Chowk in Rajkot. Claimant respondent No. 1 herein was driving auto-rickshaw and he was proceeding from Para Bazar to General Post Office that is from east to west. Applicant No. 3 original opponent No. 1 was driving matador van owned by appellants Nos. 1 and 2, original opponents 2 and 3 from Trikam Bag Bedipara Post Office that is from south to north. According to the claimant when he was proceeding from east to west, the matador van ("van" for short) driven by opponent No. 1 came from south and collision took place at the cross roads. It is submitted on behalf of the appellants that the accident occurred on account of rash and negligent driving of the auto rickshaw by the claimant. In the alternative, it is submitted that in any case the accident could not have occurred but for the contributory negligence on the part of the claimant. The Tribunal has, however found that the accident occurred on account of rash and negligent driving of the van on the part of opponent No 1. We see no reason to differ from the view taken by the Trtbunal. Besides the evidence of the claimant and opponent No. 1 we have the panchnama of the scene of accident drawn up by police. This panchnama shows that there were brake marks of about 10 feet made by the wheels of the van. This indicates the speed at which the van was driven. It further appears from the panchnama that damage to the auto rickshaw which was driven by the claimant was caused Mainly on the left side front. It appears that while the claimant was negotiating the cross roads, the van came from his left. Having regard to the direction in which the van was facing and the evidence, the submission that it was going from south to west is not correct. It appears that it was going from south to north Evidence of opponent No. 1 also indicates that he was taking the van to Bedipara post office. One has to go in northern direction to go to Bedipara from Trikam Bag. It is, therefore, obvious that the van was going from south to north. As already stated above, the auto-rickshaw was going from east to west. In other words, both the vehicles were going straight Since the auto rickshaw was on the right side of the van, when both the vehicles approached the cross roads, it was the duty of the driver of the van to stop his vehicle and allow the auto rickshaw to pass. He, however, continued to drive his vehicle and on noticing auto rickshaw applied brakes. By then it was too late and he could not avoid collision The auto rickshaw, it appears dashed against the right side rear of the van. Having closely examined the testimony of the claimant and the opponent and the physical facts as found soon after the accident described in the panchnama. We agree with the conclusion reached by the Tribunal that the accident occurred on account of rash and negligent driving on the part of opponent No. 1 who was driving the van. There was no contributory negligence on the part of the driver of the auto rickshaw, that is the claimant.
3. Second ground which is urged on behalf of the appelant is that since the claimant has received compensation under the Workmen's Compensation Act, it Is not open to him to claim compensation or damages from the appellants. We not do find any substance in this argument also. It is true that under Section 110 of the Motor Vehicles Act, the claimant could not have claimed compensation under, the Workmen's Compensation Act and also damages from the owner and insurer of auto rickshaw. So far as the owner of auto rickshaw was concerned, the claimant had to make a choice either to claim compensation under the Workmen's Compensation Act or to claim damages under the general law However, the question of making S election does not arise so far as third party is concerned. Claimant could not have claimed any compensation from the appellant under the Workmen's Compensation Act Therefore, there is no question of making any choice as urged on behalf of the appellants. Reliance was sought to be placed on a decision of this Court m Premier Insurance Co. v. Gambhir singh AIR 1975 Gujarat 133 in support, of the argument that claimant is not entitled to claim damages he having obtained compensation under the Workmen's Compensation Act This decision on which reliance is placed has no application to the facts of this case. That was a case in which two vehicles were not involved in the accident. The claimants in that case were claiming compensation for rash and negligent driving of motor vehicles driven by the driver employed by the owner who had engaged them as labourers. It was m the background of the facts which obtained in that case that the court held that the claimants had to choose between two remedies available to them one under the Workmen's Compensation Act and other under the general law. Such is not the position in the instant case. Therefore the mere fact that the claimant has obtained compensation under the Workmen's Compensation Act does not disentitle him from claiming compensation or damage from the appellants. Therefore, the second ground urged on behalf of the appellants also fails.
4. No other ground is urged before us.
5. In the result we see no reason to interfere with the award passed by the Tribunal. The appeal fails and is dismissed. Notice discharged with no order as to costs.