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2004 DIGILAW 119 (GUJ)

Secretray v. Anima Mamad

2004-02-26

H.K.RATHOD

body2004
BHAVANI SINGH, J. ( 1 ) OUT of the same incident and common award. On 22. 2. 1996, the claimant amina Mamad and her daughter Sayara aged 8 years were travelling in a Vespa Rickshaw bearing Registration No. GRU-3982 and were going from Salaya to Khambhalia. When the said rickshaw reached near the bridge on Salaya Khambhalia Road, at that time, the original opponent No. 1 came there driving jeep bearing registration No. GBA 237 in rash and negligent manner and dashed with the rickshaw bearing Registration No. 3982 in which the claimant amina and her minor daughter Sayara were travelling resulting in grievous injuries to the claimant Amina Mamad on her hands and other parts of the body and grievous injuries to Her daughter Sayara who died. ( 2 ) THE claimant Amina Mamad is a fisherwoman earning Rs. 100,00 to rs. 150. 00 per day. She was admitted in the irwin Hospital Jamnagar where she was operated and treated. Thereafter, she got treatment at Ahmedabad and thereafter, she was also treated in a private hospital at jamnagar. The claimant states that due to this accident, she has suffered great mental paint shock and suffering and unable to work as fisher woman, she had to spend huge amount towards treatment purchase of medicines, special diet, transportationa charges etc. She, therefore, claimed compensation of Rs. 4,00,000. 00 under the various heads. With regard to Sayara, compensation of Rs. 1,00,000. 00 is sought. Driver of the rickshaw has also claimed compensation of Rs. 1,00,000. 00. Son, of the opponents have not filed their written statement. However, the claims are disputed by the others including the insurance Company stating inter alia that the jeep was not being driven in a rash and negligent manner as alleged, the accident was caused by the rickshaw driver who overtook the vehicle and dashed against Jeep coming from opposite side. It was also stated that the claims are exorbitant therefore, liable to be rejected. ( 3 ) ON the basis of the pleadings of the parties, the claims tribunal framed separate issues in three claim petitions which are to the effect whether it is proved that the claimants sustained injuries/death due to the rash and/or negligent driving of the driver of the vehicle involved in the accident and whether the claimants were entitled to compensation, if yes, what amount and from whom. ( 4 ) THE Claims Tribunal, after appreciating the evidence on record came to the conclusion that the injuries/death has been the result of rash and negligent driving of the two vehicles in the ratio of 60% (Jeep) and 40% (Rickshaw ). Accordingly, compensation has been awarded in three claim petitions with interest at the rate of 9 per cent p. a. from the date of the application till the date of actual payment thereof. ( 5 ) THE Appellant is not satisfied with this award. Therefore, it has been challenged through these Appeals. Shri Dave, learned counsel for the appellant, has forcefully contended that the claim, tribunal has committed serious error in appreciating the evidence record with regard to the responsibility for causing accident. Precisely, submission is that it was the rickshaw driver who caused the accident, therefore, he is solely responsible for the accident and the consequences thereof. Therefore, on the basis of the evidence the tribunal ought to have appreciated that the rickshaw driver over took the vehicle in front of it and dashed with the jeep. This version is given by the superintendent of Customs who was driving the jeep and panchanama Exh. 46. We are not satisfied with these submissions. The panchanama does not recorcd that the accident was caused by the rickshaw driver, It records involvement of jeep and the damage caused to it to the extent of Rs. l. 000. 00. This has been considered by the claims tribunal while assessing the evidence. Further, the statement with regard to involvement of two vehicles in the accident has been given by one Hemant khubchand Ramani at Exh. 91 who is a custom inspector and he was travelling in the said jeep. The jeep was being driven by ajitsinh Sardarsinh. Custom Superintendent and not by the driver of the jeep. Thus, the person who was driving the Jeep had not come forward to depose before the claims tribunal that the rickshaw driver had overtaken the vehicle in front of it therefore, this is a serious lacuna in the case. ( 6 ) PERSON driving the jeep ought to have come forward to depose before the claims tribunal. On. the other hand, rickshaw driver stated before the claims tribunal on oath that the jeep dashed with the rickshaw. ( 6 ) PERSON driving the jeep ought to have come forward to depose before the claims tribunal. On. the other hand, rickshaw driver stated before the claims tribunal on oath that the jeep dashed with the rickshaw. Further, the story that the rickshaw driver over took the vehicle in front of it is not there in the first information report nor in the deposition of the driver. It is only given by the custom inspector Hemant khubchand Ramani at Exh. 91. Further, damage to the jeep is minimal as compared to the damage caused to the rickshaw and the occupants thereof. The claimant aminabanu Mamad suffered grave injuries on her hands and other parts of the body and she was treated and operated in the irwin Hospital and some other hospitals while her young daughter Sayara (8) died of the injuries suffered. Driver of the rickshaw also suffered injuries; therefore, this is another circumstance, which shows the nature, extent and involvement of the jeep in the accident. Therefore, the findings recorded by the tribunal are accepted for the determination of the points in this, Appeals and such findings are open to challenge if any appeal is filed by the claimants contending that the Jeep was the solely responsible for accident. Therefore, the contention raited by the learned counsel Mr. Dave, based on the decision of the Division Bench of this court in GUJARAT STATE ROAD TRANSPORT CORPORATION AHMEDABAD versus HANIF MOHMED BISMILLAKHAN and anr. 1997 1 GLR 631 . cannot be accepted in the facts of this case, though there is no dispute with regard to the principles laid down in it. The driver of the vehicle from the opposite side must be careful and see that some vehicle is overtaking therefore slow down its speed and be careful. ( 7 ) HAVING come to the aforesaid conclusione we have examined the award of compensation in three claim petitions. Claimant Aminabanu Mamad suffered grave injuries in arm, and other part, of the body, she was treated at the Irwin Hospital at jamnagar, Ahmedabad and then in the private hospital at Jamnagar for number of days. She spent sufficient funds on treatment. She must have suffered great pain, shock and suffering etc. She must have spent on transportation special diet and other ancillary expenses, therefore, the award of compensation cannot be said to be excessive. She spent sufficient funds on treatment. She must have suffered great pain, shock and suffering etc. She must have spent on transportation special diet and other ancillary expenses, therefore, the award of compensation cannot be said to be excessive. Same is our view with regard to the compensation awarded for the death of minor daughter Sayara. Shri Dave contends that she was three year old as per the FIR. It should be noted that the FIR was lodged by the Custom Inspector who is not expected to know the exact age of the girl. Claimant aminabanu Mamad, mother of minor sayara, submits that the deceased Sayara was aged eight years. Therefore, this evidence is preferable as compared to the other evidence as regards the age of minor Sayara. ( 8 ) COMPENSATION awarded for the death of minor daughter Sayara also cannot be considered to be excessive. We find no justification to interfere with the conclusion of the tribunal with respect to the award of compensation to the driver of rickshaw. Accordingly we find no merit in these Appeals and the same are therefore, dismissed while making it clear that if the award of compensation is challenged by the claimants, recording of finding with respect to the liability of rickshaw driver, and compensation awarded shall be reconsidered in the context of the plea in such Appeal (s ). The result is, there is no merit in these Appeals and the tame are dismissed. In view of the above orders, aforesaid Civil Applications are also disposed of. .