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Rajasthan High Court · body

2010 DIGILAW 1184 (RAJ)

G. S. R. T. C. v. Lala Mavji

2010-07-08

RAVI R.TRIPATHI

body2010
Hon'ble TRIPATHI, J.—Present First Appeal is filed by the G.S.R.T.C. being aggrieved by judgment and award dated 24th May 1982 passed by the learned Motor Accident Claims Tribunal, Jamnagar in Motor Accident Claims Petition Nos. 76 of 1981 and 77 of 1981. In the said Motor Accident Claims Petition, against the claim of Rs.1 lakh, the Tribunal has awarded an amount of Rs.83,000/-. 2.0 The learned advocate for the appellant vehemently submitted that the Tribunal has committed an error in answering Issue No. 1 in affirmative. The Issue No. 1 (Motor Accident Claims Petition No. 77 of 1981) is, "Whether the applicant proves that the opponent No. 2 drove the vehicle No. GRS 6646 (S.T. Bus) rashly and/or negligently and thereby caused injury to him? 2.1 The learned advocate for the appellant also submitted that the Tribunal has erred in awarding an amount of Rs.83,000/-. In this regard, the learned advocate for the appellant invited attention of the Court to, firstly the relevant discussion on the point of negligence being Issue No. 1, which is discussed in Paras 9 to 15. In Para 9, the facts are set out which read under: "The applicants have put forth the case that the motor cycle was driven by injured applicant Bachu Ramji and that another applicant Lalabhai was pillion rider. According to them the accident was the result of sole negligence on the part of the opponent No. 2 who was driving the above said S.T. Bus at the relevant time. In support of their case, they have examined firstly applicant Lalabhai at Exh. 29. His say is that at the relevant time, Bachubhai was driving the motor cycle No.GJP-4618 and the accident had taken place on 6-1-81 on the Kalawad - Jamnagar Highway near villages Matva and Modpar. His case further is that the S.T. Bus had come there from Kalawad side and it was running at an excessive speed. According to him, the bus had dashed with the motor cycle which was at the relevant time on the correct side of the road." 2.2 So far as the aspect of negligence is concerned, the Tribunal has discussed it in Paras 13, 14 and 15 in particular. In Para 13, the Tribunal has appreciated the evidence of Nitinkumar - opponent No. 2 - Driver of the S.T. Bus, which is Exh. 41. In Para 13, the Tribunal has appreciated the evidence of Nitinkumar - opponent No. 2 - Driver of the S.T. Bus, which is Exh. 41. He has stated that, 'he was on the correct side of the road and was driving the vehicle at the speed of 30 to 40 kms. per hour'. It is his case that, 'it was the motorcycle which was running at an excessive speed and two to three persons were travelling on the same and as the driver of the motorcycle lost balance, it dashed with the bumper of the bus'. 2.3 In Para 14 of the judgment and award, the learned Tribunal has appreciated the evidence of the S.T. Bus driver by considering his cross examination, wherein, he has stated that, 'the width of the road was 12 feet and there was a Kachcha shoulder of 03 feet width on each side'. He has also stated that, 'he had not taken the bus on the extreme left side of the road as there was a ditch'. 2.4 The Tribunal has then, considered the rest of the evidence in Para 15, which reads as under: "15. But when the reference is made to the complaint at Ex. 47 filed by Head Constable Kashiram, it becomes clear that according to him the accident had occurred because the drive of the S.T. Bus was dazzled by the glare of the light of the motorcycle. When the reference is made to the panchnama at Ex. 48, it becomes clear that the tar road is of the width of 12' and the Kacha shoulders on both the sides are of the width of 5'. It, therefore, becomes clear that the total width of the road would be 22' which was wide enough to allow both the vehicles to pass simultaneously. The panchnama further shows that the front portion of the motorcycle was found to have been damaged, and the front wheel was also found to have been damaged. The S.T. Bus had damaged and fresh scratches on the front of the driver's seat. The bus stop at village Matva is at a distance of 200' from the spot of the accident. Therefore, from the panchnama at Ex. The S.T. Bus had damaged and fresh scratches on the front of the driver's seat. The bus stop at village Matva is at a distance of 200' from the spot of the accident. Therefore, from the panchnama at Ex. 48, it becomes clear that the road was wide enough for the vehicles to pass simultaneously and the impact was with the front part of the motorcycle and the front side of the S.T. Bus. It, therefore, becomes clear that the S.T. Bus was running in the middle of the road and the evidence on record does not show that there is a ditch on the extreme left of the road which falsifies the suggestion made by the driver during his oral evidence. The conclusion, therefore, is that the driver of the S.T. Bus had failed to take necessary care and caution and that he was driving the vehicle in a rash and negligent manner. This point, therefore, requires to be decided in affirmative in both the M.A.C. Cases and the same is hereby accordingly decided in both the M.A.C. Cases." 2.5 The learned advocate for the appellant - S.T. Corporation invited attention of the Court to Exh. 48 and submitted that it is clear from the 'Panchnama' that there was 'Kachcha Shoulder' on both the sides of the width of 5 feet. That takes the total width of road to 22 feet and therefore, there was sufficient space for both the vehicles to pass. The learned advocate for the appellant submitted that the fact that it is mentioned in the 'Panchnama' that towards south, at a distance of about 200 feet, there was a 'Patia' for Matva Village, where the bus is said to have been stopped by the driver, is suggestive of the fact that the bus could not have been in an excessive speed. 2.6 The learned advocate for the appellant next invited attention of the Court to Exh. 47 - Complaint filed by Head Constable - Kashiram Vithobha. The learned advocate for the appellant submitted that it is specifically mentioned in the Complaint that there were three persons travelling on the motorcycle. 2.6 The learned advocate for the appellant next invited attention of the Court to Exh. 47 - Complaint filed by Head Constable - Kashiram Vithobha. The learned advocate for the appellant submitted that it is specifically mentioned in the Complaint that there were three persons travelling on the motorcycle. The learned advocate for the appellant submitted that it is mentioned in the Complaint that it being a night time, the S.T. Driver operated the headlight, and that caused tower of light, which dazzled the motorcycle driver, who lost control over the motorcycle and dashed with the front bumper on the driver side of the bus and all the three persons travelling on the motorcycle had fallen down. Out of them, Bachu Ramji and Lala Mavji sustained injuries. The learned advocate for the appellant submitted that this shows that the S.T. Driver was not rash and negligent in driving the bus and was certainly not responsible for the accident in question. 2.7 The learned advocate for the appellant submitted that thus, the finding recorded by the Tribunal that it was the S.T. Bus driver who was rash and negligent and solely responsible for the accident, is required to quashed and set aside. 2.8 The learned advocate for the appellant invited attention of the Court to the Deposition of Dr. Kiran Mahadev Jadav - Exh. 22. The learned advocate for the appellant submitted that from the Deposition of the Doctor it is clear that the injuries were such from which, the patient would have recovered within two months, in the case of Bachu Ramji and so far as Lala Mavji is concerned, within three months. 2.9 The learned advocate for the appellant further invited attention of the Court to the Deposition of Dr. Hasmukh Keshavlal Vakharia - Exh. 26, wherein, the Doctor has stated in Examination in Chief as under: "On examination I had also noticed that there was tenderness at trochentric area and movements were restricted. There was a scar in the front of the knee and the knee movements were grossly restricted and it was up to 80 degree flexion with 1/2" shortening of the right lower extremity. He was not able to sit across legged. The squatting was also not possible. The patient was examined radiologically also. In my opinion Lala Mavji has developed 40% of permanent partial functional disability. He was not able to sit across legged. The squatting was also not possible. The patient was examined radiologically also. In my opinion Lala Mavji has developed 40% of permanent partial functional disability. I am shown the certificate dated 17-12-81 at mark 21-3. The certificate is in my handwritings and bears my signature. It is at Ex. 27. In my opinion injured Lala would be able to walk with help of crutches but would not be able to do normal agricultural work..." 3.0 The learned advocate for the appellant submitted that in light of the aforesaid evidence, the award of Rs.83,000/- is on a much higher side and the same is required to be reduced appropriately. 4.0 The Tribunal has discussed the quantum aspect in second Para 18 (two Paras are numbered 18) and 19 and 20. The learned advocate for the appellant submitted that the Tribunal has erred in awarding Rs.60,000/- under the head of Loss of Income by assessing the loss at Rs.5,000/- per year and there after giving multiplier of 12. The learned advocate for the appellant submitted that there is no justification given for assessing Rs.5,000/- as loss of income per year and giving multiplier of 12. 4.1 This Court has considered the evidence of Lala Mavji, who is examined at Exh. 29. He has categorically stated that; "I am the applicant in M.A.C. Case No. 77/81. I am an agriculturist. I have got agricultural lands admeasuring about 30 to 35 vighs. I am shown the revenue record produced vide mark 21/9 to 21/11. They are at Exs. 30 to 32..." 4.2 The deponent has also produced the relevant revenue records, which are at Exhs. 30 to 32. It is also stated by the deponent that he was aged 42 years on the date of deposition. He specifically stated that, 'before the accident I used to cultivate my land personally. I used to perform all agricultural operations. After the accident I am not able to do any agricultural work. Now I have engaged one Sathi named Purshottam. I pay him at the rate of Rs.5,000/- per year. I have to provide him meals and the clothes. He is to be paid for the Holiday. I have employed him because after the accident I am not able to do any work. At present I earn Rs.50,000/-from the agricultural work. Now I have engaged one Sathi named Purshottam. I pay him at the rate of Rs.5,000/- per year. I have to provide him meals and the clothes. He is to be paid for the Holiday. I have employed him because after the accident I am not able to do any work. At present I earn Rs.50,000/-from the agricultural work. The above said income is my gross income out of which the expenses would be Rs.20,000/- leaving behind the net income of Rs.30,000/- per year..." 4.3 The fact remains that the Tribunal has not taken into consideration the aspect of providing meals and clothes. The Tribunal has assessed the loss arising on account of disability to work personally @ Rs.5,000/- because the Tribunal has taken into consideration that the claimant will be obliged to pay Rs.3,600/- per year to Sathi and there will be loss at least to the extent of Rs.1,400/- due to not working personally. Adding these two together, the Tribunal has taken the figure of Rs.5,000/- as loss of income per year. 5.0 In the opinion of this Court, the said calculation is not accurate and desired one. But in absence of any claim from the side of the claimants, this Court does not go deeper into the matter. But at the same time, the award, by no standard, can be said to be on higher side and therefore, this First Appeal fails and the same is dismissed.