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2010 DIGILAW 1233 (RAJ)

G. S. R. T. C. v. Raojibhai Maganbhai Patel

2010-07-15

RAVI R.TRIPATHI

body2010
Hon'ble TRIPATHI, J.—Gujarat State Road Transport Corporation is the appellant in both these appeals being aggrieved by judgment and award dated 2nd February 1984 passed by the Motor Accident Claims Tribunal (Main) Kheda at Nadiad ('the Tribunal' for brevity) in Motor Accident Claim Petitions No.259 of 1982 and 375 of 1982. MACP No.259 of 1982 was filed by Raojibhai Maganbhai Patel, whereas MACP No.375 of 1982 was filed by Pamandas Mehumal Khimyani and Ashaben Pamandas Khimyani. The Tribunal was pleased to award an amount of Rs.70,000/- holding the opponents No.1 and 2 jointly and severally liable, directing them to pay the said amount with proportionate cost and interest at the rate of 6% per annum from the date of application till realization. The Tribunal was pleased to dismiss the claim against opponents No.3 to 5. The Tribunal was also pleased to order that, "Out of the awarded amount of Rs.70,000/- after deducting the amount of deficit court fees, if any, and the costs on the disallowed claim, the remaining amount be apportioned between the two applicants in equal proportion. The amount awarded to applicant No.2 shall be invested in fixed deposit in any nationalized bank in her name for a period of 63 months. She shall be entitled to receive periodical interest on the said fixed deposit. She shall not be entitled to withdraw this amount during the aforesaid period or to take any loan on the said amount and also not to create any encumbrances on the said amount." Similarly, for applicant No.1 the Tribunal was pleased to order that, "The amount awarded to applicant No.1 shall be paid in cash. Applicant No.1 is a businessman doing contract business and therefore, the amount paid in cash to applicant No.1 is not likely to be frittered away. Instead of depositing the amount inf F.D.R. If the amount is paid inc ash to applicant No.1 he will be able to utilise this amount for his business purpose." 2. So far as MACP No.375 of 1982 is concerned, the Tribunal was pleased to award an amount of Rs.68,000/- holding the opponents jointly and severally liable to pay the same, with proportionate cost and interest at the rate of 6% per annum from the date of application till realisation. The Tribunal was pleased to order that the opponents shall bear their own cost and directed them to pay that of the opponents. The Tribunal was pleased to order that the opponents shall bear their own cost and directed them to pay that of the opponents. The Tribunal was pleased to order that deficit of court fee, if any shall be recovered from the amount awarded to the applicants. The Tribunal ordered that out of the awarded amount of Rs.68,000/- after deducting the amount of deficit court fees, if any, and the costs on the disallowed claim, the remaining amount be apportioned between the two applicants in equal proportion. It was ordered that the amount awarded to applicant No.2 shall be invested in fixed deposit in any nationalized bank in her name for a period of 63 months. Application No.2 shall be entitled to receive periodical interest on the said fixed deposit. She shall not be entitled to withdraw this amount during the aforesaid period or to take any loan on the said amount and also not to create any encumbrances on the said amount. Like other petition the Tribunal allowed the amount awarded to applicant No.1 to be withdrawn for the same reason. 3. The facts giving rise to the aforesaid two petitions are set out in para 3 of the judgment and award which read as under: "Applicant's case is that on 3.3.82 both the deceased, namely, Maheshkumar and Papu alias Sureshbhai had gone to Anand and Nadiad. They were coming towards Baroda on scooter No.GAF 345 driven by deceased, Papu Alias Sureshbhai and deceased Maheshbhai was pillion rider. The scooter was driven by Papu at a moderate speed and on the correct side of the road. When the scooter reached near village Vasad, ST bus bearing No.GRT 8312 driven by opponent No.1 came from the opposite direction in great speed went on the wrong side of the road and dashed with the scooter with the result the scooter was damaged and both the deceased, Papu Alias Sureshbhai and Maheshbhai were seriously injured and consequently died. The accident took place because of negligent driving of opponent No.1 who was driving the said ST Bus during the course of employment of opponent No. 2." 4. The Tribunal considering the rival contentions raised before it formed issues which are recorded in para 18. The accident took place because of negligent driving of opponent No.1 who was driving the said ST Bus during the course of employment of opponent No. 2." 4. The Tribunal considering the rival contentions raised before it formed issues which are recorded in para 18. The Tribunal held that the accident took place due to negligence of the driver of ST bus No.GRT 8312 by answering question No.1 in affirmative against the driver of ST bus. The Tribunal awarded the amount of Rs.70,000/- as aforesaid in MACP No.259 of 1982 and Rs.68,000/- in MACP No.375 of 1982. For recording findings and to answer issue No.1 the Tribunal considered the scene of occurrence in para 24. For ready perusal para 24 is reproduced hereinbelow: "Now the panchnama of the place of accident states that the tar road at the place of accident is 22 feet in width with katcha shoulder of 4 feet on both the sides. Now the accident took place at a distance of 10 feet towards east from the eastern border of the tar road. I may state here that on the National Highway No.8 the road divided in two parts by dotted line and the drivers of the vehicles are supposed to drive their vehicles within the limit demarcated by dotted line. Now as stated in the panchnama of the place of accident the accident took place at a distance of 10 feet towards the west from the eastern border of the tar road. From this, it is clear that deceased Sureshbhai alias Papu was driving the scooter on the correct side of the road and within the limit demarcated by the dotted line. From this it is clear that the ST bus driven by opponent No.1 has crossed the dotted line and went slightly on the wrong side of the road and dashed with the scooter. It further appears from the panchnama of the place of accident that the ST bus was driven in excessive speed. The scooter was dragged upto a distance of 80 feet. This would clearly go to show that the ST bus was driven by the opponent No.1 in excessive speed." 5. The Tribunal has also considered the topography of the place of occurrence in para 25, wherein the Tribunal has recorded that, "The scooter coming from the opposite direction was clearly visible to the opponent drive. This would clearly go to show that the ST bus was driven by the opponent No.1 in excessive speed." 5. The Tribunal has also considered the topography of the place of occurrence in para 25, wherein the Tribunal has recorded that, "The scooter coming from the opposite direction was clearly visible to the opponent drive. There was sufficient road open on its own side for the ST bus to pass through. The opponent driver has not stepped in the witness box to explain the circumstances under which he was obliged to take the vehicle on the wrong side of the road. From this it appears that the opponent-driver was not keeping proper look out which ultimately resulted in this accident. Opponent No.1 is therefore, held guilty of negligence and there was no negligence on the part of the deceased Papu alias Sureshbhai the driver of the scooter. Issue No.1 is, therefore, decided accordingly." The learned advocate for the appellant-corporation vehemently submitted that the panchnama clearly mentions that width of the 'tar' road was 22 feet and the ST bus was found to be at a distance of 10 ft from the eastern edge and therefore, it cannot be said to be on a wrong side, except for a technical purpose. The learned advocate for the appellant-corporation submitted that otherwise also the dotted line being in the centre of the road is supposed to be of 11 ft and that being so if the bus is found to be at a 10 ft distance from the eastern edge it cannot be said to be on a wrong side and that it should be held responsible to the extent of 100%. This submission cannot be accepted for the reason that the Tribunal has recorded in no uncertain terms that the scooter was visible to the ST Bus Driver. ST Bus Driver being in control of the heavier, bigger vehicle was required to exercise more care for other vehicles, more particularly towards the vehicles like scooter. Besides, what is serious and decisive factor for holding the ST Bus Driver 100% negligent is the fact which is recorded in the panchnama that the scooter was dragged upto a distance of 80 ft. This shows that at what speed the bus must have been driven by opponent No.1-ST Bus Driver. Otherwise, the bus could have been stopped immediately on having dashed the scooter. This shows that at what speed the bus must have been driven by opponent No.1-ST Bus Driver. Otherwise, the bus could have been stopped immediately on having dashed the scooter. The fact that after it dashed the scooter, it dragged along with it to a distance of 80 ft speaks for itself that at what speed the ST Bus was driven by opponent No.1. For this short reason, the submission advanced by the learned advocate for the appellant-Corporation does not find favour with the Court and the same is rejected. 6. No other contention was pressed in the appeals. In light of the aforesaid discussion, the appeals fail and the same are dismissed. 7. The Cross Objection filed in First Appeal No.1824 of 1984 were examined. The same too are found without any substance and hence dismissed.