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2016 DIGILAW 955 (GUJ)

Nathiben K. Chaudhari v. Kunvarji F. Thakore

2016-05-03

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. This appeal has been preferred by the original claimants against the judgment and award dated 10.9.1991 passed by the Motor Accident Claims Tribunal (Aux.), Mehsana, in Motor Accident Claim Petition No. 554 of 1983. 2. The original claimants by way of preferring the present appeal inter-alia, contended that the learned Tribunal has erred in not considering the legal principles for computing the amount of compensation. It is further contended that the learned Tribunal has erred in dismissing the matter on the ground that an intelligent Investigating Officer would naturally prepare a panchnama of the S.T. Bus to find out whether any marks of dashing appeared on its body or not. It is further contended that the learned Tribunal has not properly appreciated the evidence on record. It is further contended that the learned Tribunal has failed to appreciate the chargesheet as well as that after the conclusion of trial even the driver of ST Bus was acquitted by the Court, which itself does not determine non-involvement of ST Bus as such. It is further contended that the entire judgment delivered by the learned Tribunal is based upon the assumption and surmises instead of evidence on record and the learned Tribunal has wrongfully dismissed the claim petition as such. Lastly, he has prayed to allow the appeal and award the compensation to the claimants as such. 3. The brief facts of the case are that on 9.6.1983, deceased-Bhikhabhai Khodabhai went to Mehsana for purchasing seeds. After purchasing seeds, he embarked upon a tractor and trolly bearing registration No. GJV-7985 and GTF-9770 respectively being driven by opponent No. 3. On the way, an S.T. Bus driven by the opponent No. 1 came on the road in negligent manner and knocked down that tractor. As a result, the tractor turned turtle in a ditch and Bhikhabhai Khodabhai fell down. He was seriously injured and died subsequently. 4. Heard Mr. Ankit Shah, learned advocate appearing for the appellants-original claimants and Ms. Khushbu Dhanecha, learned advocate appearing for Mrs. Vasavdatta Bhatt, learned advocate for respondent No. 2 and Ms. Sonal D. Vyas, learned advocate appearing for respondent No. 7. 5. Mr. He was seriously injured and died subsequently. 4. Heard Mr. Ankit Shah, learned advocate appearing for the appellants-original claimants and Ms. Khushbu Dhanecha, learned advocate appearing for Mrs. Vasavdatta Bhatt, learned advocate for respondent No. 2 and Ms. Sonal D. Vyas, learned advocate appearing for respondent No. 7. 5. Mr. Ankit Shah, learned advocate for the claimants has reiterated the ground urged in the memo of appeal and has taken this Court through the record and proceedings of the case and he has argued that this is a clear case of composite negligence as deceased-Bhikhabhai was not driver of the vehicle in question. He has further argued that the claimants has choice to proceed against anyone of the joint tort-feasors and therefore the said well known principle has not been taken into consideration by the learned Tribunal and instead proceeded as if the claimants failed to prove negligence on the part of the driver of S.T. Bus. He has further submitted that the judgment rendered by the learned Tribunal is against the settled principle of law. He has further urged that as the learned Tribunal has dismissed the aforesaid claim petition and the accident occurred in the year 1983 for about 33 years back and in consequence whereof the learned Tribunal has not considered the case and not computed the amount of compensation. He has, therefore, earnestly requested this Court to assess the amount of compensation and not to remand the matter for that purpose only so that the matter can be put to an end by this Court. 6. Ms. Khushbu Dhaneja, learned advocate appearing for respondent No. 2 has supported the judgment and award passed by the learned Tribunal and she has argued that the driver of S.T. Bus has been acquitted after conclusion of trial and even involvement of S.T. Bus is not proved by adducing evidence in the nature of panchnama that the aforesaid S.T. Bus is not involved in the accident. She has submitted that the judgment rendered by the learned Tribunal requires no interference by this Court. 7. Ms. Sonal Vyas, learned advocate appearing for respondent No. 7-United India Insurance Company has argued that as the vehicle in question is the tractor and the deceased was traveling in the trolly attached to the tractor and she has urged to exonerate the Insurance Company from payment of any liability, as such. 8. 7. Ms. Sonal Vyas, learned advocate appearing for respondent No. 7-United India Insurance Company has argued that as the vehicle in question is the tractor and the deceased was traveling in the trolly attached to the tractor and she has urged to exonerate the Insurance Company from payment of any liability, as such. 8. On the point of negligence as narrated above, the heirs and legal representatives of deceased-Bhikhabhai had preferred the aforesaid claim petition under the provisions of Section 110(1) of the Motor Vehicles Act, 1939 wherein the claimants have impleaded the driver, owner and Insurance Company of the aforesaid tractor and trolly involved in the accident as well as the driver of Gujarat State Road Transport Corporation as the opponents and more particularly, in para 10 of the petition, the claimants have clearly and categorically alleged the negligence on the part of the driver of tractor as well as driver of aforesaid offending S.T. Bus. 9. In order to prove involvement of the aforesaid vehicle, the claimants have examined Nathiben Khodabhai Chaudhari as PW-1 wherein she has deposed that her son-Bhikhabhai was travelling upon the aforesaid tractor and while the tractor was passing within the vicinity of Biloldara, at that time, the driver of offending S.T. Bus came from behind and dashed with the rear wheel of the tractor and in the result, tractor was thrown away in the ditch side by the road due to which deceased came under the tractor and sustained injuries and ultimately he succumbed to his injuries. However, she has not been examined by the learned advocate for the S.T. Bus. Dalsinh Waljibhai Chaudhari-Witness No. 2 who was also traveling with the deceased upon the trolly which was attached behind the aforesaid tractor has been examined. He deposed that while the aforesaid tractor was proceeding in moderate speed on it extreme left side, at that time, the driver of offending bus came from behind and dashed with the rear big wheel of tractor and due to which, the tractor was thrown away in the ditch side by the road. The eyewitness has also been cross-examined by the learned advocate for the S.T. Corporation. In the cross-examination, it was established that the mark of collision was printed over the rear big wheel of the tractor and the S.T. Bus dashed on the right side big wheel of the tractor. The eyewitness has also been cross-examined by the learned advocate for the S.T. Corporation. In the cross-examination, it was established that the mark of collision was printed over the rear big wheel of the tractor and the S.T. Bus dashed on the right side big wheel of the tractor. The claimants have also produced the charge-sheet at Exh:62 filed by the Police after the investigation which clearly indicates that opponent No. 1-driver of offending S.T. Bus No. GRR-8379 was charge-sheeted for the offences under Sections 279 and 304(A) of the Indian Penal Code as well as under Sections 112 and 116 of the Motor Vehicles Act. The opponent No. 1 has also been examined and he has deposed that he is serving as a driver for about 17 years in the S.T. Corporation. On the day of accident, he was traveling from Kukarwada to Mansa and that tractor was proceeding ahead of his Bus. The driver of the tractor had given side by waiving his hand and at that time there was no collision. However, the police on the following day lodged complaint against the driver of S.T. Bus and he was prosecuted and thereafter he was acquitted from the aforesaid offences. 10. Precisely, the aforesaid evidence was available with the learned Tribunal. On overall appreciation of the evidence on record, indisputably, it is established that the deceased was travelling upon the aforesaid tractor and while the tractor was proceeding on the road at that time, the driver of S.T. Bus dashed the bus on the right side big rear wheel of the tractor. As a result thereof, tractor was thrown away in the ditch side by road and due to which the deceased sustained severe injuries. 11. In view of the aforesaid nature of evidence, the involvement of both the vehicles are established and even the driver of S.T. Bus was charge-sheeted and acquitted later on. The same is not indicative of non-involvement of S.T. Bus in the accident in question. Consequently therefore, the case falls on the principle of composite negligence and heirs and legal representatives of the deceased are entitle to claim against anyone of the joint tort-feasors which is involved in the accident. However, they have chosen to proceed against the driver and owner of both the vehicles involved in the accident. Consequently therefore, the case falls on the principle of composite negligence and heirs and legal representatives of the deceased are entitle to claim against anyone of the joint tort-feasors which is involved in the accident. However, they have chosen to proceed against the driver and owner of both the vehicles involved in the accident. The involvement of both the vehicles are undoubtedly established by oral as well as documentary evidence in the nature of charge-sheet also. In this view of the matter, this Court is not required to apportion the contributory negligence on the part of the driver of both the vehicles. As the claimants have right to proceed against anyone to them, this Court is of the opinion that all the respondents are jointly and severally liable to compensate the claimants as such. 12. On the point of quantum, the claimants have pleaded that the deceased was unmarried and aged about 27 years and the claimants are mother and brother of the deceased. Taking into consideration the year of accident, i.e. 1983, 33 years have passed by and considering the fact that the deceased was unmarried, it would be just and proper to award a lump sum compensation instead of calculating the compensation under various heads. Looking to the facts and circumstances of the case, it appears that it would be just and proper to award lump sum amount of Rs. 30,000/- inclusive of all heads available in such cases as the matter is very old and about 33 years have been passed by and therefore, let there may be an end to the case. 13. On the point of liability, Ms. Sonal Vyas, learned advocate has argued that the aforesaid tractor and trolly was used for the purpose of agricultural operation and deceased was travelling as an unauthorized passenger. Therefore, the risk is not covered in terms of policy of Insurance Company. In order to examine her contention, this Court has gone through the written statement more particularly para 4 which read as under: "The contents of para 1 to 9 are not true and not admitted by us. We do not admit the relationship of the applicants with the deceased. We do not admit the age and income of the deceased. The applicants have exaggerated the income of the deceased to get more compensation. We do not admit that Bhikhabhai Khodabhai Chaudhari died on account of accident. We do not admit the relationship of the applicants with the deceased. We do not admit the age and income of the deceased. The applicants have exaggerated the income of the deceased to get more compensation. We do not admit that Bhikhabhai Khodabhai Chaudhari died on account of accident. We do not admit that the accident occurred on Kukarwada-Mansa Road on 9.6.1983. We do not admit that vehicle No. GJV-7985 and GTF-9780 are involved in the accident. We do not admit that opponent No. 3 was driving the vehicle with a valid licence to driver the same on the date of accident. We do not admit that opponent No. 4 is the owner of the vehicles involved in the accident. Wse do not admit that vehicle No. GJV-7985 and GTF-9780 are insured with opponent No. 5. We are trying to trace the policy particulars and till they are traced we deny our liability. Even if the policy particulars are traced and proved then in that case the liability of opponent No. 5 will be as per policy conditions. The third party risk covered by the opponent No. 5 for tractor-trolly is for Rs. 50,000/-. The deceased was a passenger in the vehicles described by the applicants. The deceased was traveling in the vehicle illegally. The deceased had no right to travel in the vehicles described by the applicants. The opponent Nos. 3 and 4 have no right to carry passengers for hire or reward. The opponent No. 5 has not covered the risk for passengers travelling in the vehicle owned by the opponent No. 4. The opponent Nos. 4 and 5 have committed breach of policy conditions and permit conditions issued by R.T.O. Office and hence the opponent opponent No. 5 is not liable to indemnify the opponent No. 4 even if the policy is proved. As per policy conditions the vehicle cannot be used for conveyance for passengers for hire or reward. The opponent Nos. 4 and 5 have committed breach of policy conditions and permit conditions issued by R.T.O. Office and hence the opponent opponent No. 5 is not liable to indemnify the opponent No. 4 even if the policy is proved. As per policy conditions the vehicle cannot be used for conveyance for passengers for hire or reward. That on date of contract of insurance the insured vehicles were expressly or implicately not covered by permit to carry any passenger for hire or reward, that there was a specified condition in the policy which exclude the use of insured vehicle for the carriage of any passenger for hire or reward and that the vehicle was in fact used in which such specified conditions on the occasion of the carriage of the passenger therein for reward." 14. On going through the entire record and proceedings and in light of the averments made in the written statement, no such policy ever appears to have been produced before the learned Tribunal. In absence of any policy particular, there is no question of considering any breach of terms and conditions of the policy. However, this Court deems it proper that the insurance company has clearly and categorically made assertion that the company has restricted its liability to the extent of Rs. 50,000/- for making compensation in such event, so the liability of insurance company shall be limited to the extent of Rs. 50,000/- only. 15. For the reasons recorded above, the appeal succeeds. The judgment and award passed by the learned Tribunal is reversed and set aside. The opponents shall pay Rs. 30,000/- with the running interest at the rate of 9% thereon from the date of claim petition till realization to the claimants. However, the Insurance company-respondent No. 5 shall pay Rs. 50,000/- towards compensation and interest thereon and rest of the amount of compensation shall be paid by the respondent No. 2. Opponents are directed to pay the amount of compensation with interest to the learned Tribunal within a period of two months from today and on such deposit, the same shall be paid to the original claimants by account payee cheque on proper identification and verification. Present appeal is allowed to the aforesaid extent. No order as to costs. The Registry is directed to return the R. & P., if any, forthwith to the learned Tribunal.